McCarley v. McCarley, 90

• Citation: 289 N.C. 109,221 S.E.2d 490
• Decision Date: 29 January 1976
• Docket Number: No. 90,90
• Court: North Carolina Supreme Court
• Parties: Elizabeth Ann McCARLEY v. Leslie Harvey McCARLEY.

Page 490

221 S.E.2d 490

289 N.C. 109

Elizabeth Ann McCARLEY v. Leslie Harvey McCARLEY.

No. 90.

Supreme Court of North Carolina.

Jan. 29, 1976.

Lila G. Bellar and Marshall H. Karro, Charlotte, for plaintiff-appellant.

Hamel, Cannon & Hamel, P.A., by Thomas R. Cannon, Charlotte, for defendant-appellee.

EXUM, Justice.

I

The Court of Appeals held it proper for the trial court to set aside plaintiff's attempted voluntary dismissal under General Statute 1A--1, Rule 4(a)(1) (hereinafter Rule $ $). This much of its decision is correct.

This statement of our practice as it existed before the adoption of present Rule 41 occurs in 2 McIntosh, North Carolina Practice and Procedure § 1645 (2d ed. T. Wilson and J. Wilson 1956):

While the plaintiff may generally elect to enter a nonsuit, 'to pay the costs and walk out of court,' in any case in which only his cause of action is to be determined, although it might be an advantage to the defendant to have the action proceed and have the controversy finally settled, he is not allowed to do so when the defendant has set up some ground for affirmative relief or some right or advantage of the defendant has supervened, which he has the right to have settled and concluded in the action. If the defendant sets up a counterclaim arising out of the same transaction alleged in the plaintiff's complaint, the plaintiff cannot take a nonsuit without the consent of the defendant; but if it is an independent counterclaim, the plaintiff may elect to be nonsuited and allow the defendant to proceed with his claim.

This rule of procedure has been recognized in domestic cases, Griffith v. Griffith, 265 N.C. 521, 144 S.E.2d 589 (1965); Scott v. Scott, 259 N.C. 642, 131 S.E.2d 478 (1963), and applied in Cox v. Cox, 246 N.C. 528, 98 S.E.2d 879 (1957). It appears to have been generally recognized in divorce cases in other jurisdictions which have faced the issue. Annot., 'Divorce-Voluntary Dismissal,' 16 A.L.R.3d 291 §§ 8, 12 (1967). We agree with the Court of Appeals' holding that Rule 41(a)(1) 'had the effect of changing our former practice only to the extent that the plaintiff desiring to take a voluntary nonsuit (now a voluntary dismissal) must now act before he rests his case, whereas under our former practice he could do so at any time before the verdict. In other respects, however, our former practice was not expressly changed by Rule 41(a)(1) as it finally became effective.' 24 N.C.App. at 376, 210 S.E.2d at 533. See W. A. Shuford, North Carolina Civil Practice and Procedure § 41--4 (1975).

In this case plaintiff filed a verified complaint alleging residency of both parties, marriage, one year's separation, names, ages and custody of the children born of the marriage, and prayed for absolute divorce on the ground of one year's separation. Defendant filed a verified answer as follows:

Now comes the defendant in the above entitled action, and in answer to plaintiff's complaint, alleges and says:

1. That the allegations as set forth in paragraph 1 of plaintiff's complaint are admitted.

2. That the allegations as set forth in paragraph 2 of plaintiff's complaint are admitted.

3. That the allegations as set forth in paragraph 3 of plaintiff's complaint are admitted.

4. That the allegations as set forth in paragraph 4 of plaintiff's complaint are admitted.

5. That the allegations as set forth in paragraph 5 of plaintiff's complaint are admitted.

WHEREFORE, the defendant having fully answered plaintiff's complaint, joins in the prayer for relief, and prays the Court that the bonds of matrimony heretofore existing by and between the plaintiff and defendant be dissolved, and that the parties hereto be granted a divorce from each other; further, that the defendant waives right to file any further answer in this cause.

Since the complaint alleged facts entitling either or both of the parties to the marriage to an absolute divorce, we hold that defendant's answer admitting these allegations together with his prayer 'that the bonds of matrimony heretofore existing between the plaintiff and defendant be dissolved, and that the parties hereto be granted a divorce from each other' was, in effect, a counterclaim seeking affirmative relief and arising out of the same transactions alleged in the complaint. Plaintiff, therefore, could not, without defendant's consent, voluntarily dismiss her claim for relief.

