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McKIM v. McKIM (1971)

Court of Appeal, Second District, Division 4, California.

Norma McKIM, Appellant and Petitioner, v. Paul Attley McKIM, Respondent.

Civ. 37399.

Decided: May 13, 1971

Saul & Wiener, and Edwin S. Saul, Los Angeles, for petitioner and appellant. Paul Attley McKim, in pro. per. John D. Maharg, County Counsel (Los Angeles), and Douglas C. Miller, Deputy County Counsel, amicus curiae, on behalf of respondent.

On October 21, 1968, appellant wife filed in the court below her complaint for divorce alleging extreme cruelty as a ground for the relief sought. On December 19, 1968, the husband's default was entered. For reasons not apparent from the record before us, no further action was taken until February 17, 1970, when the matter came on for hearing as a petition for dissolution under the Family Law Act which went into force on January 1, 1970 (Stats. 1969, c. 1608, p. 3351, § 37, as amended by Stats. 1969, c. 1609, p. 3360, § 29). The wife did not appear to testify in support of her petition, nor was any deposition or affidavit executed by her presented to the trial court.1 The defaulting husband had been subpoenaed and testified as follows:


‘Q. Mr. McKim, you are the respondent in this case; is that correct?

‘A. Right.

‘Q. At the time the petition in this matter was filed, was it your belief that there were irreconcilable differences between you and your wife?

‘A. Right.

‘Q. Since that time, have you and your wife attempted to resolve these differences?

‘A. Yes.

‘Q. In fact, you reconciled for a period of time; is that correct?

‘A. Yes.

‘Q. That reconciliation did not work out?

‘A. No.

‘Q. Is it your opinion that at the present time there are irreconcilable differences?

‘A. Right.

‘Q. Is it your opinion that any further waiting period or conciliation would assist in saving this marriage?

‘A. No.

‘Q. As far as you are concerned, there is no longer a marriage?

‘A. No.’

The trial court expressed concern over this procedure and, after considering the matter, ultimately entered a judgment denying dissolution. The wife appealed. Since the respondent advised us that he did not intend to file a brief, we sought and secured the assistance of the county counsel as amicus curiae in support of the action of the trial court. After consideration, we conclude that the action taken was in error and reverse the judgment.

Prior to the effective date of the now act, it was the settled policy of this state—and of Anglo-American jurisdictions generally—to look with extreme disfavor on anything which hinted collusion between the parties to a divorce action. (Clark, Domestic Relations (1968) p. 361, § 12.9, and authorities there cited.) But the new law not only abolished the concept of ‘fault’ as a ground for divorce, but it repealed the traditional defense of collusion. We can see, in our present statute, nothing to suggest that there remains any policy objection to an agreement by the parties to a marriage to the fact that their differences are ‘irreconcilable’ and that, therefore, it should be dissolved.2

It is true, as the county counsel suggests, that a more artistic procedure could have been followed in the case at bench. Section 4511 of the Civil Code now permits proof to be made by affidavit; and the husband could have secured relief from his default and filed his own ‘appearance’ under section 4355 with a ‘response’ seeking affirmative relief.3 But we do not see that either of those procedures would have added anything material to a proper disposition of the case.4

It is clear from the record that dissolution was not denied because the court was not satisfied with the quality or the quantum of proof; the action was taken solely because the proof came from the wrong source. Had the court doubted that the differences actually were ‘irreconcilable,’ it had power to cross-examine the witness on his conclusionary testimony and, under section 4509,5 to require the witness to amplify his conclusions by testimony as to specific matters which would support that conclusion.6 Nothing herein will limit the trial court, on remand, from conducting whatever inquiry into the actual situation of the parties that it feels necessary to enable it to meet the requirements of sections 4507 and 4508.

The judgment is reversed.


1.  We are not advised as to why she did not appear, other than the statement of counsel in his brief, that ‘she had already left the state to resume a new life elsewhere’; we have no explanation for the failure to secure an affidavit from her.

2.  Although the act continues the earlier prohibition on dissolutions without a court appearance (Civ.Code, § 4511), it also provides, in Civil Code, section 4509, for decision, in the ordinary case, without inquiry into the underlying conduct of the parties.

3.  The county counsel points out that the time for relief from default by court action under section 473 of the Code of Civil Procedure had long since expired. But nothing prevented a stipulation relieving from the default and the filing of a responsive pleading thereafter.

4.  Whether the husband testified, in the exact language he used, as a seeker of affirmative relief under a responsive pleading or as a witness for the wife made, so far as we can see, no difference in the persuasive effect of that testimony.

5.  Civil Code, section 4509, reads as follows: ‘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.’ (Emphasis supplied.)

6.  The county counsel suggests that the husband, had he appeared by a response seeking a dissolution, would have been required to file the confidential questionnaire contemplated by section 4505 of the Civil Code and Rules 1228 and 1284 of the California Rules of Court. Nothing prevented the trial court from inquiring, at the hearing, into any matter which such a questionnaire would have disclosed.

KINGSLEY, Associate Justice.

FILES, P. J., and JEFFERSON, J., concur.

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McKIM v. McKIM (1971)

Docket No: Civ. 37399.

Decided: May 13, 1971

Court: Court of Appeal, Second District, Division 4, California.

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