Domestic relations. Lowndes Superior Court. Before Judge Horkan.
Stanley L. Reed, pro se .
Langdale Vallotton, Katherine A. Gonos, Brenda M. Carver, for appellee.
We granted the discretionary application of Appellant Stanley L. Reed (Husband) pursuant to our Rule 34 (4) in this divorce and alimony case. We affirm the trial court's order granting a final divorce between Husband and Appellee Cynthia B. Reed (Wife) under the right-for-any-reason rule because, although the trial court erred by not dismissing Husband's divorce complaint, the Wife's counterclaim for divorce remained pending for independent adjudication.
On August 26, 2011, Husband, proceeding pro se, filed a complaint for divorce from Wife. On October 3, 2011, Wife responded to the complaint and filed a counterclaim for divorce. On February 2, 2012, Husband filed a voluntary dismissal of his complaint pursuant to OCGA § 9-11-41 (b), which he later amended, explaining that the dismissal was pursuant to OCGA § 9-11-41 (a) (1).
After Wife filed a notice of hearing on her counterclaim, Husband filed a motion seeking a dismissal or continuance, explaining that he [295 Ga. 575] had already voluntarily dismissed the case and that the trial court did not have jurisdiction over the counterclaim. The court denied Husband's motion for dismissal or continuance.
After a hearing, the court entered a temporary order awarding Wife one half of Husband's military retirement pay and attorney fees. Despite Husband's continued motions and protests to the court that he had voluntarily dismissed his complaint, the court refused to dismiss Husband's complaint and entered a final order granting a divorce between the parties on April 4, 2013.
In our order granting Husband's discretionary application to appeal the judgment and decree of divorce, the Court directed the parties to address whether a timely objection was posed to the voluntary dismissal of the complaint, and if not, whether the court erred in failing to dismiss the action, including the counterclaim.
1. OCGA § 9-11-41 (a) (1) provides that a plaintiff may voluntarily dismiss his case without order or permission of the court by filing (1) a written notice of dismissal at any time before the first witness is sworn or (2) a stipulation of dismissal signed by all parties who have appeared in the action. A plaintiff may also dismiss his case by order of the court and upon the terms and conditions that the court deems proper. OCGA § 9-11-41 (a) (2). Furthermore, " [i]f a counterclaim has been pleaded by a defendant prior to the service upon him or her of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court." Id. Thus, although a plaintiff may voluntarily dismiss his complaint, when a defendant has filed a counterclaim or defensive pleadings seeking affirmative or other relief, dismissal of a plaintiff's complaint requires more scrutiny. See Avnet, Inc. v. Wyle Laboratories, Inc., 265 Ga. 716 (1) (461 S.E.2d 865) (1995); Moore v. Moore, 253 Ga. 211, 212 (317 S.E.2d 529) (1984).
Merely filing a counterclaim is insufficient to prevent the dismissal of the plaintiff's complaint and the counterclaim. Avnet, 265 Ga. at 718. Instead, a defendant must object to the plaintiff's voluntary dismissal, thereby providing notice to the plaintiff that he intends to pursue his ...