Servicemembers Civil Relief Act Stay

Otchara Lawry, a resident of Rochester, is seeking a divorce from Jason Lawry, a member of the U.S. armed forces who is stationed at New York's Fort Drum.

Otchara had purchased a truck soon after marrying and was making its payments on her own; the remaining debt on the truck is $23,000. The truck was in Jason's possession at Fort Drum, however, and he was using it there. Otchara was also making payments on a credit card debt of $36,000. She claimed that most of that debt had been incurred by her husband.

Otchara sought and obtained an order from acting Monroe County Supreme Court Justice Richard Dollinger directing her husband to return the truck or take over the payments on it, and also to disclose credit card statements to her so that she could determine which debts belonged to each of them. That order was issued in August.

Jason did not comply with the order, but asked instead for a stay of all proceedings in accordance with the Servicemembers Civil Relief Act. With that request, he submitted a letter from his commanding officer attesting to the fact that Jason could not be released from his training in order to take part in divorce proceedings.

The Law

A sailor deployed in a war zone cannot be expected to concentrate on his crucial military job if the perils of an undefended lawsuit back home are hovering over his head. Similarly, a soldier in boot camp often cannot be excused from crucial training days in order to deal with a hearing that may result in her home being foreclosed upon. Because problems such as these could interfere with national security issues SCRA was enacted, even though the legislature was well aware that SCRA's effects could leave worthy plaintiffs “hanging.”

SCRA applies if a defendant military member has received notice of the proceeding. 50 U.S.C.A. App. ' 522. Once that occurs, if the service member asks for a stay of proceedings, attests to the fact that his current military duty requirements materially affect his ability to appear and provides an attestation to that same effect from his commanding officer, the court must stay the proceedings for at least 90 days. 50 U.S.C.A. App. '522 (b) (1) (2). New York's Military Law is very similar to the federal statute. See Hous. Auth., 255 AD2d 41 (1st Dept. 1999).

The only upside for plaintiffs is that the law was never intended to shield all military personnel from having to defend all lawsuits. It is in place only as a short-term fix for the problems created by the sometimes heavy demands in time and effort that military duty imposes. When a suit can be prosecuted in a manner that allows meaningful participation from the military member while not hampering the military mission, a SCRA stay should not be granted. 50 U.S.C.A. App. ' 521.

A Hybrid Solution

In a footnote in Lawry, Judge Dollinger observed that he had looked at federal and New York State case law and had discovered that most SCRA cases “are 'all-or-nothing' decisions: the stay of all proceedings is either granted or denied.” In fact, the court could find no cases granting a stay of proceedings but also requiring the military member to comply with disclosure orders or an order to return property. On the other hand, neither could it find a prohibition on these things.

So, after taking all of the considerations of SCRA and New York Military Law into consideration, and analyzing the facts of the case before him, Justice Dollinger decided to craft a hybrid solution.

The Lawry case presented competing interests that the court found compelling. On the one side was the military mission ' an interest that SCRA ensures will be placed above the general interest of ensuring as swift a resolution as possible to civil disputes. On the other side was Otchara Lawry's plight, which was not insubstantial. The truck and its debt were in her name, so she was legally bound to make payments on it and insure it. While the truck was in Jason's possession he could drive it, exposing Otchara to the risk of liability should he get into an accident. Jason had previously admitted to the court that he had no legal interest in the truck, so there was no dispute as to ownership that required his testimony for resolution. Justice Dollinger concluded that no harm would be done to the military mission if Jason was not ordered to return the truck or otherwise leave Fort Drum, but Otchara was permitted to repossess the truck herself. Thus, Otchara was given permission to go to Fort Drum and repossess the truck.

A similar balancing act was conducted regarding the disclosure of the credit card records. The court noted that Jason and his commanding officer had attested, in accordance with SCRA, that he was unavailable to attend court proceedings and take part in his defense while he was in training. However, no claim had been made that Jason's participation in military training hampered his ability to produce his credit card records. These he was ordered to turn over, which the court noted he could do through the Internet, without leaving Fort Drum.

Conclusion

Although the outcome would likely have been different had Jason Lawry been deployed overseas, the facts of the Lawry case are not atypical. Many U.S. service members are stationed at stateside bases but are unable to leave them because of military duties. Should this situation hamstring the divorcing spouse of a military member, exposing him or her to a continuing threat of financial harm? The Lawry decision holds that it should not, and offers a partial solution for those military spouses for whom a total stay may prove financially perilous.

Janice G. Inman is Editor-in-Chief of this newsletter.

When a U.S. soldier is deployed, or otherwise unavailable to defend his or her rights in a court of law because of military service, the law typically is clear: Proceedings must wait until the service member is sufficiently unencumbered by military duty to be able to prepare and present a case. Often, the delays imposed on court proceedings by the Servicemembers Civil Relief Act (SCRA), 50 U.S.C. App. ” 501-597b, can work a real hardship on the opposing party to the action.

