This article is general comments on the law and experiences of the attorney. It is not consider and should not be considered as legal advise or be relied upon if you are involved in a legal action in which the SCRA is an issue
SERVICEMEMBERS CIVIL RELIEF ACT (SCRA)
50 USC App. Section 501
Purpose: Purpose of the SOLDIERS AND SAILORS CIVIL RELIEF ACT, which is the basis for the SCRA, was to protect interests of persons in military service and to relieve them from mental distress occasioned by handicap of their response to call of their country, and to meet this situation and to give such persons in military service protection and degree of mental repose, courts are authorized and directed to intervene to end that rights and remedies of such defendants should not be impaired or jeopardized in consequence of such military service. Syracuse Sav. Bank v. Brown, 42 NYS 2d 156 (1943) These protections continue under the SCRA.
History: In 1940 the first act was enacted by Congress in discharge of its constitutional obligation to “provide for the common Defense.” Although the Act remained almost as past in 1940 for years, since Desert Storm the law has been amended time and time again.
The Act was held to be constitutional. In Dameron v. Brodhead, 345 U.S. 322 (1953) the Supreme Court found the law constitutional - Congress' had to authority to pass such a law, by virtue of its power “to declare war” and “to raise and support armies” .
I. THE ACTORS
Preliminaries; questions to be addressed:
The First Issue: Does the action involve a person in active military service, the dependent of such a person, a person primarily or secondarily liable on an obligation with such a person, or a person whom the Act’s coverage is specifically extended?
-The definition of “persons in the military service” is found at 50 USC App. Section 511
-Congress intended that all members of the military establishment be covered by the Act.
-All members of the Armed Services, does not matter if
enlisted or conscripted.
-Coast Guard is included. Normally during peace time the Coast Guard is part of the Treasury Department, for purposes of the Act it is included as a military service.
-Officers of the Public Health Service are included. The Public Health Service is not a military service, although it may be so designated by the President in time of war or national emergency. The Secretary of Health, Education and Welfare may detail officers with any of the military services, in time of war—at such times officers of the Public Health Service and their surviving beneficiaries are entitled to all rights and privileges provided under the Act.
-In addition to being a service member, a person seeking benefits of the Act must also, be on active duty or engaged in “training or education under the supervision of the United States preliminary to induction into the military service.”
Note: The language would exclude those in the reserve or guard components while not on active duty.
-- Members of the Guard and Reserves are covered when ordered to active Federal Service.
102 P.L. 12 1991 H.R. 555 105 Stat. 34
--This has been a problem for Reservist and Guardmen who are required to serve during such conflicts as Desert Storm. During Desert Storm a clarification was made to the law bring this people under the coverage if activate and is serving outside the State in which the court having jurisdiction over the action or proceeding is located.
This still excluded a large number of people who where not activated i.e. not on active duty. Congress did entertain an amendment after September 11, which did not become law. Minnesota did enact Minn. Stat.§190.055 -- it provides that “A person called or ordered to active service, as defined in section 190.05 subdivision 5a or 5b, has all the protections afforded to persons in the military service of the United States under the…” SSCRA. By this change in the law, a guardsman ordered to “state active service” i.e. service at the airport, has coverage under the act.
The Second Issue: Has the service member divested himself or herself by reason of misconduct? (Mantz v Mantz, 69 NE 2d 637 (Ohio C.P.1946)—A soldier sentenced by a general courts marital to imprisonment and a dishonorable discharge was found to have divested himself of the protections of the act.
--In dictum the court stated: “I do not mean to infer that commitment for any violation of the army’s rules and regulations would divest the soldiers of his rights under the Soldiers’ and Sailors’ Relief Act, but the gravity of the offense charged and the sentence of the court-martial are factors which must be determining this question. @639
--Consider Shayne v. Burke, 158 Fla. 61, 37 So.2d 751 (1946) in that case a soldier home on furlough to attend the birth of his child extended his leave by 16 days without permission (i.e. he was AWOL) was found to still have protection under the Act.
--The Judge Advocate General of the Army has expressed the opinion that deserters are not “persons in the military service. (The foregoing cases were decided under the Old Law).
-- Review 50 U.S.C.A. §§ 580 & 581, the foregoing is still the law.
Third Question: Is it a civil matter? The Act language restricts its application to civil matters. ”…provision is made to suspend enforcement of civil liabilities…” 50 USC App. Section 510.
