held, trial court not required to order counseling where it would be a “fruitless and useless exercise”
How later courts described this case
- held, trial court not required to order counseling where it would be a “fruitless and useless exercise”
Written by the judges who cited it.
The opinion
CAVANAUGH, Judge,
concurring:
I concur in the result achieved by the majority since I believe that the record created in the court below demonstrates that the parties’ marriage was irretrievably broken. I write separately to emphasize that the counseling provisions contained in the Divorce Code are intended to be utilized whenever it appears that there is a reasonable prospect of reconciliation between the parties and that such a determination should not be avoided merely upon the testimony of one party that the marriage is irretrievably broken. One party may not effectively nullify the counseling provisions through a simple recitation that in his or her belief the marriage is irretrievably broken.
The record before us contains far more than the mere assertion by one party of irretrievable breakdown. Rather the evidentiary hearing conducted by the lower court establishes that the entire course of dealing between the parties since August 1982 contained little or no efforts by either party to preserve the marriage.
The unilateral termination of a marriage without the benefit of counselling is not a step to be undertaken lightly by the courts. It is only upon a complete record, such as that present in this case, that a determination of irretrievable breakdown should be made and counseling not be required.
JOHNSON, J., joins this concurring opinion.