Co-Counsel Bulletins




This Co-Counsel Bulletin is intended as a roadmap for the legal assistance attorney as to civil suits, the Servicemembers Civil Relief Act (SCRA) and specific cases concerning its predecessor, the Soldiers' and Sailors' Civil Relief Act (SSCRA), in North Carolina. The Act is found at 50 U.S.C. App. § 501 et seq . These cases can be used to educate the client (and the LAA!) regarding requests for stays, reopening default judgments and the like.

The Servicemembers Civil Relief Act

There are no authoritative or instructive cases for the LAA in North Carolina regarding the SCRA. The best brief information on the requirements of the Act can be found in the publication, "A Judge's Guide to the Servicemembers Civil Relief Act," located at, which is the website for the Military Committee of the American Bar Association's Family Law Section. This publication includes a checklist for obtaining the initial 90-day stay of proceedings, an example of a motion for a stay of proceedings (with attached statement of the servicemember and the commanding officer), and two flow charts for stays of proceedings and steps that need to be taken, reviewed or investigated. North Carolina cases involving the SSCRA are shown below. Most of the current rules are similar, and the lessons learned below have equal applicability to the SCRA. Some provisions of the Act have been significantly expanded, including the application of the Act to administrative proceedings, the "automatic" or mandatory nature of the initial stay under 50 U.S.C. App. § 522, the duties of the attorney appointed in the absence of the servicemember, the applicability of the Act to vehicle leases, and the extension of the Act to include lease termination upon deployment outside the continental United States.

Motion for Stay

Our journey through North Carolina SSCRA cases starts with a decision with the unusual name of In the Matter of the Paper Writing of Sue H. Vestal ,1 which involved a caveat proceeding to challenge the probate of a will. The trial court dismissed the caveat after finding that the caveators had willfully and blatantly ignored the court's orders for discovery compliance without reasonable excuse and that they were openly disrespectful to the court. One caveator, Colonel Weaver, contended that he was prevented from responding due to his involvement in the Gulf War.

Here's the chronology: The interrogatories were filed in March 1989; in May 1990, with the interrogatories still unanswered, the propounder filed a motion to compel. In August 1990, when the invasion of Kuwait (which would lead to the Gulf War) occurred, the caveators filed an answer to the motion to compel, requesting a two-week extension of time. At a hearing on the motion to compel, the judge granted the two-week extension and ordered the caveators to pay $150 in attorney's fees in thirty days. The propounder filed another motion to compel in September 1990. At a hearing in October 1990 the judge found that the caveators had still not answered the interrogatories and had paid the $150 two weeks late. At that point the judge struck the pleadings of the caveators and dismissed their case with prejudice.

On appeal, Colonel Weaver alleged that "he was not required to respond because of protections afforded him" by the SSCRA. 2 The Court of Appeals found that Weaver had neither filed a motion to stay under the Act nor an affidavit with supporting facts. Without a request for a stay by the caveator, the only remaining issue was whether the court should have granted a stay on its own motion. The Court stated that:

•  The only information about Weaver's military service was found in two unverified papers signed by his attorney;

•  They failed to show whether Weaver ever requested military leave to answer the interrogatories; and

•  They failed to provide sufficient information to show that the trial court abused its discretion by failing to issue a stay on its own motion.

The court quoted with approval from an Indiana case which noted that "the man in service must himself exhibit some degree of good faith and his counsel some decree of diligence." 3

What are the lessons learned? Here are several:

•  First and foremost, always file a motion and an affidavit seeking for a stay when one is needed.

•  Don't ask for a stay if you're only answering interrogatories! Phone calls and correspondence can be used to prepare answers most of the time.

•  Don't call on the courts for protection when the events that led to the Gulf War occurred 18 months after the interrogatories were served.

•  And finally, don't expect results when good faith and due diligence have been lacking on the part of the servicemember (SM).

