Brief Fact Summary. Petitioner moved for divorce based on irreconcilable differences. The trial court did not permit the proceeding to go forward based solely on the husband’s testimony when the wife failed to appear.
Synopsis of Rule of Law. The court found that except in exceptional circumstances, the petitioner must appear and give testimony as to irreconcilable differences in most circumstance even though the procedure is “no fault.”
Issue. Under the Family Law Act, is the testimony of both parties necessary in order to prove to the court that irreconcilable differences exist?
Held. A trial court must require petitioner to appear personally and testify at the hearing unless, in exceptional circumstances where explanation of petitioner’s absence is shown to the satisfaction of the court, the court permits requisite proof to be made by affidavit. Furthermore, in exceptional circumstances where the court deems it warranted, it may receive the testimony of other competent witnesses including the respondent in lieu of petitioner’s testimony or affidavit, so long as the testimony is sufficient to make the required findings.
The overall purposes of the Act were to eliminate faults and wrongs as substantive grounds for dissolution and to induce a conciliatory and uncharged atmosphere which will facilitate resolution of other issues and perhaps effect reconciliation.
Under the Act the court, not the parties, must decide whether the evidence adduced supports findings that irreconcilable differences do exist. When the petitioner does not appear and testify, the trial court may well remain unconvinced. However, in the present case the trial court did not deny a dissolution because it was not persuaded the marriage was irreconcilable, but rather failed to reach the question because the petitioning wife did not appear and because it its opinion the testimony of the defaulting husband was not competent evidence as a matter of law.
Dissent. The fundamental error of the majority is looking backward to the old divorce practice. There is no reference to unusual circumstances or to compulsory attendance by the petitioning party.
Discussion. The majority based its decision on prior law disallowing a divorce to be granted upon default of the defendant. The dissent points out that the Family Law Act was enacted to ease divorce procedure and no language addresses the requirements of unusual circumstances for testimony by affidavit.