|Soldiers & Sailors Civil Relief Act (SSCRA)|
|Chapter 3, General Relief|
Purpose and Scope
This chapter examines the general relief provisions of the Act applicable when a default judgment is taken or sought against a service member whose ability to participate in the judicial proceeding is materially affected by military service.
Procedure Upon Default by Defendant
(50 U.S.C. App. § 520)
Affidavit. Section 200(1) of the Act provides that before judgment in any action in any court, if there is a default of any appearance by the defendant, the plaintiff must file an affidavit stating facts showing whether the defendant is in military service.
When required. The Act is clear that this subsection applies to any civil action or proceeding in any court. There has been little controversy on this point, although one Ohio decision ruled that presentation of a will for probate was not an adversary proceeding and interested parties need not appear before the court. Therefore, the court did not require an affidavit by the plaintiff (petitioner) when the minor son of the deceased was in military service The court held that the Soldiers' and Sailors' Civil Relief Act applies when service members are sued as defendants but does not apply to "in rem" proceedings that are not against named defendants. Nevertheless, the great majority of decisions have included probate cases within the scope of this subsection
The plaintiff must file an affidavit where there is a default of any appearance by the defendant. The courts have agreed that "any appearance" means any appearance whatsoever. Defendants have argued that they could appear specially for the purpose of testing the court's jurisdiction without losing the benefits of this section. In one response to this argument, the court stated: "[t]he benefits of [50 U.S.C. App.] section 520 are made to depend on an absence of any appearance, which includes a special as well as a general appearance. So, whether the appearance made was special or general is not material to the question. In dealing with the question of the meaning of "any appearance," another court held:
Consideration of the meaning of the phrase "any appearance" is sometimes required. The 1918 Act used the words "an appearance" but in the 1940 Act the phrase was broadened to read "any appearance". The word "appearance" is defined in Webster's New Int. Dict. 2d Ed., 1940, as meaning in law, "the coming into court of a party summoned in an action either by himself or by his attorney." Technically there are several different kinds and methods of appearance. See Am Jur, appearances, section 1, etc. A default of any appearance by the defendant means a default in any one of several ways of making an appearance. "Any" applies to every individual part without distinction.
It appears that any act before the court by a defendant-service member, or the defendant's attorney, will constitute an appearance depriving the service member of the benefits of section 200. In Blankenship v. Blankenship, defendant's counsel filed an affidavit asking the court to quash the complaint and the service or continue the cause. In Reynolds v. Reynolds the defendant's counsel filed a motion to dismiss for lack of jurisdiction. In Vara v. Vara the defendant filed a motion to quash service. In each of these cases, the court held that the service member made an appearance.
Upon receiving service of process in an overseas area, a service member sometimes writes a letter to the court or sends a telegram asking for protection under the Act. Such an informal communication should not be classified as an "appearance" by the courts. The same is true of a legal-appearing document prepared by a military legal assistance officer and mailed to the court. In practice, however, at least two state courts have held that a letter from a legal assistance attorney invoking the Act and requesting a stay constituted an appearance This appearance waived the service member's protection against a default judgment.
The requirement for the court to appoint an attorney to represent a defaulting defendant-service member is discussed later in this chapter. Nothing a court appointed attorney does personally can amount to an appearance on behalf of a service member, as far as the provisions of section 200 are concerned. This is true for two reasons. First, although counsel is appointed when there is a default of appearance, the appointment does not change that fact; and second, the appointed counsel cannot waive any of the defendant's rights and one of these is the right to apply to reopen a judgment entered in default of appearance.
Content. Subsection 200(1) states that the plaintiff's affidavit shall set forth facts showing that the defendant is not in military service. This should require more than a statement that the defendant is not in the service. Some facts are required before the court will enter a default judgment. If the defendant is in service, the plaintiff should so state in the affidavit. If the plaintiff cannot determine whether defendant is in the service, the plaintiff must so state in the affidavit.
The last provision of subsection 200(1) permits an unsworn statement, declaration, verification, or certificate in writing to take the place of an affidavit as long as it is subscribed and certified or declared to be true under penalty of perjury and is permitted by the rules of court. An Idaho court held that a verified complaint containing statements as to the defendant's military status complied with the statutory requirement for an affidavit. The court stated that the essential element was that the allegation was made under oath. In United States v. Kaufman, the court held that documents presented in support of default judgments were an "affidavit" for purposes of prosecution under section 520(2) of the Act, even though the defendant did not actually swear to the written statements.
