OFFICE OF THE ATTORNEY GENERAL

CHILD SUPPORT SECTION

# BEST PRACTICES

## TRANSMITTAL \# 21

Servicemembers Civil Relief Act

(50 U.S.C. App. §§ 501 - 596)

1.  **NEW LAW.** Effective December 19, 2003, Servicemembers Civil
    Relief Act, SCRA, (Public Law 108-189[^1]) replaced the Soldiers\'
    and Sailors\' Civil Relief Act by substantially clarifying and
    strengthening the former act. The SCRA is now written in plain
    English and sets forth procedures for implementing the act, which
    were not previously addressed. From a child support perspective,
    Congress strengthened the rights of the servicemember by requiring
    application of the SCRA to administrative proceedings commenced by
    DCSE. As with the former statute, this statute can delay an
    establishment or enforcement proceeding, but SCRA cannot defeat it.
    With the exception of procedures relating to entry of default
    judgments, the benefits of the act must be [properly
    invoked]{.underline}, and are not automatic. Recognizing that child
    welfare and national security are both governmental priorities,
    Congress and the Executive Branch have balanced the two so that
    neither trumps the other.[^2]

2.  **APPLICATION.** The Act applies to persons in the military service,
    which the act refers to as servicemembers. Servicemembers include
    those individuals defined as persons in the uniformed services[^3]
    -- members of the armed forces (Army, Navy, Air Force, Marine Corps,
    and Coast Guard) as well as Officers of both the National Oceanic
    and Atmospheric Administration and the Public Health Service. In
    addition, servicemembers include armed forces' reservists and
    National Guard Members, who receive orders from the federal
    government to active duty status pursuant to Title 10 of the United
    States Code for national defense purposes. The SCRA has expanded the
    definition to include National Guard members called by the President
    or the Secretary of Defense (under 32 U.S.C. § 502(f)) for more than
    30 days "for purpose of responding to a national emergency declared
    by the President and supported by Federal funds."[^4] Virginia has
    further enlarged the SCRA coverage to include all active National
    Guard Members who have received active duty orders from either the
    federal government or the governor for a period of 30 consecutive
    days or more.[^5] The definition of servicemember does not include
    civilians working in war-related capacities[^6] or inactive
    reservists.[^7]

3.  **ADMINISTRATIVE PROCEEDINGS.** The new act extends application to
    state and federal administrative proceedings. It defines "court" as
    "a court or administrative agency of any State (including any
    political subdivision of a State), whether or not a court or
    administrative agency of record."[^8] The rules contained within the
    SCRA apply to DCSE administrative actions. These statutory
    requirements primarily affect the administrative procedures in
    establishing and reviewing administrative support orders and have
    little effect on administrative enforcement procedures (See numbered
    paragraph 8 below).

The Division initiates support proceedings by issuing notice containing
the administrative support order, which becomes effective unless timely
contested by either party.[^9] Under the SCRA, this notice proceeding
constitutes a default judgment, which entitles the servicemember to
certain protections as discussed below, including the appointment of an
attorney. Only when the servicemember waives his or her SCRA rights in
writing should the Division administratively establish or modify
support. The servicemember's legal representative also has the authority
to sign such a waiver (See numbered paragraph 4 below).

If the servicemember elects not to sign a waiver, the caseworker should
refer the matter to court.[^10] By referring the matter to court, the
effective date (or start date) of the support order would occur sooner
rather than later because the start date of the support order would be
the date the initial petition was filed with the court[^11] as opposed
to the date the administrative order was finally served on the
servicemember.[^12] In addition, the judge, rather than the caseworker,
would address issues relating to entry of default orders and the
intricacies related to the servicemember's request for stays
(continuances).

4.  **WAIVERS/LEGAL REPRESENTATIVES.** Servicemembers who wish to
    cooperate with the Division can waive their rights under the act for
    the limited purpose of adjudicating paternity and establishing the
    support order. They should do this in writing, during or after their
    period of military service, in a separate document, which refers to
    the support order to which the waiver applies.[^13] It is necessary
    that the written waiver be attached to the support order since the
    written waiver would be the primary evidence in barring the
    servicemember from invalidating the order on an allegation of a
    default judgment (See Exhibit 1 & 2 for waiver forms).

