News

MMD is now California State-Wide

(Added 02/15/2010)

It has now been established and what many military members have been waiting for - MMD provides legal representation throughout California!  Attorney, John H. Schweitzer, who serves in the United States Marine Corps Reserve as a judge advocate, is available by telephone, email, webcam or in person, to help military members resolve their family law, divorce, post-divorce  or Servicemembers Civil Relief Act cases.  "It is great to be able to use technology in helping those who need it, whether stationed here in San Diego or any other military installation in California," said Schweitzer.  If you need an attorney with military expertise to present your case, argue the finer points of the Servicemember's Civil Relief Act or prepare and file legal documents and protect your rights while deployed, then Attorney Schweitzer must be your first choice for representation.  MMD services all counties in California, and for your convenience, provides the website address to each: 

 
Alameda  www.acgov.org  
Alpine  www.alpinecountyca.gov 
Amador  www.co.amador.ca.us 
Butte  www.buttecounty.net 
Calaveras  www.co.calaveras.ca.us 
Colusa  www.colusacountyclerk.com 
Contra Costa  www.co.contra-costa.ca.us 
Del Norte  www.co.del-norte.ca.us 
El Dorado  www.co.el-dorado.ca.us 
Fresno  www.co.fresno.ca.us 
Glenn  www.countyofglenn.net 
Humboldt  www.co.humboldt.ca.us 
Imperial  www.co.imperial.ca.us 
Inyo  www.inyocounty.us 
Kern  www.co.kern.ca.us 
Kings  www.countyofkings.com 
Lake  www.co.lake.ca.us 
Lassen  www.co.lassen.ca.us 
Los Angeles  www.lacounty.info 
Madera  www.madera-county.com 
Marin  www.co.marin.ca.us 
Mariposa  www.mariposacounty.org 
Mendocino  www.co.mendocino.ca.us 
Merced  www.co.merced.ca.us 
Modoc  www.modoccounty.us  
Mono  www.monocounty.ca.gov 
Monterey  www.co.monterey.ca.us 
Napa  www.co.napa.ca.us 
Nevada  www.mynevadacounty.com 
Orange  www.oc.ca.gov 
Placer  www.placer.ca.gov 
Plumas  www.countyofplumas.com 
Riverside  www.countyofriverside.us 
Sacramento  www.saccounty.net 
San Benito  www.san-benito.ca.us 
San Bernardino  www.co.san-bernardino.ca.us 
San Diego  www.co.san-diego.ca.us 
San Francisco  www.ci.sf.ca.us 
San Joaquin  www.sjgov.org 
San Luis Obispo  www.co.slo.ca.us 
San Mateo  www.co.sanmateo.ca.us 
Santa Barbara  www.countyofsb.org 
Santa Clara  www.sccgov.org 
Santa Cruz  www.co.santa-cruz.ca.us 
Shasta  www.co.shasta.ca.us 
Sierra  www.sierracounty.ws 
Siskiyou  www.co.siskiyou.ca.us 
Solano  www.co.solano.ca.us 
Sonoma  www.sonoma-county.org 
Stanislaus  www.co.stanislaus.ca.us 
Sutter  www.co.sutter.ca.us 
Tehama  www.co.tehama.ca.us 
Trinity  www.trinitycounty.org 
Tulare  www.co.tulare.ca.us 
Tuolumne  www.tuolumnecounty.ca.gov  
Ventura  www.countyofventura.org 
Yolo  www.yolocounty.org

Yuba  www.co.yuba.ca.us

Bird Rock Coffee Roasters

(Added 09/01/2009)

     I am trying a new thing now - every morning I take my best shot at making the 0530 wake up call, grab the dog, and walk to my favorite coffee place in the whole, wide world - Bird Rock Coffee Roasters, owned and operated by my friend and fellow alumnus, Chuck Patton.  If you live in La Jolla or just want to visit for an outstanding, fresh, free trade cup of coffee or beans, you must come visit at 5627 La Jolla Blvd, in the beautiful Bird Rock community of La Jolla.  

     Chuck has developed his shop to include pristine and healthy delectables along with the most fantastic tasting roasts known to man and woman.  He is also very active in the Bird Rock community and was recognized for his outstanding contribution.  If you do consider trying out one of his roasts, be sure to tell him that Attorney Schweitzer sent you.  If he is at the store, he will be more than happy to tell you about the various coffees and their bouquets - it is a great education and analogous to a sommelier introducing wines at your table-side during an exquisite dinner.  Come join me in the early morning for a cup and ask me some legal questions - I love to play "Stump the Dummy" while enjoying one of Chuck's piping hot cups of delicious joe.  Check out Chuck's site.