When the action being stayed is a divorce case, is there any recourse for the non-military-member spouse caught in limbo? On most such matters, the answer is probably “No,” at least until the service member's crucial duty is completed. However, one recent decision has opened the door to some limited relief for divorcing parties who may be harmed by a SCRA-compelled delay in the proceedings. In Lawry v. Lawry, 12/2413, NYLJ 1202574550134, at *1 (Sup., MO, Decided October, 2012)(Dollinger, J.), Supreme Court, Monroe County, was faced with a conundrum, but ultimately concluded that although a stay of proceedings is required due to the unavailability of a divorcing military member, that stay need not apply to all aspects of the divorce action.

Competing Interests

Otchara Lawry, a resident of Rochester, is seeking a divorce from Jason Lawry, a member of the U.S. armed forces who is stationed at New York's Fort Drum.

Otchara had purchased a truck soon after marrying and was making its payments on her own; the remaining debt on the truck is $23,000. The truck was in Jason's possession at Fort Drum, however, and he was using it there. Otchara was also making payments on a credit card debt of $36,000. She claimed that most of that debt had been incurred by her husband.

Otchara sought and obtained an order from acting Monroe County Supreme Court Justice Richard Dollinger directing her husband to return the truck or take over the payments on it, and also to disclose credit card statements to her so that she could determine which debts belonged to each of them. That order was issued in August.

Jason did not comply with the order, but asked instead for a stay of all proceedings in accordance with the Servicemembers Civil Relief Act. With that request, he submitted a letter from his commanding officer attesting to the fact that Jason could not be released from his training in order to take part in divorce proceedings.

The Law

A sailor deployed in a war zone cannot be expected to concentrate on his crucial military job if the perils of an undefended lawsuit back home are hovering over his head. Similarly, a soldier in boot camp often cannot be excused from crucial training days in order to deal with a hearing that may result in her home being foreclosed upon. Because problems such as these could interfere with national security issues SCRA was enacted, even though the legislature was well aware that SCRA's effects could leave worthy plaintiffs “hanging.”

SCRA applies if a defendant military member has received notice of the proceeding. 50 U.S.C.A. App. ' 522. Once that occurs, if the service member asks for a stay of proceedings, attests to the fact that his current military duty requirements materially affect his ability to appear and provides an attestation to that same effect from his commanding officer, the court must stay the proceedings for at least 90 days. 50 U.S.C.A. App. '522 (b) (1) (2). New York's Military Law is very similar to the federal statute. See Hous. Auth., 255 AD2d 41 (1st Dept. 1999).

The only upside for plaintiffs is that the law was never intended to shield all military personnel from having to defend all lawsuits. It is in place only as a short-term fix for the problems created by the sometimes heavy demands in time and effort that military duty imposes. When a suit can be prosecuted in a manner that allows meaningful participation from the military member while not hampering the military mission, a SCRA stay should not be granted. 50 U.S.C.A. App. ' 521.

A Hybrid Solution

In a footnote in Lawry, Judge Dollinger observed that he had looked at federal and New York State case law and had discovered that most SCRA cases “are 'all-or-nothing' decisions: the stay of all proceedings is either granted or denied.” In fact, the court could find no cases granting a stay of proceedings but also requiring the military member to comply with disclosure orders or an order to return property. On the other hand, neither could it find a prohibition on these things.

So, after taking all of the considerations of SCRA and New York Military Law into consideration, and analyzing the facts of the case before him, Justice Dollinger decided to craft a hybrid solution.

The Lawry case presented competing interests that the court found compelling. On the one side was the military mission ' an interest that SCRA ensures will be placed above the general interest of ensuring as swift a resolution as possible to civil disputes. On the other side was Otchara Lawry's plight, which was not insubstantial. The truck and its debt were in her name, so she was legally bound to make payments on it and insure it. While the truck was in Jason's possession he could drive it, exposing Otchara to the risk of liability should he get into an accident. Jason had previously admitted to the court that he had no legal interest in the truck, so there was no dispute as to ownership that required his testimony for resolution. Justice Dollinger concluded that no harm would be done to the military mission if Jason was not ordered to return the truck or otherwise leave Fort Drum, but Otchara was permitted to repossess the truck herself. Thus, Otchara was given permission to go to Fort Drum and repossess the truck.

A similar balancing act was conducted regarding the disclosure of the credit card records. The court noted that Jason and his commanding officer had attested, in accordance with SCRA, that he was unavailable to attend court proceedings and take part in his defense while he was in training. However, no claim had been made that Jason's participation in military training hampered his ability to produce his credit card records. These he was ordered to turn over, which the court noted he could do through the Internet, without leaving Fort Drum.

Conclusion

Although the outcome would likely have been different had Jason Lawry been deployed overseas, the facts of the Lawry case are not atypical. Many U.S. service members are stationed at stateside bases but are unable to leave them because of military duties. Should this situation hamstring the divorcing spouse of a military member, exposing him or her to a continuing threat of financial harm? The Lawry decision holds that it should not, and offers a partial solution for those military spouses for whom a total stay may prove financially perilous.

Janice G. Inman is Editor-in-Chief of this newsletter.