-- Is it a criminal matter? If so the Act does not apply. 50 U.S.C. § 512 (b)
-- Where the SSCRA covered only defendants, the SCRA (after the 2004 amendments) covers both defendant and plaintiff servicemembers. 50 U.S.C. § 521
-- The question of coverage of administrative proceedings was answered in amendments to the Act. Amendments to the SCRA in 2005 defined judgment in its definition section as “any judgment, decree, order, or ruling, final or temporary”.50 U.S.C.A. § 511(9) (2005). It also amended judgment in the section of the law offering protection from default judgments, in the section calling for stay of civil and administrative proceedings when the service member has notice, and dealing with the situation when the court stays a judgment when the servicemember’s military service affects compliance. 50 U.S.C.A. §§ 521 & 522
-- Does the Act cover an interlocutory Order? Temporary modifications of child support, in general, do not materially affect the SM’s rights since they are interlocutory and subject to modification (Shelar v Shelar, 383 S.E. 2d. 895 (1989). In Lenser et al. v. McGowan et al., 2004 Ark. LEXIS 400, the court granted a stay of proceedings under the SCRA but issued a temporary custody order. The servicemember-father was temporarily caring for the child, there was no custody order, and he placed the child in the care of his own mother when he left Arkansas for Ft. Hood, Texas and subsequent deployment to Iraq. The Supreme Court upheld the trial judge’s entry of a temporary custody order while, at the same time, staying the domestic relations case until the SM’s return. I could find no Minnesota case on this issue.
-- WITH RESPECT TO THE OLD LAW – (new law signed into law in 2003) I have come across an article from the Army Lawyer, June 1998, in this article is a statement that the SSCRA does not apply to administrative proceedings. The act itself in its provisions dealing with a default by defendant refers to “any action or proceedings commenced in any court.” There was a question under the old law as to whether or not and administrative proceedings such as the child support administrative procedures that we have in Minnesota come under the protection of the Act The issue was were they proceedings commenced by a court? Does the change of forum deprive the service members of rights? Welfare Reform Act of 1996, Pub.L. No. 104-193, 110 Stat. 2105 (1996). The SCRA clearly covers administrative proceedings.
Fourth Question: Has the Servicemember received notice of the proceedings.
50 U.S.C. § 521 puts the burden on a party seeking a judgment against a servicemember, to allege under oath, i.e. by affidavit filed with the Court, stating either the the defendant is not in the military service or that the plaintiff is unable to determine whether or not the defendant is in the military service.
Under this section of the Act, if the defendant is in the military service or the plaintiff cannot determine whether the defendant is or is not in the military service, the court may not enter a default judgment against the defendant until the court appoints an attorney to represent the defendant.
The attorney acts, as some commentators have noted, like a guardian ad litem –whose sole job appears to be protection of the servicemembers’ due process rights. I say this because the Act clearly states that: “If an attorney appointed under this section (521) to represent a servicemember cannot locate the servicemember, actions by the attorney in the case shall not waive any defense of the servicemember or otherwise bind the servicemember.”
If it is determined that the defendant is in the military service section 50 U.S.C App. §521 provides that court on its own motion, or by application of counsel shall grant a continuance for a minimum period of 90 days, if the court determines unless in the court’s opinion the ability of the service member to conduct the action is not materially affected by reason of his military service. In making this determination the court is directed to decide if there is a defense the defendant could offer but cannot in his/her absence or counsel has been unable to contact defendant to determine if a meritorious defense exists.
The maximum duration of any stay is period of military service plus three (3) months after discharge 50 USC App Section 524. There is no requirement under the Act that the Court must continue the action for this length of time.
If the servicemember has received notice, then at any stage of the proceedings, any party, the court or on application of the servicemember stay the action for a period not less than 90 days, IF the application for the stay includes
(a) A letter or other communication setting forth facts that the current military service adversely affects the ability of the servicemember to appear, i.e. at war, no leave available, necessary that he remain at his post…..
(b) This letter or communication from the servicemember’s commanding officer stating that current military duties prevent appearance and leave not authorized etc.
A problem under the old law was that in some cases, the simple request of asking for a continuance was considered an appearance by the servicemember, giving the court jurisdiction it did not have prior to the request. The present Act clearly states that this request does not constitute an appearance for jurisdictional purposes nor constitute a waiver of any procedural defense.
(c) If an additional stay is requested and denied by the court, an attorney must be appointed to represent the servicemember in the action or proceedings.
-The Supreme Court has implied that the burden of proof is on the non-service member to prove that the service members service obligation does not materially affect his/her ability to appear and defend.
-In practice the service member bears the burden of proving that his/her service obligation materially affects the member’s ability to appear.
- A Supreme Court’s interpretation, under the old law, is found in Boone v. Lightner, 319 U.S. 561 (1943) @569:
The Act makes no express provision as to who must carry
the burden of showing that a party will or will not be
prejudiced, in pursuance no doubt of its policy of making
the law flexible to meet the great variety of situations no
legislator and no court is wise enough to foresee. We,
too, refrain from declaring any rigid doctrine of burden
of proof in this matter, believing that courts called upon
to use discretion will usually have enough sense to know
from what direction their information should be expected
to come.”
