MAY A SERVICE MEMBER BE GRANTED A STAY WHILE HE OR SHE IS AWAY ON ACTIVE DUTY?

Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.

In re Marriage of Bradley, 137 P.3d 1030 (Kan. 2006).

This case answers the following question:

May a service member be granted a stay while he or she is away on active duty?

The issue in this case is whether a service member may be granted a stay while he or she is away on active duty. At any stage before final judgment in a civil action or proceeding in which a service member described in subsection (a) is a party, the court may on its own motion and shall, upon application by the service member, stay the action for a period of not less than 90 days, if the conditions in paragraph (2) are met.

In this case, a service member and his wife were married in 2003 and had their son later that same year. The service member filed a petition for divorce in May 2005 requesting sole custody of their child. The service member also filed a motion for temporary orders, and temporary orders were finalized by the court and the parties in June 2005. In the temporary order, the service member was granted sole legal custody of the child, with the child residing with the service member’s mother. The service member’s wife filed a motion to modify the temporary order in September 2005, alleging that she did not have counsel at the time the order was signed and did not fully understand what she was agreeing to. The service member sought a stay of the proceedings under the Service Members Civil Relief Act. The district court held that the Act did not apply to the temporary order. The service member requested an interlocutory appeal to determine whether the Act applies in the circumstances.

At any stage before final judgment in a civil action or proceeding in which a service member described in subsection (a) is a party, the court may on its own motion and shall, upon application by the service member, stay the action for a period of not less than 90 days, if the conditions in paragraph (2) are met. Paragraph 2 essentially states that the service member must present some documentation establishing that he or she is away on active duty. In this case, the service member failed to provide supporting documents to establish that he actually was away on active duty. Therefore, the court could not consider whether or not to grant a stay under the Act.

The Supreme Court of Kansas affirmed the decision of the lower court, finding that the service member failed to file the proper documents to satisfy document requirements for obtaining a stay under the federal Service Members Civil Relief Act. However, the Supreme Court of Kansas did not address whether, had the service member filed the correct documents, a stay granted under the Act would apply in the situation of modifying a temporary custody order. The court implied that the Act likely would cover modification of a temporary custody order, but it cannot be stated with any degree of certainty until the court addresses the issue in future.