This case involves an appeal from a decree of divorce awarded the plaintiff wife on the grounds of desertion. The decree awarded the plaintiff a divorce, ordered the defendant to pay plaintiff her attorney fees in the sum of $1,000 and, in addition, vested in her a homestead estate in the domicile which was owned by the defendant. The decree further ordered defendant to pay all taxes assessed against the homestead and to make all necessary and reasonable repairs thereto. Further, it provided that the defendant was to pay plaintiff the sum of $200 a month as alimony and the same was made a lien upon the real estate.
The defendant argued in the trial court and strongly urges in this court that the dеcree is contrary to the manifest weight of the evidence. In particular, he contends that the evidence falls far short of establishing desertion under our law.
The parties here were married in 1917. At the time of the hearing the husband was almost 64 years of age and the wife was 67. They had lived together in the same house in Iola for better than 30 years, and had raised two children. During the course of their marriage, both had accumulated property, by savings, hard work and inheritance, so that at the time of thе hearing the husband held farm land valued between $70,000 and $131,000, while the. wife had hank accounts totalling approximately $5,000. There is no evidence that the husband worked, but the wife was head cook at the grade school cafeteria where she earned $115 a month, and, in addition, was the recipient of a monthly social security check in the sum of $40.40.
Prior to December of 1958 the parties lived in the same house, an old dilapidated structure, which was without a furnace or running water, and had rotting floors and sills. For 15 to 20 years prior to this time, these people, though living in the same house, had no sexual relations, slept in separate bedrooms, ate their meals separately (he doing his own cooking) and they scarcely, if ever, talked or communiсated in any way with the other. Up and until the. past 12 years plaintiff wrote checks upon the husband’s bank account and had all her material needs furnished to her. However, for the past 6 years, at least, the husband made no provision for the wife, except to pay the fuel and electric bills in the home which was owned by him. She has been working at the school cafeteria to support herself otherwise.
On December 4 or 5, 1958 the husband went to Florida. He testified that this was the second time he had dоne this and that he went both times pursuant to his doctor’s orders. As on the previous occasion, he neither took nor offered to take his wife with him nor did he write to her from Florida. She learned where he was only by talking with her neighbors and her grandson. He spent the winter in Florida and returned to the home in Iola in March, 1959. All of the time he was in Florida he paid the fuel and electric bills at the home, and continued to do so even after this suit was filed. When the defendant returned in March, he lived in the home with plaintiff, exaсtly as he had previously, for about one week, and then moved into a trailer out on one of his farms. He had purchased the trailer in Florida. From that time on, defendant has lived alone in the trailer, only returning to the home to get tools and personal belongings.
On December 23, 1959 the plaintiff filed this suit for divorce, alleging as her grounds the desertion of the defendant, commencing upon December 5, 1958.
With regard to the alleged separation on or about December 5, 1958, there is very little evidence in the record. However, the following testimony of the plaintiff is most significant: When she learned that he had gone to Florida, she testified that “I didn’t do anything about it. . . . It didn’t occur to me that it was unusual that he did go to Florida. ... I wasn’t surprised. . . .” Then, the following questions and answers аppear:
“Q. Was it against your will that he went this time?
“A. I didn’t care.
“Q. You didn’t care, did you? It didn’t make any difference to you, did it?
“A. Yes.
“Q. Well, did you care or didn’t you care?
“A. I cared.
“Q. You did care. How much did you care?
“A. I thought I was entitled to some of the money he was spending. That was not the only reason. I hated to have a broken home. The home was broken when he left me in December of 1958, the 2nd.
It was broken for a long time before, that.
“Q. So nothing actually happened in December of 1958 except that he went to Florida. Is that true ?
“A. (No answer.)”
Insofar as the husband is concerned, he testified that he moved into the trailer upon his return from Florida because “I just felt safer in it out there and my bedroom didn’t have any heat in it. I was afflicted with arthritis and I couldn’t stand cold and also, I just didn’t want to live with my wife at that time.”
