Proceedings in Committee of the Whole

Uniform Marriage and Divorce Act

Monday Morning, August 3, 1970

Mr. Harold E. Read of Connecticut presiding;

Mr. Floyd R. Gibson of Missouri presenting the Act.

MR. PENCE [Wyo.]: Mr. Chairman, I wanted to raise two or three or four questions, and not for purposes of debate, but merely as inquiry.

You are using the word "petition" instead of "complaint", {A17} which we have become accustomed to under the rules of procedure. You are using the word "response" instead of "answer". You are talking about a 30-day answer period instead of a 20. You are also talking about verifying complaints, and I’m not talking of those complaints which ask for injunctive relief, but the initial complaint. And I wonder why we depart in the field of domestic relations from the terminology which has become more or less uniform under the rules.

CHAIRMAN READ: That is the point that Commissioner Burdick made earlier. The Committee has accepted it, and will make—

MR. HELLRING [N.J.]: [Interposing] No, no, no!

CHAIRMAN READ: I’m sorry. It sounds to me like the same point, but—

MR. JESTRAB [Williston, N.D.]: Mr. Pence took the words right out of my mouth.

MR. MERRILL [Okla.]: You second Commissioner Pence’s inquiry?

MR. JESTRAB [N.D.]: Yes, and I have some other things I’d like to say. [Laughter]

MR. MERRILL [Okla.]: Commissioner Jestrab, if you don’t mind, we’ll take that one first, and then we’ll take the next one. {A18}

With respect to several suggestions which Commissioner Pence combined in one, this too was discussed at the Committee of the Whole last year, and you will recall at that time we made the point, and we were not instructed otherwise, that because this is a procedure which involves a new and different concept of the approach to proceedings for the dissolution of a marriage, that we had felt that it was wise to depart from the established practice and to establish terms and to emphasize that departure through the adoption of this new phraseology. This is the reason.

MR. JESTRAB [N.D.]: Everything that Mr. Pence said I have been wanting to say. I don’t know anything about unhappy marriages, my own having been one of bliss for so many years. [Laughter]

I have been thirty-two years at the bar, and I have never gotten anybody a divorce. I do know a little bit about procedure — not much, but a little bit — and always, anytime some reformer wants to start changing the law, they also want to start changing the procedure. And if I may take the liberty sometimes reformers may know a lot about divorce, but they don’t know very much about procedure.

The plain fact of the business is that if you are dealing with something which has to do with human relationships — {A19} procedures where the law regulates human relationships — all you are going to do is to make it more confusing. Some of us have labored long and hard to achieve uniformity of procedure, and I don’t think any divorce experts ought to come in and start changing the law of procedure, something that we have labored so hard and so diligently in so many states to achieve for so long; and if you can’t say that you will file a complaint to achieve what you are talking about — a petition; if you can’t eliminate these verifications; if you can’t talk about the commencement of a proceeding — the commencement, excuse me, of an action — under the Federal Code the concept of a proceeding is different from that of an action. This is an action, and you ought to call it an action, because all you are going to do is to destroy what so many of us have worked so hard for so many years. This is a great mistake.

MR. HELLRING [N.J.]: Commissioner Jestrab and Commissioner Pence—

MR. JESTRAB [N.D.]: I’ll make a motion.

MR. HELLRING [N.J.]: Could you hold it for just one moment? Maybe this will make it unnecessary.

The Committee, and even the Reporters, I think it can be said — don’t feel very strongly about any of these things. What’s in a name? {A20}

However, I think it’s fair to say that the Committee was guided somewhat by the views of the Reporters and others who suggested that using milder terminology for these proceedings would have a tendency, perhaps, to mollify the adversary aspects of this type of proceeding from the way it had been, and some words like "response" instead of "answer", words like "petition" instead of "complaint", are found here.

However, I think it’s fair to say that the Committee will take the views that have been expressed here under further consideration and will debate the matter, and if that’s satisfactory, then a motion will not be necessary. However, if you want the sense of the house on it, please go ahead.

MR. MERRILL [Okla.]: May I add to Commissioner Hellring’s statement one other factor that I think might well be taken into consideration? And this is that in the two states which recently have enacted statutes which accept the concept of irretrievable breakdown as the sole basis for dissolution of marriage, this type of styling has been employed in both statutes, and therefore there is some indication of what legislatures are willing to accept, even in states which have established procedures which otherwise deal with the problem of pleading.

