military custody - Sullivan & Hilscher Family Law

O, what a tangled web we weave when first we practice to deceive.
– Sir Walter Scott

Jamie Snellings may have thought she could get away with it. She was caught with her hand in the cookie jar… and an invisible cookie jar, at that.

Jamie’s Deception

After the 2014 filing for divorce in Hawai’i, she and her husband, Jason Snellings, filed their mandatory disclosure forms with information on their assets and accounts. Then Jason found out that Jamie had moved $65,000 to a new account that she had not disclosed – an invisible account – so he filed for a financial restraining order. Jamie later said, “I wanted the court case to be done and… was scared over the threat of sanctions,” and so she told her lawyer to settle the matter quickly with a consent order.

The attorneys quickly arrived at a stipulated divorce decree, and the parties signed the typed order. It covered divorce and custody, with Jason getting primary custody of the children. The judge orally approved the typed settlement and granted the divorce.

Jason’s Deception

The attorneys started preparing the full and final order, but then Jamie’s attorney wrote to the court with objections. The letter said that Jason had not disclosed to Jamie his impending deployment until the day after the June 3, 2015 hearing on the stipulated divorce decree, “when he also informed Jamie that their two children would live with his parents in Virginia as part of a family care plan he had submitted to his military command. Jamie requested a hearing before the family court.” Snellings v. Snellings, NO. CAAP-16-0000704, 2020 Haw. App. LEXIS 77 (Haw. Ct. App., Feb. 28, 2020) at *3-4.

The trial judge was clearly upset, stating at the initial hearing:

The reason we’re here today is . . . [Jason], you are currently . . . on deployment with the military pursuant to your service and that allegedly you knew about that well in advance of the proceedings in June, but for reasons that I think are manifestly obvious you decided to not reveal that to [Jamie]. [Jamie]’s claim is that that was a material misrepresentation . . . and it would have affected the negotiations between the parties and maybe come up with a different — a different result. And that’s what’s before me.

Id. at *5. It turned out that Jason had taken the children from Hawai’i to Virginia to live with his parents.

What Happened Next

The court ultimately signed the tendered settlement, since it recited accurately the terms upon which the parties had agreed previously. While stating that the conduct didn’t appear to require the filing of a report to the Office of Disciplinary County of the bar, the court decided to impose $5,000 in sanctions – attorney’s fees and costs – on Jason, and it demanded a detailed affidavit from Jamie’s attorney.

Jamie then filed a motion to vacate or modify portions of the settlement, sought modification of the custody terms, and asked the court to enforce a prior order requiring Jason to transfer a vehicle to her. The response from Jason was a motion to dismiss and a request for a stay of proceedings under the Servicemembers Civil Relief Act, 50 U.S.C. § 3932. The court denied the stay request and ordered the children to be returned to Hawai’i, to be placed in Jamie’s sole custody until Jason returned from deployment. Ultimately the court set aside major portions of the stipulated divorce decree on the basis of fraud. It awarded an additional $12,000 to Jamie in attorney’s fees and costs.

The Court’s Concerns

Much would be lost in the exploration of this case if the court’s statements in open court were omitted. A clear sense of why the court was disturbed by Jason’s conduct and where the court was headed can be gleaned from the following remarks to Jason’s attorney:

[F]rankly, the Court has very little trust in terms of your client’s actions in this case thus far…. What the Court is concerned about are the allegations that a fraud was perpetrated on the Court…. That’s what the Court is concerned about, that information pertinent to settlement negotiations and relevant to settlement negotiations was intentionally withheld. [M]y understanding of the case, having reviewed the motion, is that the essence of the fraud claim is that [Jason’s] deployment was not disclosed [to Jamie] prior to the time the agreement [for the stipulated divorce decree] was reached…. The intention was to withhold information to get the agreement he wanted is what it’s — it sounds like you’re telling me.

[JASON’S COUNSEL]: No, I don’t believe that’s the case.

THE COURT: It may have been because he wanted to ensure his children were safe and protected and all of that stuff, but at the heart of it, it sounds like he withheld information because he felt that would benefit his position.

Id. at *9-11.

Pulling Back the Curtain

The facts about deployment and the settlement were revealed out in the Court of Appeals decision. The Court noted that:

Jason received TAD (Temporary Additional Duty) orders to Cuba three months before the settlement was signed. The tour of duty was for nine months.
Despite the pendency of timesharing and custody issues between the parties, Jason didn’t disclose the assignment orders to Jamie when he received them or within a reasonable time thereof.
When the parties signed the settlement on custody and timesharing, Jason still had not revealed to Jamie his TAD orders, which required him to report just three days after the typewritten settlement in court.
The day after the court settlement, Jason told Jamie that he had TAD orders, he was leaving Hawai’i in two days, “and told her that he was sending the children to live with his parents in Virginia for the duration of his TAD.” Id. at *17.
“Thereafter, [Jamie] discovered that on June 2, 2015, [Jason] had notified the children’s schools that the children’s last day of school would be June 3, 2015 and that they were to be permanently released as they were moving to Virginia…. [Jason] had not disclosed this notification to [Jamie] prior to the parties’ June 3, 2015 agreement at Court…. [Jamie] also discovered that on May 26, 2015 [Jason] had arranged for a 16 foot storage pod to be delivered to his address on May 30, 2015…. On June 6, 2015, [Jason] left Hawai’i with both children and dropped them off at his parent’s house in Virginia.” Id. at *17-18.