(i) Key element – it is the service member’s burden to show that his/her military duty materially affected his/her ability to appear
(ii) It is a matter of discretion with the court to determine whether the servicemember’s service has a material affect on servicemember’s ability to represent his/her interests. Accordingly, it is of utmost importance to ensure that all information bearing on the issue of material affect be provided to the court, even though in many cases, the material affect will be self-evident.
Minnesota cases concerned with this provision – Jackson v. Jackson, 403 N.W.2d 248 (Minn. App. 1987); Stonewall Ins. Co. v. Horak, 325 N.W.2d 134, 135 (Minn. 1982); Luckes v. Luckes, 71 N.W.2d 850 (Minn. 1955); Donigan v. Donigan, 53 N.W.635, 642 (Minn. 1952); State v. Wilson, 48 N.W.2d 513 (Minn. 1951). Westfall v Westfall, A06-2293, Minnesota Court of Appeals, April 15, 2008, unpublished opinion – deficiencies in application allowed case to proceed.
A good summary of the way the court should view the granting of a stay, the length of any stay comes from Luckes v. Luckes, supra.
Even though it is an old law case, it is still important in that it notes that the “It (the Act) was not intended to vest him (service member) with juridical weapons of offense which he would not have possessed had he remained a civilian…” Luckes v. Luckes, supra. It is a shield, not a sword.
--Interesting questions---(1)What is material effect? There is no one definition.
(2) What if the service member is not plaintiff or defendant, does the provision apply? What if the service member’s appearance is needed by a dependent in the dependent’s action? The courts seem to rule that if the service member is a proper party distinguished from indispensable party, protections apply. It is far from clear—for example—a co-maker of a note was granted the stay, but when a service member’s counsel was unavailable because of military service, or witnesses were unavailable, stay not granted. Grimes v State of Oklahoma, 377 P.2d 847 (1963)
II. Default:
The normal situation: Plaintiff files an affidavit that defendant is not in the military service, the Court can immediately proceed to judgment.
If the defendant is in the military service and he has been served. The action is initiated and the court has jurisdiction, and either there is knowledge that the defendant is in the service or the plaintiff cannot state that the defendant is not in the military service—how do you proceed?
If a default in any appearance of the service member is being requested of the court—then:
Has the service member appeared in the proceedings?
General Rule: There should be no entry of a default judgment unless the court so orders after ascertaining whether the service member knows of the pending matter and whether the service member has requested a stay.
If the service member does nothing, how does the court find these facts? 50 USC Section 520 provides that for a default judgment to be entered--
The court must appoint an attorney pursuant to this section of the law, and it is the responsibility of the court appointed attorney to ascertain whether the service member-defendant is in the military service and, if so, determine if the service member desires a stay of proceedings. What ever information is gleaned it is then the appointed attorney’s duty to report back to the court.
Consider In Re Realty Associates Securities Corporation, E.D.N.Y. 53 F. Supp. 1015 (1944), its an old law case but seems still appropriate. In the case, the court held that this provision is mandatory and restrict the court’s power to render judgment until there has been conformity with the law.
(In the case where the plaintiff files an affidavit stating that he does not know if defendant is or is not in the military service, the court may, but is not required to appoint an attorney. However it may require the plaintiff to post an indemnity bound as a condition to the issuance of an order directing entry of judgment. In most cases, the attorney should be appointed. McDaniel v. McDaniel 259 S.W.2d 633 (Tex. Civ. App. 1953))
III. THE ATTORNEY
IV.
Court Appointed Attorney: Under the present law, an attorney must be appointed to represent the service member-defendant. This sets up a most unusual attorney-client relationship. The attorney acts more as a guardian ad litem than an attorney.
The attorney appointed to represent the service member under the Act is powerless to waive any right of the person for whom he is appointed or bind him by his acts. (Section 520(3)). Unless specifically authorized by the service member (Sanders v. Sanders, 388 P.2d 942 @ 945 (1964)), nothing the guardian ad litem/attorney does personally can amount to an appearance on behalf of the service member.
The attorney must exercise due diligence to locate the service member and determine (1) is the service member in the active military service (2) does the service member know about or have reason to know about the proceedings (3) does the service member want a stay/continuance, and if so the reasons for the delay and the length of the delay.
This is Congress at its best! The attorney is appointed—there is no provision in the law for payment of his fees. I have been appointed in numerous cases, but local county courts when the subject matter is child support, collection, establishment, modification etc. In all cases, the court enters and order requiring the county to pay my fee at the rate established by the County. If a private party brings an action and wants to proceed, it may be that parties obligation, (unless it is a child support action, I have been appointed in a number of such cases, if the County has paid support. In such case, the County is usually a party.)