The servicemember's legal representative has the authority to sign the
waiver on his or her behalf. The SCRA defines a legal representative as
an attorney working on behalf of the servicemember or an individual who
possesses a valid general power of attorney from the servicemember.[^14]
If the legal representative signs the waiver on behalf of the
servicemember, it is essential that the Division attach a copy of the
power of attorney to the waiver form. If the matter is in court, these
documents should be submitted to the court as exhibits. If the matter is
an administrative action, the copy of the waiver and the power of
attorney should be attached to the administrative support order. While
the attorney can represent the servicemember before the court or the
Division, the individual possessing the power of attorney cannot;
however, he or she can be treated as a factual witness to provide the
court or the agency with financial and other relevant information in
calculating the support.

5.  **PROTECTIONS AFFORDED THE SERVICEMEMBER PRIOR TO THE ENTRY OF A
    DEFAULT JUDGMENT.** 50 U.S.C. § 521 (2003) applies to any civil
    action or proceeding in which the respondent does not make an
    appearance and as a consequence is in default. Judgment is construed
    to mean a final determination of rights of the parties.[^15]
    Judgment is not construed to mean an interlocutory support
    order.[^16] In other words, the court has the authority to enter an
    interlocutory child support order, without having to follow the
    requirements of filing an affidavit and having the court appoint an
    attorney for the servicemember. If the servicemember has not made a
    proper request for a stay, the court has the authority to enter
    other interlocutory orders such as an order requiring the
    servicemember to submit to paternity testing or answer
    interrogatories. If the servicemember submits to paternity testing
    or responds to the discovery, he now has voluntarily submitted
    himself to the jurisdiction of the court and is deemed to have made
    an appearance.[^17]

This section requires the Division or the petitioner to file an
affidavit with the tribunal prior to the entry of any default
judgment.[^18] The affidavit, which is made under penalty of perjury,
should indicate whether the respondent is in the military, not in the
military or that the petitioner does not know whether respondent is in
the military (See Exhibit 3). Virginia has restated this provision in
Va. Code § 8.01-15.2 (2004).[^19] Both Virginia law and the SCRA require
submission of the affidavit to the court whether the respondent is in
the military or not prior to entry of the default judgment. If it
appears the individual is a servicemember, then an attorney must be
appointed for the servicemember prior to the entry of the default
judgment.[^20] In addition, it is mandatory for the court to grant a
stay of proceeding for a minimum period of 90 days if it finds (1) there
may be a defense to the action and a defense cannot be presented without
the presence of the defendant; (2) after due diligence, counsel has been
unable to contact the defendant; or (3) counsel certifies to the
tribunal that a meritorious defense exists.[^21] Either the attorney or
the court can make the motion for the stay.

From a court perspective, the affidavit should not be attached to the
pleadings filed with the clerk's office but submitted to the court at
the entry of the default judgment.[^22] From an administrative
perspective, an affidavit should be attached to all administrative
support orders with the following two exceptions: (1) where the
noncustodial parent has participated in the administrative process and
the participation is documented or (2) where the servicemember has
signed a SCRA Waiver. As explained in numbered paragraph 3 above, these
administrative orders fit the criterion of default judgments. Too avoid
court challenges, the administrative order should have attached to it
either a SCRA waiver, an affidavit or a waiver of process reflecting the
noncustodial parent's participation in the administrative process. Also,
the Division should attach either the waiver or the affidavit to both
proposed orders and foreign decrees submitted to the court in accordance
with Va. Code § 63.2-1921 (2002)[^23] or under Article 8 of UIFSA.

50 USC § 582 (2003) greatly assists the Division in addressing
affidavits. This section requires the Department of Defense (DOD) to
provide a certificate indicating whether an individual is in the
military or not. In addition, the certificate is deemed prima facie
evidence as to the facts stated in the certificate. In other words, the
affidavit can be based on the information provided in the certificate
(See Exhibit 2). DOD has developed a website to which Division employees
can make a web request providing name and social security number; within
seconds a certificate is generated. To obtain access to the website,
contact Defense Manpower Data Center (DMDC) at 703-696-6762. DMDC
employees will fax you the information to obtain authorization to the
website.[^24]

6.  **PROTECTIONS AFFORDED THE SERVICEMEMBER AFTER THE ENTRY OF A
    DEFAULT JUDGMENT.** Failure to afford the servicemember protections
    of the SCRA prior to the entry of a default judgment is not
    jurisdictional. In other words, the final judgment is not void but
    merely voidable, subject to direct attack in the court that issued
    the order by only the aggrieved servicemember.[^25] In making
    application to the court to reopen the default judgment, the
    servicemember must meet the following five prong test: (1) the
    petitioner failed to file the prerequisite affidavit at the time of
    entry of the default judgment; (2) the default judgment was taken
    against the servicemember during his or her period of military duty
    or within sixty days after the termination or release from such
    military service; (3) the motion to reopen the judgment was filed
    within at least 90 days of termination from the service; (4) the
    servicemember's defense to the action was materially affected by
    reason of his or her military service; and (5) the servicemember had
    a meritorious defense to the action.

