Marriage of McKim, In re

• Decision Date: 23 February 1972
• Citation: 493 P.2d 868,6 Cal.3d 673,100 Cal.Rptr. 140
• Court: California Supreme Court
• Parties: , 493 P.2d 868 In re the Marriage of Norma and Paul Attley McKim. Norma McKIM, Appellant, v. Paul Attley McKIM, Respondent. L.A. 29907. In Bank

Page 140

100 Cal.Rptr. 140

6 Cal.3d 673, 493 P.2d 868

In re the Marriage of Norma and Paul Attley McKim Norma McKIM, Appellant, v. Paul Attley McKIM, Respondent.

L.A. 29907.

Supreme Court of California,

In Bank.

Feb. 23, 1972.

Saul & Wiener and Edwin S. Saul, Los Angeles, for appellant.

No appearance for respondent.

John D. Maharg, County Counsel and Douglas C. Miller, Deputy County Counsel, as amici curiae.

WRIGHT, Chief Justice.

Petitioner wife appeals from a judgment denying dissolution of a marriage. The appeal presents questions of first impression in this court as to procedure under the Family Law Act (Civ.Code, div. 4, pt. 5, § 4000 et seq., operative Jan. 1, 1970) ¹ and the Family Law Rules of the Judicial Council (Cal.Rules of Court, rule 1201 et seq., effective Jan. 1, 1970). At the hearing of the uncontested dissolution proceeding the wife was not personally present. The only evidence presented by her counsel was the testimony of her husband. The trial court refused to dissolve the marriage because it was of the opinion that this procedure was legally impermissible.

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. The Los Angeles County Counsel appears as amicus curiae in support of the trial court's judgment. For the reasons hereafter stated we reject the wife's contention but reverse for further proceedings.

The parties were married in July 1968 and separated in September 1968. There were no children of the marriage. On October 21, 1968, the wife filed her verified complaint for divorce on the ground of extreme cruelty. On November 11, 1968, the parties stipulated that the wife 'may proceed to procure a default divorce.' The stipulation provided for a division of property, the wife waived alimony, and the husband agreed to pay all community obligations. The husband's default was entered in December 1968. The matter then went off calendar.

On January 1, 1970, by operation of statute (Stats.1969, ch. 1608, p. 3351, § 37, as amended by Stats.1969, ch. 1609, p. 3360, § 29) and rule (Cal.Rules of Court, rule 1261) the pending action for divorce became a proceeding under the Family Law Act for dissolution of marriage on the ground of irreconcilable differences.

On February 17, 1970, the proceeding came on for hearing. The wife was not present, and her counsel did not explain her absence ² or mention producing her testimony by affidavit or other means. The husband did not appear as a party but attended the hearing under subpoena as a witness for the wife. Under examination by the wife's counsel the husband testified as to the parties' irreconcilable differences. The whole of his testimony in this regard is quoted in the margin. ³ The trial court indicated that in its opinion the proceeding could not go forward on the basis of the husband's testimony because he had not filed a pleading. The court stated that it proposed to take the matter under submission. It permitted the wife's counsel to complete his presentation. He introduced the husband's testimony that the parties had entered into the stipulation of November 11, 1968, and that its provisions as to property had been performed. The stipulation was filed in the proceeding.

The trial court's minute order of February 17, 1970, states that 'petitioner having failed to appear matter is placed off calendar.' On May 8, 1970, the judgment was filed and entered. It states that 'petitioner Norma McKim having failed to appear before the Court and testify, and . . . it further appearing that the petitioner does not intend to appear before the Court and testify; NOW THEREFORE . . . the complaint for divorce . . . now deemed a Petition for Dissolution of Marriage . . . is hereby denied.'

