Parents, spouses, or former spouses who expect to lose the cases they filed concerning divorce, alimony, child custody, or child support may love the ability to terminate the actions before suffering defeat and to refile the same claims after regrouping. But can they?

A Georgia statute permits plaintiffs to voluntarily dismiss their complaints, without order or permission of a court, “at any time before the first witness is sworn” at trial, unless the defendant has pled a counterclaim which cannot remain pending for independent adjudication.(1) The first such voluntary dismissal is “without prejudice,” meaning that a plaintiff can subsequently commence a new action based upon or including the same claim against the same defendant, on the condition that the plaintiff must first pay the court costs of the action previously dismissed.(2) A voluntary dismissal ordinarily terminates an action, leaving the trial court without power to order reinstatement of the action and leaving the situation the same as if the suit had never been brought in the first place.(3) As a consequence, the voluntary dismissal divests a trial court of jurisdiction to enter additional orders, with limited exceptions such as awards of attorney’s fees and expenses under Georgia’s frivolous litigation statute.(4)

Our state legislature enacted the voluntary dismissal statute for the purpose of giving a plaintiff the opportunity to escape from an anticipated contrary verdict or other untenable position and later relitigate the case, despite the inconvenience and irritation to the defendant.(5) Thus, a plaintiff faced with an unsympathetic judge, suffering adverse discovery or evidentiary rulings prior to trial, or expecting to ultimately lose the case for any reason, can live to fight another day by filing a voluntarily dismissal and later recommencing the case. A major limitation on this ability provides, however, that a trial court’s announcement of its decision on the merits of a case precludes a voluntary dismissal thereafter, because once a party has taken the chances of litigation and knows the actual result reached in the suit, he cannot by exercising his right of voluntary dismissal deprive the opposite party of the victory thus gained.(6)

At first blush, domestic litigation seems tailor made for the relief provided by the voluntary dismissal statute. The trial of domestic cases largely by judges without juries, the existence of temporary hearings and other pretrial proceedings, and the issuance of recommendations from guardians ad litem and custody evaluators, often leave the parties with a fair notion of the proceedings’ likely outcomes. What better way to avoid an expected loss than to dismiss the case and leave it as if suit had never been brought in the first place?

Although the general rules pertaining to voluntary dismissals should apply to and be usable in domestic cases, our appellate courts have limited the effect of voluntary dismissals in domestic proceedings in several ways.

For example, a voluntary dismissal of a divorce, alimony and child custody action, filed while a contempt motion remains pending against the plaintiff and to which the defendant has filed an objection, is not effective.(7)

In child custody disputes, the Georgia Supreme Court has refused to recognize a voluntary dismissal filed after the trial court’s announcement of its decision regarding temporary custody and child support, equating the temporary order to entry of a “verdict” after which a voluntary dismissal could not be filed under the statute’s then-language.(8) Despite the legislature’s subsequent change of the deadline for filing voluntary dismissals from entry of a verdict to the swearing of the first witness, the Supreme Court has never revisited its holding.

In modification of alimony cases, the entry of a temporary order adjusting alimony renders a subsequently filed voluntary dismissal equivalent to a “final order” which prevents filing of another modification action for two years.(9) In contrast, a prompt filing of a new modification action after voluntary dismissal, without a prior temporary order in the case, would not violate the two-year filing limitation.(10)

In cases involving alimony, divorce and alimony, or contempt of court arising out of alimony or divorce and alimony cases, the filing of a voluntary dismissal cannot divest the trial court of its discretion to award attorney fees to a party, once attorney fees have been incurred.(11)

Similarly, where a plaintiff dismisses an action for modification of child support and later files a new action for modification, the trial court in the second modification action can award attorney’s fees to the defendant for defending against the previously dismissed petition.(12)

(1) O.C.G.A. § 9-11-41(a)(1)(A) and (2).

(2) O.C.G.A. § 9-11-41(a)(3) and (d).

(3) Gallagher v. Fiderion Group, LLC, 300 Ga.App. 434, 685 S.E.2d 387, 388-389(1) (2009). See also Lakes v. Marriott Corp., 264 Ga. 475, 478, 448 S.E.2d 203 (1994).

(4) Gallagher, supra, 685 S.E.2d at 388-389(1); O.C.G.A. § 9-15-14(e).

(5) C & S Indus. Supply Co. v. Proctor & Gamble Paper Products Co., 199 Ga.App. 197, 404 S.E.2d 346, 347 (1991).

(6) Wall v. Thurman, 283 Ga. 533, 533-534(1), 661 S.E.2d 549 (2008).

(7) Arrendale v. Arrendale, 228 Ga. 295, 185 S.E.2d 83 (1971).

(8) Groves v. Groves, 250 Ga. 459, 298 S.E.2d 506, 508(1) (1983); see also Vanderbreggen v. Hodge, 171 Ga.App. 868, 321 S.E.2d 218 219(2) (1984).

(9) Wilson v. Wilson, 270 Ga. 479, 480-481(1), 512 S.E.2d 255 (1999).

(10) Wilson, supra; 270 Ga. at 480-481; and Griffin v. Griffin, 248 Ga. 743, 744, 285 S.E.2d 710 (1982).

(11) Johnson v. Johnson, 260 Ga. 443, 444, 396 S.E.2d 234 (1990); and O.C.G.A. § 19-6-2(a).

(12) Griffin, supra, 248 Ga. at 744.

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