The Appellate Decision

In affirming the trial court’s rulings on attorney’s fees and costs, the Court of Appeals noted the following specific findings in the trial court’s order regarding Jason’s conduct:

[Jason’s] TAD orders and imminent departure from Hawai’i were material facts that should have been disclosed to [Jamie] and her counsel prior to June 3, 2015. [Jason] did not disclose his TAD orders to [Jamie] until June 4, 2015. [Jason] knowingly and intentionally failed to disclose [to Jamie] his TAD orders and his plans to send the children to Virginia… until June 4, 2015 to induce her to agree to the settlement terms that he wanted.

Id. at *25. The Court upheld the trial court’s other orders in all respects.

Lessons to be Learned

The Snellings case contains several lessons for the family law practitioner and the client. The pointers are not confined simply to cases involving custody and a military family.

“Clean hands” is the first lesson. Be “clean” with the opposing party and the court. Be candid when there are issues of substance which are being overlooked and which could lead to a different result, whether in the courtroom (in a contested case) or in the conference room. Even when the case is being settled “on the courthouse steps,” remember that a lawyer’s duty, as an officer of the court, includes candor to the tribunal. This is not a game of “hide the ball.” A family law matter in court is something that will affect the lives of the parties and the children, perhaps for a long time.

The next lesson involves an unappealed issue, the denial of Jason’s motion for a stay of proceedings under the SCRA, the Servicemembers Civil Relief Act, 50 U.S.C. § 3932. Ordinarily such a motion is granted automatically when the movant sets out the four essential elements of a request: a) a statement as to how his military duties affect his ability to appear, b) a statement as to when he will be available, c) a statement from his commanding officer that the servicemember’s military duties prevent his appearance, and d) the commander’s statement that military leave is not authorized. While the matter did not reach the Court of Appeals, an educated guess is that the denial was based on Jason’s conduct. When a party applying for a stay of proceedings has acted inequitably, most courts will refuse to consider the stay request based on the doctrine of “the sword and the shield.” This doctrine states that the SCRA is intended to be used as a shield to protect the rights of the servicemember, not as a sword to defeat the rights of others. “Fair play” is the key to successful use of the SCRA in slowing down civil proceedings. Bad actors may get bad treatment in court.

A third lesson is: “Good lawyers know the law, but great lawyers know the judge.” Listen to the judge. If there are comments from the bench that affect your case, pay heed and try to follow where the court is leading. In this case the court on numerous occasions pointed out its concerns about the issues of truth, credibility, fraud and the concealment of material facts in order to gain a tactical advantage. These statements are like red flags before a hurricane – heed them and act accordingly. One who doesn’t will often “reap the whirlwind.”

Finally, a lesson which Jason should have been given early in the case is “When you’re in a hole, stop digging.” Disregarding the substantial claims as to his misconduct, Jason kept on filing motions and resisting the court’s clear concerns about his deceptions. Counsel has a duty to warn the intransigent client of the likely consequences of his actions. In the appropriate case, counsel should withdraw when his or her client refuses to bring his conduct into compliance with the court’s rulings and concerns. It was clear from the start how the judge was leaning, and the court’s remarks left little doubt that Jason had “gamed the system” in gaining a settlement without revealing his position. In effect, Jason declared “I won” in a card game and collected all the poker chips on the table without showing his hand. The displeasure of the trial judge and the Court of Appeals regarding such self-dealing is obvious.

* * *

–Mark Sullivan

The hazards of military service are well known. Lesser known are the hazards to home life’s rights and responsibilities that service in the military brings. A pair of cases decided on January 29 brought to light the impact of military duties on custody and visitation.

In Hazelett v. Hazelett, the Indiana Court of Appeals reviewed a case in which the parties were married for about 6 years when the mother filed for divorce; two months later, their child was born while the father was serving overseas. Finding that the father had been absent due to military duties in South Korea, he had only been in Indiana for five days after the child’s birth, and he had not had any type of contact with the child, including by electronic means, from birth until his return to Indiana the week before the final hearing in the case, the judge granted custody to the mother, ruled out overnight visitation until the child was three, and required visitation to be supervised.

The father contended that the trial court erred by denying him overnight parenting time based solely on his absence due to his military service. The appellate court considered this to be a challenge to the trial court’s award of legal custody to the mother on the sole basis of his military service. The Indiana statute prohibits a judge from considering a “parent’s absence or relocation due to active duty service as a factor in determining custody or permanently modifying a child custody order.”

The trial court’s order was sparse on facts; in addition to the above, it merely stated that the mother had been the child’s primary caretaker since birth and the father had had very little contact with the child. The Court concluded that the judge did, in fact, consider the father’s absence due to military service as a factor in awarding mother sole legal custody, which is prohibited by statute.