Saturday Blog

(Added 08/15/2009)

     So I am still thinking about family law today which is normal in the life of an attorney.  One thing that gets me going is protecting the rights of deployed military members especially when it comes to the Department of Child Support Services (DCSS).  For some reason, DCSS takes upon itself an obligation to get a California order of support from an individual who is clearly a non-Californian.  Furthermore, this individual, who would otherwise not be subject to the personal jurisdiction of California and the DCSS court (referred to as the Family Support Division or FSD) becomes subject to personal jurisdiction because of being "tricked" into making a general appearance (usually by telephone) - once an unwary individual does this, it's game on for DCSS to ask the court to find that it has personal jurisdiction over the noncustodial parent.  This means the noncustodial parent will be paying perhaps the highest amount of child support in all 50 states no matter where located.  I have had clients who have never seen the Pacific Ocean nor set foot in California yet are still paying its jurisdictional guideline child support order because of unwittingly taking the bait of the DCSS system.

     Now, do not get me wrong, I actually like what DCSS does with respect to making sure children are taken care of financially by their respective parents or obligors.  As a matter of fact, I enjoy the company and challange of most of the attorneys who work at DCSS - they are underpaid and overworked yet still maintain their professionalism when dealing with other non-DCSS attorneys like me and ungrateful custodial (and noncustodial) parents - a DCSS attorneys job is usually thankless.  They deserve respect and attention from the legal community because their work effort is also based upon doing something that raises the bar of our profession and contributes to the greater good.  It takes a special individual to work in those conditions.

     Meanwhile, back at the War.....  Like I was saying, though, when it comes to military members, someone has to draw the line and it might as well be me because I understand the military and can understand certain circumstances that can make one a seemingly uncaring parent who does not provide support when the reality is much different and more positive.  These individuals are also unsung hereos like the DCSS attorneys - it is a critical irony these adversaries are actually one and the same.  The only difference is one hero is serving the local community in its custodial parents (usually) and children; the other, serving our country on a national level.  Both carry forward the mission of their seniors.  Both project a "leaning forward" attitude for mission accomplishment.  And both, in most cases, care about the greater good and doing something purposeful, meaningful and right.  If you ever have a question about the Department of Child Support Services, please call our office or email me.  I am more than happy to speak with you no matter who you serve. 

Servicemembers Civil Relief Act (SCRA)

(Added 06/26/2009)

There has been much debate and even more written lately on the Servicemembers Civil Relief Act (SCRA) because of our country’s use and projection of military power since September 11, 2001.  In fact, President Bush signed an amendment to the SCRA in December of 2003 expanding its assistance to military members.  There have been proposals by lawmakers for additional revisions, most notably those dealing with child custody and visitation while a servicemember is deployed.  However, these issues are outside the scope of this article and from last examination, have been tabled with various committees and subcommittees.  Instead, this article attempts to give insight into the SCRA itself and its sensible, unsophisticated though sometimes tricky application.  One constant has remained though over recent years: the need for more communication and training between our local bar, judiciary and the military.  Hopefully, this interpretation will help the reader with understanding the function, purpose and employment of the SCRA and its practical effect as it applies to proceedings in any area of law (except criminal).  This author’s intention for the short term is to provide the reader an overview of pertinent sections of the SCRA and to reinforce the necessity of seeking further education through upcoming articles and training seminars for attorney and judges alike,

The SCRA and Judicial Proceedings

Theoretically, the SCRA was written to protect service members from certain judicial proceedings until their return from military service, deployment or overseas tours of duty.  First, it is important to understand just what these protections include.  Next, it is also important for the reader to understand this article is only a cursory overview and that actually reading the SCRA, in its entirety is a must (or at least 50 U.S.C. §§521 & 522 for purposes of this article).  The subject provisions include the following:

