In this post from 2015, https://civil.sog.unc.edu/servicemembers-civil-relief-act-applies-to-family-cases-too/, I wrote about the first appellate opinion in North Carolina to address the requirements of the Servicemembers’ Civil Relief Act, now codified at 50 USCA sections 3901-4043 (the SCRA). In In re: Branch, 367 N.C. 733 (2015), the North Carolina Supreme Court examined the requirements of the SCRA that apply when a defendant has not made an appearance in a civil proceeding. The opinion was a reminder that the SCRA applies to all civil cases, including family law cases, and that we have servicemembers throughout our state, not just in areas with military facilities.

In a recent opinion, the North Carolina Court of Appeals examined for the first time the requirements of the SCRA when a servicemember has made an appearance in a civil case and has requested a stay or a continuance of the proceedings due to a need to participate in military service. In Roybal v. Raulli, 927 S.E.2d 413 (N.C. App., Feb. 4, 2026), the appellate court held that the trial court violated the SCRA when it denied a request by a member of the U.S. Army Reserves for a continuance of a hearing to address a request to modify a custody order.

What does the SCRA require?

When a defendant in any civil proceeding has not made an appearance:

If a defendant has not made an appearance, no judgment can be entered in any civil case until plaintiff files an affidavit stating whether defendant is in the military. 50 U.S.C. sec. 3931. The term ‘judgment’ is defined as “any judgment, decree, order, or ruling, final or temporary.” 50 U.S.C. 3911(9).

The Act states: “[T]he court, before entering judgment for the plaintiff, shall require the plaintiff to file with the court an affidavit –

(A) Stating whether or not the defendant is in military service and showing necessary facts to support the affidavit; or

(B) If the plaintiff is unable to determine whether or not the defendant is in military service, stating that the plaintiff is unable to determine whether or not the defendant is in military service.”

The Act places responsibility for making sure the Affidavit is filed on the court. 50 U.S.C. sec. 3931(b). The North Carolina Administrative Office of the Courts has adopted form AOC-G-250, Servicemembers Civil Relief Act Declaration, for this purpose.

If plaintiff’s affidavit does not establish that defendant is in the military, the court can proceed with the case. However, the court may require a bond to compensate a defendant later allowed to set aside a judgment because he or she actually was in military service. In addition, the court can enter any other order “the court determines necessary to protect the rights of the defendant under this Act.” 50 U.S.C. sec. 3931(b)(3).

SCRA when the servicemember has notice of the proceeding:

Section 3932 provides that, at any stage of the proceeding before final judgment the court may upon its own motion, and shall upon motion of the service member, stay the proceeding for not less than 90 days if:

1. A letter or other communication establishes that a servicemember’s military duty requirements materially affect the servicemember’s ability to appear and gives a date when the servicemember will be available to appear; and
2. A letter or other communication from the servicemember’s commanding officer shows that the servicemember’s military duty prevents appearance and that leave is not authorized for the servicemember at the time of the letter.

If the initial Section 3932 stay is granted, a servicemember can request an additional stay “based on continuing material effect of military duty on the servicemember’s ability to appear.”  50 U.S.C. sec. 3932(d)(1). In support of the request for additional time, the court must receive letters or communications containing the same information required for the first stay request. If the court refuses additional time, the court must appoint an attorney for the servicemember before proceeding with the case. 50 U.S.C. 3932(d)(2).

Roybal v. Raulli

Plaintiff was a staff sergeant in the U.S. Army Reserves. At the times relevant to this appeal, the parties were operating under three custody orders: one custody order for each of their two minor children and an additional order entered by consent. A memorandum drafted by plaintiff’s commanding officer and filed by plaintiff established that plaintiff was scheduled to deploy to Africa in October 2023 and was required to attend all mandatory training sessions scheduled before that deployment. The memorandum stated that plaintiff’s presence for the trainings was “vital for unit preparedness and for the success of this mission in support of the national interest.” Subsequent directives from plaintiff’s commanding officers set out the dates of the required trainings.

Defendant filed a motion to modify custody and noticed the hearing for a date when plaintiff was not required to be in training. However, two days prior to the hearing, plaintiff filed a motion to continue the hearing based on changes to his mandatory training schedule. He attached to his motion an email from his commanding officer stating the new dates of training, which included the day of the hearing on mother’s motion to modify. On the date of the modification hearing, plaintiff was not present, nor was he represented by counsel. Defendant’s counsel argued plaintiff was not entitled to a continuance pursuant to the SCRA because plaintiff was not on active duty military service, and she informed the court that she had run a military status report online and the report did not indicate plaintiff was on active duty. The attorney presented to the court the “Status Report Pursuant to the Servicemembers’ Civil Relief Act” but did not present an affidavit. The trial court denied plaintiff’s motion to continue and held a hearing on defendant’s motion to modify. The trial court modified custody to grant defendant sole legal custody of the children.

The court of appeals decided that plaintiff’s request for a continuance was a request for a stay pursuant to the SCRA. Because the materials filed by plaintiff before and along with his motion for a continuance satisfied the requirements of 50 USCA 3932(b)(2), the court of appeals held that the trial court was required to grant the continuance “for a period not less than 90 days.” When the conditions for a stay are met, the trial court does not have discretion to deny the request.

Applying de novo review, the court of appeals examined the relevant definitions, and held that federal law does not require that a servicemember be deployed or stationed abroad for the SCRA to apply. Mandatory training duty is active duty for the purpose of applying terms of the SCRA. 10 U.S.C. sec. 101(d). Further, the memorandum from plaintiff’s commanding officer, the training schedule, and the email from plaintiff’s commanding officer satisfied the requirements in 50 U.S.C. 3932(b)(2). The materials used the terms “mandatory,” “required,” and “an obligation” and were sufficient to establish that plaintiff’s presence at the training was required.

The fact that plaintiff’s name did not appear in a called “Status Report Pursuant to Servicemembers Civil Relief Act” was not dispositive; the form itself stated that the report may not include all active duty servicemembers who qualify for protection by the SCRA and recommended further verification if a person does not appear on the list. Most importantly, there was no actual dispute that plaintiff was at military training when the hearing on defendant’s motion to modify took place. Because plaintiff provided his training schedule to the trial court, the court of appeals held that the trial court had the information necessary to determine when plaintiff could be available for the hearing.

The court of appeals also held that, to be entitled to relief on appeal based on a trial court’s erroneous denial of a motion to continue based on the SCRA, the service member must show prejudice resulting from the trial court error. In this case, the appellate court held that the trial court’s failure to grant plaintiff’s request for a continuance was prejudicial in that the trial court made findings of fact relevant to the motion to modify without plaintiff having the opportunity to be present to oppose defendant’s motion, or to present evidence, which resulted in an order modifying custody and granting mother sole legal custody. The only remedy for this error was to vacate the modification order and remand to the trial court for a new hearing.