Family Law Attorney in California

In re the Marriage of NORMA and PAUL ATTLEY McKIM. NORMA McKIM, Appellant, v. PAUL ATTLEY McKIM, Respondent
Supreme Court of California

Petitioner wife contended that the trial court was required to dissolve the marriage because uncontradicted testimony of the respondent husband established irreconcilable differences. The trial court denied dissolution based on a determination that the wife was required to appear personally at the hearing of the proceeding for dissolution of marriage and that the grounds of dissolution could not be proved by the testimony of her husband whose default had been entered. The court held that a trial court must require the petitioner to appear personally and testify at the hearing unless, in exceptional circumstances where an explanation of petitioner’s absence is shown to the satisfaction of the court, the court in its sound discretion permits the requisite proof to be made by affidavit as recognized by Cal. Civ. Code § 4511.  Wife appealed.

ISSUES:

Whether the Family Law Act and the Family Law Rules of the Judicial Council required the personal presence of both parties before the marriage could be dissolved.

DISCUSSION:

On this appeal the wife contends that the trial court was required to dissolve the marriage because uncontradicted testimony of the husband established irreconcilable differences. The husband in propria persona has acknowledged receipt of a copy of his wife’s opening brief and has stated that he does not wish to reply. Neither the Family Law Act nor the Family Law Rules adopted by the Judicial Council pursuant to the act expressly require the personal appearance and testimony of the petitioner or expressly forbid proof of irreconcilable differences by testimony of a respondent. Therefore, the court looks to the overall purposes of the act in order to determine whether the requirements imposed by the trial court were proper.  The petition for dissolution is not adversary in form but is entitled, “In re the marriage of . . . and. . . .” (Civ. Code, § 4503.) “Irreconcilable differences” shall be pleaded generally. ( Civ. Code, § 4506.) HN9 “In any pleadings or proceedings for legal separation or dissolution of marriage under this part, including depositions and discovery proceedings, evidence of specific acts of misconduct shall be improper and inadmissible, except where child custody is in issue and such evidence is relevant to that issue, or at the hearing where it is determined by the court to be necessary to establish the existence of irreconcilable differences.” ( Civ. Code, § 4509.)  Under the Family Law Act the court, not the parties, must decide whether the evidence adduced supports findings that irreconcilable differences do exist and that the marriage has broken down irremediably and should be dissolved.  When the petitioner does not appear and testify personally at the hearing on the petition for dissolution, and particularly when as in this case there is no attempt to explain the petitioner’s absence and no affidavit has been filed, the trial court in its sound discretion may well remain unconvinced by the evidence that the parties’ differences are truly irreconcilable and have led to the irremediable breakdown of their marriage.  The Court noted that the procedure on default in dissolution cases is now governed in the following terms by rule 1237, California Rules of Court: “. . . the clerk shall enter the respondent’s default upon proper application of the petitioner and thereafter the petitioner may apply to the court for the relief sought in the petition. The court shall require proof to be made of the facts stated in the petition and may enter its judgment accordingly.”  The Court held that a trial court must require the petitioner to appear personally and testify at the hearing unless, in exceptional circumstances where an explanation of petitioner’s absence is shown to the satisfaction of the court, the court in its sound discretion permits the requisite proof to be made by affidavit as recognized by section 4511. CA(12) (12) The Court further held that in exceptional cases where the court deems it warranted, it may receive in lieu of petitioner’s testimony or affidavit the testimony of other competent witnesses including the respondent. Such testimony, of course, must be sufficient to enable the court to make the required findings as hereinabove set forth.  This is a case of first impression. Unnecessary hardship would result from denying relief to the wife because she sought to establish grounds for dissolution solely by the testimony of her husband and was unaware that the trial court in its discretion could require that she testify in person or, if exceptional circumstances were shown, by affidavit.

JUDGMENT:

The judgment was reversed and the cause was remanded for further proceedings consistent with this opinion.

Disclaimer:

These summaries are provided by the SRIS Law Group.  They represent the firm’s unofficial views of the Justices’ opinions.  The original opinions should be consulted for their authoritative content

Originally published here.

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Originally published here.