It thus appears from the record that the trial court's judgment denying dissolution was based on its determinations 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. Neither the Family Law Act nor the Family Law Rules adopted by the Judicial Council pursuant to the act ⁴ expressly require the personal appearance and testimony of the petitioner or expressly forbid proof of irreconcilable differences by testimony of a respondent. Therefore, we look to the overall purposes of the act in order to determine whether the requirements imposed by the trial court were proper. (See Cal.Rules of Court, rule 1249: 'In the exercise of the (trial) court's jurisdiction pursuant to the Family Law Act, if the course of proceeding is not specifically indicated by statute or these rules, any suitable process or mode of proceeding may be adopted by the court which appears conformable to the spirit of the Family Law Act and these rules.')

The intent and purpose of the act's provisions as to dissolution of marriage are described in the Report of 1969 Divorce Reform Legislation of the Assembly Committee on Judiciary. (4 Assem.J. (1969) p. 8054, hereafter cited as Assembly Report.) The basic substantive change in the law is the elimination of fault or guilt as grounds for granting or denying divorce ⁵ and for refusing alimony and making unequal division of community property. ⁶ Instead of grounds for divorce based on fault the Legislature sought to provide 'a basis for dissolution which is descriptive of the actual reasons underlying marital breakdown.' (Assembly Report, supra, p. 8057.) The grounds of dissolution which the act substitutes for the traditional concept of fault are 'Irreconcilable differences, which have caused the irremediable breakdown of the marriage.' (Civ.Code, § 4506.) 'Irreconcilable differences are those grounds which are determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved.' (Civ.Code, § 4507.)

By eliminating faults and wrongs as substantive grounds for dissolution and 'By requiring the consideration of the marriage as a whole and making the possibility of reconciliation the important issue, the intent is to induce a conciliatory and uncharged atmosphere which will facilitate resolution of the other issues and perhaps effect a reconciliation.' (Assembly Report, supra, p. 8058.) Statutory procedural changes implement this intent. 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.) '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.)

Although the Legislature intended that as far as possible dissolution proceedings should be nonadversary, eliminating acrimony, it did not intend that findings of the existence of irreconcilable differences be made perfunctorily. It rejected a proposal under which the court could have been required to dissolve a marriage on a showing that the parties had taken certain procedural steps and that a certain period of time had passed. Instead the Family Law Act contemplates that 'The court should sit as an overseeing participant to do its utmost to effect a healing of the marital wounds.' (Assembly Report, supra, p. 8058.) The court cannot perform this contemplated function without evidence as to the condition of the marriage. Therefore, section 4511 provides that 'No decree of dissolution can be granted upon the default of one of the parties . . . but the court must . . . require proof of the grounds alleged, and such proof, if not taken before the court, shall be by affidavit.'

Section 4511 is derived from the provision of former section 130 that 'No divorce can be granted upon the default of the defendant . . . but the court must . . . require proof of the facts alleged, and such proof, if not taken before the Court, must be upon written questions and answers.'

A principal purpose of the rule stated in former section 130 was to prevent the parties to a marriage from obtaining a divorce by collusion. (Baker v. Baker (1859) 13 Cal. 87, 94; Woodworth v. Woodworth (1966) 242 Cal.App.2d 301, 305, 51 Cal.Rptr. 410.) Former section 114 defined collusion as 'an agreement between husband and wife that one of them shall commit, or appear to have committed, or to be represented in Court as having committed acts constituting a cause of divorce, for the purpose of enabling the other to obtain a divorce.' The Family Law Act contains no express reference to collusion. The county counsel, however, contends that the policy against collusive dissolutions of marriage not only continues to underlie the act but should impel this court to promulgate procedural rules, applicable to all proceedings for dissolution on the ground of irreconcilable differences, which will amplify and clarify the requirements of section 4511. In opposition to this contention the wife urges that collusion precluding the granting of a judgment of dissolution cannot exist under the Family Law Act because any agreement by the spouses that their marriage should be dissolved establishes their irreconcilable differences and the breakdown of their marriage.

We cannot accept the wife's understanding of the purposes and operation of the act. We do not suggest that the parties to this...