This activity has been approved for Minimum Continuing Legal Education self-study credit by the State Bar of California in the amount of one (1) hour of General Credit for Attorneys and Paralegal Staff. The San Joaquin County Bar Association certifies that these activities conform to the standards for approved education activities prescribed by the rules and regulations of the State Bar of California governing minimum continuing legal education.
The Servicemembers Civil Relief Act of 2003 ("SCRA" or the "Act") is codified at 50 U.S.C. Appendix, section 501 et seq., and is a broad statute enacted by Congress to protect the due process rights of military members involved in civil disputes. The SCRA applies to all non-criminal judicial and administrative proceedings involving service personnel.1 The SCRA contains no exception for any civil proceeding. Therefore, it covers custody divorce, support, equitable distributions and termination of parental rights.
The primary issue to be addressed by the SCRA is the unavailability of a servicemember because of active military service. These duties may prevent the servicemember from protecting or asserting his or her rights in a court of law. The SCRA establishes a framework to protect those rights until the service member s available to take an active role in the proceedings.
The SCRA uses the term "servicemembers" to describe those individuals who may avail themselves of the protections of the Act.2 Generally the term refers:
The key protections provided to servicemembers in any Family Law proceedings are: (1) protection from default judgments; (2) stay of judicial proceedings; and, (3) setting aside of default judgments.
1. Protection Against Default Judgments
In an action where a respondent has not made an appearance the court, before granting a default judgment for the petitioner, shall require the petitioner to file an affidavit with the Court stating whether or not the respondent is in military service (including facts to support the affidavit) or that the petitioner is unable to determine whether or not the respondent is in military service.4
When it appears that the respondent is in military service, the Court may not enter a judgment until after the Court appoints an attorney to represent the respondent. However, if the attorney appointed to represent the servicemember cannot locate his or her client, action by the attorney in the case shall not waive any defense the servicemember may have asserted or otherwise bind the servicemember.5
When the Court, after reviewing the affidavits filed, is unable to determine whether or not the respondent is in military service, the Court may, before entering judgment, require respondent to file a bond in an amount approved by the Court. The purpose of the bond is to indemnify the respondent against any loss or damage that may be suffered by reason of any judgment should that judgment be set aside at a future date, in whole or in part.6
2. Stay of Proceedings
A stay of proceedings shall be granted for a minimum period of ninety days if the Court determines that there may be a defense to an action and the presence of the respondent is necessary or the court-appointed attorney for the servicemember has been unable to contact the respondent or otherwise determine if a meritorious defense might exist. The request for stay may be made by counsel or on the Court's own motion.7
In addition, if the servicemember who is a respondent in the action "receives actual notice of the action," the servicemember may request a stay of proceedings under section 522 of the Appendix.8 An application for an initial ninety-day stay must include: (1) A letter or other communication stating the manner in which the servicemembers current military duty requirements materially affect the ability to appear and providing a date when the servicemember will be available to appear; and (2) a letter or other communication from the servicemember's commanding officer stating the servicemember's current duty prevents the appearance and that military leave is not authorized at the time of the letter or communication.9
If necessary, the servicemember may request an additional stay based upon the continuing material effect of military duty upon the ability to appear. That application may be made to extend the initial stay or when it appears that the servicemember will remain unavailable in the future. The same information is required for the application for additional stay as was required for the initial application.10
If the Court refuses to grant an additional stay of proceedings, the Court shall appoint counsel to represent the servicemember in the action or proceeding.11
3. Setting Aside Default Judgment
The petitioner's failure to file an appropriate affidavit disclosing the respondent's military service prior to obtaining a default judgment does not nullify a judgment. Rather, it will render the judgment voidable by the servicemember who shows that his defense was prejudiced by reason of his military service and that there was a meritorious or legal defense to the action or some part of it.12
A servicemember may use the SCRA to vacate a default judgment entered against him while he was on active duty or entered up to sixty days after release from active duty. The servicemember must file such a petition within ninety days of leaving active duty and must show: that a meritorious defense was available to at least some part of the action and that active military service materially affected the ability to raise that defense.13
This provision is only available to a servicemember that has not previously appeared in the action.14 Some courts have held that requesting a stay of proceedings is an appearance which precludes a later request to set aside a default judgment. However, it is clear that any action by the court-appointed attorney will not bind the servicemember or waive any defenses.15
Duties of Court Appointed Counsel
The SCRA does not clearly or concisely describe the precise responsibilities of the attorney appointed under the Act. The role has been described as analogous to that of a guardian ad litem.16
However, a decision issued by the Alaska Supreme Court17 provided a summary of an appointed attorney's duties which has been routinely adopted by other jurisdictions.
Those duties were listed as:
The primary purpose of the Act is to protect the servicemember from surprise default judgments or judgments entered before the servicemember is able to make arrangements to be present or be properly represented before the Court.
The servicemember may choose to retain the court-appointed attorney to continue as attorney of record in the matter or may choose to retain other counsel to provide representation for the proceedings.
Keep in mind that the court appointed attorney's actions will not be binding upon the servicemember absent his or her express authorization allowing the attorney to proceed on his or her behalf.18 The limitations on the court appointed attorney's authority under the Act supports the short list of duties as set forth in the decision issued by the Alaska Supreme Court.
Other Legal Representation is Possible
Pursuant to the Act, a legal representative of the servicemember may be someone other than an attorney. An individual possessing a power of attorney executed by the servicemember may act on behalf of the servicemember.19 Therefore, the appointment of counsel by the Court is not always necessary to ensure that the servicemember is represented in the proceedings.
Waiver of Rights Permitted
Despite these strong protections for the benefit of servicemembers, the servicemember may waive the protections described in the Act. However, such a waiver is generally only effective if it is contained in a separate written document that is executed by the servicemember.20
To receive one (1) hour of MCLE credit, please answer the questions below. Each question has only one answer. Mail your answer form to San Joaquin County Bar Association, 20 N. Sutter Street, Stockton, CA 95202, with a $25.00 processing fee. Please make checks payable to SJCBA. The correct answers and an MCLE certificate will be mailed to you.