• Servicemembers’ Civil Relief Act Applies to Family Cases Too

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    In January we were reminded by the North Carolina Supreme Court in In Re J.B. that:

    1) We have military personnel living throughout our state, not just in districts with military facilities, and

    2) The federal Servicemember’s Civil Relief Act, 50 U.S.C. app. sec. 501, et. seq., (SCRA) applies to all non-criminal judicial and administrative proceedings involving service personnel, including domestic and juvenile cases.

    The Act contains no exception for any civil proceeding. So it covers custody, divorce, support, equitable distribution, 50B and 50C cases, abuse, neglect and dependency proceedings and termination of parental rights.

    So what does the SCRA Require?

    First: An Affidavit from Plaintiff

    If a defendant has not made an appearance, no judgment can be entered until plaintiff files an affidavit stating whether defendant is in the military. 50 U.S.C. app. sec. 521. The term ‘judgment’ is defined as “any judgment, decree, order, or ruling, final or temporary.” 50 U.S.C. app. sec. 511(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.  For an example of a court form created to help comply with this requirement, see the form adopted in Wake County.

    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. app. sec. 521(b)(3).

    Second: Appointment of Attorney for Servicemember

    If plaintiff’s affidavit or other information before the court shows that a defendant who has not made an appearance is in the military, “the court may not enter judgment until after the court appoints an attorney to represent the defendant.” 50 U.S.C. app. sec. 521(b)(2). As previously stated, the term ‘judgment’ is defined by the SCRA to include all orders, including temporary orders.  This means the court cannot enter any order – temporary or permanent – before appointing an attorney when defendant has not made an appearance.  The SCRA does not define the role of the attorney, but it does require that the attorney attempt to contact the service member and consider requesting a stay of the proceedings. 50 U.S.C. app. sec. 521(d)

    Third: Stay of Proceedings

    After counsel has been appointed for a servicemember who has not made an appearance , the court must stay the case for at least 90 days either “upon motion by the appointed 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 the defendant; or
    2. After due diligence, counsel has been unable to contact the defendant or otherwise determine if a meritorious defense exists.”

    50 U.S.C. app. sec. 521(d).

    The Act does not define ‘stay of proceedings.’ The term certainly means the trial court cannot enter final judgment, but does it prohibit the court from entering temporary orders, such as temporary custody or emergency domestic violence protective orders?  North Carolina courts have not addressed the issue but at least one state supreme court has held the stay does not mean a court loses jurisdiction to act so it does not prohibit a court from entering temporary orders in custody cases, noting that a child’s life does not go into “suspended animation” while a service member is on duty. Lenser v. McGowan, 191 S.W.3rd 506 (Arkansas, 2010). See also N.C. Gen. Stat. 1-75.12(stay pursuant to that statute does not terminate jurisdiction of trial court until 5 years after it is granted).

    Fourth: When the Servicemember Has Notice of the Proceeding

    A servicemember who has notice of the proceedings may request a stay pursuant to Section 522 of the Act. The SCRA specifies that a request for a section 522 stay does not constitute an appearance “for jurisdictional purposes,” 50 U.S.C. app. sec. 522(c), but does not say that the request does not constitute an appearance for other purposes. This indicates that a servicemember who requests this stay is not entitled to a court-appointed attorney, pursuant to 50 U.S.C. app. sec. 521(b)(2) discussed above, because the request is an appearance.

    Section 522 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.

    The court is not required to grant the stay unless the court concludes, based on this information provided, that the servicemember’s current military duty requirements materially affect the servicemember’s ability to appear.

    If the initial Section 522 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. app. sec. 522(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 the additional time, the court must appoint an attorney for the servicemember before proceeding with the case. 50 U.S.C. app. sec. 522(d)(2).

    How is the Court-Appointed Attorney Paid?

    SCRA does not answer this question. This appears to be a wonderful opportunity for pro bono service.

    There’s definitely more to be said about the SCRA, but this covers the basics.

    Cheryl Howell is a Professor of Public Law and Government at the School of Government specializing in family law.

    18 thoughts on “Servicemembers’ Civil Relief Act Applies to Family Cases Too”

    • Debra Sasser says:

      Just a side comment about the SCRA affidavit. Cases from other jurisdictions have held that allegations “upon information and belief” as to the defendant’s military status are not a suffiient basis for personal knowledge as required by section 521. In addition, cases in other jurisdictions have noted that the affidavit must reflect the defendant’s military status at the time the judgment is entered.