The first three prongs of the test relate to the servicemember's
standing to bring the action; they focus on the petitioner's compliance
with the SCRA and the respondent's relationship to the military during
two time periods---at the time of entry of the default judgment and at
the time when the respondent files the motion to reopen with the court.
The respondent who was not in the military service at the time of
default judgment has no standing to complain to the court of the
plaintiff's failure to file the required affidavit setting forth facts
showing that respondent was not in the military service.[^26] If the
servicemember fails to move to reopen the judgment within 90 days from
termination of active duty, the order is no longer subject to attack
under the SCRA.[^27] This provision should be used as a statute of
limitations type defense in response to a motion to reopen.

The last two prongs of the test relate to substantive issues of whether
the servicemember's defense was prejudiced by his or her military duties
and of whether the servicemember had a winning defense to the petition.
For all intensive purposes material effect is analogous with the term
prejudice.[^28] The servicemember is required to show how his or her
military duties prejudiced him or her in presenting a defense to the
cause of action. One means of overcoming a claim of prejudice is by
showing that the servicemember was fully informed of the pendency of
action and had adequate time and opportunity to appear and defend, or
otherwise protect his or her rights (such as request a stay action), but
failed to do so.[^29] The Department of Defense Directive 1327.5, [Leave
and Liberty,]{.smallcaps} may further bolster the claim that the
servicemember sat on his or her rights, because the directive mandates
the servicemember's commander to grant leave for paternity and support
hearings unless the servicemember is deployed in a war or the exigencies
of military service require a denial of such a request.[^30] Thus, the
servicemember's failure to request leave from his or her command is
relevant in determining whether prejudice occurred.

The mere allegation by the servicemember that he or she has a
meritorious defense is insufficient.[^31] The servicemember must set
forth facts of such a defense. In a support determination, the
servicemember must show that the child support calculation was done
incorrectly and to his detriment. In a paternity action, the court may
grant the servicemember's request for paternity testing to determine
whether he has a defense or not. Finally, prior to entering the
courthouse on a motion to reopen, the Division's attorney should
consider all possible alternative remedies in the event the court
reopens the judgment.

7.  **PROTECTIONS AFFORDED THE SERVICEMEMBER DURING THE PENDENCY OF THE
    TRIAL.** No longer is the decision to grant the servicemember's
    request for an initial stay of proceedings within the discretion of
    the court. 50 U.S.C. app. § 522 (2003) now provides the
    servicemember with at least a 90 day automatic stay of proceedings
    if he or she makes a proper application to the court or agency;
    requests for additional stay of proceedings are discretionary with
    the court. As with the initial stay of proceeding, the application
    for additional stays must meet certain mandatory criteria. If the
    second properly made request for stay is denied, then the court is
    obligated to appoint an attorney for the servicemember. On the other
    hand, if the court denies the initial request for stay of
    proceedings or any subsequent request for stay on the basis of an
    improper request (not meeting the technical requirements), the SCRA
    places no obligation on the court to appoint an attorney to
    represent the servicemember; under those conditions, the court has
    the authority to enter a final judgment. Unsuccessful utilization of
    this section is a legal bar to the servicemember's request to reopen
    the judgment under 50 U.S.C. app. § 521 (2003).[^32] The application
    for stay, whether properly or improperly made, neither constitutes a
    general appearance by the servicemember for jurisdictional purposes
    nor constitutes a waiver of any substantive or procedural
    defenses.[^33] The servicemember is barred from requesting a stay of
    proceeding if he makes the request later than 90 days after
    termination or release from the military.[^34]

One fertile area for argument evolves around the conditions precedent
for granting the application of the stay. Each application for stay
requires two separate communications---one from the servicemember and
one from his or her command. The communications can be in any form
(letter, email, fax or oral communication). The communication from the
servicemember must set forth facts why his or her military duties
prejudice his or her ability to appear and the date he or she is
available to appear in court. Congress placed great emphasis on the
servicemember providing his or her available dates to the court. The
Committee of Veterans Affairs noted in the legislative history,
"Equipped with this information, the court would be able to make a more
informed judgment as to when the litigation may proceed."[^35]