1.                  Default Judgment;

2.                  Stay of Proceedings;

3.                  Conditions for Stay;

4.                  Additional Stay of Proceedings; and,

5.                  Statute of Limitations.

Default Judgment under 50 U.S.C. §521

Interestingly enough, although the United States Code, under Title 50, Section 521, takes the position that before any court can enter a default judgment (for failure to respond to a lawsuit or failure to appear at trial) against anybody, to include a person that may be serving in the military or some other qualifying agency, it shall require that person who is doing the suing (usually the plaintiff) to provide the court with an affidavit stating whether the defendant is or is not in military service.  It appears after  WWII the standard to submit an affidavit was relaxed, though not purposefully.  Most likely, it was a reflection of   changes in  national strategic policy with respect to troop deployment, time deployed, military size, size of conflict, etcetera. Simply stated the size and duration of recent military deployments translates to an increase in military members being absent from court proceedings.  After speaking with attorneys and members of the judiciary it  appears this is a little known section of the SCRA.  In practice, when did you ever see a plaintiff file (or a court order the plaintiff to file) a statement with the court that he/she is unable to determine whether or not the defendant is in the military service or other qualifying agency, and to sign that statement under penalty of perjury (with facts in support of the finding)?  I know you are saying to yourself, “Never!”  But, it is a requirement of the law of United States with respect to any civil action or proceeding where the defendant does not make an appearance [and, as far as this author is concerned, does not have actual notice of the hearing under §521].  This requirement  is not being met, however, by  our bar membership across America.  That may be overstating it  but from my non-scientific and purely anecdotal survey, it is true..  There exists a declaration of such military service in San Diego County (SDSC SC-020, Revised 10/08), although it includes a request for dismissal in the declaration as well, essentially making it useless for plaintiffs, depending upon their circumstances. You need to explain or delete.

The realistic and perhaps impractical consequence of the court not ordering, or the plaintiff not filing, an affidavit is when it is found out later that defendant is in the military.  This is when the court, plaintiff and defendant must deal with the possibility of set aside (for the military member, he/she must pay out-of-pocket for representation as default set aside is not pro bono).  Or, perchance it appears to the court the defendant is in the military.  When this happens, the court may not enter a judgment until after it appoints an attorney to represent the defendant (§521(b)(2)).  Under the same section, if the attorney appointed cannot locate the servicemember, any actions by the attorney will not waive any defense or bind the servicemember.  This is an important aspect when dealing with jurisdictional issues in family law and modification of out-of-state support orders.  It is critical.  Time and again we have heard the stories about the “pro bono” attorney subjecting the servicemember to personal jurisdiction by making a general appearance on his/her behalf.  Well, the law of the land states, in perfectly clear terms, this cannot and therefore should not happen.  However, either the attorney or the court did not have the basic fundamentals in the SCRA and allowed this issue to slip through the cracks to the detriment of the servicemember.  In a civil proceeding, the same can hold true with respect to jurisdictional issues initially, however, the bane of the plaintiff attorney is the possibility of the defendant reopening a default judgment entered against a servicemember.

If the procedure is correctly adhered to with the filing of an affidavit in an action, it is incumbent upon the court to figure out if it believes the person may be serving in the military based upon the facts in the affidavit.  If the court cannot ascertain such status by affidavit and facts, then before entering judgment it may require the plaintiff to file a bond in an amount approved by the court (§521(b)(3)).  The section continues by stating if the defendant is later found to be in the military service, the bond shall be available to indemnify the defendant against any loss or damage he/she may suffer by reason of any judgment for the plaintiff taken against defendant, should the judgment be set aside in whole or part.  The mechanics of the bond is set out in the section and stays in effect until the “expiration of the time for appeal and setting aside of a judgment under applicable Federal or State law or regulation.”  This ultimately protects the servicemember rights under the SCRA.

In case you are wondering how to satisfy the requirement for affidavit, your client may satisfy this by a statement, declaration, verification, or certificate, in writing, subscribed and certified or declared to be true under penalty of perjury.  CAVEAT: if your client makes a statement knowing it to be false, he/she “shall be find as provided un title 18, United States Code, or imprisoned for not more than one year, or both.  This author knows from his experience as a judge advocate that the federal government is overzealous in its pursuit of perjurers (§521(c)).

