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SCRA doesn't preclude child-support increase, court rules

Oct. 24, 2013 - 05:30PM   |  
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A soldier who contended that his rights were violated under the Servicemembers’ Civil Relief Act when he was ordered to pay more child support while on active duty has lost his appeal.

Sgt. Joshua Childs, stationed at Fort Polk, La., argued that the SCRA protected him from adverse civil actions while on active duty.

But the SCRA “does not preclude all civil actions against members of the military,” the Alaska Supreme Court wrote in an Oct. 11 opinion. The justices noted that the SCRA provides only for the temporary delay of civil and administrative proceedings and transactions that might adversely affect the rights of troops on active duty.

Childs did not try to argue that his ability to participate in the proceedings was materially affected by his service, a requirement under the SCRA. Nor was there any evidence, such as a letter from his commander, to suggest his military duties kept him from participating — also a requirement.

In fact, the court noted, Childs “actually participated in the modification proceeding, filing an opposition in superior court, raising legal arguments, and providing supporting documents including pay stubs, W-2s and tax returns.”

They affirmed the lower court’s decision to raise Childs’ monthly child support payments to $901 for his two children, up from the $541 originally awarded when he and his former wife divorced in 2005. She had asked for $1,115 a month when she filed a motion for an increase in child support in 2011.

Childs could not be reached for comment.

“There’s a vast misconception in the service community about what the SCRA does,” said Mark Sullivan, a retired Army Reserve colonel in the judge advocate general corps who specializes in military pension and divorce cases. “Many people think it provides absolute immunity from civil lawsuits.”

That misconception is compounded by the lack of knowledge among some civilian attorneys about the SCRA, said Sullivan, author of “Judge’s Guide to the Servicemembers’ Civil Relief Act,” a joint project of the American Bar Association and the North Carolina State Bar.

While it does provide protection, the SCRA also lays out specific requirements that must be met, Sullivan said, to include asking for a stay if needed, and then providing evidence of that need.

“You shouldn’t say you’re entitled just because you wear the uniform,” he said.

Childs also contended that he was not given the opportunity to speak or be present at any hearing regarding child support. But the justices noted that a hearing is not required for all child support disputes, and that neither he nor his ex-wife disputed the accuracy of the income information given to the court.

The justices also agreed with the lower court’s decision to include Childs’ Basic Allowance for Housing in his income calculation. Childs contended that BAH is not included in his gross pay and asserted that the allowance is used to provide housing for his current family.

“I can cite case after case where BAH is relevant and considered as income” in child support cases, Sullivan said, noting that what matters is the flow of money available to the parent, and BAH is recognized as a component of income.

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