Murdock v. Murdock

• Decision Date: 20 December 1999
• Docket Number: No. 3095.,3095.
• Court: South Carolina Court of Appeals
• Parties: Tara Leigh Newton MURDOCK, Respondent, v. Lawrence LaMonte MURDOCK, Appellant.

338 S.C. 322

526 S.E.2d 241

Tara Leigh Newton MURDOCK, Respondent, v. Lawrence LaMonte MURDOCK, Appellant.

No. 3095.

Court of Appeals of South Carolina.

Submitted December 7, 1999.

Decided December 20, 1999.

Ann M. Stirling, of Stirling & O'Connell, of Charleston, for Appellant.

Catherine D. Badgett, of Ridgeland, for Respondent.

ANDERSON, Judge:

In this domestic case, Lawrence LaMonte Murdock (the husband) appeals from an order of the family court allocating certain marital debts and finding him in contempt for failing to pay child support, alleging the order was entered in violation of the Soldiers' and Sailors' Civil Relief Act of 1940, 50 App. U.S.C.A. §§ 501-591 (West 1990). We vacate and remand.¹

FACTS/PROCEDURAL BACKGROUND

The husband and Tara Leigh Newton Murdock (the wife) were married on April 15, 1993 and divorced by order of the family court dated January 28, 1997. In the divorce decree, the family court expressly noted the husband is a member of the United States Marine Corps and, at the time of the divorce hearing, was stationed outside of the continental United States in Okinawa, Japan. The court further noted the husband was entitled to the protections afforded by the Soldiers' and Sailors' Civil Relief Act, but had waived those protections. In connection with making an award of equitable distribution, the court noted the parties had acquired certain credit card debts and listed the balances due on those accounts. The court did not, however, allocate the marital debt; rather, the court ordered the parties to agree upon payment of the debts "by subsequent consent order within 45 days" of the date of the order. The decree fully disposed of other issues bearing on the divorce, including child custody, child support, and attorneys' fees.

The parties entered into settlement negotiations regarding allocation of the marital debt, but were unable to reach an agreement. By way of motion, the wife requested a hearing on the issue of debt allocation. The court scheduled a hearing on the wife's motion for April 22, 1998. On April 14, 1998, the husband's attorney filed a motion to be relieved as counsel. At the April 22, 1998 hearing, the family court considered and granted the motion to be relieved as counsel. Due to the husband's lack of counsel, the court continued the hearing. In its order, the court stressed to the husband that "if [he] intends to have counsel present he must do so at the next hearing." The order is dated June 8, 1998, the date of the hearing which ultimately gave rise to this appeal. The order did not set forth a date for a subsequent hearing on debt allocation.

On May 25, 1998, while in the United States, the husband was personally served with a notice of hearing set for June 8, 1998. Attached to the notice of hearing was a petition for a rule to show cause and supporting affidavit regarding the husband's alleged failure to make child support payments. Neither the notice of hearing, the rule to show cause, nor the supporting affidavit mentioned debt allocation as an issue to be addressed at the hearing. Moreover, none of these pleadings informed the court of the husband's position in the military.

Prior to the scheduled date of the hearing, the husband was required to report to his duty station in Japan. On June 4, 1998, the husband faxed to the family court a letter and attachments informing the court of his circumstances and whereabouts. The husband also denied he had accumulated a child support arrearage.

The family court held the hearing on June 8, 1998. The husband did not appear, nor did anyone appear on his behalf. As to the materials the husband faxed to the court on June 4, 1998, the judge noted only that the court had been "advised that [the husband] had contacted someone in the clerk of court's office within the past week and indicated to them that he was not going to appear." The court did not make oral notation of the husband's status in the military, nor did the wife attempt to inform the court of the husband's military status.

At the hearing, the wife's attorney announced to the court that the issue of debt allocation, as well as child support, was before the court for review. The court made no inquiry as to whether the husband had been properly notified that debt allocation would be considered at the hearing. The wife testified as to amount of outstanding marital debt, her efforts to reduce the debts, and the husband's alleged accumulation of a child support arrearage.