The only question in the case is whether or not the facts set forth above constitute desertion, under our statute, on the part of the husband, sufficient to authorize the decree of divorce entered.
Our statute provides that a divorce based upon desertion may be granted where either party “has wilfully deserted or absented himself or herself from the husband or wife, without any reasonable cause, for the space of one year.” (Ill Rev Stats 1961, c 40, § 1.) The last pronouncement of the Supreme Court upon the scope of this statute is found in Lemon v. Lemon, 14 Ill2d 15,
Elsewhere it has been stated that, to be guilty of desertion, a spouse must intentionally bring the cohabitation to an end by his (her) misconduct, against the will of the other and without encouragement, invitation or the consent оf the other. (See 27A CJS divorce, sec 36(3).)
Our courts have repeatedly held that the marital relationship is more than a sexual arrangement and that cohabitation involves more than sexual intercourse. It has been said that cohabitation means the living together as husband and wife (Teal v. Teal, 324 Ill 207, 220,
The marital obligation is the obligation to live, conjugally, with the other, to love and support, protect and defend the other. It is a composite of many responsibilities and duties; and it is only the failure, wilfully, and over the objection of the other, to perform all of these responsibilities and duties which will condone a decree for divorce. A partial failure, or a consented-to failure will not suffice. Nor may there be a mutual revocation or agreement to dissolve. The spouse alleging desertion must affirmatively provе, by a greater preponderance of the evidence, that the offending spouse has abnegated all of the marital obligations, wilfully and without the consent of the other. Absent such proof, a divorce may not be granted.
"What was the act of desertion of which the plaintiff complains in this case? What happened in December, 1958? Did the defendant at that time wilfully renounce every marital duty he had and forever sever his relationship with the plaintiff? Or, did he just go to Florida? Has he abnegatеd all of his marital obligations when he continues to provide a home with heat and light for the plaintiff? But if this act of December, 1958 was the final and consummative act which broke the last thread of obligation between husband and wife, who was responsible fоr the nullification of the many other marital obligations imposed upon both of these people? Who brought the sexual cohabitation to an end? Who was responsible for their not eating together, or sleeping together, or talking with eaсh other? Was this termination of companionship all the husband’s fault? Nowhere does the record reveal the answers to these questions, or even hint at them. Nowhere does the record establish the fault more one way than the other. “Where the plaintiff in a divorce proceeding has either expressly or impliedly consented to the original separation and its continuance, and has not revoked such consent, she is not entitled to a divorce for desertion.” McCartney v. McCаrtney, 343 Ill App 533, 538,
This has been tbe law enunciated through many of our cases. In Chatterton v. Chatterton, 231 Ill 449,
In Lemon v. Lemon, supra, the Supreme Court, in reversing a decree of divorce entеred in favor of tbe defendant husband, pointed out tbat tbe husband wasn’t entitled to a divorce because tbe records showed tbat during tbe period of time for which desertion was claimed tbe parties shared tbe same automobile, tbe defendаnt took tbe children to school, defendant completely supported bis wife and children and be bad free access to tbe home; tbat be was at tbe house at least once a day; tbat be and bis wife went out socially and tbat the final sеparation occurred upon tbe most amiable of terms. Tbe. court concluded tbat it was clear tbe defendant bad no objection to the marital circumstances hut by his acts he had acquiesced in their continuance.
In McCartney v. McCartney, supra, the father went to Wisconsin to make a home for the son who was attending the university. The wife contended that his leaving was desertion. The court points out that where the plaintiff expressly and impliedly consents to the original sepаration and its continuance and has not revoked such consent, she is not entitled to a divorce for desertion.
In Lindeman v. Lindeman, 337 Ill App 261,
In Maxwell v. Maxwell, 333 Ill App 625,
In view of the above, we hold that the plaintiff wife here has failed to meet the burden of proof which our law casts upon her. It is clear to us that the manifest weight of the evidence does not support the finding that the defendant wilfully deserted the plaintiff. Accordingly, the decree must he reversed.
Reversed.