Family Law and the Servicemembers Civil Relief Act

Mark E. Sullivan
Sullivan & Tanner, P.A.
Raleigh, North Carolina
 

 I.         Introduction

II.         overview of the new statute – servicemembers civil relief act

A.   Purpose (50 U.S.C. App. § 502)

1.  To enable servicemembers (SMs) to devote their entire energy to the defense needs of the Nation; and

2. To provide for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of SMs during their military service

B.   Who is covered? (50 U.S.C. App. § 511) 

1.  Covered servicemembers include –

a.  Those members of the Army, Navy, Air Force, Marine Corps and Coast Guard who are on active duty under 10 U.S.C. 101(d)(1);

b.   Members of the National Guard who are called to active duty as authorized by the President or the Secretary of Defense for over 30 consecutive days under 32 U.S.C. 502(f) to respond to a national emergency declared by the President and supported by federal funds;

c. Commissioned members of the Public Health Service and the National Oceanographic and Atmospheric Administration.

2.   A servicemember is also covered for periods of time when he or she is absent from duty because of  sickness, wounds, leave or other lawful cause [i.e., he is still a SM even in absent from active duty for one of the above reasons]

3.   50 U.S.C. App. § 516, the protections of the Act are extended to members of the Reserve Components (RC) – the National Guard and Reserve – from receipt of orders to report for duty to the date that they report

4.   Covered individuals under certain sections of the SCRA include dependents of a SM (a spouse, a child, or anyone for whom the SM provided over half of  the person’s support for the 180 days immediately preceding an application for relief under the Act)

C.   What tribunals are covered?

1.   50 U.S.C. App. §  511(5) – any court or administrative agency of the United States, a state or a political subdivision thereof

2.   Criminal proceedings are excluded under 50 U.S.C. App. § 512(b)

3.   Does this mean the Puerto Rico Department of Environmental Protection?  The Cabo Rojo Board of Housing Appeals?  The Zoning Commission of San Sebastian?  The answer is YES to all the above!

D.   What about the SM’s lawyer?  Under 50 U.S.C. App. § 519, whenever “servicemember” is used, it includes the attorney and/or the agent (under a power of attorney) of the SM

E.   Can the SM waive his rights?

1.   This is covered in 50 U.S.C. App. § 517.  A waiver of SCRA rights is only effective if it is made during the period of military service.

2.   In addition, certain waiver must be made in writing.

F.    A summary of the major changes in the new Act can be found at ATCH-1.

III.       stay of proceedings

A.  Where the SM has not made an appearance, 50 U.S.C. App. § 521 governs.  A stay of proceedings under 50 U.S.C. App. § 521(d) is not be controlled by the procedures under 50 U.S.C. App. § 522, which apply when the SM has received actual notice of the action.

1.  The court must first determine whether an absent or defaulting party is in military service.

a.  Before entry of a judgment for the plaintiff, the court (including “agency”) shall require the plaintiff to file an affidavit.  The affidavit shall state “whether or not the defendant is in military service and showing necessary facts in support of the affidavit.”

b.  If it appears that the defendant is a SM, then a default judgment may not be taken until after the court appoints an attorney to represent the defendant.

c.  If that attorney cannot locate the SM, the actions of the attorney cannot waive any defense of the SM or otherwise bind him or her.

d.  If the court cannot determine whether the defendant is in military service, then the court may require the plaintiff to post a bond as a condition of entry of a default judgment.  Should the defendant later be found to be a SM, the bond may be used to indemnify the defendant against any loss or damage which he or she may incur due to the default judgment (if it should be later set aside).

e.  Upon application by either side or the court, the military service must issue a statement as to military service. 50 U.S.C. App. § 582.

f.   Criminal penalties are provided for filing a knowingly false affidavit.

2.   Then the court must decide on a stay of proceedings.  In cases where the defendant is in military service –

a.  The court shall stay the proceedings for at least 90 days (upon application of counsel or on the court’s own motion) if the court determines that:

(1)    there may be a defense to the action and a defense cannot be presented without the presence of deft, or

(2)    after due diligence, counsel has been unable to contact the defendant or otherwise determine if a meritorious defense exists.

3.   If a judgment has been entered against the SM during his period of military service (or within 60 days after the end of service), the court shall reopen the judgment to allow the SM to defend if

a.  he was materially affected due to military service in asserting a defense, and

b.  he has a meritorious or legal defense to the action or some part of it, so long as

c.  the application is filed within 90 days after the end of military service. 50 U.S.C. App. § 521(g).

4.   Reopening or vacating the judgment shall not impair right or title acquired by a bona fide purchaser for value under the default judgment.