The issue of material effect---prejudice---centers on whether the
servicemember is able to take leave to appear or whether the
servicemember has acted in good faith to make him- or herself available
for trial.[^36] The second communication from the servicemember's
commanding officer will be a strong factor in determining whether the
servicemember's military duties prejudice his or her abilities to
appear, for this communication from the servicemember's commanding
officer must state that the servicemember's current military duty
prevents appearance and that military leave is not authorized for the
servicemember at the time of the letter. Without this second
communication from the command, the request for stay fails. As stated
above, the DOD Directive relating to leave and liberty restricts the
commander's authority to deny leave in child support and paternity
matters.

Given the sensitivity of war issues since September 11, 2001, the courts
may be reluctant to grant a final order in the matter if the
servicemember fails to meet these conditions precedent. The court should
be aware that the Secretary of Defense is required to notify each
servicemember in writing of the requirements of the Act.[^37] In
addition, in most instances, the servicemember is receiving additional
pay for dependents but not utilizing the funds for the children's
benefit. In other words, receiving additional pay for the dependents yet
not supporting them is unjustly enriching the servicemember. In
balancing the equities, the court should grant an interlocutory order,
to provide a stopgap measure for the custodial parent and child. Another
option is the court conducting a telephonic hearing; instead of the
servicemember coming to court, the court literally goes to the
servicemember.

The granting of subsequent application for stays is discretionary with
the court upon a proper application. The SCRA does not provide a litmus
test for the court's deciding whether to grant the second stay. At the
present time, there are two schools of thought on how to address the
second and subsequent stays. The first school of thought is to follow
the old SSCRA[^38] test for granting a stay, that is, whether "the
ability of plaintiff to prosecute the action or the defendant to conduct
his defense is not materially affected by reason of his military
service."[^39] The other school of thought is to follow the language of
the legislative history, which states as follows:

"The court would be expected to consider the equities of all parties
involved in granting an additional stay, but military service should not
place a servicemember at a geographic or legal disadvantage."[^40] The
second school of thought not only considers the servicemember's
circumstances but also considers the other participant's circumstances
including the child's circumstances. This allows for more equitable
relief.

Even if the court denies the second request for stay, the plaintiff may
still run into roadblocks because then the court is required to appoint
an attorney to represent the servicemember. With lack of funding to pay
the appointed attorney, the court may still be prohibited from entering
an order. Thus, the second hearing is the line of demarcation. For this
reason, it is vital to demonstrate that the application for the stay is
flawed, namely that the servicemember's ability to defend against the
action is not impaired by his or her military service.

It is between the first and second hearing date that the Division should
prepare this defense by communicating with the servicemember and his or
her commanding officer to ensure that the servicemember will be
available at the next hearing. The command should be reminded about the
DOD Directive on leave. If the Division cannot obtain a commitment from
the servicemember's command that he or she will be able to appear, then
explore the viability of conducting a telephonic hearing with the
command, similar to the ones conducted under UIFSA. By the Division
taking these preemptive actions prior to the second hearing, it will
make it difficult for the court to cross the line of demarcation and
most likely the matter will be resolved at the second hearing.[^41]

8.  **OTHER PROTECTIONS AFFORDED THE SERVICEMEMBER UNDER THE SCRA THAT
    AFFECT CHILD SUPPORT MATTERS.** 50 U.S.C. app. § 527 limits interest
    rates to 6% per year on support arrearage incurred by the
    servicemember before the servicemember enters military service. This
    provision forgives the payment of interest in excess of 6% a year on
    child support arrearage incurred prior to entering active duty; in
    order to be covered by the 6% cap, the servicemember has the burden
    of providing the Division with written notice for the request and a
    copy of his or her service orders, as well as any orders for service
    extension. If the servicemember fails to makes the request to the
    Division within 180 days from termination or release from such
    service, he or she is barred from receiving this interest rate
    relief (similar to a statute of limitations requirement). The 6% cap
    on pre-military child support arrearage shall remain in effect while
    the servicemember remains on active duty. Any arrearage that
    accumulates after the servicemember enters military service shall
    accrue at the judgment interest rate.[^42] In addition, 50 U.S.C.
    app. § 527 (c), allows the court to grant the custodial parent
    (NonTANF case) or the state (TANF case) relief from the 6% limit if
    the ability of the servicemember to pay interest in excess of the
    cap is not materially affected by reason of military service. The
    Division has issued guidance on how to apply the rate reduction.
    With the passing of the SCRA, Clearinghouse 01-DD-026 (12/6/01) will
    be revised to set forth the new criteria. As of July 1, 2004,
    Virginia's legal and judgment rate of interest is 6%; they were
    previously set at 9%.[^43]

