
    Paige Carriere TOMENY v. Randall Gerard TOMENY.
    No. 92-CC-2656.
    Supreme Court of Louisiana.
    Nov. 30, 1992.
   PER CURIAM.

The judgment of the court of appeal is reversed. The trial court correctly granted a new trial to the husband.

The wife filed a LSA-C.C. art. 102 divorce action, based on the couple’s having lived separate and apart for one hundred and eighty days. Approximately eight months later, the husband filed a rule to show cause why the divorce should not be granted. Before the rule could be heard, the wife moved to have the case voluntarily dismissed under LSA-C.C.P. art. 1671, which would have re-established the community of acquets and gains. The trial court initially granted this ex parte dismissal, but later set it aside on the husband’s motion for a new trial.

The husband’s rule was a general appearance, LSA-C.C.P. art. 7, as well as a species of reconventional demand. See LSA-C.C.P. art. 1031, et seq. The rule included his demand for a divorce based on having lived separate and apart for the requisite time, named the parties and included an address for receipt of service of process.

The husband’s action for divorce was raised by the rule to show cause, which qualifies sufficiently as a reconventional demand that it could not be dismissed on the wife’s motion prior to a hearing. LSA-C.C.P. art. 1039. The trial court properly granted the new trial.

Reversed and remanded to the trial court.

LEMMON, J.,

concurs. When the wife files a divorce action under La.Civ.Code art. 102 and the requisite period of time elapses, either party then acquires the right to file a rule to show cause why the divorce should not be granted. The wife cannot defeat the husband’s right by an ex parte dismissal, at least after the husband has exercised the right.  