Stay of Proceedings Under 50 U.S.C. §521(d)

If it is found that defendant is serving in the military or other applicable agency, the court shall grant a stay of proceedings for a minimum period of 90 days under this subsection upon application of counsel, or on the court’s own motion.  Now, you are probably saying to yourself, “I wonder if this means I can ask for a longer stay?”  The answer is YES, you can!  This is just the minimum stay.  Some cases have been stayed a much longer time and some just the applicable minimum (and some not at all, but that is clearly a mistake if this section applies).  But what is it about the court deciding to grant a stay whether or not appointed counsel asks for one or upon its own motion?  In either circumstance, the court must determine that there is a defense to the action and it cannot be presented without the defendant present (yes, the old law school “two-prong” test).  Another way the court may stay the proceeding is by finding that after due diligence, counsel has been unable to contact the defendant or otherwise determine if a meritorious defense exists.  Hmm, this sounds like a lot of wiggle-room for an appointed attorney.  It could be imagined to go something like this:

Court:              Blah, blah, blah, [ruling and order], blah

Appt’d

Atty (AA):      “What’s that, your Honor?  Oh, why does the servicemember need you to grant a stay of proceedings you say?

Court:              Blah

AA:                 Well, of course, your Honor, I understand that you just ruled that defendant does not have a defense to the action and that even if he did, it could be presented without his presence.

Court:              BLAH, BLAH, BLAH!

AA:                 Ok, okay, just let me explain, your Honor – I have searched high and low for my client and, …after due diligence, I have been unable to contact my client, you know, the military member, or otherwise determine if a meritorious defense exists. 

Court:              Blah, blah, blah

AA:                 Why is it that I think there is a meritorious defense when you do not agree?  Well, that’s simple, your Honor.  I cannot determine that one does or does not exist until I am able to speak with my client and get his version of the facts!

What is important to understand is the military member has options to stay proceedings based upon meeting certain criteria under this section of the SCRA.  CAVEAT: a stay of proceedings under §521(d), shall not be controlled by procedures or requirements under §522 of the SCRA.  What does this mean?  Read on!

We must have an understanding as to 50 U.S.C. §521(g) and the authority to vacationing or setting aside default judgments taken under section 521 of the SCRA.  The court has authority to vacate or set aside any default judgment taken during a time this section applied, meaning, the servicemember was in the military when the default was entered or if the default was entered within 60 days after termination of or release from active duty.  This authority to vacate or set aside is not absolute because the court must first make some determinations.  On top of that, even if the servicemember is successful to that end with the court, the court’s duty is only to reopen the judgment for the purpose of allowing the servicemember to defend against the action.  How is that determined?  Here we go with another two-pronged, law school test!  The servicemember must show under 50 U.S.C. §521(g)(1)(A) the servicemember was materially affected by reason of military service in making a defense to the action, and under 50 U.S.C. §521(g)(1)(B), has a meritorious or legal defense to the action or some part of it.  The time to file for relief under this section is determined in section 521(g)(2).  The servicemember must bring the action under this subsection (filed) not later than 90 days after the date of the termination of or release from military service.  Finally, under section 521, there is absolute protection against such vacation or set aside against a third party, bona fide purchaser (another law school exam term!) and does not impair a right or title acquired for value under the default judgment.

What happens if the servicemember-defendant received actual notice of the action?

Stay of Proceedings under 50 U.S.C. §522

            The first object lesson under the SCRA is to learn that its applicability is to any proceeding other than criminal.  That’s right – crime really does not pay nor receive protection!  The same rule with respect to the time constraint for filing an application for vacation or set aside of default under section 521 applies to a stay of proceedings under section 522 (in military service or within 90 days after termination of or release from military service).  The only material change is the addition of language stating the military member has received notice of the action or proceeding.  The notice requirement is what determines whether the servicemember, or counsel for the servicemember, will proceed under section 521 or 522 of the SCRA.  Now, we are faced with additional subsections that specifically deal with a servicemember who has notice – and notice means actual notice in the legal sense as a term of art.  Period.

The authority lies within section 522(b)(1) and allows for any time prior to a final judgment or proceeding wherein it has been determined a servicemember is a party to the action and has received actual notice of the proceeding, the servicemember or the court, upon its own motion [and shall upon application of the servicemember], stay the action for a period of not less than 90 days, if certain conditions are met under section 522(b)(2).

Conditions for Stay (Initial) Under 50 U.S.C. §522(b)(2)

The servicemember application, for all intensive purposes, must include information convincing enough and communicated to the court.  As a matter of law, the servicemember shall include a letter or other communication setting forth facts stating the manner in which current military duty requirements materially affect his/her ability to appear and stating a date when the he/she will be available to appear.  The servicemember shall also include a letter or other communication from his/her commanding officer (yes, I said commanding officer – this is a requirement under this section), stating the servicemember’s current military duty prevents appearance and military leave is not authorized for the servicemember at the time of the letter.  CAVEAT: if you are presented with a signed letter from someone other than the commanding officer or a letter signed “by direction” of the commanding officer, this does not comply with the law of the land and therefore fails to shield the servicemember.