MR. PENCE [Wyo.]: Well, Mr. Chairman, for the most part I {A21} think that procedures are not legislative any more within our concept of things, and that there are rules of the Supreme Court, and I hate to go back to the old system of legislating rules after prescribing rules by the Court, and I think that we should have a sense of the house, and I move you, Mr. Chairman, that the sense of the Committee of the Whole in this particular is that the language and procedure in this Act should be amended to conform as nearly as possible to the Rules of Civil Procedure as we know them.

CHAIRMAN READ: Will you remark on the motion?

MR. JESTRAB [N.D.]: If nobody wants to speak, I can’t emphasize too strongly what I have already said, and I would like again to amplify what Commissioner Pence has said about the rules of court.

We are just starting on a similar project in the rules of evidence, and I think that all you are going to do is to get the legislature back into enacting procedural statutes and you are going to give aid and comfort to the people who have regretted that they have lost this power; and I would ask at least all practitioners, people who go to the courthouse, people who deal with this, to support this motion.

MR. CORNELL [San Francisco, Calif.]: We have adopted this Act, and I think that procedure is very important with respect to the philosophy {A22} behind the change, which is to take dissolution, the breakdown of marriage, out of the advocacy realm. By using the language of plaintiff and defendant we have traditionally in the past placed blame on one party or the other. I think that the only law we have in California that held marriages together in the past has been the community property law. Other than that, I don’t think that the Dissolution Act is going to help very much with respect to saving marriage. I don’t think the present laws — they are strict on other states — help save marriage either. I think that’s up to the social workers, the churches, and the schools.

What we have done with the change in California is change the aspect of divorce, and it takes education. Lawyers don’t change their ways very fast, and by changing the terminology, it’s helping us to give a new view toward this. I think the Act, if it’s expected to save marriages — and it falls short there — I don’t think that’s the scope of this Act.

MR. WELLING [N.C.]: You are not going to save marriages by calling it an action, or a proceeding, or anything else. It doesn’t make any difference what you call it. When people get to the point where they are going to divorce and separate from each other, one party is mad. So let’s don’t call a cow a horse, and let’s stay with our civil procedure. Let’s call it a complaint, and an action.

And further, I find no place in this Act where it provides for service of process as we know it in most states. I think we ought to leave the procedure matter out of this Act entirely.

MR. THODE [Salt Lake City, Utah]: I don’t understand that "petition" and "answer" are not adversary terms. It just seems to me that those are older adversary terms. If this was intended to be taken out of the adversary process, it seems to me it should be other than "petition" and "answer". Those are adversary terms too; but I certainly agree with Mr. Jestrab that the modern terms are the ones that should be used.

MR. PRYOR [Iowa]: We have exactly the same Act as the California Act. It went into effect the 1st of July. I agree wholeheartedly with everything that the Commissioner from California said.

Incidentally, the term "divorce" is not to be found in our law. It is an Act for the Dissolution of Marriage.

CHAIRMAN READ: That comment supports the Commissioner from California, saying that Iowa has the same Act and the same terminology, and he would favor the general trend of the existing draft.

MR. NEEDHAM [R.I.]: I think that with the two comments {A24} from the Commissioners whose states have adopted this Act, the effect of Commissioner Jestrab’s motion is perhaps more far-reaching. It’s more fundamental, I think.

I think what we are talking about now is: Is the house ready to abandon our traditional concepts of what happens in a divorce action, and will our states accept a theory of a compromise between husband and wife, simply because the agreement has been made and the property has been distributed — elimination of the fault theory of divorce?

I don’t think that when the motion was made to go back to our rules of civil procedures that it necessarily implied that. Are we ready to accept this theory?

But I think, if we go back to the rules of civil procedure, we definitely are going back to accepting a fault type of domestic relations, and if that’s what the purpose of the motion is, I think we ought to at least inspect that idea before we abandon what the Committee is doing.

I might say, Mr. Jestrab, that I do agree with you. I would like to go back to the fault concept of divorce, and I’m not as liberal as they are in Connecticut, and I do realize that in divorce, as my good friend from down South said, one of the parties is mad, and I think that what we traditionally have known in divorce, regardless of what we call it — we’re not {A25} going to keep the parties together.

MR. JESTRAB [N.D.]: Mr. Chairman, I don’t mind being quoted, but I don’t like being misquoted. [Laughter] I haven’t expressed any views on the merits of this Act one way or the other. I think that I have even refrained from voting on some of the motions.

I’m talking now about: How are you going to accomplish the results that you seek to accomplish by this Act? And that’s all that I’m interested in. And that is the procedural machinery that you endorse. And I think that to adopt 1875 language — "petition", and so on — there isn’t anything new about it. It’s just a misunderstanding of what you are talking about. And all that I’m speaking for is in support of the rules of civil procedure.