Material Effect

The "flip side" of Vestal is found in Cromer v. Cromer. 4 There case the SM was ordered to pay increased child support in November 1979. Prior to that hearing, the SM attempted to obtain a stay under the SSCRA. His commander wrote a letter to the presiding judge stating that operational requirements prevented the SM from taking leave until January 1980. He subsequently signed an affidavit on the SM's behalf and sent it to the district court, stating that Jack Cromer, the defendant, was "Chief of the Boat," the sole interface between enlisted men and officers on the nuclear submarine USS Skate , that operations at sea were scheduled for the last two weeks in November 1979, and that he had advised Mr. Cromer that he would not be permitted to take leave.

Now the mystery begins. For some reason, the letter and affidavit only showed up as part of the petition for discretionary review in the Supreme Court (after the Court of Appeals had upheld the trial court's increase in child support and order of garnishment). They were not part of the record on appeal. They did not appear in any lower court file. And counsel for the defendant, in oral argument before the Supreme Court, explained that he was unaware of these documents at the time the orders were entered in the trial court.

Regardless of this irregularity -- or perhaps because of it -- the Court reversed the judge's orders, stating that "the trial court might have proceeded in another manner had it been aware of these documents." Cromer , 303 N.C. at 311, 278 S.E.2d at 520. This case shows that it's never too late , that the motion and affidavit can still help the SM in the appellate process to show "material effect" of military service. It also shows the value of a detailed and specific affidavit and motion requesting only a limited stay, for about two months in this case. Although not stated as such by the Supreme Court, the facts in the affidavit clearly had a material effect on Jack Cromer's ability to defend himself.

There is no clear formulation of who has the burden of proof to show a "material effect." As stated by the U.S. Supreme Court in Boone v. Lightner , 5

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.

Although it is logical to require the burden of proof to be on the movant ( i.e., the SM who is requesting a stay of proceedings), some courts have stated that both parties may be required to produce evidence on the issues. 6

Meritorious Defense

When reopening a default judgment, the court has to decide whether the defendant has a meritorious defense (in addition to finding that his military service had a material effect on his ability to defend himself). A good example of this is found in Smith v. Davis. 7 There the SM was served with a complaint in May 1985 alleging that he had been paying $100 a month for the support of his child and requesting an increase to at least $150 a month.

In response the SM sent a letter in June 1985 to plaintiff's attorney admitting receipt of the summons and complaint but asking that plaintiff's attorney recognize his rights under the SSCRA. The defendant did not appear at the hearing, nor did an attorney on his behalf, and no attorney was appointed to represent him, as is required under 50 U.S.C.App. 520. An order was entered that he pay $225 a month in child support.

The defendant filed a motion to reopen the judgment and submitted an affidavit in support of the motion. The affidavit stated that at the time of the support hearing he was on active duty in the US . Marine Corps, he was stationed in California , his unit was subject to deployment to the western Pacific at any time, and that his military duties made him unavailable to defend at that hearing. He also stated that, upon arrival at the base, he experienced "pay problems" that left him without a paycheck for four months. The trial court denied his motion.

The Court of Appeals, however, reversed that decision after conducting a clear and concise analysis of the "default provisions" of the SSCRA, 50 U.S.C.App. 520. The Court found that --

•  There was a default (that is, no appearance by the defendant or an attorney on his behalf);

•  The trial court had not appointed an attorney for him (as is required by the SSCRA);

•  The motion of defendant was timely (made no later than 90 days after termination of military service);

•  The defendant showed prejudice stemming from his military service, and;

•  He also showed that he had a meritorious defense (that is, he lacked the ability to pay support).

What are the lessons learned? The main points in Smith v. Davis are to set up the groundwork early for a later motion to reopen, and then to follow through with detailed factual statements in an affidavit that's filed on a timely basis with the trial court. The defendant in this case based his affidavit on the four D's -- Distance, Deployment, Defense and Deficit (that is, inability to pay).

