Appeal from Circuit Court, Lake County. Charles H. Foster, Judge.
Forrest E. Cooper, Lakeview, argued the cause and filed the brief for appellant.
Theodore R. Conn, Lakeview, argued the cause for respondent. With him on the brief were Conn & Lynch, Lakeview.
Fort, Judge. Schwab, Chief Judge, and Thornton, Judge.
A decree of dissolution of the above entitled marriage was entered. Under that decree the mother was awarded the custody of the two remaining minor children, with $100 per month child support for each. The husband appeals.
His principal contention is that there was insufficient evidence to support the court's finding that there were irreconcilable differences or its conclusion that such differences were irremediable, within the meaning of ORS 107.025.
ORS 107.025 is probably the key section, so far as expressing the legislative philosophy which undergirded the adoption of the 1971 "no fault" divorce law (Oregon Laws 1971, ch 280, p 387). It states:
"The dissolution of a marriage may be decreed when irreconcilable differences between the parties have caused the irremediable breakdown of the marriage."
Recently the Court of Appeals of California in In re Marriage of Walton, 28 Cal App 3d 108, 104 Cal Rptr 472 (1972), in discussing the "no fault" act of that state (Cal Civil Code § 4500 et seq. (West 1970)), which contains in Sec 4506 (1) a provision identical to ORS 107.025, stated:
"* * * [I]t is asserted that elimination of the fault concept in dissolution proceedings is unjust and unfair because it permits a spouse guilty of morally reprehensible conduct to take advantage of that conduct in terminating marriage against the wishes of an entirely unoffending spouse. While this may be true and while such a result may be offensive to those steeped in the tradition of personal responsibility based upon fault, this contention presents no issue cognizable in the courts.
After thorough study, the Legislature, for reasons of social policy deemed compelling, has seen fit to change the grounds for termination of marriage from a fault basis to a marriage breakdown basis. (See Report of 1969 Divorce Reform Legislation of the Assembly Committee on Judiciary (4 Assem.J. (1969)), supra, at p. 8057; see also In Re Marriage of McKim, supra, 6 Cal.3d at pp. 678-679, 100 Cal. Rptr. 140, 493 P.2d 868.) 'It is not the province of the courts to inquire into the wisdom of legislative ...