The rationale for this rule of practice is simply that it would be manifestly unjust to allow a plaintiff, who comes into court upon solemn allegations which, if true, entitle defendant to some affirmative relief against the plaintiff, to withdraw, Ex parte, the allegations after defendant has demanded the relief to which they entitle him. Upon demand for such relief defendant's right to have his claim adjudicated in the case 'has supervened,' 2 McIntosh, Supra, and plaintiff thereby loses the right to withdraw allegations upon which defendant's claim is based without defendant's consent. Nowhere, it seems to us, does this rationale apply with more force than where plaintiff seeks divorce upon the ground of one year's separation and defendant in his answer likewise prays for a divorce upon the same ground.

By such a prayer defendant clearly seeks affirmative relief, which has been defined as 'that for which the defendant might maintain an action entirely independent of plaintiff's claim, and which he might proceed to establish and recover even if plaintiff abandoned his cause of action . . .' Rhein v. Rhein, 244 Minn. 260, 262, 69 N.W.2d 657, 659 (1955).

Defendant here, furthermore, if he intended to seek a divorce at all on the ground of a year's separation, was bound to seek it by way of counterclaim in this action. Rule 13(a) requires a pleading to 'state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim . . ..' That defendant's pleading is labelled an 'answer' does not preclude its being treated also as a counterclaim. Rule 8(c) states that '(w)hen a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court, on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.' Rule 7(a), furthermore, provides that a reply must be filed 'to a counterclaim denominated as such' implying there will be counterclaims not so denominated. In Rhein v. Rhein, supra, it was said, '(f) ailure to label the affirmative allegations as a counterclaim is, of course, not fatal if they sufficiently support a claim for relief.'

Neither does defendant's failure to allege affirmatively facts within his pleading preclude the pleading from being treated as a counterclaim. The answer begins, 'the defendant . . . alleges and says:' It then admits the allegations of the complaint. Rule 10(c) provides, '(s)tatements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading . . ..' Defendant could have and we hold did, in effect, adopt by reference the allegations in the complaint. To require defendant who solemnly admits the truth of the allegations of the complaint upon which he then bases his prayer for relief to repeat them in his own pleading as a prerequisite to treating his pleading as a counterclaim seeking affirmative relief would surely be a triumph of form over substance.

While defendant's answer is not a model to be followed in asserting a counterclaim for affirmative relief, when construed so 'as to do substantial justice,' Rule 8(f), it suffices for that purpose. ' (P)rovisions relating to procedure . . . for divorce are liberally construed to insure the consideration of divorce cases on their merits.' 3 Sutherland, Statutory Construction § 68.06 (Sands, 1974).

The trial court, therefore, properly allowed defendant's motion to set aside plaintiff's notice of voluntary dismissal. There was no error in the ultimate entry of a judgment of absolute divorce based on defendant's pleading and evidence. The decision of the Court of Appeals is affirmed on this aspect of the case.

II

We hold, however, that the Court of Appeals erred in affirming the district court's refusal to consider plaintiff's application for alimony. The Court of Appeals held that plaintiff's application for alimony should have been made, if at all, in the complaint or in an amendment thereto, saying, 24 N.C.App. at 377, 210 S.E.2d at 533:

(b)y filing the 'Application' for an award of alimony in this proceeding, plaintiff was in effect attempting to amend her complaint so as to assert a completely different cause of action. This she could do only by leave of court or by written consent of the adverse party, G.S. § 1A--1, Rule 15, neither of which she sought or obtained.

This ruling was erroneous.

Plaintiff was obviously proceeding under General Statute 50--16.8. (Unless otherwise indicated references to Chapter 50 of the General Statutes will be to the Chapter as it appears in the 1974 Cum.Supp.) This statute provides, in pertinent part (b) Payment of alimony may be ordered:

(1) Upon application of the dependent spouse in an action by such spouse for divorce, either absolute or from bed and board . . ..

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(d) Payment of alimony pendente lite may be ordered:

(1) Upon application of the dependent spouse in an action by such spouse for absolute divorce, divorce from bed and board, annulment, or for alimony without divorce . . ..

Nothing in these provisions indicates that an application for either alimony or alimony Pendente lite must be contained in the pleadings or an amendment thereto in an action for absolute divorce. We construe the term 'application' as used in this statute to mean a motion in the cause, the procedure for which is governed by the N.C. Rules of Civil Procedure (hereinafter Rule(s) $ $). General Statute...