Diligence, Good Faith

The next case, Judkins v. Judkins 8 has elements that could be described as "something borrowed, something new." Elements borrowed from the Vestal case include an attempted SSCRA defense arising out of the Gulf War and failure by the SM to show that leave had been requested to allow him to defend in the lawsuit. New elements are the issue of personal jurisdiction and the court's power to divide military retirement benefits under 10 U.S.C. 1408(c)(4).

The case started in August 1988 when the wife filed a lawsuit for divorce from bed and board, custody, child support, alimony and equitable distribution. The defendant, an Army lieutenant colonel stationed at Ft. Bragg , filed an answer that contained counterclaims for custody, child support and equitable distribution. Discovery was initiated before April 1989 and continued through August 1990, when the invasion of Kuwait started the deployment that led to the Gulf War. At that time "the Curt continued the matter over because of Defendant's service with the United States military in that action." 9

But that didn't end the dispute. Although combat in the Gulf War was finished in February 1991, the plaintiff continued to attempt to obtain information from defendant through discovery and the defendant continued to resist. The plaintiff filed motions to compel discovery responses in July 1991, December 1991 and February 1992. In February 1992, a year after the Gulf War ended, the judge entered an order requiring the defendant to produce documents to the plaintiff. The defendant still didn't comply with the discovery order and plaintiff's requests.

Trial was set for April of 1992. It was continued at defendant's request. The trial judge contacted the Army and was told that defendant was "on a mission" and that he would be available in July 1992. The court ordered a continuance until July 1992. When that date rolled around, defendant's attorney again requested a continuance, stating that defendant would be available to complete discovery and the pretrial order on or before August 3, 1992 , and would be available for trial on August 31, 1992 . The court once again granted a continuance, setting the case peremptorily for hearing on August 31, 1992 .

Is it hard to guess what happened next? The defendant failed to respond to discovery, failed to complete the pretrial order and moved for a continuance on August 31, adding (apparently for the first time) a motion for a stay under the SSCRA. The trial court found that the defendant had failed to exercise good faith and proper diligence in appearing and resolving his case and then denied the motions of defendant.

The Court of Appeals framed the issue as whether the trial judge had erred in denying the defendant's motion for a stay. It stated that:

•  The only evidence of defendant's unavailability was a letter from the Army stating that the defendant was to depart for Southeast Asia on August 30, 1992 for about 46 days;

•  There was no evidence in the record as to whether the SM had at any time requested leave to defend the action or whether leave was likely to be granted upon request; and

•  The defendant made no showing as to how his defense would be prejudiced or his rights materially affected by his absence.

The Court of Appeals accepted the trial court's determination that the SM had failed to exercise good faith and due diligence, quoting approvingly from the Vestal case.

The Court then dealt with the issue of personal jurisdiction. Under the Uniformed Services Former Spouses' Protection Act, 10 U.S.C. 1408(c)(4), a court can exercise jurisdiction over the division of military retired pay if a SM consents to the jurisdiction of the court, among other things. The Court found that the answer and counterclaims of the defendant constituted a general appearance, and that he had thus consented to the court's jurisdiction.

The Judkins case teaches that a stay will not be granted without a showing of good faith and proper diligence, and that the courts will usually need to see a statement from the SM as to whether leave was available and had been requested. A stay is not forever. Contrary to the popular notion of many soldiers and some civilian practitioners, a stay of proceedings is not meant to outlast the natural life of the lawsuit or, for that matter, the presiding judge. Military members accrue leave at the rate of 30 days per year, and courts can take judicial notice of this fact. 10 Current overseas postings usually last around three years for an "accompanied tour" (with family members), and much less for unaccompanied tours in such host countries as Turkey , Korea and Iceland . This showing regarding leave is important in most cases where the SM is proclaiming nonavailability.

The stay is, in fact, intended to last only as long as the material effect lasts. Once this effect is lifted, the opposing party should immediately request the lifting of the stay of proceedings. In the event of further resistance by the military member, the court should require submissions upon affidavit for deciding the issue.

