Palo v. Palo, 12907
| Decision Date | 26 November 1980 |
| Docket Number | No. 12907,12907 |
| Citation | 299 N.W.2d 577 |
| Parties | Debra R. PALO, Plaintiff and Appellee, v. Bruce C. PALO, Defendant and Appellant. . Considered on Briefs |
| Court | South Dakota Supreme Court |
Thomas M. Frankman of Willy, Pruitt, Matthews, Farrell, Frankman & Johnson, Sioux Falls, for plaintiff and appellee.
Steve Jorgensen, Sioux Falls, for defendant and appellant.
The trial court granted appellee a divorce from appellant and divided the parties' property. Appellant appeals from the trial court's denial of his motion for a continuance of the trial date under the Soldiers' and Sailors' Civil Relief Act (Act). We affirm.
Both parties were, at all times material herein, members of the military service. Appellee commenced an action for divorce while both parties were in Sioux Falls, South Dakota. Appellant answered, but before the sixty-day cooling off period * had lapsed, both parties were transferred to Germany.
On July 20, 1979, appellants' lawyer received a copy of an order setting the trial date for August 14, 1979. The following Monday, July 23, 1979, appellant's lawyer sent appellee's lawyer a letter saying that appellant could take advantage of the Act. Appellant's lawyer waited, however, until July 27, 1979, to write to appellant to advise him of the trial date.
Appellee received notice of the trial date and she immediately made arrangements to travel to the United States for the trial. She had no leave time accrued and no money for the flight, so she made arrangements to borrow from future leave time and from the military bank. By August 2, 1979, appellant had received notice of the exact trial date. He responded by letter to his attorney, setting out his reasons for wanting to take advantage of the Act. His reasons were as follows:
1) He lacked the money necessary to fly to Sioux Falls from Germany.
2) He wanted "to get back with her so a settlement (could) be agreed upon (.)"
3) He had no accrued leave time and did not want to borrow from future leave time.
Just prior to commencement of the trial on August 14, 1979, appellant's lawyer moved that appellant be allowed to take advantage of the Act. Appellant's letter stating why he would not be present at the trial was incorporated in an affidavit by his counsel in support of the motion. After hearing counsels' arguments on the matter, and after hearing testimony by appellee as to how she was able to be present although also stationed in Germany without sufficient money or leave time available to be present at the trial, the trial court determined that appellant should not be allowed to take advantage of the Act since it was not appellant's inability to be present at the trial that precluded him from being present, but rather that it was his unwillingness to be present. The trial court then proceeded with the trial.
At the close of the trial, the trial court granted appellee a divorce from appellant and divided the property. Appellant appeals from the trial court's determination that he could not take advantage of the Act.
The Act, 50 U.S.C.A. App. § 521 (1968), reads:
At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as plaintiff or defendant, during the period of such service or within sixty days thereafter may, in the discretion of the court in which it is pending, on its own motion, and shall, on application to it by such person or some person on his behalf, be stayed as provided in this Act ... unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service.
In Boone v. Lightner, 319 U.S. 561, 63 S.Ct. 1223, 87 L.Ed. 1587 (1943), the United States Supreme Court construed the Act. The Court made the following conclusions:
1) a) The Act itself cannot be construed so as to require a continuance on a mere showing that the defendant is in the military service.
b) The trial court is vested with judicial discretion by the clause "unless, in the opinion of the court, the ability of plaintiff to...
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