Domestic Relations – Servicemembers Civil Relief Act – Custody Modification

We held for the first time in North Carolina that the Servicemembers Civil Relief Act required a mandatory stay when Father was unavailable due to military service.

We reversed the Continuance Order denying Father’s Motion to Continue and vacated the Memorandum of Order and Formal Modification Order.

This custody and child support case has had an exceptionally contentious and complex history. This was Father’s second appeal. Most of the issues arose from scheduling complications related to Father’s military service. Both cases also addressed Father’s arguments that the trial court did not follow the requirements of laws enacted to protect parents serving our country in the armed forces from adverse consequences in pending litigation when they are unavailable due to their military service.

In the first appeal, we addressed an issue of first impression under North Carolina’s Uniform Deployed Parents Custody and Visitation Act arising from Father’s deployment “in support of OPERATION ENDURING FREEDOM-HORN OF AFRICA” beginning in 2018. In that appeal, Father’s deployment for military service was the reason for the parties’ visitation dispute.

The instant appeal presented an entirely different issue, but also an issue of first impression in North Carolina under a federal statute, the Servicemembers Civil Relief Act of 2003 (SCRA). Although originally enacted as the “Soldiers’ and Sailor’s Civil Relief Act of 1940” and later amended and codified as the SCRA in 2003, no reported case in North Carolina has addressed the issue of when a servicemember is entitled to a stay or continuance under Section 50-3932 of the SCRA.

The issues on appeal for the first three orders arose from the trial court’s denial of Father’s Motion to Continue the hearing of Mother’s Motion to Modify Custody because he was unavailable to attend the hearing due to military service. Father’s Motion to Continue complied with the Servicemembers Civil Relief Act and he was entitled to a mandatory stay under the SCRA of the hearing on Mother’s Motion to Modify Custody. The trial court erred by denying Father’s Motion to Continue. Because the child custody modification hearing should have been continued or stayed and Father was prejudiced by the failure of the trial court to continue the hearing to a date he would be available or to stay for at least 90 days, the trial court further erred by entering the Memorandum of Order granting Mother’s Motion to Modify Custody and the Formal Modification Order based on the hearing held on the day Father was not present due to his military service. We reversed the Continuance Order denying Father’s Motion to Continue and vacated the Memorandum of Order and Formal Modification Order.

Father’s remaining issue on appeal arose from the trial court’s Amended Commitment Order of April 2023. We reversed this Amended Commitment Order because the trial court did not hold an evidentiary hearing or make any findings of fact as to Father’s present ability to pay the amount previously set as a purge condition by a December 2022 Contempt Order.

Reversed in part; vacated and remanded in part.

Roybal v. Raulli (Lawyers Weekly No. 011-025-26, 63 pp.) (Donna Stroud, J.) Appealed from Orange County District Court (Samantha H. Cabe, J.) Browner Law, PLLC, by Jeremy Todd Browner, for plaintiff-appellant. Ellis Family Law, P.L.L.C., by Autumn D. Osbourne, for defendant-appellee. North Carolina Court of Appeals