50 U.S.C. app. §§ 524 & 525 authorizes the tribunal to stay the
enforcement of a child support order or vacate a wage withholding upon a
finding of the court that the servicemember is materially affected in
complying with the requirements of the order. The tribunal may act on
its own motion or the servicemember's motion. The servicemember must
show such a decrease in pay as a result of his or her going into the
military service, that he or she is materially affected by the decrease.
The court has the authority to stay the enforcement of the support order
through 90 days after termination from the service. A wage withholding
may be vacated at any time during his or her military service through 90
days after termination from active duty Under these SCRA provisions, the
tribunal has the ability to decrease the amount of the wage withholding
but not decrease the amount of the order. The purpose of these sections
is not to nullify the order but to suspend, in part or in full, the
enforcement of the order. State courts that have encountered such
requests have been reluctant to grant the relief on the grounds that as
long as the servicemember is receiving remuneration for military
service, he or she has an obligation to provide support and maintenance
for his or her children.[^44]

[^1]: SCRA (Public Law 108-189) is available at this web address -
    <http://www.chinfo.navy.mil/navpalib/policy/hr100-scra.pdf>

[^2]: "The naval service will not be a haven or refuge for personnel who
    disregard or evade their obligations to their families." 32 CFR §
    733.3(
    <http://www.access.gpo.gov/nara/cfr/waisidx_01/32cfr733_01.html>).
    Other services have similar provisions. See DOD Policy 32 CFR §
    81.3.
    (<http://www.access.gpo.gov/nara/cfr/waisidx_00/32cfr81_00.html>)
    and Army 32 CFR § 584.3.
    ^(^.<http://www.access.gpo.gov/nara/cfr/waisidx_00/32cfr584_00.html>).
    In addition, Executive Order 12953 (1995) entitled "Actions Required
    of all Executive Agencies to Facilitate Payment of Child Support"
    proclaims, "The Federal Government, through its civilian employees
    and Uniformed Services members, is the Nation\'s largest single
    employer and as such should set an example of leadership and
    encouragement in ensuring that all children are properly supported."
    **[Executive Order
    12953](http://resource.lawlinks.com/content/legal_research/executive_orders/1995/executive_order_12953.htm)**

[^3]: Uniformed Services is defined in 10 U.S.C. § 101 (d)(1) which is
    located on this website
    -<http://www.access.gpo.gov/uscode/uscmain.html>

[^4]: 50 U.S.C. app. § 511 (2)(A)(ii) (2003).

[^5]: Va. Code Ann. §44-102.1 (2003) -
    <http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+44-102.1>

[^6]: *Abbattista v. United States*, 95 F. Supp. 679, 682 ( D.N.J.
    1951), a private contractor injured while working in hatch of
    government ship was not afforded the protections of the Soldiers'
    and Sailors' Civil Relief Act. "The protection of the statute is
    available only to persons within the definition and no others."

[^7]: *Markowitz v. Carpenter*, 94 Cal. App.2^nd^ 667, 669 (Cal. Ct.
    App. 1949). The California Court of Appeals held that the Defendant,
    an inactive naval reservist, was not entitled to the protections of
    the act.

[^8]: 50 U.S.C. app. § 511 (5) (2003).

[^9]: Va. Code Ann. § 63.2-1916 (2004) -
    <http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+63.2-1916>

[^10]: Regarding the review of administrative orders by the court,
    either the Division or the custodial parent would file an initial
    petition of support with the court. If arrearages from the
    administrative order exist, the initial petition should request the
    setting of the arrearage.

[^11]: Va. Code Ann. § 20-108.1 (2004) -
    <http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+20-108.1>

[^12]: Va. Code Ann. § 63.2-1916 (2004) -
    <http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+63.2-1916>

[^13]: 50 U.S.C. app. § 517 (2003) - This section does not require the
    waiver to be in writing because it does not meet one of the
    criterion of subsection (b); however, it is strongly recommended
    that the waiver be manifested in writing so that the written waiver
    can be used to refute any possible future testimony from the
    servicemember of the waiver's non-existence.

