Opinion
No. 2121-1.
April 15, 1974.
[1] Divorce — Dismissal and Nonsuit — Counterclaim — Effect. Where a counterclaim for divorce becomes the only issue before the court as the result of a motion for dismissal made by the plaintiff after all the evidence has been received, the court may properly reopen the trial for the reception of additional evidence in support of the defendant's grounds for divorce. [See Ann. 16 A.L.R.3d 283, 356; 24 Am.Jur.2d, Divorce and Separation § 344 et seq.]
Appeal from a judgment of the Superior Court for King County, No. D-42977, Patrick McCabe, J., entered January 29, 1973.
Hoover, Lind Parkhurst and Fred N. Hoover, for appellant.
Branson, Hardwick Conrad and Morton T. Hardwick, for respondent.
Affirmed.
Action for divorce. The plaintiff appeals from a judgment granting a divorce.
The plaintiff brought this action for a divorce from her husband. The defendant answered and by cross complaint sought a divorce as against the plaintiff. At the trial, both parties introduced evidence as to property division and support for the minor children, but only plaintiff established grounds for divorce.
[1] When proposed findings, conclusions and decree were presented to the court by defendant, plaintiff moved for dismissal. The court took the motion under advisement and subsequently reopened the case to admit testimony on defendant's grounds for divorce. The court then made the same property division and support provision that had been proposed and awarded a divorce to defendant.
On this appeal plaintiff, relying upon Forsby v. Forsby, 155 Wn. 33, 283 P. 457 (1929); Studley v. Studley, 141 Wn. 531, 252 P. 99 (1927), contends that she was entitled to a dismissal as a matter of right. It is true that after her motion the court was powerless to grant her a divorce against her wishes, but that did not prevent the court from proceeding with defendant's counterclaim. CR 41. McReynolds v. Thaler, 49 Wn.2d 905, 307 P.2d 1060 (1957). That is what the court did.
Plaintiff also contends that the division of property was inequitable. We have examined the record and determined that the division was well within the evidence. Baker v. Baker, 80 Wn.2d 736, 498 P.2d 315 (1972). In fact, the property division and provision for the support of the children appear to be fair in every respect.