
    Common Pleas Court of Butler County.
    Leonard L. Apple v. Sabina Apple.
    Decided August 18, 1931.
    
      Britton & Britton, for the plaintiff.
    
      Edward H. Dell, for defendant.
   (Bell, J.,

of Hamilton County, sitting by designation.)

This is an action for divorce. The plaintiff after setting forth the necessary allegations with reference to residence and the issue of the marriage, alleges that the defendant has been guilty of gross neglect of duty, in that she has failed and refused to reside in a home provided and maintained by the plaintiff, and she has failed to properly provide for said home although plaintiff has furnished her sufficient funds to do so.

Plaintiff further alleges that on the fifteenth day of August, 1929, the defendant left and abandoned him and has refused to return, and sets forth ownership of certain property described in the petition and prays he be granted a divorce and be decreed tbe full and complete ownership of said furniture and that the defendant be forever barred of her incohate right of dower in said real estate described in the petition.

The defendant has filed an answer in which she denies each and every allegation of the petition except those allegations as to residence, date of marriage and the issue of marriage. The prayer of her petition is that the petition of the plaintiff be dismissed, and she be given such other relief as she may be entitled to.

The evidence discloses that prior to the marriage of the parties, the defendant became a mother, it being set forth in the pleadings, that such child is the issue of the marriage.

It is further disclosed that the plaintiff is a member of a Protestant Church and the defendant is a member of the Catholic Church. Before the birth of the child marriage was discussed by the parties, and the defendant admits, that she, upon the request of the plaintiff, agreed if the plaintiff would marry her, she would renounce her religion. After the marriage and after the parties had gone to live together, the defendant attended services in the Catholic Church, and that upon her retufn therefrom, the plaintiff told her, “she would have to give up the church, or get out of his house”. She left the house and went to the home of her mother and has never returned.

This is substantially the evidence with the exception that both parties testified .that they would never live together again.

The difficulty between the parties arises purely from a difference in religious beliefs. The mere fact both of these parties would never live together again is no ground for divorce under our Statute, and does not entitle either party to any relief at the hands of the Court, therefore, the controversy resolves itself into the question of, whether or not a prenuptial promise to renounce one’s religion, if broken by the promisor, amounts to gross neglect of duty, as that term is used in our Statute.

The Supreme Court has never defined the term “gross neglect of duty”. In construing this phrase, it must be kept in mind the Statutes of Ohio fix the duties of both husband and wife, and for a breach of these statutory duties, the Court may grant a divorce for gross neglect of duty, and it is obviously true, that Courts have granted divorces for a breach of other marital duties not specifically enumerated in the Statute.

It is exceedingly difficult to lay down a hard and fast rule defining the phrase “gross neglect of duty”, but whatever uncertainty may attend an attempt to define this phrase, or any confusion which may arise from an attempt to reconcile the decisions, it is quite certain that it is not “gross neglect of duty” for a wife to leave the domicile and absent herself from her husband; such conduct being wilful absence and not gross neglect of duty.

The Constitution of this State guarantees to every person the right to worship Almighty God as he or she sees fit. While any citizen has a right to change his religious belief or agree to change it, the failure to fulfil a prenuptial promise to renounce one’s religion is not, and should not, be a ground for divorce.

There are sojme decisions in this state and numerous decisions outside of this state passing upon this question, and they uniformly hold that the failure to fulfil a prenuptial promise to renounce one’s religion does not give rise to an action for divorce, some Courts going so far as to hold that such contracts are contrary to public policy, and that no relief will be granted for a breach thereof.

The circumstances of this casé do not warrant the granting of the relief sought and the petition is dismissed.

The defendant is entitled to receive from the plaintiff the reasonable expenses of this litigation, which the Court finds to- be the sum of one hundred ($100.00) dollars. Any amount having been paid by the plaintiff on account of such expenses should be subtracted therefrom. A judgment for the balance may be entered in favor of defendant.

Since the submission of this case the defendant has filed an application for expense. The Court finds no authority in law for the filing of a motion after the final submission of the case, and this motion is ordered stricken from the files.

A Decree imay be drawn accordingly.  