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WALKER v. WALKER

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Supreme Court of Georgia.

WALKER v. WALKER.

No. S06F0577.

Decided: May 17, 2006

Wendy Annette Jerkins, Atlanta, for appellant. Marcy Alicia Hanks, Foster & Hanks, LLC, Monroe, for appellee.

Appellant Larry M. Walker (“husband”) applied for a discretionary appeal from an order denying his motion for new trial and motion to set aside following the entry of a final judgment and decree of divorce. His application was granted in accordance with the pilot project currently in effect for domestic cases. Finding no error, we affirm.

On January 13, 2005, appellee Alfreda A. Walker (“wife”) filed a complaint for divorce seeking to terminate the parties' five-year marriage. Husband, acting pro se, timely filed his answer and counterclaim, and on March 4, 2005, filed a written request for a jury trial. The case appeared on a notice of jury trials scheduled for 9:00 a.m. on April 18, 2005; both parties received that notice. When the case was called for trial, wife and wife's counsel were present, but husband was not. Wife's counsel advised the court that the parties had been in settlement negotiations on the prior day, and had reached a verbal agreement to engage in mediation; that husband had agreed to meet with wife's counsel at 8:30 a.m. that morning to review a proposed consent order; but that he had not appeared.1 The court called the calendar at 9:00 a.m., but allowed an additional 30 minutes for husband to arrive. When by 9:30 a.m. he still had not appeared, the court conducted a bench trial, heard evidence from wife, and made a final ruling. Husband appeared in court at 9:45 a.m. and was told that his case had already been called and heard. At no time did he contact the trial court or wife's counsel to advise he would be late or to request a continuance. After the bench trial, the court issued a final judgment that divided the couple's assets and debt. On appeal, husband asserts that the trial court abused its discretion in conducting a bench trial in his absence, and in refusing to grant a new trial or to set aside the judgment. Finding no error, we affirm.

1. Husband asserts that he is entitled to a new trial because the trial court erred in conducting a bench trial after he had filed a timely demand for a jury trial.

In Melcher v. Melcher, 274 Ga. 711, 712, 559 S.E.2d 468 (2002), we recognized that “in cases in which a party is absent from trial and then seeks the grant of a new trial ․ there is no fixed rule by which to determine questions of this character, that wide discretionary power is vested in the trial courts in matters of this kind, that the determination as to whether the absent party should be granted a new trial is a matter peculiarly within the discretion of the trial court, and that courts of review will not control the judgment of the trial judge, unless it is shown that [the trial court] manifestly and flagrantly abused [its] discretion.” (Punctuation omitted.) See also OCGA § 5-5-25 (trial court must exercise sound legal discretion in granting or refusing a motion for new trial). A new trial was authorized in Melcher because the party who failed to appear had good cause for not attending the final hearing. In the present case, it is without dispute that husband received notice of the final hearing, that he engaged in discussions with wife's attorney on the eve of trial knowing that the case was scheduled for the next morning, and that he agreed to meet with counsel at the courthouse 30 minutes in advance of the call of the case on the morning of trial. He cannot now be heard to argue that he was confused about his obligation to appear. Compare Wright v. Wright, 270 Ga. 229, 509 S.E.2d 902 (1998); Crenshaw v. Crenshaw, 267 Ga. 20(1), 471 S.E.2d 845 (1996); Green v. Green, 263 Ga. 551, 437 S.E.2d 457 (1993). Nor did husband apprise the court or wife's counsel of his anticipated tardiness, or request a continuance. Compare Davalos v. Perdue, 215 Ga.App. 27, 449 S.E.2d 861 (1994). And his status as a pro se party did not mandate that the court give him special consideration. See generally Kegler v. State, 267 Ga. 147(4), 475 S.E.2d 593 (1996).

In addition, “a party in a divorce case can, by [his or her] voluntary actions, impliedly waive a demand for a jury trial.” Matthews v. Matthews, 268 Ga. 863, 864(2), 494 S.E.2d 325 (1998). The right to a jury trial may be waived “by conduct indicative of the fact that the right is not asserted.” (Punctuation omitted.) Bonner v. Smith, 226 Ga.App. 3, 5(4), 485 S.E.2d 214 (1997). In Bonner, as in the present case, the party who requested a jury trial failed to appear in court after being properly notified. The Court of Appeals determined that the right to a jury trial had been implicitly waived, and that a finding of waiver was consistent with the well-established rule that a party cannot complain of a judgment or ruling of the trial court which his own conduct aided in causing. Id. at (3), 485 S.E.2d 214. Matthews, supra, does not compel a contrary ruling because the issue in that case was whether the trial court erred in its conclusion that a demand for jury trial had been untimely and in proceeding with a bench trial in the absence of a waiver. Because we concluded that the demand had been timely filed, id. at (1), 494 S.E.2d 325, and there was no waiver, either by written stipulation or implicit in the conduct of the requesting party, id. at (2), 494 S.E.2d 325, we found an abuse of discretion in failing to submit the case to a jury. We find no such abuse of discretion in the present case because we view husband's conduct-his failure to appear coupled with the other circumstances as set forth above-as an implicit waiver of his demand. Bonner, supra.2 Thus, the circumstances here are markedly different than in Matthews.

