Appellee Terrie Kautter “Wife” filed a petition for divorce in December 2003 after 22 years of marriage to appellant Karlheinz Kautter “Husband” in which she sought equitable division of the marital property and attorney fees. In April 2005, Husband filed a demand for jury trial. However, when the case was called for trial in June 2006, Husband deliberately chose not to appear and Husband’s counsel, after the denial of a motion for continuance, declined to participate in the jury trial in obedience to instructions counsel received from Husband. Wife then moved the court to strike the jury demand. The trial court granted the motion1 and a bench trial was conducted. The bench trial proceedings were not reported. The trial court later entered an order equitably dividing the marital property but expressly reserving Wife’s request for attorney fees. Husband’s motion for new trial was denied. After this Court dismissed Husband’s initial application to appeal for failure to follow the interlocutory provisions in OCGA § 5-6-34 b, an award was entered on the attorney fees, thereby finalizing the judgment. Husband’s application for discretionary appeal was granted pursuant to this Court’s pilot project, see Maddox v. Maddox , 278 Ga. 606 n. 1 604 SE2d 784 2004, and Husband timely filed a notice of appeal in which he directed the superior court clerk’s office to include in the record only certain, limited items. In his enumerated errors, Husband challenges the dismissal of his jury trial demand, the inclusion of certain language in the decree and the propriety of the trial court’s rulings regarding the marital property division and the attorney fees award. For the reasons that follow, we direct the trial court to strike the challenged language from the decree, but otherwise affirm the judgment. 1. Husband contends the trial court erred by striking his demand for a jury trial because the record contains no written withdrawal of his demand and because his actions did not amount to an implied waiver of his jury demand as a matter of law. 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. OCGA § 9-11-39 a; Cit. Of course, a party in a divorce case can, by his voluntary actions, impliedly waive a demand for a jury trial. Cits. Matthews v. Matthews , 268 Ga. 863, 864 2 494 SE2d 325 1998. Husband is correct that there is no written withdrawal of his demand in the record. As to Husband’s actions, the only evidence in the record consists of the trial court’s written order dismissing Husband’s demand and an affidavit Husband submitted with his motion for new trial.2
In its order, the trial court found that, when the case was called for trial, Husband’s counsel informed the trial court that Husband “was not present and was not going to appear for trial”; that counsel further informed the court that Husband had instructed counsel “to not participate in the trial of the case”; that the court released counsel from any further participation; and that the trial court granted Wife’s motion to strike the jury demand, made pursuant to Walker v. Walker , 280 Ga. 696 631 SE2d 697 2006; Matthews v. Matthews , supra, 268 Ga. at 864 2; and Bonner v. Smith , 226 Ga. App. 3 4 485 SE2d 214 1997.
