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Lawry v. Lawry

Supreme Court, Monroe County

October 3, 2012

Otchara T. Lawry, Plaintiff,
v.
Jason D. Lawry, Defendant.

Sara Ashcraft, Esq., Attorney for Plaintiff Ashcraft Franklin Young & Peters LLP.

Jason D. Lawry, Defendant Pro Se.

Richard A. Dollinger, Judge.

"When we assumed the Soldier, we did not lay aside the Citizen." So said George Washington in a letter to New York's Provincial Congress on June 26, 1775. Now, almost 240 years later, this court must decide whether a soldier, who seeks a stay of his divorce proceeding under federal and state law, has an obligation as a citizen to return property and provide disclosure to his estranged wife. To reach a conclusion, the court must evaluate the breadth of an active duty service member's rights under the federal Service Members Civil Relief Act and the New York Military Law, and the consequences to his wife.

The wife served a summons with notice for divorce upon her husband and eventually served an amended verified complaint. In her amended complaint, the wife alleges that her husband is "in the military service of the United States, " stationed at Fort Drum in upstate New York, and that he has not been deployed outside the United States since July 2010. This matter was scheduled for a pre-trial conference as required by the rules of the New York Courts. 22 NYCRR § 202.26. The pre-trial conference was held in a courtroom in Monroe County Courthouse. The defendant appeared without counsel. The court advised the defendant of his right to retain counsel and urged him to so, but he elected to proceed without counsel present. The court informed the defendant that because of his failure to file an answer to the complaint, he was in default and the court could award judgment to the wife based on his default.

The court engaged wife's counsel and the defendant in a discussion over the resolution of the disputes in the underlying divorce action. The court noted that the marriage was for less than two years duration and, in view of its short term, there were no significant complications. The couple has no children; the major issues in dispute involve debt. Specifically, the wife has substantial debt, all of which accrued in her name alone. She alleges that the debt was incurred by the defendant by his use of the wife's credit cards. There was also some dispute over the couple's personal property. The wife alleges that the husband retained certain items of property that were either her separate property or marital property which she wants returned.

There was also a dispute regarding a truck, purchased before the start of the marriage. According to the wife, the vehicle was purchased by her for $43, 000. The wife borrowed money from her pre-marriage Individual Retirement Account ("IRA") to pay down the loan for the truck. As of the date of the pretrial conference, the estimated balance of the loan on the truck was $23, 000 and the wife valued the truck at $35, 000. The truck is titled in the wife's name, but the husband drives the truck, and it is garaged in the husband's residence near Fort Drum, more than 150 miles from the wife's domicile. The wife is unwilling to continue to pay the loan costs, she wants the vehicle insured by her husband, and wants the husband to refinance the car loan and she will then transfer the title to him. The wife argues that the vehicle is her separate property bought before the marriage using exclusively her own funds and that she had made all the installment payments on the vehicle. The husband, present in the courtroom when the wife's counsel made these assertions, did not contest them. He never asserted that he had any right or title to the truck.

The wife's attorney also asked the defendant to produce any records regarding the credit card charges on the wife's credit card, so the wife could determine which charges were incurred for marital expenses during the marriage. The wife lists more than $36, 000 in credit card accounts in her statement of net worth and she claims that she can not identify the purchases and charges against these accounts. Wife's counsel also asked the husband to provide several items of personal property that the wife claimed were either separate property or marital property that she wanted distributed to her. The husband asserted that he wanted to retrieve personal property in the wife's possession, and that he would come to Rochester and pick up the property he claimed. The court ordered that the property exchange would occur no later than August 24, 2012, and that the husband needed to give his wife 48 hours notice of when he would make the exchange.

After examining the undisputed facts and listening to the respective argument, the court verbally ordered the husband to refinance the truck by August 24, 2012, or return the truck to his wife's possession so she could sell the truck. In addition, the court ordered the husband to provide the credit card statements and accounts in his possession by August 15, 2012. The court also instructed the defendant to appear in court on September 6, 2012 to resolve any remaining issues in the case.

The date set by the court during the pretrial conference for delivery of the truck came and went. The truck was not delivered as directed and there is no evidence before the court that the husband refinanced the truck. The credit card statements were not provided and the items of personal property not exchanged. The wife's counsel then asked this court to sign an order for the husband to return the truck in good working order or, if he failed to deliver it, then permitting the wife to retrieve the vehicle. The requested order also required the husband to return a list of separate property.

In response, the husband provided this court with a letter, received on August 20, 2012, in which he states that he is currently in military training and "my military service prevents me from appearing" in court. He asserted his "rights under the Service Members Civil Relief Act" and requested a stay of all proceedings, and an extension of time to file an answer for a period not less than 90 days. He added that he was participating in military training for which leave is not authorized. The defendant included a letter from his "commanding officer" which he stated verifies "that my current duties prevent my appearance until at least November 14, 2012."

The commanding officer's letter is addressed to the court and identifies the defendant as a soldier under his command. The letter indicates that the officer knew that the defendant had been ordered to "exchange property" by August 24, 2012. The letter states that the defendant's "ability to appear is materially affected by his military service" as the defendant was participating in required military training exercises and leave is not currently authorized. The commander suggests that the defendant was requesting "a stay in the proceedings until a time when his military service does not materially affect his ability to fulfill his civil obligation."

In view of this request, this court needs to resolve whether it can sign an order requiring the return of the truck and the personal property in the face of the soldier's application for a "stay" of proceedings under the federal Service Members Civil Relief Act and, although not requested by the soldier, whether New York's Military Law similarly bars the issuance of the repossession order. In addition, this Court needs to resolve whether it can order the service member's compliance with disclosure requests even if the court stays any further court appearances. Both of these questions appear to be without precedents in any other federal or state courts. [1]

The Service Members Civil Relief Act applies if the defendant is in military service and has received notice of the proceeding. 50 USCA App. § 522. The statute requires this court, upon application by the service member, to stay the action if the service member attests in writing that his "current military duty requirements materially affect the service members' ability to appear" and the member's commanding officer makes a similar written statement. 50 USCA App. § 522 (b) (1) (2). The stay shall persist for not less than 90 days. The stay may be extended beyond 90 days upon further application and the court is empowered, if it denies an additional stay, to appoint counsel for the service member. Id.; Nakayama v. Cameron, 2007 Haw.App. LEXIS 263 (Int. Ct. Hawaii, 2007). The only exception, granted in the language of the statute, is a provision that the stay ...


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