In Re Marriage of McKim

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.”

Facts.

The parties married in July of 1968 and separated in September of 1968. There were no children to the marriage. In October, the wife filed a verified complaint for divorce on the ground of extreme cruelty. In November, the parties stipulated that the wife may proceed to procure a default divorce. The stipulation provided for division of property, the wife waived alimony and the husband agreed to pay all community obligations. Husband’s default was entered in December. In January 1970, by operation of statute the divorce became a proceeding under the Family Law Act for dissolution of marriage on the ground of irreconcilable differences. In February, the proceeding came on for hearing. The wife did not appear, and her counsel did not explain her absence nor produce testimony on her behalf. The husband did not appear as a party, but attended the hearing under subpoena as a witness for the wife. The husband testified to the parties’ irreconcilable differences, but the tr
ial court indicated that the proceeding could not go forward on the basis of the husband’s testimony.

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.