Haller v. Haller
Decision Date | 09 April 1962 |
Docket Number | No. 5-2661,5-2661 |
Citation | 356 S.W.2d 9,234 Ark. 984 |
Parties | Ralph Lewis HALLER, Appellant, v. Doris HALLER, Appellee. |
Court | Arkansas Supreme Court |
Moncrief & Moncrief, Stuttgart, for appellant.
Botts & Botts, DeWitt, for appellee.
From a decree awarding him a divorce and fixing child custody and support payments, the husband, Mr. Haller, prosecutes this appeal against the Chancery decision as regards divorce, child custody and support. The parties were married in 1954, and are the parents of a son five years of age. They separated in 1960; and Mrs. Haller filed suit for divorce, child custody, support, etc. Mr. Haller cross complained, seeking divorce, child custody, and property division. At the trial from which comes this appeal, the issue of property division seems to have been settled satisfactorily; but the other three issues remain.
I. The Divorce Issue. The Chancery Court denied Mrs. Haller's petition for divorce, and she has not appealed; so her claim is not before us. The Court granted Mr. Haller a divorce, and he claims the Court was in error, as he does not desire one. We thus have the strange spectacle of a man complaining because he received a divorce he had originally sought; but under the specific factual situation here presented, we conclude that Mr. Haller is correct, because, before final submission, he sought to dismiss his cross complaint for divorce. Mrs. Haller presented her case in chief; Mr. Haller presented his case; Mrs. Haller testified in rebuttal; and Mr. Haller testified in surrebuttal. Here is the concluding question asked Mr. Haller and the exact proceedings thereafter:
'THE COURT: That was after October 21st?
'A. Yes, sir.
'WITNESS EXCUSED.
'THE COURT: We have a complaint filed by Doris Haller against the defendant, Ralph Lewis Haller, under date of November 18, 1960, in which she seeks, among other things, divorce and absolute custody of the minor child and support and maintenance for the minor child, and she asks that she be awarded title and right of possession of certain property that the parties either purchased or were given to her in her individual capacity.
'The defendant was personally served and filed an answer November 28, 1960, denying the allegations of the complaint, and the defendant under date of December 19, 1960 filed a cross complaint in which he alleges that he is entitled to the possession of the minor son, Ralph Lewis Haller, Jr., and then under date of February 27, 1961 defendant filed an Amendment to his Cross Complaint in which he prays for a divorce from the plaintiff.
The learned Chancellor evidently thought when each attorney said 'That is all' and the witness was excused, that both parties had rested the case and submitted it for a decision. But we do not find the words 'We rest' anywhere in the record. In the absence of the words 'We rest,' the Court proceeded to forthwith deliver the factual findings; but, before Mr. Haller's cross complaint for divorce was decided his attorney moved to dismiss it. The Court held that it was too late to dismiss the cross complaint; and in that ruling we conclude the Court was in error. Even if Mr. Haller did not have an absolute right to dismiss his cross complaint--which we hold he did--the Court still had discretion to allow him to dismiss his cross complaint for divorce; and under either theory we think the decree of divorce should be reversed.
Our statute on 'Dismissal of actions' is § 27-1405, Ark.Stats., and says in part: After final submission, the motion for voluntary nonsuit is within the discretion of the Court (Raymond v. Young, 211 Ark. 577, 201 S.W.2d 583); but before final submission, the plaintiff (in this instance the cross complainant, Mr. Haller) has the absolute right to dismiss his cause of action. Our cases hold that a case is not submitted until the argument is closed and the case submitted to the jury or the Court. Carpenter v. Dressler, 76 Ark. 400, 89 S.W. 89; Mutual Benefit Health & Accident Ass'n v. Tilley, 174 Ark. 932, 298 S.W. 215. In view of the record before us as heretofore detailed, we hold that Mr. Haller had not lost his absolute right of dismissing his cross complaint when his attorney stated such desire.
It must be remembered that the policy of the law is to maintain the marriage relationship, rather than to dissolve it. In 27A C.J.S. 'Divorce' § 8, page 27, holdings from the various jurisdictions are cited to sustain this text:
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