B.   50 U.S.C. App. § 522 applies to a stay of proceedings where the SM has notice of the proceedings and has filed an application for stay (including an application filed within 90 days after the end of military service)

1.   The court may (upon its own motion) and shall (upon motion of a SM) enter a stay of proceedings for at least 90 days if the motion includes

a.  A statement as to how the SM’s current military duties materially affect his ability to appear, and stating a date when the SM will be available to appear, and

b.  A statement from the SM=s commanding officer stating that

(1)    the SM=s current military duty prevents his appearance and

(2)   military leave is not authorized for the SM at the time of the statement.

c.  Caveat #1: There is no indication that the first of these statements need be from the SM himself.  It could be from his commander, his first sergeant, his attorney, his JAG officer, or anyone else with knowledge of the facts in the statement.

d.  Caveat #2: There is no indication that either of these must be in the form of an affidavit or, for that matter, in any particular format whatsoever.  Apparently a letter, a formal memo or even an e-mail message would suffice.

e.  A sample motion for stay of proceedings can be found at ATCH-2.

f.  A request for a stay does not constitute –

(1)    an appearance for jurisdictional purposes, or

(2)   a waiver of any defense, substantive or procedural. 50 U.S.C. App. §522(c).

g.  The SM may request an additional stay based on the continuing effect of his military duty on his ability to appear.  He may make this request at the time of his initial request or later on, when it appears that he is unavailable to defend or prosecute.  The same information as given above is required. 50 U.S.C. App. § 522(d)(1).

h.  If the court refuses an additional stay, then the court must appoint an attorney to represent the SM in the action or proceeding. 50 U.S.C. App. § 522(d)(2).  

(1)    Questions: What does this attorney do?  Who pays him or her?  How does the attorney get in touch with the unavailable defendant or plaintiff?  How can the attorney hope to represent the SM with no information, preparation or input by the “involuntary client”?  Is the attorney supposed to try the entire case in the SM’s absence?  Whose malpractice policy is going to cover this nightmare?

(2)    Further question: Which section applies when the SM has notice but has not made an appearance?  That is, what governs when he has been served properly with the summons and complaint or petition but has not filed an answer or substantive motion? Both of them? Neither one?

IV.        Stay or Vacation of execution of judgments, attachments and garnishments

A.   In any action started against a SM before his period of military service, during it or within 90 after the end of service, when a SM’s military duties materially affect his ability to comply with a court order or judgment, then the court may (on its own motion) and shall (on motion by the SM) –

1.   stay the execution of any judgment or order entered against him, and

2.   vacate or stay any attachment or garnishment of property, money or debts in the possession of the SM or a third party

3.   regardless of whether it is before or after judgment. 50 U.S.C. App. § 524.

V.         Request for anticipatory relief

A.   The SCRA doesn’t require breach or default before offering protections to covered individuals. 

B.   Example – the anticipatory relief provisions of 50 U.S.C. App. §591:

 ANTICIPATORY RELIEF.

(a) APPLICATION FOR RELIEF.—A servicemember may, during military service or within 180 days of termination of or release from military service, apply to a court for relief— (1) from any obligation or liability incurred by the servicemember before the servicemember’s military service; or (2) from a tax or assessment falling due before or during the servicemember’s military service. 

C.   These anticipatory relief provisions can be used to request relief from pre-service obligations, such as child support or alimony, when a prospective breach is likely.  For example, when the SM is earning more in his civilian job before mobilization than he will be earning on active duty, and the civilian wage garnishment will terminate upon his call to active duty, the SM should use this section to request a reduction in child support or alimony and to request a new garnishment from DFAS (Defense Finance and Accounting Service) to pay the other party on a timely basis.

VI.        USING THE SCRA “stay request” IN FAMILY LAW CASES

A.   Defensive use on behalf of the servicemember – questions to ask the client:

1.    Is delay necessary?

2.    Is delay desirable? [e.g., build-up of arrears, citations for contempt as results]

3.    If it is helpful at present, will a delay of the day of reckoning help in the long run?

B.   Resisting the motion for a stay on behalf of the non-military partner or spouse:

1.    Attack the stay request.  Does it contain the mandatory elements?

SCRA Stay Request – a Checklist for Opposing the Initial 90-Day Stay

Elements of a Valid 90-Day Stay Request.  Does the request contain:

A statement as to how the SM’s current military duties materially affect his ability to appear?

And stating a date when the SM will be available to appear?

A statement from the SM's commanding officer stating that the SM's current military duty prevents his appearance?

And stating that military leave is not authorized for the SM at the time of the statement?

2.   How much leave has member accrued?  Ask for a copy of the SM’s LES (Leave and Earnings Statement) to find out.

3.   What is the nature of the “military necessity” that prevents a hearing?  Is the SM serving in Iraq, where he cannot be given leave and is facing hostile fire on a daily or weekly basis?  Or is he serving as “backfill” at Ft. Bragg or Ft. Lewis so that others may deploy overseas, working a comfortable day shift of 7:30 – 4:30 with weekends off?

