Opinion Bank # O-301 (Re: NCJIC 16.3.5 [Whether Jury Should Be Instructed That It Must Attempt To Resolve Conflicts In The Evidence].)

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Graves v. Graves (DE 1995) (UNPUBLISHED) 1995 WL 766413

FAMILY COURT OF DELAWARE, NEW CASTLE COUNTY

Herbert GRAVES,

                                        Petitioner.                                                                No. CN94-8959

v.

Rachel GRAVES,

                                        Respondent.
_______________________________________/

George Evans, Wilmington, for Petitioner.

CHARLES K. KEIL, Judge.

I.     NATURE OF PROCEEDING

    This is a contested divorce wherein husband's counsel has moved to withdraw and no objection has been voiced by either litigant. Under the circumstances the Court allows Mr. Evans to withdraw as attorney of record. As a result thereof his former client is receiving a copy of this disposition as well.

II.     TESTIMONY

    The dispute rests upon the time frame that the parties separated under the statute. They are in conflict as to their respective testimony which was set forth on the record. Wife does not oppose the granting of the divorce but believes the time frame under the statute has not yet passed. Husband believe otherwise.

III.     COURT'S ASSESSMENT

    Clearly the parties are in conflict as to their testimony.

    Under circumstances of that nature the Court is guided by the charge given to juries in jury cases which reads:

    If you find the testimony to be conflicting by reason of inconsistencies, it is your duty to reconcile it, if reasonably possible, so as to make one harmonious story of it all. But if you cannot do this, then it is your duty and privilege to give credit to that portion of the testimony which, in your judgment, is most worthy of credit and disregard any portion of the testimony which, in your judgment, is unworthy of credit. In so doing, you should take into consideration the demeanor of the witnesses as they testified before you, their apparent fairness in giving their testimony, their opportunities for learning and knowing the facts about which they testified, and any bias or interest that they may have concerning the outcome of the case.

    Under the circumstances the Court is satisfied that Husband has not carried the burden of proof. The Court however does not dismiss the divorce action in view of the fact that both parties ultimately desire a divorce and it would cause a hardship to require a refiling after the passage of 6 months. As a result thereof the Court sets a hearing for 1/17/95 at 3:30 p.m., for a short 1/2 hour hearing at which time the parties will state on the record whether or not they have resumed cohabitation. If they have not the Court will then enter a final divorce decree. The date of the hearing is over 6 months from the outside date that Wife indicated that the parties ceased to live as husband and wife.

IT IS SO ORDERED.