MR. BRAUCHER [Mass.]: Mr. Chairman, I’m troubled by this terminology dispute. I don’t suppose a great deal turns on it ,but I have the feeling that if you’re going to register lands, for example, you don’t start with a complaint; you start with a petition. If you are going to adopt a child, you don’t have a complaint for the adoption of a child. And I think the spirit is to get this thing into a little different category of type of judicial proceeding where, as I say, a petition to register land, a petition to adopt a child — to me, this language {A26} of complaint doesn’t seem very appropriate.

Now, maybe in North Dakota they use "complaint" for a lot of uncontested and nonadversary proceedings, but I find that more or less inappropriate language, and I would like enlightenment on it.

MR. VON HERZEN: Mr. Chairman, Members of the Conference: There are two aspects of this that I have gathered from the debate. One is the question of whether or not this is going to create any confusion, and with relation to the attorneys that have had occasion to practice under the Act as it was passed in California I am unable to find, and have been unable to find in the last year, any substantial confusion that has resulted from the use of the new terminology. This is Point No. 1.

No. 2 is that I have heard, instead of Mr. Jestrab’s motion — I have heard Mr. Pence’s motion, and Mr. Jestrab has risen to support Mr. Pence’s motion. Mr. Jestrab has not made a motion. Am I correct in this?

CHAIRMAN READ: I believe so.

MR. VON HERZEN: Now, if this be true, and what I heard was the fact that we were perhaps departing, or entering into a field where procedural rules were being made in this Act, I rise to differ. I think that the use of terminology does not {A27} require or present a position that has put procedural rules as a substantive law. We still have motions. We still have certain things that we have to do. We still have to comply with rules respecting time, and things of that sort, in procedural matters. There are matters that will come up in these type of petitions that will require the ordinary rules of procedure, which we have not changed.

Now, the fact that we call the matter a petition rather than a complaint does not change procedure. It is simply terminology. When I was attending law school some years ago, they required us to take a course in common law pleading. Now, gentlemen, the fact that we have gotten away from certain types of common law pleading does not in my way of thinking change the fact that we are in modern law calling a matter as it should be called, perhaps something different than a complaint, perhaps something different than an answer. And this I think to be good. It has served California well so far. I admit that perhaps another five or ten years will give us the perspective of history, and things of that sort, but we don’t need that. I think we have at least enough innovation within the Conference so that we’re able to accept mentally new terminology where it’s needed, and I think it’s needed in this Act.

MR. CALLOW [Wisc.]: I’d just like to make one further observation {A27a) that does provide that the petition may be filed by both of the parties, and this may be a departure from the true adversary relationship of a complaint against one another. You might suggest they are both complaining about the situation of marriage, but we do provide that both parties may file this petition together, which makes it something other than a complaint of the one against the other.

MR. BURDICK [N. Dak.]: I have no great difficulty with the terminology of "petition", although I prefer "complaint"; but nowhere in these sections do I find any provision for the service of anything upon the respondent.

MR. HELLRING [N.J.]: Section 303 (9).

MR. BURDICK [N. Dak.]: [Continuing] . . . whether by publication; whether you rely on the procedure under Rule 4, in most states—

CHAIRMAN READ: Section 303 provides for a response within so many days after service.

MR. BURDICK [N. Dak.]: But service of what?

CHAIRMAN READ: Service, I take it, would come under the ordinary procedural law of the state.

MR. BURDICK [N. Dak.]: We don’t have any provision for serving a petition. We have a provision for serving a summons, and if it can be served, then the summons must be accompanied {A28} by the petition, and if not, it must be filed, and notified where it is filed and where a copy can be obtained.

CHAIRMAN READ: I think service would be in accordance with the rules of procedure of the state, and it seems to me that’s the point that Commissioner Von Herzen was making.

MR. BURDICK [N. Dak.]: Well, the only provision we have is for service of a summons in our rules.

MR. DAVIES: Mr. Chairman, point of order. I think Judge Burdick has a very good point which I don’t want to have blurred with the issue of terminology change, and I hope we’ll dispose of that one and then get to the one which I believe has some merit.

CHAIRMAN READ: That was a point of order? [Laughter]

MR. BUERGER [N.Y.]: I ask for enlightenment with respect to rules in other states. I am reasonably familiar with those in New York, where our Civil Practice Law and Rules provide both actions and proceedings.