Once appointed, the attorney needs to contact the service member at the service member’s last known address. Nothing is returned as having been sent to a wrong address. Maybe the attorney called a telephone number, which was working but no one answered or returned a call. Maybe the Red Cross was used to assist in getting pleadings to the service member.
(If the service member is stationed outside of the United States, service of process may be a bigger issue. )
The attorney has made an effort to contact the service member without success and the matter is before the court on a motion to have judgment entered by default, what is the court to do?
My experience (in child support actions) is that if I have been appointed and the Court has granted a continuance to contact the servicemember and determine his/her situation, and I have in fact spoken with the servicemember and explained the situation, and the servicemember does nothing, the court will proceed and enter a judgment.
Universally, the court has granted my request to allow a review by the servicemember, on simple motion, without any proof of a material change, reasons for not previously attending, and it will allow a de novo review and modification if necessary i.e. it becomes and interlocutory order.
In these cases, the County obtain pay records for servicemembers of the same rank and time in grade. They are available by internet search on the finance web site. There is real harm to the child if the situation is not addressed.
All service members get leave time, based on time in service. All service members get paid. Many have access to military flights. All have the ability to contact the court or the court appointed attorney and explain inability to appear. The court is more then willing to grant a continuance, if the servicemember wants to appear. Many cases are handled over the telephone.
Child support cases do not require an appearance. By statute and rule, the motion is on pleadings, financial details, affidavit of parties, legal authority. A continuance of several months, should be enough to submit such paperwork,
If a judgment has been entered against a service member in default of any appearance by him, the service member has the statutory right to make application to the court which rendered judgment for its opening, provided he/she does so within 90 days after termination of military service.
(There has been a court that held 92 days is too late—Radich v. Bloomberg, 54 A.2d 881 (1947), cert. denied, 332 U.S. 810 (1947))
Even under the Act, there is no mandatory right to have a default judgment opened. The law merely permits it; permits it upon a showing (and allegation) that (1) the service member has a meritorious or legal defense to the original cause of action or some part thereof, and (2) that the service member was prejudiced by reason of his/her military obligation in asserting a defense at the time the judgment was entered.
Consider Kromm v. Kromm, 191 P.2d 115 (1948); Wilterdink v. Wilterdink, 184 P.2d 527 (1947)—the basic holdings of the cases – the service members abstinence may be explained on the basis of conduct prior to entry of the judgment, i.e. he had no desire to pay child support so he wanted to avoid the action. If he did not desire to submit a defense then his military service did not prejudice him.
What if the affidavit procedure talked about earlier was not followed? Failure to follow the procedure does not affect the validity of a judgment taken by default. The judgment is not void but voidable. Morris Plan Bank, v. Hadsall, 41 S.E.2d 881 (1947). Even with such a defect the defendant is still required to prove that his military service materially affected his ability to appear
The filing of a false affidavit carries a criminal penalty.
As noted above, the court has always granted my request, to allow the soldier a de novo hearing on the child support issues, at any later time when he/she may wish to proceed. This does away with the problems set forth in the Act to reopen a judgment.
IV.Anomalies:
1. Holtzman’s Furniture Store v. Schrapf, 39 So.2d 450 (1949). Appears to support a holding that if a default judgment is not being entered, the plaintiff need not file an affidavit of non-military service to obtain relief. Holtzman was a action for a writ of sequestration for allowance to seize unpaid furniture from the service members family. The appeal court held that the action was not illegal because failure to file an affidavit of non-military service, in the absence of a default judgment.
Does this mean that if a default judgment is not the result of the action it can proceed even if the soldier is in the service?
2. Thompson v. Anderson, 37 S.E.2d 581 (1946). Proponents of a challenged will, some of which were in the military service were denied access to the Act, since their claims were being handled by the executor of the will and his counsel.
3. Balconi v. Dvascas, 507 N.Y.S.2d 788 (City Ct. 1986). The divorced wife and minor child of a service member on active duty, who were supported by him, i.e. child support etc. are entitled to protection under the Act based upon their dependent status. The eviction action brought against them had to be stayed.
V. CONCLUDING NOTE AND WARNING
VI.
This is written to provide a general overview of the statute and not intended to be offered or received as legal advise. If you find yourself in a situation wherein any of the issues talked about in this article affect you, YOU SHOULD RETAIN COUNSEL AND SEEK THE ATTORNEY’S ASSISTANCE. It is only the attorney who knows all the facts of your case, whose advise and counsel you should follow.