2. Wife's counsel did advise the trial court of the parties' oral agreement to pursue mediation. Thus, there was no dereliction on counsel's part which would have mandated setting aside the judgment or granting a new trial. Compare Jackson v. Jackson, 254 Ga. 280, 328 S.E.2d 733 (1985) (because counsel's failure to inform the court of a settlement agreement constituted fraud, trial court abused its discretion in refusing to grant a new trial and set aside its decree during the term of the court in which it was rendered). See also Green, supra at (2).

3. While a trial court cannot grant a default judgment in a divorce action, OCGA § 19-5-8; Brown v. Brown, 271 Ga. 887, 525 S.E.2d 359 (2000), the final judgment of divorce entered here was based on the evidence established at trial. The final judgment states that the court considered “evidence submitted as provided by law,” and the order denying the motion for new trial specifies that “the court proceeded to hear the case.”3 In the absence of a trial transcript, we must presume that the evidence considered by the trial court supported the findings made. Pollard v. Pollard, 279 Ga. 57(1), 609 S.E.2d 354 (2005).

Judgment affirmed.

The majority finds an implied waiver of Walker's demand for a jury trial, even though there are no factors present in this case that would forgive compliance with the demand. Because I cannot differentiate this case from Matthews v. Matthews, 268 Ga. 863(2), 494 S.E.2d 325 (1998), I am constrained to dissent to the majority's holding affirming the trial court's decision to deny Walker his substantive right to a jury trial.

The record reflects that Walker filed an answer to his spouse's divorce petition and made a timely demand for a jury trial. Walker was not present at the calendar call, and the court delayed the case for 30 minutes. By the time Walker arrived 15 minutes later to participate in the proceedings, the court had resolved the case without a jury and commenced another matter. A final judgment and decree of divorce, which granted the divorce and resolved financial issues, was entered against Walker nunc pro tunc to the trial date.

Absent waiver, OCGA § 19-5-1(a) requires that a trial court submit a divorce case to a jury when an issuable defense is raised and one of the parties files a timely demand for a jury trial. “[A] trial court presiding over a divorce action must comply with a demand for jury trial unless, after reviewing all of the pleadings, it determines that there is not any factual dispute remaining as to any issue raised by the complaint or any counterclaim.” Blaylock v. Blaylock, 277 Ga. 56, 586 S.E.2d 650 (2003). Where an issuable defense is presented and a timely jury demand made in writing on or before the call of the case “the trial court cannot proceed without a jury unless the parties consent to a bench trial by a written stipulation filed with the court or an oral stipulation made in open court and entered in the record. OCGA § 9-11-39(a).” Id.

The majority concludes that even though Walker filed an issuable defense, filed a written demand before the call of the case, and thereafter never stipulated to a bench trial, he waived his statutory right to a jury trial, based on an implied waiver. While I acknowledge that implied jury trial waivers occur, an unrepresented divorce litigant's failure to appear at the call of the case has never been such a circumstance. On the contrary, by disapproving Easterling v. Easterling, 231 Ga. 889(2), 204 S.E.2d 610 (1974), Matthews rejected a similar implied waiver argument where the spouse never appeared for trial.1

On appeal, Walker argues that the court lacked the authority to enter the final decree of divorce without a jury because OCGA § 9-11-39(a) authorizes a court to do so only if there is a waiver of the jury demand. The majority holds that Walker's tardiness to court amounted to an implied waiver, thus authorizing the trial court to conduct a bench trial. However, the Matthews rule clearly establishes that where a spouse does not expressly consent to a bench trial by actually taking part in it without objection, the spouse's failure to take part in the trial could not impliedly waive the spouse's jury trial demand. Accordingly, under the rule expressed in Matthews, the trial court erred in proceeding with a bench trial.

I am authorized to state that Chief Justice Sears and Justice Carley join in this dissent.

THOMPSON, Justice.

All the Justices concur except SEARS, C.J., CARLEY and MELTON, JJ., who dissent.

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