The purport of what I understand is Mr. Pence’s motion is that the terminology should be adapted to whatever the general terminology that is in use in a particular state, and that we should try to avoid the use of terminology that is not consistent with existing rules.

MR. DANA [New York, N.Y.]: I would like, respectfully, to suggest to {A29} Commissioner Jestrab and the other Commissioners who were about to make a motion that we vote for or against this rather novel change to consider withholding their motion.

The whole point of this Act is that it contains many new and startling features. Just to take a small example, we saw on Saturday that solemnization is much easier. We’re just coming to a novel point that there can be divorce, or dissolution by agreement between the parties; and I think another important, novel feature of the Act is this terminology change of taking the adversary idea away, and thus improving it.

I think as we reach each extraordinary new feature of this Act, a final motion by the Committee of the Whole on whether that feature should be adopted should await the time when we have seen all the new, extraordinary features in this Act, so that we fully appreciate what the Committee has done and have the entire concept. I would suggest that, as we go along, there can be changes in the phraseology, and so on, but on each big point it seems to me that the motions on these very important points, particularly — I come from New York, in which, as most of you know, it has taken us 300 years to get a new ground other than adultery for divorce. We just got a new, extraordinarily liberal abortion law. But I think that in New York this Act might not, possibly, succeed right away, {A30} but before I would get up and say, "Well, there’s no point in taking over this Act, because it has so many new features that people aren’t accustomed to that it might be disapproved," in each state I think we should see the big points, wait for each startling new feature, and accept it for the moment, and wait until all the big, new points are before us, before we vote seriatim, one by one, as we go along, to leave in or knock out one or another of these extraordinary new points.

I therefore urgently suggest that a motion to strike out one of the big, new points that we have come on today, for getting rid of the hostile and adversary words, should be delayed until we have seen all the extraordinary high points of this Act.

CHAIRMAN READ: The motion is for the sense of the house as to using terminology more consistent with the customary rules of civil procedure.

MR. SPANN [Atlanta, Ga.]: I think we just had a motion to delay.

MR. HELLRING [N.J.]: He didn’t make a motion.

CHAIRMAN READ: I don’t believe there was a motion.

[The motion was put to a voice vote and was lost.]

MR. GIBSON: We will proceed with the reading of Section 304.

MR. EAGLES [Raleigh, N.C.]: Do we assume that the Committee will {A31} take whatever steps are necessary to provide for service, or whatever you are going to call these papers?

CHAIRMAN READ: Yes, we will do so.

MR. MERRILL [Okla.]: May I make one other response to that? And that is that the language of 303 is the language in California, and I am informed by those with experience in the California practice that they have had no trouble in adapting that to their regular methods of procedure.

MR. EAGLES [N.C.]: The only problem is that 303 presupposes a requirement of service, and I don’t find it.

CHAIRMAN READ: The Committee will consider that problem.

MR. McKUSICK [Maine]: I would also suggest that the Committee should consider such questions as the availability of discovery and other procedural devices. Is this an action which is within the coverage of Rule 1 under state rules that are modeled on the Federal Rules? Is this an action with all the procedural devices that are available in an action?

CHAIRMAN READ: The Committee will consider that also.

MR. GARDNER [Wash., D.C.]: Mr. Chairman, the Act contemplates verification for the petition and the response to the petition. It contemplates that the motion for a temporary order be accompanied {A32} by an affidavit; but it says nothing about the response to the motion being verified. In the District of Columbia, a response, which is called an opposition, is required to be verified.

MR. HELLRING [N.J.]: You mean on line 26 of page 11?

MR. GARDNER [Wash., D.C.]: Section (d).

MR. HELLRING [N.J.]: Yes.

MR. GARDNER [Wash., D.C.]: Does the Committee intend to not require that that response to the motion be verified, or has it considered it?

CHAIRMAN READ: The Committee will consider that also.

MR. GIBSON: I think that, as contemplated by the Committee, though, it is not verified.

MR. HELLRING [N.J.]: He means the response to the temporary.

MR. GIBSON: Yes. I think it is intended by this Act that all of the procedural rules and laws that the state has will apply to the Act, such as the taking of depositions of discovery, and any rules and any implementations to procedure that a state has will apply to this type of proceeding, and a comment will be made in the Act to that effect.

MR. EAGLES [N.C.]: Point of clarification. Do you intend to require the response to be verified or not? {A33}

MR. GIBSON: The Committee certainly does.

MR. HELLRING [N.J.]: (2) of 303 provides for it.

MR. GIBSON: We will proceed with the reading of Section 305.