[^14]: 50 U.S.C. app. § 519 (2003).

[^15]: In re Larson, 81 Cal. App. 2d 258, 262 (Cal. Ct. App. 1947).
    California Court of Appeals held the SSCRA protections against a
    default judgment applied to a name change of a servicemember's child
    because the decree changing the name of the minor child was deemed
    to be a \"judgment\" under the act - a final determination of the
    rights of all persons.

[^16]: 1998 Army Law. 14 -- "absence of the service member from a
    **temporary** child support hearing has been held to be
    non-prejudicial, since the decision is not final and is subject to
    further modification." -
    [https://134.11.61.26/CD1/Publications/JA/TAL/TAL%2027-50-307%2019980601.pdf](https://134.11.61.26/CD1/Publications/JA/TAL/TAL 27-50-307 19980601.pdf)
    / see page 16 of the publication.

[^17]: *Case v Case,* 1955 Ohio Misc. Lexis 403, 14 (1955).
    "'APPEARANCE' means coming into court by either party to action and
    signifies an overt act by which a person against whom suit has been
    commenced submits himself to jurisdiction of court and is his first
    act therein, and it may be express or implied from defendant's
    taking or agreeing to some step or proceeding in cause beneficial to
    himself other than one contesting jurisdiction."

[^18]: 50 U.S.C. app. 521(b) (2003).

[^19]: <http://leg1.state.va.us/cgi-bin/legp504.exe?041+ful+CHAP0381>

[^20]: 50 U.S.C. app. 521(b)(2) (2003).

[^21]: 50 U.S.C. app. 521(d) (2003).

[^22]: *B & B Sulphur Co. v Kelley*, 61 Cal. App.2d 3, 7 (Cal. Ct. App.
    1943). "The affidavit setting forth facts showing that a defendant
    is not in the military service should be made at the time of the
    making and entry of the default judgment." Neither the SCRA nor Va.
    Code § 8.01-15.2 (2004) allows the non-servicemember standing to
    reopen the matter if the affidavit is not filed

[^23]: Va. Code § 63.2-1921 (2002) -
    <http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+63.2-1921> ;
    these orders are in the very nature default judgments. The court is
    required to enter these proposed orders unless one of the parties
    files a written objection to the court within 30 days of receipt of
    notice. If the noncustodial parent requests the administrative
    review, the Division should file an affidavit for the custodial
    parent. In many cases the reviews indicate a reduction in support.
    The SCRA applies to both noncustodial and custodial parents.

[^24]: For detailed written instructions turn to page --2- of the
    following article: Mark E. Sullivan, *Judges' Guide to the Service
    Members Civil Relief Act* (2004) -
    <http://www.abanet.org/legalservices/downloads/lamp/judgesguide.pdf>.

[^25]: *Thompson v Lowman*, 155 N.E.2d 258, 261 (Ohio Ct. App. 1958).
    "When the judgment is rendered without filing the requisite
    affidavit, the courts have uniformly ruled that the judgment is not
    void, but only voidable, subject to being vacated at the instance of
    the service man, but only upon proper showing that he has been
    prejudiced by reason of his military service in making defense."

[^26]: *Arenstein v Jencks,* 179 S.W.2d 831, 833 (Tex. Civ. App. 1944).
    "This requirement of the federal statute was passed to protect
    members of the military forces. The federal government is without
    jurisdiction to prescribe rules of procedure in state courts
    generally, and could only do so to protect persons in the federal
    employment, such as members of the military forces. There is no
    contention here that appellant is such a member."

[^27]: *Hudson v Hightower,* 210 S.W.2d 933, 935 (Ky. Ct. App. 1948).
    "In the instant case, no step whatever was taken by our returned
    serviceman relative to this matter at any time within 90 days or
    even within 180 days after his discharge. Therefore, we believe that
    the judgment against him was, at most, voidable and therefore
    subject to regular reversal on appeal had he proceeded within 90
    days of his discharge and demonstrated an injury to himself.".