4.   Sometimes a SM exaggerates the amount of time needed to be in court.  Often a court case can be heard and resolved in a few hours or a few days.  What happens if the SM complains to his commander that he will need to be gone for 30 days to take care of his case back in court?  Answer – a letter from the commanding officer stating that the SM’s duty requirements prevent appearance and that he is not authorized leave.  Preempt this approach by specifying in the pleadings what is requested and approximately what amount of time will be required in court.

5.   Is member’s presence necessary?

6.   What about video depositions?  Use of the Internet?  Is anyone truly “unavailable” any more?

a.  In Massey v. Kim, 455 S.E.2d 306 (Ga. Ct. App. 1995), the SM asked for a stay of proceedings to delay pending discovery until the completion of his overseas tour of duty.  The court denied his request, pointing out improvements in modern communications since the passage of the SSCRA.

b.  In Keefe v. Spangenberg, 533 F. Supp. 49 (W.D. Okla. 1981), the court denied the SM’s stay request to delay discovery, indicating that the SM should appear by videotape deposition pursuant to Fed. R. Civ. P. 30(B)(4).

c.  One court specifically pointed out that “Court reporters may take depositions in Germany including videotape depositions for use in trials in this country.” In re Diaz, 82 B.R. 162, 165 (Bankr. Ga. 1988). 

7.   What about summary judgment based on affidavits? 

8.   Can the matter be resolved on an interim basis with a temporary hearing? In Shelor v. Shelor, 383 S.E.2d 895 (Ga. 1989), the court determined that temporary modifications of child support, in general, do not materially affect the SM’s rights since they are interlocutory and subject to modification.

9.   Is the SM truly unable to appear?  The Welfare Reform Act of 1996 requires that the armed forces issue regulations to ease the granting of leave for SMs to appear in court and administrative paternity and child support hearings. See DoD Directive 1327.5, Leave and Liberty (IO 4, 10 Sep. 1997).  See also Conrad, “Child Support and Paternity Case Stay Actions Impacted by the Welfare Reform Act of 1996”, The Army Lawyer, June 1998, at 13.

10.  When will the temporary exigency be over?  There is nothing that prevents a judge from responding to the commanding officer to ask some questions that will help determine what can be done to move the case forward.  Perhaps the SM can respond to discovery while he is unavailable for a court appearance.

11.  See ATCH-3, a flow chart on defending against the SCRA, adapted from one found at Hooper, "The Soldier's and Sailors' Civil Relief Act of 1940 as Applied in Support Litigation: A Support Attorney's Perspective," 112 Mil. L. Rev. 93 (1986).

12.  See ATCH-4, “Legal Considerations in SCRA Stay Request Litigation: The Tactical and the Practical,” for more information.

VII.         Internet scra resources:

1.   There’s not much on the Internet at present about the SCRA since it’s so new.  But there’s a lot about the SSCRA (Soldiers’ and Sailors’ Civil Relief Act, the SCRA’s predecessor.

2.   Fire up your ISP (internet service provider) and start with a visit to the home page of the Army JAG School, http://www.jagcnet.army.mil/TJAGSA.  When you get there, click on "Publications" on the left side, then scroll down to "Legal Assistance" and look for JA 260, "Soldiers' and Sailors' Civil Relief Act Guide," a thorough examination of every section of the SSCRA by the faculty of the Army JAG School (updated in July 2000).

3.  You can also find useful material on the SSCRA (still useful when dealing with the SCRA) at these URL's: 

a. "Soldiers' and Sailors' Civil Relief Act Provides Umbrella of Protection" - Department of Defense article, Armed Forces Information Service: http://www.defenselink.mil/specials/Relief_Act/

b.  Coast Guard article on SSCRA: http://www.uscg.mil/mlclant/LDiv/soldiers1.htm

c.  Air Force Academy article on SSCRA: http://www.usafa.af.mil/10ja/ssra.htm

d.  Coast Guard Fact Sheet on SSCRA: http://www.uscg.mil/legal/la/topics/sscra/SSCRA_Factsheet.htm

e.  Article by Carreon and Associates, Cypress, CA, on SSCRA: http://www.carreonandassociates.com/soldiersact.html

f.  Office of Child Support Enforcement's "A Caseworker's Guide to Child Support Enforcement and Military Personnel" - section on SCRA: http://www.acf.dhhs.gov/programs/cse/fct/militaryguide2000.htm#relief

g.  Legal Services, http://www.jagcnet.army.mil/legal, the Army Judge Advocate General's Corps public preventive legal information site (Servicemember’s Civil Relief Act information center).