By amended order dated August 30, 1998, the family court found the husband in contempt for failing to make child support payments, determined an arrearage of $454.54, and sentenced him to 45 days incarceration suspended upon payment of the arrearage. In addition, the court ordered the husband to pay marital debt in the amount of $14,069.87 and $950.00 towards the wife's attorney fees.

ISSUES

I. Did the family court err in entering judgment against the husband in violation of the Soldiers' and Sailors' Civil Relief Act of 1940?

II. Did the husband waive the protection of the Soldiers' and Sailors' Civil Relief Act?

III. Did the family court err in hearing argument and entering judgment on the allocation of marital debt in violation of the husband's right to receive proper notice and due process?

STANDARD OF REVIEW

In domestic matters, the Court of Appeals has jurisdiction to find the facts in accordance with its view of the preponderance of the evidence. Rutherford v. Rutherford, 307 S.C. 199, 414 S.E.2d 157 (1992). This, however, does not require this Court to disregard the findings of the family court. Stevenson v. Stevenson, 276 S.C. 475, 279 S.E.2d 616 (1981); Calhoun v. Calhoun, 331 S.C. 157, 501 S.E.2d 735 (Ct.App.1998). Neither is this Court required to ignore the fact that the family court judge, who saw and heard the witnesses, was in a better position to evaluate their testimony. Cherry v. Thomasson, 276 S.C. 524, 280 S.E.2d 541 (1981).

LAW/ANALYSIS

I. Soldiers' and Sailors' Civil Relief Act of 1940

On appeal, the husband asserts the wife obtained the August 30, 1998 order without proceeding in accordance with the requirements of the Soldiers' and Sailors' Civil Relief Act of 1940, 50 App. U.S.C.A. § 520 (West 1990) and, because he was denied the protections afforded under the Act, the order should therefore be vacated and a new trial ordered. We agree.

Section 520 of the Soldiers' and Sailors' Civil Relief Act provides:

Default judgments; affidavits; bonds; attorneys for persons in service

(1) 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. If unable to file such affidavit plaintiff shall in lieu thereof file an affidavit setting forth either that the defendant is in the military service or that plaintiff is not able to determine whether or not defendant is in such service. If an affidavit is not filed showing that the defendant is not in the military service, no judgment shall be entered without first securing an order of court directing such entry, and no such order shall be made if the defendant is in such service until after the court shall have appointed an attorney to represent defendant and protect his interest, and the court shall on application make such appointment. Unless it appears that the defendant is not in such service the court may require, as a condition before judgment is entered, that the plaintiff file a bond approved by the court conditioned to indemnify the defendant, if in military service, against any loss or damage that he may suffer by reason of any judgment should the judgment be thereafter set aside in whole or in part. And the court may make such other and further order or enter such judgment as in its opinion may be necessary to protect the rights of the defendant under this Act (sections 501 to 593 of this Appendix). Whenever, under the laws applicable with respect to any court, facts may be evidenced, established, or proved by an unsworn statement, declaration, verification, or certificate, in writing, subscribed and certified or declared to be true under penalty of perjury, the filing of such an unsworn statement, declaration, verification, or certificate shall satisfy the requirement of this subsection that facts be established by affidavit.

...

(3) In any action or proceeding in which a person in military service is a party if such party does not personally appear therein or is not represented by an authorized attorney, the court may appoint an attorney to represent him; and in such case a like bond may be required and an order made to protect the rights of such person. But no attorney appointed under this Act (sections 501 to 593 of this Appendix), to protect a person in military service shall have power to waive any right of the person for whom he is appointed or bind him by his acts.

(4) If any judgment shall be rendered in any action or proceeding governed by this section against any person in military service during the period of such service or within thirty days thereafter, and it appears that such person was prejudiced by reason of his military service in making his defense thereto, such judgment may, upon application, made by such person or his legal representative, not later than ninety days after the termination of such service, be opened by the court rendering the same and such defendant or his legal representative let in to defend; provided it is made to appear that the defendant has a meritorious or legal defense to the action or some part thereof. Vacating, setting aside, or reversing any judgment because of any of the provisions of this Act (said sections), shall not impair any right or title acquired by any bona fide purchaser for value under such judgment.

(Emphasis added.)

"The Soldiers' and...