Husband B. v. Wife B.

389 A.2d 275, 1977 Del. Fam. Ct. LEXIS 2

• Court: Delaware Family Court
• Decided: August 18, 1977
• Status: Published

Opinion

WAKEFIELD, Judge.

This is a contested divorce alleging alternative grounds of voluntary separation and incompatability. Petitioner first asserts that a denial in the Answer to the Complaint that the parties voluntarily separated is not sufficient to constitute a denial within the meaning of 13 Del.C. § 1503(8), which states:

“. . . but if respondent denies that the separation was voluntary, then mutual consent or acquiescence must be established either by written agreement of the parties or by participation by respondent in judicial proceedings premised upon respondent’s consent to or acquiescence in the separation.”

Petitioner contends that a denial by pleading does not qualify and that the respondent must actually appear at the hearing and deny under oath. The Court does not agree. When the denial is entered in a pleading, the matter is at issue and there is no requirement that respondent do anything further. The burden is on the petitioner from that point on to satisfy the requirements of the quoted language.

The only issue remaining, therefore, is whether respondent did in fact participate in a judicial proceeding within the meaning of the statute. The Court holds that she did.

The evidence shows that on January 20, 1976, the respondent herself filed a petition for divorce in the Court (C.A. No. 184, 1976). Her petition alleged that the marriage “. . .is irretrievably broken down in that it is characterized by a voluntary separation of the parties. . . . ” The case filed shows that service of the petition was made upon petitioner herein, but no answer was filed. The matter is still open in this Court and hence there has been no retraction by respondent herein.

The Court cannot conceive of a clearer case of “participation by respondent in judicial proceedings premised upon respondent’s consent to or acquiescence in the separation.” (Emphasis added.) Here the respondent, herself under oath in a judicial proceeding which she initiated, affirmatively alleged that the separation was voluntary within the meaning of the statute as construed by this Court in Husband C. v. Wife C., unreported opinion, Del.Fam. (C.A. 403, 1977, dated August 18, 1977).

Petition for divorce granted.