Persons protected. Occasionally, a civilian defendant determines that the plaintiff failed to file an affidavit as to the defendant's military status and alleges that his rights have been violated and the default judgment should be vacated. In this situation, a Michigan court pointed out that plaintiff's failure to file an affidavit of nonmilitary service before taking default judgment did not prejudice defendants who were admittedly not in military service at the time the default was entered. The courts have agreed that the affidavit requirement protects only the military defendant who cannot appear in defense
Effect of not filing affidavit. Subsection 200(1) of the Act spells out several consequences of a plaintiff's failure to file an affidavit of nonmilitary service. If such an affidavit is not filed, a court will not enter default judgment until the plaintiff meets the Act's requirements. Another consequence of failure to file an affidavit is that a subsequent default judgment is voidable and can be reopened at a later date on application by the defendant under certain conditions. In jurisdictions where few military members reside, counsel often do not file the nonmilitary service affidavit in default cases, as the courts routinely ignore the requirement. This problem exists because very few defendants in those jurisdictions are military members, and if a default is wrongly approved, the judgment may be reopened. Also there are no effective sanctions against attorneys that fail to file the affidavit, or judges that approve default judgments without the nonmilitary service affidavit.
Until a service member moves to reopen, however, the judgment is valid and binding and entitled to recognition under the principles of full faith and credit. In the Ohio case of Thompson v. Lowman, the court said,
It will be observed that the filing of the military affidavit is not made a jurisdictional matter. The Act authorizes entry of judgment notwithstanding the absence of the affidavit when an order of court directing such entry has been secured. The failure to file such affidavit does not affect the judgment, and is only an irregularity. . . . 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 member, but only upon proper showing that he has been prejudiced by reason of his military service in making defense.
Court appointed attorney. Section 200(1) of the Act requires that if the plaintiff does not file an affidavit showing that the defendant is not in military service, the court shall appoint an attorney to represent the defendant and to protect defendant's interests before entering a default judgment. The 1960 amendments to the Act changed this wording from "may appoint" to "shall appoint," making this a mandatory requirement. The sentence in subsection 200(1), which requires the court to appoint an attorney, also contains the phrase, "if the defendant is in such service." When the plaintiff files an affidavit stating that defendant is in service, or stating that plaintiff is unable to determine if defendant is in service, the court must make findings as to whether defendant is in military service. Then, if the defendant is in service, the court must appoint an attorney.
None of these provisions apply unless the defendant has defaulted of any appearance whatsoever. Therefore, if the defendant has appointed an attorney to represent him/her in the case, this section will not apply. For example, the California Supreme Court held that the provisions of this section were designed to protect defendants in military service who do not appear by ensuring appointment of attorneys to represent them. The section did not protect a defendant who had appointed his own attorneys to protect his interests. An interesting situation can arise when a service member retains an attorney from previous, related litigation. In such a situation, the California court ruled that, where notice of a wife's motion to modify a support order was served upon an absent husband's attorney in the original divorce action, but the attorney stated he was no longer authorized to represent defendant and had not been able to communicate with the husband, it was error to fail to appoint an attorney Further information in this area appears in paragraph 3.4 of this chapter.
Failure to appoint an attorney pursuant to this section renders the judgment voidable. In Smith v. Davis, 364 S.E.2d 156 (N.C. Ct. App. 1988), failure of the trial court to appoint attorney for soldier, without more, did not require reversal but the soldier was entitled to reopen the default judgment because he showed military service materially affected his ability to defend and that he had a meritorious defense. No provision in the SSCRA directs who pays the court appointed attorney.Failure to appoint an attorney is not an abuse of discretion or reversible error unless the respondent can show that he was prejudiced by the failure to appoint counsel. The failure of the statute to provide a mechanism to compensate appointed counsel, and the lack of sanctions for judges who do not appoint SSCRA counsel to determine military status results in this section often being ignored by civil courts.
Function of the Appointed Attorney. The SSCRA does not inform the appointed attorney what his or her duties are. Presumably, the attorney is to act as a guardian for the interests of the absent service person. An unpublished opinion in Ohio suggests that the attorney must make a diligent search to find the “client” and determine if the service person wishes to stay the proceedings.
Bond requirement. In addition to requiring the plaintiff to file the appropriate affidavit and the court to appoint an attorney, subsection 200(1) provides that before entering judgment the court may require plaintiff to file a bond. When it appears that the defendant is in military service the court may require, as a condition to the entry of a default judgment, that the plaintiff file a bond. The face amount of the bond may be used to indemnify the defendant against any loss or damage suffered if the judgment is later set aside. The court is also permitted to make any further order or enter such judgment as in its opinion may be necessary to protect the defendant's rights.
Above Information Courtesy of United States Army JAG Corps