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Is a Complaint for Divorce a Compulsory Counterclaim to a Claim for Legal Separation?


In Ex parte Pike, the Alabama Court of Civil Appeals considered whether a wife’s complaint for divorce was a compulsory counterclaim to her husband’s claim for legal separation, filed a few days earlier. The wife filed her divorce complaint before she was served with the husband’s legal separation claim. The husband moved to dismiss the divorce complaint on grounds that it was compulsory and should have been asserted as a counterclaim to his legal separation claim. Based on Ala. R. Civ. P. 13(a), a pleading shall state as a counterclaim any claim that the pleader has against any party that arises out of the same transaction or occurrence that is the subject matter of the opposing party’s claim.


The wife asked the court to consolidate the two cases and treat her divorce complaint as a compulsory counterclaim.

The Shelby County Circuit Court denied the husband’s motion to dismiss and ordered him to answer the divorce complaint. The trial court relied upon Ala. Code § 30-2-40(c), which states that “[a] proceeding or judgment for legal separation shall not bar either party from later instituting an action for dissolution of the marriage.” The husband filed a motion in the divorce action to alter, amend or vacate the ruling on his motion to dismiss. The court denied this motion, noting that the separation action had been previously dismissed. The husband then filed a petition for a writ of mandamus.


The Court of Civil Appeals first found that the writ of mandamus was the appropriate vehicle to review an order denying a motion to dismiss a claim based on Ala. R. Civ. P. 13, the compulsory counterclaim rule.

The Court then observed, in a footnote, that the husband's motion to alter, amend, or vacate the order denying his motion to dismiss did not toll the time for filing a petition for writ of mandamus. Ala. R. Civ. P. 59 does not apply to interlocutory orders such as an order denying a motion to dismiss, and it doesn’t toll the time for seeking appellate relief. See Ex parte Troutman Sanders, LLP, 866 So.2d 547, 550 (Ala. 2003). However, the husband’s petition for writ of mandamus was still timely because he filed it within 42 days of the order denying his motion to dismiss.


On the merits of the mandamus petition, the court noted that a divorce action filed after the entry of a decree of legal separation is a separate, distinct action and does not constitute a modification of the legal separation decree. See Faellaci v. Faellaci, 98 So. 3d 521 (Ala. Civ. App. 2012).

Thus, the divorce action was not a compulsory counterclaim to the legal separation complaint. The court was not persuaded by the husband’s attempt to distinguish Faellaci by arguing that here, no final decree of separation has been entered. “In light of the language in § 30-2-40 itself, which provides that a party is not barred from instituting an action for dissolution of the marriage by either a ‘proceeding or judgment for legal separation,’” the court rejected this distinction. (Emphasis in original). The court found that use of the word “or” in the statute was intended to allow for the filing of a divorce action even where a legal separation action is already pending. To read it otherwise would ignore the word “or” or render it ineffective. Thus, the husband did not show a clear legal right to the relief requested in his petition and was not entitled to a writ of mandamus.


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