Miller v. Miller

276 S.E.2d 324, 247 Ga. 114, 1981 Ga. LEXIS 636

Opinion

Marshall, Justice.

Under Carter v. Carter, 241 Ga. 335 (245 SE2d 292) (1978), the plaintiff in a divorce action may voluntarily dismiss under Code Ann. § 81 A-141 (a), even after a temporary child custody award has been made to a third person, if the dismissal is effected before the filing of either the temporary order or a counterclaim by the defendant. This is essentially what happened here — temporary child custody being awarded to the appellant-plaintiff-wife and the appellee-defendant-husband on an alternating monthly basis. Accordingly, we hold that the trial judge erred in ordering the wife’s dismissal opened and in holding her in contempt of the temporary order.

Decided February 10, 1981. Jesse G. Bowles III, for appellant. Ronnie J. Lane, for appellee.

Judgment reversed.

All the Justices concur.