(concurring). I concur in the result reached by the majority. The trial judge here held the no-fault divorce statute unconstitutional on the ground that the statute violates the rights of children of divorcing parties. He did so presumably to force this appeal because there were no minor children of this couple and the defendant did not assert the unconstitutionality of the statute. The trial judge raised the issue on his own.
The ALR article cited in Judge Holbrook’s opinion was relied on by appellant who, in his very able brief, points out that time and tide in these United States have come to no-fault. He says:
"As of 1974, 45 states permitted some form of 'no-fault’ grounds for divorce”.
Furthermore, we have found no single instance where a no-fault divorce statute has been declared unconstitutional. The will of the people, though lamentable, is clear. The trial judge’s reasoning is obsolete, unfortunately. I write only to address one facet of his argument, and that is that if we have 160 circuit judges in the state we have just that many potential interpretations. There are absolutely no guidelines as to what constitutes an irremediable breakdown.
It seems to me that this posits the precise question which must be answered on remand by the trial court sitting as a court of equity. On the record presented here, unless we are to say that the trial court functions perfunctorily, this divorce could have been refused for the failure of the appellant to persuade the court that there was a *134substantial breakdown in the marital relationship. The statute quoted by the majority requires:
(1) A presentation of evidence,
(2) The evidence must show a dead or dying marriage, and,
(3) There must be little likelihood of healing grace.
Everyone knows that a neatly typed and bound record is a poor instrument for assessing credibility and sometimes even downright misleading. The defendant did not take the stand here, but of course she did not have to; the court held that the proofs presented by the plaintiff were insufficient to establish extreme and repeated cruelty. Viewed in the light most favorable to defendant, the parties had'been married 35 years, the plaintiff testified that defendant had been a good wife, that after he became ill and couldn’t work she called him names a couple of times and he overreacted. Viewing the proofs in the light most favorable to plaintiff, defendant introduced tension into their relationship after he had had two heart attacks and he was fearful of further reverses to his health. The single strongest indication of a breakdown, however, is that the plaintiff moved out of the house bag and baggage on March 10, 1975, and remained away from defendant permanently except for one brief episode.
The trial court on remand will have to hear the proofs of both parties and exercise its judicial function in determining if there are any recuperative possibilities. There is a contest. It is not automatic. The state still has an interest. If the Legislature had intended no-fault to be automatic it could have said so.