Parks v. Parks , 1979 Ga. LEXIS 1299 ( 1979 )

Jordan, Justice.

Appellant wife and appellee husband were divorced. The judgment stated in part that the wife "shall have permanent possession of that certain Ford automobile she is presently operating, and she is to pay any outstanding debts on the same.” This judgment was unappealed from and upon appellant’s failure to pay the debt, appellee brought an action for contempt against appellant.

That action was voluntarily dismissed by appellee before hearing "without prejudice.” Appellee brought another action for contempt identical to the first and it was again voluntarily dismissed by appellee prior to hearing "without prejudice.” Appellee then brought this action for contempt on the same basis (refusal to pay the debt) and appellant made a motion for judgment on the ground that the action between the same parties based upon identical grounds had been twice dismissed voluntarily by the appellee, relying on Code Ann. § 81 A-141 (a).

The trial court overruled the motion, held appellant in contempt and ordered her to pay the outstanding debt.

1. The trial court did not err in overruling appellant’s motion for judgment. Code Ann. § 81A-141 (a) provides in part that "a dismissal under this paragraph is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has twice dismissed in any court an action based on or including the same claim.”

Assuming without deciding the applicability of this Code section to motions for contempt, it would not apply to the facts of this case since there have been only two previous dismissals. The statute applies only to the third dismissal. Cf. Jones v. Atlanta Housing Authority, 148 Ga. App. 605 (252 SE2d 19) (1978).

2. Other enumerations of error raised for the first time on appeal will not be considered.

Judgment affirmed.

All the Justices concur. James S. Lanier, for appellant. J. Eugene Beckham, Jr., for appellee.