Moore v. Moore, 41145
| Decision Date | 02 July 1984 |
| Docket Number | No. 41145,41145 |
| Citation | 317 S.E.2d 529,253 Ga. 211 |
| Parties | MOORE v. MOORE. |
| Court | Georgia Supreme Court |
Laura M. Christian, Lee & Clark, P.C., Savannah, for Nancy Shiver moore.
Noble L. Boykin, Jr., John Wright Jones, Jones, Bordeaux & Associates, Savannah, for Charles Eugene Moore.
This divorce case is here following our grant of an application to appeal. The question for decision is whether the plaintiff had the right to voluntarily dismiss his complaint. These are the facts:
On July 28, 1981, plaintiff-appellee (former husband) filed a petition for divorce against defendant-appellant (former wife). The petition requests a divorce on the ground that the marriage is irretrievably broken. It is alleged in the petition that there are no minor children of the marriage and no property rights to be adjudicated. The defendant answered the petition, denying that the marriage is irretrievably broken and that there are no property rights to be adjudicated. In the answer, the defendant requested a jury trial as to all issues.
On September 22, 1981, the plaintiff filed a motion for partial summary judgment on the issue of divorce. Pursuant to this motion, the superior court granted the divorce on October 27, 1981. In the divorce decree, the court reserved for future determination all other matters including, but not limited to, division of assets and attorney fees.
For approximately one year, the parties engaged in discovery. At the final hearing on October 25, 1982, the plaintiff sought to dismiss the complaint; however, no motion to dismiss was served on the defendant. The defendant objected to the dismissal. The court delayed ruling on the requested dismissal and directed the parties to file briefs on the question. On October 29, 1982, the defendant filed a counterclaim requesting division of the parties' assets, attorney fees, and other relief. Subsequently, on December 8, 1983, the plaintiff filed a voluntary dismissal together with a certificate of service on the defendant. The defendant responded by filing a motion to strike the dismissal.
On February 6, 1984, the court entered an order ruling that the plaintiff's complaint was effectively dismissed on December 8, 1983. In so ruling, the court reasoned that the proper method for the defendant to have preserved for trial the issues other than divorce would have been through the timely filing of a counterclaim. The court concluded that since the defendant did not file her counterclaim until approximately 14 months after filing her answer, and since she did not obtain permission of the court for the late filing of the counterclaim as required by OCGA § 9-11-13(f) [Code Ann. § 81A-113], the counterclaim was not properly before the court. The court further concluded that since the plaintiff's voluntary dismissal of December 8, 1983, was served on the defendant, it was proper under OCGA § 9-11-5 [Code Ann. § 81A-105]. Accordingly, as previously stated, the court ruled that the plaintiff's complaint was effectively dismissed on December 8, 1983. Held: We reverse.
We hold that after a plaintiff files suit for divorce and obtains it on motion for partial summary judgment, the plaintiff...
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