      • Roy Kaufmann, Director, SCRACVS says:

        An excellent article and Ms. Sasser’s points are well-taken. To address the of basis for personal knowledge, many litigators are ordering an affidavit from SCRACVS wherein the affiant sets forth the basis, which is actual inquiry and not “information and belief”. Further, the requirement of some courts that the affidavit reflect status as of date of entry of judgment creates the need for two, separate affidavits, each with its own Active Duty Status Date: one as of the date of application for judgment and one for date of entry of judgment. I am not sure how a plaintiff is supposed to predict the date of judgment for the second affidavit.
        Servicemembers Civil Relief Act Centralized Verification Service

    • Jonathan says:

      In a civil case for breach of contract where the default judgment was entered against the defendants who failed to respond to the complaint by the court, without the requisite affidavid that you wrote about, is the judgment against the defendants void as a matter of law? Or that it is voidable if and only if the defendants were actually deployed by the military which contributed to their inability to answer the complaint?

      • howell says:

        We do not have case law in North Carolina answering your question under the SCRA but we have a case decided under the previous version of the act, the Soldiers” and Sailors’ Civil Relief Act. In Smith v. Davis, 88 NC App 557 (1988), the court held that the failure of the court to appoint a lawyer for a defendant service member who had not made an appearance as required by the provisions of the Act (provisions almost identical to those in the SCRA) rendered the default judgment voidable, not void. The service member was required to show grounds for setting aside the default pursuant to other provisions in the Act before the default could be set aside.
        Courts in other states have interpreted the provisions in the SCRA the same. See Taylor v. Ferguson, 437 SW3d 799 (Missouri, 2014)(failure to file affidavit required by the SCRA did not make default judgment void); and In re KB, 298 SW2d 691 (Texas 2009)(failure to appoint lawyer when defendant had not made an appearance was error but did not render the default judgment void). As with the Smith, these courts held that the default judgment could not be set aside, despite the failure of the court to comply with the requirements of the act when entering the default, unless the service member is able to prove the grounds required under the SCRA for relief from judgment.

    • Catherine says:

      My question in regards to this:
      Can a service member be penalized for time not spent with the children while deployed and ordered to pay extra child support a year after returning home?

      • howell says:

        I’m sorry but I do not understand your question. If you would like to give me more detail, I will try to help. Please respond to my email rather than on this site.

    • William C. Farris says:

      Taking a quick look at the act, I see nothing exempting small claims cases from SCRA. Do you?

    • John B says:

      In the Wake County, NC sample divorce package, it requires the following:
      #6) AFFIDAVIT-SERVICEMEMBERS CIVIL RELIEF ACT (SCRA): (You will need original plus (2) copies).
      Where can I find the original AFFIDAVIT when my former wife was never in the military?

      • howell says:

        As far as I know, there is only one Affidavit. The same Affidavit is used whether you are saying defendant is or is not in the military.

    • Jayne H. says:

      I process the majority of Motor Vehicle Liens. Most of these cars are abandoned and are transported by the Police or Sheriff in the county to storage lots owned by my petitioners. They have no idea who these people are, much less their birth date or social. Is there a way the DOT in Raleigh can help with this info? Can the DOT in Raleigh look them up and run a report and send it to the petitioners? They fill out the Affidavit saying they don’t know if they are in the military. We are signing the orders for Title because we gotten a straight answer from anyone. Saw this site and thought it wouldn’t hurt to ask again. Thanks!!

    • Jayne H. says:

      Sorry—–haven’t gotten a straight answer from anyone.

    • Lee says:

      Does this apply to motions in the cause where a party has made an appearance years ago, before this act? Say a custody order was entered in 2005 and the defendant appeared in the case. Now the plaintiff moves to modify.

    • Bill Bain says:

      I am in the property management business and file about 60 summary ejectment papers a month. Out of that 60, maybe 2 people show up for the hearing. We do not rent to anyone who is in the military as is proven by their rental application. Our actions are for non-payment of rent and are for possession only. We do not ask for money judgments. Does this act mean we have to prepare affidavits for each of these cases, have them notarized, and bring them to court each time we have a magistrate’s hearing?

    • Coco says:

      I’m in a situation where my ex-husband is deployed and I need permission to move our son out of state. My ex has 25 hours a year of supervised visitation, but has only visited our son 4 times in 4 years. He lives in California and I’m in Nevada. I asked for his permission to move our son before he was deployed and he didn’t respond. I got a lawyer and he was seved with papers. He refused to provide written permission to move our son unless his wage garnishment for child support is lifted.
      Now he is using the SCRA to delay everything. I lost my job and the new one starts in 2 weeks, but he won’t let our son go. I think it is unfair that he has this protection when he is not involved in his son’s life.

    • Suzanne says:

      “[T]he court, before entering judgment for the plaintiff, shall require the plaintiff to file with the court an affidavit.”

      Who may sign as “affiant” on behalf of the plaintiff? The plaintiff’s attorney? Or Someone from his/her law office?

      • howell says:

        I think the plaintiff’s attorney or someone from the law office can sign the affidavit but only if that person has personal knowledge of the facts set out in the affidavit.

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