With the principal exception of child custody determinations, most domestic issues can be tried by a jury in Georgia. The underpinning right to a trial by jury varies by issue though, as do the requisites for claiming that right. This article explores those factors in the context of different domestic proceedings.
As with civil cases in general, the right to a jury trial in family litigation arises from the Bill of Rights contained in Georgia’s Constitution, which provides that “[T]he right to trial by jury shall remain inviolate, except that the court shall render judgment without the verdict of a jury in all civil cases where no issuable defense is filed and where a jury is not demanded in writing by either party.”(1) The Official Code of Georgia reiterates the constitutional right to a jury trial in civil actions, providing that “[t]he right of trial by jury as declared by the Constitution of the state or as given by a statute of the state shall be preserved to the parties inviolate.”(2)
In actions for divorce and permanent alimony, statutory law clarifies the constitutional right to a jury trial, allowing a party to file a written jury demand at any time “on or before the call of the case for trial.”(3) Failure to make a timely demand or to raise an issuable defense results in the judge hearing and determining all issues of law and of fact and any other issues raised in the pleadings.(4)
Georgia law remains less clear as to when and how parties must demand jury trials in other family actions. In proceedings to modify alimony or child support, for instance, statutory law merely states that “the jury, or the judge where a jury is not demanded by either party, may modify and revise the previous judgment…”(5) The governing statute itself does not explicitly require a written jury demand; however, case law has confirmed such a requisite.(6)
Unlike divorce and modification actions, governing statutes do not explicitly provide for jury trials in proceedings to determine paternity. One appellate court addressing the subject held that general rules of civil procedure dictated the right to a jury trial in paternity proceedings.(7) Under those general rules, a party retains the right to a jury trial unless she waives that right, through her or her attorney of record’s consent to a trial by the court sitting without a jury, made by a) filing of a written stipulation with the court or b) oral stipulation in open court entered in the record.(8) The right to a jury trial also may be impliedly waived, by the parties’ voluntary participation in a non-jury trial.(9) Despite the explicit constitutional exception to the right of jury trial occurring in the absence of a written demand, the Court of Appeals has held that a biological father who raised an issuable defense but failed to make a written jury demand in a paternity action nevertheless preserved his right to a jury trial, because he did not expressly waive the right.(10)
Some superior court judges in domestic proceedings have issued orders containing deadlines to make jury demands earlier than the call of the case for trial. While no published decision has yet considered the legitimacy of those particular orders, one appellate court did analogously invalidate a local rule which deemed waived a party’s right to a jury trial, where the party failed to file a jury demand within a stated time prior to the calling of the case for trial.(11)
It should be noted that, even where a party has failed to raise an issuable defense, or failed to make a timely jury demand, or has expressly waived the right to a jury trial, a judge nonetheless possesses the authority to order a trial with a jury “whose verdict will have the same effect as if trial by jury had been a matter of right or had not been waived.”(12)
(1) Ga. Const., Art. I, Sec. I, Par. XI. (2) O.C.G.A. § 9-11-38. (3) O.C.G.A. § 19-5-1(a). (4) Id. (5) O.C.G.A. § 19-6-19(a). (6) McElroy v. McElroy, 252 Ga. 553(1), 314 S.E.2d 893 (1984). (7) Stinson v. Pratt, 182 Ga.App. 552(1), 356 S.E.2d 519 (1987). (8) O.C.G.A. § 9-11-39(a). (9) Raintree Farms, Inc. v. Stripping Center, Ltd., 166 Ga.App. 848(1), 305 S.E.2d 660 (1983). (10) Stinson, supra, 182 Ga.App. at 553(1). (11) Raintree Farms, supra, 166 Ga.App. at 848-849(1). (12) O.C.G.A. § 9-11-39(b).