Dunn v. Dunn

368 Ga.App. 161

889 S.E.2d 352

DUNN v. DUNN.

A23A0580

Court of Appeals of Georgia.

June 13, 2023

Cordell Law, Kevin Mammola, Atlanta, for Appellant.

Lawrence Alan Stagg, Ringgold, for Appellee.

Brown, Judge.

We granted Danny Dunn's ("Husband") application for discretionary review of the trial court's final judgment and decree of divorce. On appeal, he argues that the trial court erred in (1) conducting a final hearing despite the parties only being noticed for a contempt hearing; (2) conducting a bench trial when Husband filed a timely demand for a jury trial; (3) adopting verbatim Caryn Dunn's ("Wife") proposed order, which contradicted the trial court's oral pronouncement and made a determination of marital assets without giving Husband an opportunity to reply; (4) failing to incorporate a permanent parenting plan into the divorce decree that fully complies with OCGA § 19-9-1 ; (5) using evidence of Husband's income established during a temporary hearing to calculate child support; (6) failing to include all schedules as required by OCGA § 19-6-15 (m) ; and (7) entering a final order that fails to resolve all "contestable issues." For the reasons explained below, we affirm in part, but we vacate the trial court's final order of divorce so that it may fully comply with OCGA § 19-9-1.

The record shows that in July 2019, Wife filed an action for divorce against Husband, seeking temporary and permanent custody of the parties’ four minor children, as well as financial support and division of the parties’ marital and personal property. Husband answered and counterclaimed for sole custody of the children, an award of child support, and equitable division of personal property and debt. Following a temporary hearing in August 2019, at which both parties appeared, the trial court awarded the parties joint legal and physical custody of the children, and found that Husband earns $5,047.66 per month and ordered him to pay $1,437 in monthly child support. Three months later, Wife filed a petition for contempt, as amended, alleging that Husband was in arrears on his child support payments. A hearing was set for January 9, 2020. On January 8, 2020, Husband answered the contempt petition and filed a counterclaim, alleging that Wife violated the trial court's temporary order in a number of ways, including disposing of certain marital assets and interfering with his personal mail. On March 3, 2020, Wife's counsel filed a "Notice of Final Hearing," which provided that "Plaintiff will bring the above styled matter on for a Final Hearing on the 19th of March, 2020[.]" On March 5, 2020, Husband filed a demand for jury trial.

On March 7, 2020, nunc pro tunc to January 9, 2020, the trial court entered an order finding Husband in wilful contempt of the temporary order. On July 16, 2020, the trial court issued an order setting the case for "a hearing" on August 11, 2020. Upon agreement of counsel, that hearing date was cancelled and rescheduled by the court for September 14, 2020. On August 28, 2020, the September hearing date was continued by agreement of counsel and continued by order of the court until October 28, 2020, " AT 9:00 AM in the Superior Court of Dade County, Trenton, Georgia." On October 21, 2020, Husband filed an application for contempt, moving the trial court to find Wife in contempt and place her in jail. Accompanying this application was a notice of hearing which provided: "Notice is hereby given that [Husband] will bring on his Application for Contempt against [Wife] on the 28th day of October 2020, at 10:00 AM in the Superior Court for Dade County, Dade County Courthouse, Trenton, Georgia."

On October 28, 2020, the trial court held a bench trial during which both parties, three witnesses, and the guardian ad litem testified. On December 15, 2020, the court entered a final judgment and decree of divorce granting the parties joint legal custody of their four children with Wife having primary physical custody and final say in the event of any dispute between the parties over any joint legal custody issue. The court found that Husband earns $5,048 per month and ordered him to pay $1,566 in monthly child support, noting that he was ordered to provide his most recent paycheck stub at the final hearing so that child support could be determined but that he had not "provide[d] the same, thus the [c]ourt will impute his income from the [t]emporary [o]rder." The court also awarded Wife sole ownership of the marital residence and ordered that all other real property be listed with a realtor and "sold in a commercially reasonable manner." As to the "other real property," the trial court noted that "[a]t the time of the hearing, [Husband] claimed that the real property was purchased in part with premarital funds. [Husband] was given the opportunity to provide the information to the [c]ourt. He has failed to do so[.] [F]or this reason, the [c]ourt finds that all interest in the real property was marital." Husband appeals from this final judgment.