The Court of Appeals ruled that the trial judge had improperly considered the father’s active-duty status as a factor in awarding mother sole legal custody, and it had failed to enter appropriate findings. It reversed the custody ruling and remanded the case.

[Author’s Notes: The reader might be confused about the “overnight visitation” argument of the father, who was stationed in South Korea at the time of the hearing. While such parenting time was not possible on a week-to-week basis for the father, it would certainly be a consideration when he took leave to return to Indiana; all servicemembers get 30 days of leave per year, accruing at 2.5 days per month. He might also utilize overnight visits upon his return from the overseas posting; his next base assignment was to be Ft. Carson, Colorado.

Also worth note is the mention of contact by electronic means. If Indiana had enacted the Uniform Deployed Parents Custody and Visitation Act, the father could have petitioned for an order requiring or allowing his regular communication with the mother and the child through electronic means. When parents cannot agree on custody and visitation terms, Article 3 of the UDPCVA sets out provisions for agreements and orders which allow an absent military parent to use electronic means in communicating with the child or children.

The UDPCVA also prohibits the court from using a parent’s past deployment or possible future deployment itself as a negative factor in determining the best interests of the child. Section 107 of the Act states:

In a proceeding for custodial responsibility of a child of a service member, a court may not consider a parent’s past deployment or possible future deployment in itself in determining the best interest of the child but may consider any significant impact on the best interest of the child of the parent’s past or possible future deployment.

In 2013 North Carolina became the second state to adopt the UDPCVA.]

* * *

On the same decision day and just three states away, the Oklahoma Supreme Court was exploring the issues of custody, visitation and deployment. The parties in Kohler v. Chambers were the biological parents of a child and they shared joint and equal custody and visitation time under a 2016 order. When the father received Army orders for basic training, he filed a motion with the court asking that his time with the child be transferred to his wife. Under the Oklahoma Deployed Parents Custody and Visitation Act, passed in 2011, the deploying parent is entitled to request transfer of his or her visitation rights to a step-parent, a designated family member, or another designated individual. There is a rebuttable presumption that the substitute custody/visitation time is in the best interest of the child and that the step-parent or other individual has a close and substantial relationship with the child.

The mother opposed the father’s motion. She didn’t argue that the substitute custodial time wasn’t in the child’s best interest. She did not say that the father’s current wife lacked a close and substantial relationship with the child. Rather, she argued that the father didn’t qualify since he was not being deployed. He was being ordered to basic training for nine weeks in South Carolina, followed by 19 weeks of advanced individual training in Virginia. The trial judge allowed the father’s motion and granted substitute parenting time rights to the step-mother.

The mother appealed. She argued that the statute applies only to parents who have been “order[ed] to another location in support of combat, contingency operation, or natural disaster,” and not those parents who receive orders for basic training.

The Oklahoma Supreme Court noted that the Uniform Law Commission formally adopted the Uniform Deployed Parents Custody and Visitation Act (UDPCVA) in July of 2012. It was designed to address unique issues arising during the deployment of military personnel, including maintenance of the parent-child bond during a parent’s temporary absence due to deployment, resuming normal custody and visitation following a servicemember’s return from deployment and preventing a deployed parent from being penalized as a result of serving his or her country. The Oklahoma statute, which was “[v]ery similar to early drafts of the UDPCVA, … was enacted by the Oklahoma Legislature during the 2011 session, and became effective May 26, 2011.

The Court then examined the definition of “deployment.” The Oklahoma statute states that this term means

…the temporary transfer of a servicemember in compliance with official orders to another location in support of combat, contingency operation, or natural disaster requiring the use of orders for a period of more than thirty (30) consecutive days, during which family members are not authorized to accompany the servicemember at government expense.

Finding that the father’s assigned duties did not qualify as deployment, the Court reversed the trial ruling, leaving the child without contact with the father’s side of the family for 28 months.

[Author’s Notes: The background music for this Oklahoma drama might be Simon and Garfunkel’s 1966 hit, “The 59^th Street Bridge Song,” which begins “Slow down, you move too fast.” If the Oklahoma legislature hadn’t jumped the gun by enacting an early version of the Uniform Deployed Parents Custody and Visitation Act, this case wouldn’t have arisen.

I was a member of the Drafting Committee of the Uniform Law Commission which wrote up the UDPCVA. The initial version spoke of “deployment” in strict terms as to support of combat and contingency operations. We debated that. I pointed out that there were many other instances of “military absence” which should also trigger the rights and duties set out in the Act. For example, a servicemember could be assigned without dependents to a remote tour (e.g., Iceland or Turkey), a six-month “float” on board a Navy vessel, or temporary duty (TDY) for training or a special mission. Why limit the protection of the Act to the strict definition of “deployment” involving military operations?

We finally reached an agreement. In Article I, Section 102, deployment is defined to mean “…the movement or mobilization of a service member for more than [90] days but less than [18] months pursuant to uniformed service orders that:

(A) are designated as unaccompanied;

(B) do not authorize dependent travel; or

(C) otherwise do not permit the movement of family members to the location to which the service member is deployed.”

Perhaps a future amendment to Oklahoma’s statute will “loosen up”

the definition to include more servicemembers and their children.]