Finally, the SM in a military pension division case must object immediately at the start of the case as to jurisdiction over his military pension (as an aspect of equitable distribution). If he fails to do this, he gives up the claim of lack of jurisdiction by the trial court.

Showing of No Prejudice

The last case is Booker v. Everhart. 11 The Court of Appeals mentioned that the case arose from "a complex series of proceedings and circumstances involving the divorce of defendant." That's probably a grave understatement. The case merits reading for the elements of forgery, fraud, collusion and conflict of interest that aren't even addressed in the appellate opinion. But a simplified summary of what happened would be:

•  In March 1974 the plaintiff, an attorney who had represented the plaintiff-wife, sued for his fees on a note from defendant-husband (guaranteed by his parents);

•  In May 1975 the defendant joined the Navy and was sent to the Philippines , where he remained through trial;

•  In January 1976 the defendants (the husband and his parents) moved that that case be "entirely removed from the trial calendar" pursuant to the SSCRA on the ground that the husband would be absent from trial;

•  The judge denied the motion and set the trial for April 1976;

•  A month after that order and a month before the trial date, the defendants noticed plaintiff for the taking of the deposition of the defendant-husband in the Philippines two weeks before the trial;

•  The judge granted a protective order to plaintiff, and the deposition was not taken;

•  At the trial the court granted a directed verdict for plaintiff and the defendants appealed.

The Court of Appeals, in ruling on defendants' claim that the trial court erred in denying a stay under 50 U.S.C.App. 521, noted that the Act mandates a continuance where military service would cause a party to be absent, but it also allows the judge to deny a continuance if, in his opinion, the SM's ability to conduct his defense is not materially affected by reason of his military service. The Court then noted the following facts:

•  The defendant-husband, who volunteered for naval service, was sent to the Philippines fourteen months after the lawsuit was filed;

•  There was no showing in his affidavit that he requested leave or would not be able to obtain leave to be present at trial;

•  There was no showing in his affidavit, beyond a mere conclusory statement, that his defense would be prejudiced or his rights impaired materially by his absence;

•  His deposition had already been taken in May 1974 by plaintiff in the presence of counsel for the defendants; and

•  Defendant-husband, an attorney licensed in North Carolina , took no steps to seek a speedy determination of the case prior to going on active duty.

Based on the above, the Court upheld the trial judge's order, which found that the SM's absence would not materially prejudice his defense. The Court noted that the SM's use of the SSCRA was likely based on policy and strategy, rather than on the necessities of military service.

The lessons of the Booker case are that, once again, there must be more than a vague and conclusory affidavit -- there must be a clear and detailed showing that the SM will be prejudiced by his inability to appear and defend. There should, ordinarily, also be a statement as to whether leave was requested and the results of such a request, although this isn't required by the SSCRA.

[rev. 9/04]

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1. In the Matter of the Paper Writing of Sue H. Vestal , 104 N.C.App. 739, 411 S.E.2d 167 (1991).

2. Id. , 104 N.C.App. at 743, 411 S.E.2d at 169.

3. Id. , 104 N.C.App. at 744, 411 S.E.2d at 170, quoting from Sharp v. Grip Nut Co. , 116 Ind. App. 106, 111, 62 N.E.2d 774, 776 (1945).

4. Cromer v. Cromer , 303 N.C. 307, 278 S.E.2d 518 (1981).

5. Boone v. Lightner , 319 U.S. 561, 569 (1943).

6. Gates v. Gates, 197 Ga. 11, 25 S.E.2d 108 (1943).

7. Smith v. Davis , 88 N.C.App. 557, 364 S.E.2d 156 (1988).

8. Judkins v. Judkins , 113 N.C.App. 734, 441 S.E.2d 139 (1994).

9. Id. , 113 N.C.App. at 738, 441 S.E.2d at 141.

10. Underhill v. Barnes, 161 Ga. App. 776, 288 S.E.2d 905 (1982).

11. Booker v. Everhart , 33 N.C.App. 1, 234 S.E.2d 46 (1977).

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