Haller v. Haller

Decision Date09 April 1962
Docket NumberNo. 5-2661,5-2661
Citation356 S.W.2d 9,234 Ark. 984
PartiesRalph Lewis HALLER, Appellant, v. Doris HALLER, Appellee.
CourtArkansas Supreme Court

Moncrief & Moncrief, Stuttgart, for appellant.

Botts & Botts, DeWitt, for appellee.

McFADDIN, Justice.

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.

'MR. MONCRIEF: 1 That is all.

'MR. BOTTS: 2 That is all.

'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.

'MR. MONCRIEF: We withdraw prayer for divorce.

'MR. BOTTS: We object.

'THE COURT (CONTINUING): The complaint of the plaintiff for prayer for divorce, on the basis of the evidence and the testimony, is denied, and her complaint for divorce will be dismissed. The plaintiff will be given custody of the minor child of the parties, subject to right of defendant to visit with this child at any reasonable hour and at any reasonable time. The defendant will be ordered to pay $18.00 per week for support and maintenance of this minor child. Mr. Botts is allowed an additional attorney fee of $100.00.

'MR. MONCRIEF: Again I want the record to show we are dismissing our cross complaint for divorce.

'THE COURT: The Court is ruling at this time it is too late to withdraw complaint asking for divorce.

'MR. MONCRIEF: We are using the word we are 'dismissing' it and the Court is using the word 'withdrawing' it. As I understand it, the court is denying dismissal of the cross complaint asking for divorce.

'THE COURT: That is right. I am denying your motion. You are in effect leaving the cross complaint in the record as I believe it should be at this late hour. Now it is probably too late to take a nonsuit or dismissal.

'MR. MONCRIEF: Note our exception to that ruling of the Court.'

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: 'An action may be dismissed * * * First. By the plaintiff before the final submission of the case * * * to the court, * * *.' 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:

'It is generally recognized that the state or the public has an interest in the marital status, its continuance, and dissolution, but an unwilling party, although legally entitled to a divorce, cannot be compelled to procure a divorce, or to consent to a divorce, either ecclesiastical or civil, and it is always optional with a party who is legally entitled to a divorce whether to exercise the right. Thus, the guilty party in a divorce action has no personal right to insist that...

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17 cases
  • Olson v. Olson
    • United States
    • Arkansas Supreme Court
    • December 18, 2014
    ...with Tina's amended complaint, which she declined to prosecute.The present situation calls to mind our decision in Haller v. Haller, 234 Ark. 984, 356 S.W.2d 9 (1962). There, the wife sued for divorce, and the husband filed a counterclaim for divorce. After hearing the testimony, the chance......
  • Knight v. Deavers
    • United States
    • Arkansas Supreme Court
    • January 12, 1976
    ...which the chancery court deals with child custody, even as between parents, the polestar is the best welfare of the child. Haller v. Haller, 234 Ark. 984, 356 S.W.2d 9. As demonstrated by the cited cases and many others, this factor may not be totally conclusive, but it is certainly dominan......
  • Coombs v. Hot Springs Village Property
    • United States
    • Arkansas Court of Appeals
    • October 31, 2001
    ...437, 768 S.W.2d 526 (1989); see also Beverly Enterprises-Arkansas, Inc. v. Hillier, 341 Ark. 1, 14 S.W.2d 487 (2000); Haller v. Haller, 234 Ark. 984, 356 S.W.2d 9 (1962); Mutual Benefit Health & Accident Ass'n v. Tilley, 174 Ark. 932, 298 S.W.2d 215 (1927). Therefore, if a voluntary nonsuit......
  • Wright v. Eddinger, 94-816
    • United States
    • Arkansas Supreme Court
    • March 27, 1995
    ...have noted that a case is not submitted until the argument is closed and the case submitted to the jury or the Court. Haller v. Haller, 234 Ark. 984, 356 S.W.2d 9 (1962); See also Mutual Benefit Health & Accident Assoc. v. Tilley, 174 Ark. 932, 298 S.W. 215 (1927). In Duty v. Watkins, supra......
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