As stated in section 521, any application under this section does not constitute an appearance for jurisdictional purposes and does not constitute a waiver of any substantive or procedural defense (including a defense relating to lack of personal jurisdiction).  CAVEAT: with respect to jurisdictional issues, if you are appointed as the attorney to represent the military member, you must impress upon your client the uncertainty of the bar/judiciary as to what constitutes an appearance for that purpose (especially if your “client” decides to go it on his/her own and there is a jurisdictional issue).  There have been cases where an attorney makes an appearance on behalf of their client and the court then assumes it has personal jurisdiction over the servicemember who may have never even been to California (most likely the court is under this assumption because the appointed attorney did not announce a “special appearance” before launching into argument, although this is an incorrect assumption by the court under the law of SCRA).  It is our duty to educate each other and the bench in these circumstances.  Additionally, there have been cases where the appointed attorney contacts the servicemember and then has the servicemember call into court on the date of the hearing.  Although this is risky business, it is okay, provided your particular judicial official understands the SCRA and your role as the appointed attorney.  It does not hurt in this circumstance to announce your special appearance although not necessary under the U.S. Code.  The appointed attorney must be weary of the personal jurisdiction issues and fully explain such to the servicemember.  If not, the servicemember could be left “holding the bag” because the appointed attorney only gets the initial stay and then after contact with the servicemember asks to be relieved by the court.  This is typical with the untrained appointed attorney.  The servicemember either calls into court on the same day the appointed attorney asks to be relieved while in court on the record, or just tells the servicemember to call into court at the stated time and date of hearing.  This subjects their client to personal jurisdiction and the laws of the State of California when the servicemember may have a defense and is not domiciled or residing in California pursuant to statute; thus would not have been subject to our state law but for the appointed attorney.

Additional Stay Under 50 U.S.C. §522(d)(1)

A servicemember who is granted a stay of a civil action or proceeding under subsection (b) of section 522 may apply for an additional stay based on continuing material affect of military duty on the servicemember's ability to appear.  Such an application may be made by the servicemember at the time of the initial application under subsection (b) or when it appears that the servicemember is unavailable to prosecute or defend the action.  The same information required under subsection (b)(2) of section 522 needs to be included in an application under this subsection.  If an additional stay is refused by the court then it must appoint counsel to represent the servicemember in the action or proceeding.  Yes, you see it too, right?  It states that counsel is appointed to represent the servicemember.  Well, who pays for this representation?  The SCRA is silent on the issue.  To date, we do not know how this translates into real life in terms of funding.  Lastly, if a servicemember applies for a stay under section 522 and is unsuccessful, he/she may not then seek protection afforded by section 521.  Hmm…..

Statute of Limitations

Remember that the period of military service may not be included in computing any limitation period for filing suit, either by or against the servicemember.  However, this does not apply to any period of limitation prescribed by or under the internal revenue (IRS) laws of the United States.  Go figure – the IRS is always exempt from everything!!

CONCLUSION

Hopefully you have a better understanding of the SCRA and its application in our practice area of family law.  There has been much progress in this area to set up what could become the gold standard in the legal industry for appointment of attorneys to represent, pro bono, military members.  It is all beginning right here in San Diego because of our illustrious historical perspective and present-day relationship with our military.  It goes without saying that the new program being developed to protect service members from default would not be possible without the help, hard work and guidance from our military, bar, bench and the SDCBA.  Please stay tuned for more details on this program.  Thank you for allowing me to submit this article to your well-regarded and respected bar association.

[John H. Schweitzer is a partner with Stassinopoulos & Schweitzer, LLP.  He has been an attorney for 17 years and licensed in California for 13 years.  Mr. Schweitzer was employed as an estate planner and tax attorney/business development officer in the private banking industry.  He went on to serve on active duty with the United States Marine Corps as a judge advocate and currently holds the rank of Major in the USMCR.  He practices exclusively in family law and much of his caseload is comprised of military members, retirees and dependents.  Visit his firm’s website at www.mymilitarydivorce.com and www.cadivorcelaw.com for more information]