Ukraine: Stay and Remain, Part 2
Thousands of servicemembers have been deployed in response to the Russian invasion of Ukraine. Naval frigates, surveillance aircraft, artillery units and brigade combat teams are all heading out as part of the first-ever NATO Response Force.
Undoubtedly some of the servicemembers (SMs) will be involved in civil cases, administrative legal proceedings, and family law litigation. Some of these SMs will likely ask the court to freeze the case during a deployment (or any period in which the SM is unavailable due to assigned duties), so the status quo will remain while the SM is not available.
The “stay” is how litigation may be suspended. The Servicemembers Civil Relief Act (SCRA), Chapter 50 of Title 50, U.S. Code, tells how to request and obtain a stay of proceedings.
Can a stay request be denied? Does the court have the power to refuse the application of a SM for a stay of proceedings while he or she is deployed and unavailable for participation in the litigation?
The answer is YES. There are two primary routes to blocking a stay request.
The first of these is to show that the application does not fit the requirements of the statute. If the stay request has omitted one or more elements of 50 U.S.C. § 3931 (b)(2), the court may deny the request. In an Alaska case the court denied a request for a stay because evidence was lacking about military duties precluding the SM from participation in the case, and there was no communication from his commanding officer. Childs v. Childs, 310 P.3d 955 (Alaska 2013).
The second issue involves misconduct by the SM. SMs who fail to comply with the rules and orders of the court may find that their stay requests are denied. In a North Carolina case, a soldier received several continuances because of military duty during the Persian Gulf War, had an attorney, failed to comply with court discovery orders and continued to request additional stays or continuances; the court denied his stay requests. Judkins v. Judkins 113 N.C. App. 734 (1994).
Withholding important information from the other party or the court can also lead to denial of the stay request. When a party applying for a stay has acted inequitably, most courts will refuse to consider the stay request based on the doctrine of “the sword and the shield,” ruling that the SCRA is intended to be used as a shield to protect the rights of the servicemember, not as a sword to defeat the rights of others. “Fair play” is the key to successful use of the SCRA in slowing down civil proceedings.
More information on the stay request and its essential elements may be found in “A Judge’s Guide to the Servicemembers Civil Relief Act,” at www.nclamp.gov > Publications > additional Resources.
[Part 1 of this article explains how to obtain a stay of proceedings.]
About the Author
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Mr. Sullivan is a retired Army Reserve JAG colonel. He practices family law in Raleigh, North Carolina and is the author of The Military Divorce Handbook (Am. Bar Assn., 3rd Ed. 2019) and many internet resources on military family law issues. A Fellow of the American Academy of Matrimonial Lawyers, Mr. Sullivan has been a board-certified specialist in family law since 1989. He works with attorneys and judges nationwide on military divorce issues and in drafting military pension division orders.Read More by Mark >