Driver v. Driver
| Decision Date | 28 February 1980 |
| Docket Number | No. 180084,180084 |
| Citation | 416 A.2d 705,36 Conn.Supp. 229 |
| Court | Connecticut Superior Court |
| Parties | Lori A. DRIVER v. Ronald G. DRIVER. |
Barry A. Charles, Stratford, for plaintiff.
Carl R. Ajello, Atty. Gen., and Wilbur W. Dinegar, Asst. Atty. Gen., for the State.
This marital dissolution action poses a unique question: Is a defendant who has deserted from the armed forces entitled to the protection afforded by 50 U.S.C. App. §§ 501-590, the Soldiers' and Sailors' Relief Act of 1940, and by § 353 of the 1978 Practice Book?
Title 50 U.S.C. App. § 520(1) of the United States Code requires that: "In any action or proceeding commenced in any court, if there shall be a default of any appearance by the defendant, the plaintiff, before entering judgment shall file in the court an affidavit setting forth facts showing that the defendant is not in military service." 1
The federal act is followed in Connecticut by § 353 of the 1978 Practice Book which requires, inter alia, an affidavit regarding military service "in every case in which there is a nonappearing defendant . . . ."
The purpose of the federal act is clearly spelled out in § 510 thereof. That purpose is "to provide for, strengthen, and expedite the national defense . . . ." To accomplish this end "provision is made to suspend enforcement of civil liabilities, in certain cases, of persons in the military service of the United States in order to enable such persons to devote their entire energy to the defense needs of the Nation . . . ."
The term "persons in the military service" as used in the act is defined in § 511 thereof to include all members of the army, navy, marine corps and coast guard and officers of the public health service detailed for duty with the army or navy. Section 511 also defines "military service" to signify "Federal Service on active duty " with any of those branches; and defines "active service" and "active duty" to "include the period during which a person in military service is absent from duty on account of sickness, wounds, leave, or other lawful cause." (Emphasis added.)
Clearly, military service within the meaning of the act requires a serviceman to be on active duty, and that concept includes one absent from duty for lawful cause. It just as clearly, by implication, excludes from its protection one who is absent from duty for other than lawful cause, such as desertion.
In Mantz v. Mantz, 69 N.E.2d 637, 639 (Ohio Com.Pl.), a wife seeking a divorce was unable to personally serve her serviceman husband who had been lawfully confined out of state after a general court martial for the commission of illegal acts under army rules and regulations. Finding service by publication sufficient, the court stated (p. 639): "The benefits of the Soldiers' and Sailors' Relief Act are extended to those who are in active service or duty and do not inure to benefit or protect those who through their voluntary aggressions and conduct remove themselves from the role of soldiers and sailors in active service or duty . . . (T)he government certainly does not regard him as a soldier on active duty or service, and this Court takes the same attitude."
In Shayne v. Burke, 158 Fla. 61, 27 So.2d 751, the...
To continue reading
Request your trial
-
Harriott v. Harriott
...active military service of the State pursuant to an Order of the Governor...." N.J.S.A. 38:23C-2(a). The case of Driver v. Driver, 36 Conn.Supp. 229, 416 A.2d 705 (Sup.Ct.1980), considered the same question involving a defendant who had deserted from the armed forces. After analyzing the fe......