Requesting a Stay Under the Federal Servicemembers’ Civil Relief Act: Recent Case Law

When it comes to a divorce action between spouses where one or both spouses is a member of the military, certain specific procedural rules apply. In particular, the Federal Servicemembers’ Civil Relief Act (SCRA) provides that a person on active military duty is entitled to a continuance of any action, including a divorce or custody action, upon showing that the party is prevented from appearing in court due to military service.

In a recent case, the Massachusetts Appeals Court considered the argument of a husband who claimed his rights under the SCRA were violated when the Probate and Family Court failed to issue him a continuance on several hearing dates related to his divorce, custody, and support issues. In Fazio v. Fazio, the husband sought a stay of a hearing by faxing a letter to the court the day before the hearing was to take place. The letter, written by the husband’s commanding officer, stated that the husband’s unit would be conducting pre-deployment training which would last approximately a year, and requested that all hearings be postponed as a result. The judge, expressing frustration with the last-minute request, declined to extend a stay of the hearing. The husband appealed.

The Appeals Court agreed with the trial judge, noting that the requirements for an adequate request under the SCRA were not met. “The commanding officer’s communication provided no details about the husband’s predeployment training and did not explain how the requirements of the training mission prevented the husband from taking part of one day to attend a court hearing,” the Court noted. “Nor did the commanding officer state that the husband could not obtain leave to appear at the hearing at any time during the two months prior to mobilization.” Because the husband’s requests were inadequate, the trial judge was correct in not granting the stays under the SCRA.

Moreover, the Appeals Court reviewed the temporary orders which were granted by the trial court. While the Appeals Court held that the temporary child support orders deviated from the guidelines and were therefore an abuse of discretion, the Court affirmed the judge’s division of marital property, which had given approximately two-thirds of the property to the wife. “[T]he judge found that the parties contributed equally to creation of the marital estate prior to separation, but that the wife ‘played a far more significant role in the preservation of the estate’ after the separation,” the Court stated. “The judge’s subsidiary findings, which the husband does not challenge, support her rationale. Reversal of the property division is not warranted.”

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