[^28]: *Saborit v Welch,* 133 S.E.2d 921, 924 (Ga. Ct. App. 1963). "We
    may assume, however, that the term \"prejudiced\" in § 520 has the
    same meaning as \"materially affected\" in § 521, and that the trial
    court has a discretion, as contended by the plaintiff, in deciding a
    motion to set aside a judgment under § 520. The discretion
    nevertheless would be 'a legal discretion to determine, from the
    facts in evidence,' whether by the defendant\'s absence in military
    service he was prejudiced in making his defense."

[^29]: *Swartz v Swartz,* 412 So.2d 461, 462 (Fla. Dist. Ct. App. 1982).
    "A serviceman applying for suspension of legal proceedings under the
    Civil Relief Act must exercise good faith; inexcusable noncompliance
    with an agreement related to child support and family
    responsibilities is presumptive evidence of bad faith. The husband
    here is not entitled to the equitable relief of a hearing because
    his rights were not prejudicially affected as a result of military
    service; any disadvantage to him resulted from his own intentional
    and informed actions. It was not the intent of Congress in passing
    the Soldiers\' and Sailors\' Civil Relief Act to protect persons who
    willfully disregard court orders."

    *Burgess v. Burgess*, 234 N.Y.S.2d 87 (N.Y. App. Div. 1962). "The
    apparent purpose of the Federal Act and of section 303 was to
    protect persons in military service from having default judgments
    entered against them without their knowledge. Section 303 was not
    intended to prevent a judgment by default against a person in the
    military service where such person was fully informed of the
    pendency of the action and had time and opportunity to appear and
    defend, or otherwise protect his rights, if any."

[^30]: [U.S. Dep't of Defense, Dir.]{.smallcaps} 1327.5 (6.25), [Leave
    and Liberty]{.smallcaps} (24 Sept. 1985) -
    <https://134.11.61.26/CD9/Publications/DoD/Dir/d13275p.pdf>

[^31]: *La Mar v La Mar*, 505 P.2d 566, 569 (Ariz. Ct. App. 1973).
    "Appellant\'s motion to vacate was also deficient as to the
    requirement of showing the existence of a meritorious defense. While
    he states in his affidavit that he has such defense, he fails to set
    out what that defense is. This does not suffice to meet the
    statutory requirements. The statute says that it must be made to
    appear that he has a meritorious or legal defense. The motion to
    vacate must not only declare that the movant has a good and
    meritorious defense to the action but must set out what it is. 6
    C.J.S. Army and Navy § 37(5)."

[^32]: 50 U.S.C. app. § 522(e) Coordination with § 521. "A servicemember
    who applies for a stay under this section and is unsuccessful may
    not seek the protections afforded by 50 U.S.C. app. § 521."

[^33]: 50 U.S.C. app. § 522(c) (2003).

[^34]: 50 U.S.C. app. § 522(a)(1) (2003).

[^35]: H. Rpt. 108-81, at 33 (2003).

[^36]: *Underhill v. Barnes*, 288 S.E.2d 905, 907 (Ga. App. 1982). The
    court denied the motion to stay in light of it taking judicial
    notice of the rate of accrual of leave time set by 10 U.S.C. §701(a)
    and determined that based upon Underhill\'s length of time in
    service, he had accrued fifty days of annual leave and there was no
    evidence or showing that such leave was not available to him.

[^37]: 50 U.S.C. app. § 515 (2003).

[^38]: Mark E. Sullivan. Family Law and the Servicemember Civil Relief
    Act, Attachment 4, <http://www.ncfamilylaw.com/ATCH4.htm>

[^39]: 50 U.S.C. app. § 521 (1940).

[^40]: H. Rep. No. 108-81, at 33 (2003).

[^41]: *Keefe v Spangenberg,* 533 F. Supp. 49, 50 (W.D. OKLA. 1981).
    "The Act does not provide automatic delay in every case and may not
    be used for delay where trial can proceed without prejudice to civil
    rights of serviceman and conduct of his defense is not materially
    affected by reason of military service."

[^42]: As of July 1, 2004, the judgment interest rate is 6% Va. Code
    Ann. § 6.1-330.54 (2004) -
    <http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+6.1-330.54>

[^43]: Va. Code Ann. §§ 6.1-330.53 & 6.1-330.54 (2004).

[^44]: *Kelley v Kelley,* 38 N.Y.S.2d 344, 349 (N.Y. Sup. Ct. 1942).
    "Clearly, it would be unjust to suspend provision for food and
    clothing for children six and eight years of age for the duration of
    the war if the father, receiving his own subsistence from the
    government, has the means so to provide."