1. Husband contends that the trial court erred in conducting a final hearing despite the parties only being noticed for a contempt hearing. We find no merit in this enumeration for several reasons.

First, by agreement of counsel and order of the trial court , the final hearing was scheduled for October 28, 2020, after the parties twice rescheduled it by agreement. Second, the contempt hearing was unilaterally noticed by Husband's counsel to coincide with the final hearing; it was not a court-ordered hearing notice. Third, Husband has neither stated nor shown where he objected to the trial court conducting a final hearing on October 28, 2020. See, e.g., Facey v. Facey , 281 Ga. 367, 368 (1), 638 S.E.2d 273 (2006). Quite the opposite, Husband appeared at the specially-set, agreed-upon date for the final hearing where his counsel questioned several witnesses, including Husband himself and the guardian ad litem. Moreover, during an exchange between Wife's counsel and Husband during the hearing, Husband acknowledged that he was appearing for a final hearing :

Q: Sir, so you're in court for custody of these four children and your position is that she was hospitalized since the temporary order in this case for mental reasons and you had the EOB and you did not bring the EOB?

A: Well, I mean, I gave it to the guardian ad litem, but I didn't realize I could bring documents with me up here on the stand either.

Q: You have a whole table of documents sitting here, right? Are you telling this Court you didn't know you could bring documents to court? No.

A: I have never been through a divorce. I apologize.

Q: Well, you've been through court. You said earlier this is your third or fourth time in court, right?

A: Not for a final hearing.

Additionally, at the close of the evidence, Husband's counsel engaged in an exercise with the trial court and Wife's counsel wherein they went over a proposed list of personal items and divided them between the parties. Such conduct is inconsistent with one appearing solely to prosecute an application for contempt.

2. Husband contends that the trial court erred in conducting a bench trial when he filed a timely demand for a jury trial. We disagree.

OCGA § 19-5-1 (a) provides in pertinent part: "Unless an issuable defense is filed as provided by law and a jury trial is demanded in writing by either party on or before the call of the case for trial, in all petitions for divorce and permanent alimony the judge shall hear and determine all issues of law and of fact and any other issues raised in the pleadings."

When a party makes a timely demand for a jury trial, 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. Of course, a party in a divorce case can, by [his] voluntary actions, impliedly waive a demand for a jury trial. A demand for a jury trial is impliedly waived where the party making the demand participates in a bench trial without objection.

(Citations omitted.) Matthews v. Matthews , 268 Ga. 863, 864 (2), 494 S.E.2d 325 (1998). See Holloman v. Holloman , 228 Ga. 246, 247 (1), 184 S.E.2d 653 (1971) (wife, who testified in hearing before trial court when divorce was granted, waived demand for jury trial).

Here, the record shows that Husband filed a written demand for a jury trial on March 5, 2020, before the case was called for trial and that he had an issuable defense. Husband contends that the trial court never "actually called the case for trial. Instead, the parties appeared for a duly noticed contempt hearing." Given our holding in Division 1, this enumeration is entirely without merit. Husband "in this case waived [his] right to a jury trial by [his] ‘conduct’ in participating in the bench trial and [his] ‘silence’ in failing to protest or object." Goss v. Bayer , 184 Ga. App. 730, 732 (2), 362 S.E.2d 768 (1987).

3. Husband contends that the trial court erred in adopting verbatim Wife's proposed order, which contradicted the trial court's oral pronouncement and made a determination of marital assets without giving Husband an opportunity to reply. We find this enumeration meritless.

At the conclusion of the final hearing on October 28, 2020, the trial court advised Husband that he could prove certain assets belonged to him even though he failed to do so during the hearing. During the motion for new trial hearing, Wife's counsel explained that on November 11, 2020, following the final hearing, he received an e-mail from Husband's counsel advising him that he had encouraged Husband to give him proof of income and any premarital asset information. A week later, Wife's counsel indicated to Husband's counsel that he was looking forward to receiving the information. Two days after that, Wife's counsel again asked for the information. On Wednesday, December 9, 2020, Wife's counsel...