In prior articles, we explored the pros and cons of jury trials in divorce and other domestic actions, as well as the availability of contempt remedies for violation of divorce decrees. This article will address the extent to which a party can demand a trial by jury when defending an action for contempt of a divorce decree.

While the same reasons motivating a party to demand a jury trial in a divorce action also should apply to an action for contempt of the divorce decree, the right to a jury trial in a contempt proceeding will be significantly limited.

No constitutional right to a jury trial exists in cases of contempt imposing punishment of under six months.(1) Because Georgia law limits incarceration for criminal contempt to 20 days maximum, no constitutional right to a trial by jury applies to a finding of criminal contempt.(2) And while published opinions of Georgia’s appellate courts have not expressly stated as such, it would appear that no constitutional right to a jury trial applies to civil contempt rulings either.

In contrast to constitutional rights, a Georgia statute expressly grants the right to a jury trial in contempt actions, but only regarding the defendant’s ability to pay an obligation, as follows in relevant part:

No person shall be imprisoned for contempt for failing or refusing to pay over money under any order, decree, or judgment of any court of law or any other court of this state when he denies that the money ordered or decreed to be paid over is in his power, custody, or control until he has a trial by jury in accordance with the following provisions:

… The allegation of the plaintiff, receiver, referee, or any other person or persons that the defendant accused of contempt has a certain sum of money within his power, custody, or control, which he is withholding or refuses or fails to pay over, and the denial of the defendant that he has the power, custody, or control of the money shall form the issue to be tried by the jury, and the jury shall decide the issue of fact; …"(3)

Even when alleging an inability to pay a divorce decree’s obligation, a party will have no right to a jury trial where the alleged contempt involves nonpayment of alimony or child support.(4) The party still can avoid imprisonment in such cases by proving financial incapacity, but the judge, not a jury, will decide the issue.(5)

(1) Carter v. Carlson, 324 Ga.App. 214, 218(3), 748 S.E.2d 304 (2013), citing Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974); and. Dowdy v. Palmour, 251 Ga. 135, 141(2)(a), 304 S.E.2d 52 (1983).

(2) Carter, supra, 324 Ga.App. at 218(3).

(3) O.C.G.A. § 15-1-4(b). See O.C.G.A. § 23-4-37; and O.C.G.A. § 15-6-8(5).

(4) Bernard v. Bernard, 347 Ga.App. 429, 433(2), 819 S.E.2d 688 (2018), citing Brannon v. Brannon, 225 Ga. 677, 677(3), 171 S.E.2d 123 (1969); and Blackburn v. Blackburn, 201 Ga. 793, 796(3), 41 S.E.2d 519 (1947).

(5) See Bernard, supra, 347 Ga.App. at 433-434.