The Soldiers' and Sailors' Civil Relief Act of 1940 as Applied in Support Litigation: A Support Enforcement Attorney's Perspective

• Author: by Major Stephen R. Hooper
• Pages: 05

1. INTRODUCTION

   This article is designed to provide a legal and practical discussion of the Soldiers' and Sailors' Civil Relief Act of 1940' 88

   it is applied in family support litigation in a state, county. or municipal law office. from the perspective of one who is obligated to assist a plaintiff in family support cases against a military defendant.

   By approaching the Act from the author's perspective as an attorney in the district attorney's IDA) office,% Army lawyers should receive a new and unique understanding that perhaps will differ from what they have normally seem3 No one can be an expert in this field. Practical experience with other jurisdictions suggests that the Act may operate differently, not only from state to state, but from county to county. This aspect is important because legal assistance attorneys need to be sensitive to the position of the civilian lawyers opposing their military clients. They must consider the effect that a "knee-jerk" invoca. tion of the Act could have on their clients. To illustrate this point. it will be useful to isolate the law of one particular jurisdiction. For purposes of illustration, the law of California has been selected.

   Under various California statues, the district attorney has broad authority to obtain and enforce orders for child ~upport.4 In

   *Judge Advocate General's Corps, US. Army Re~eiue.

   The author LS a staff attorney with the Office af the Distnct Attorney YI Monterqi. Califonria. The

   Y ~ W I expressed are based on observations of how the Soldms' and Sdorr' Civll Relief Act 1s epp!ied in l a d C&forma COYI~B. They do nat r e k t the apiruons of the Distnct Attorney for the Caunty of Montere?. the County of Monbrey, the Umtd States Army, 01 the Government of the United States.

   '50 U.SC. npp. $5 501-691 llS82l [heremafter cited a8 the Act or the SSCRAi 'In Lhx article, the term "DA ' refers to the Dirtrrct Arforney for the County of Menterey, Caliiorma. It includes deputies acting on behalf of the Dirtnet Attorney.

   'For example. Dep't of Army. Pamphlet No 27-158. Soldiers' and Sdorn' Civll Rebel ACT (15 Aug 19811

   'For example. Cal. [Welf & Insr.1 Code 85 11360. 11360.1. 11360 6. 11476.1.

   the area of spousal support, the authority is somewhat different. Thsse orders are not obtained by the DA, but once they are entered they will be enforced for spousal support. An order far "family support" is treated as though it were for "child sup port."e The DA may file a new action for support, get involved in a pending dissolution action, or seek post-judgment modification of an existing child support order. It does not matter whether the case involves welfare; the DA's services are available to the custodial parent6 without regard to financial condition.

   11. WHEN THE SOLDIER RESPONDS

   Attorneys who have worked in legal assistance offices will recognize that the collective ability of soldiers to get into trouble exceeds the ability to describe all the possible problems. Neverthe less, there are certain generalizations that can be made in describing how the SSCRA may be applied. The typical situation features a young, unmarried woman who names a soldier 8s the father of her child. Because there is only an obligation to provide support for one's own children. the DA's first action is to file a complaint to establish parentage and determine the amount to be provided for support.

   The common perception among civilian attorneys is that this soldier is a freespending GI stationed at a distant post. When sewed with a summons and complaint naming him as B defendant in a paternity suit. the perception is that the soldier uill take this matter straight to the legal assistance office. Thereupon. the legal assistance office will immediately send off a standard request for a stay as authorized by the SSCRA. But what strategies are employed to prevent the soldier from entering an appearance and preserving his SSCRA rights?

   One approach is for the legal assistance officer to contact the DAs office directly. Whether made by itself or in conjunction with the standard request for a stay, this approach has benefits for both sides. In a DA's office, the soldier is seen not as merely seeking delay, but as showing a real interest in resolving the dispute by either settlement or orderly litigation. It opens m

   11476. 11416.1. 11477 and 11478, Cd [Civdl Code $5 248. 4700. 4701 and 4702.Cal [Cw Proel Code gp 1674 1680. and 1698 2: and Cal IPenall Cads 5 [West

   ....

   ,Jab,cal ~ c i ~ d i codr i isii imklr 1985~'The 'custod~al pmenf" IS the pmfy with actual. phyiiical,cuatody of the chdd and m the Datnct Atlarne)'~ office, LQ referred to as ' C The ' non-eustodd parent' 1s referred to as the "absent parent.' ' A," "AM" (far 'absent mother' I. or "AF' (far "absenr father' I.

   19861 SUPPORT ENFORCEMENT

   avenue for negotiation between the DA's office and the soldier's legal assistance attorney. These negotiations may break down, but both sides have a chance to consider settlement. Failing settle ment, the soldier may still assert the protections of the Act. It is unfortunate that this approach is so rarely used by legal...