Kentucky Husband, who has been serving in the US army, and Wife have two Children together.
Husband and Wife divorce. Husband is ordered to pay child support.
Several years later, Wife seeks to modify child support.
Husband, representing himself, writes a letter to the Kentucky family court explaining that he has no attorney and asking the family court to accommodate his request that any hearings be coordinated so that he can attend by telephone, because he is out of state and has military obligations.
The family court coordinates a hearing and makes arrangements for Husband to participate by telephone. But, as so often happens, the docket gets backed up and Husband’s case is not actually heard until two hours later than was expected.
Husband is unable to participate then.
The family court proceeds without Husband, utilizing public records culled from the internet. The family court enters an order retroactive to the first of the month of the hearing.
Wife later files to have Husband held in contempt for not complying with the family court’s modified child support order.
Again, Husband, representing himself, faxes the court a motion to postpone the hearing Wife has scheduled. In his paperwork, he sometimes uses the word “stay”. Husband’s response to Wife’s papers states again that he is in the army and that he was ordered not to go to Kentucky, and explicitly invokes the Service Member’s Civil Relief Act.
Husband also sends a letter from his Commander and his Nurse Case Manager, both indicating that Husband is being treated for significant physical injuries, and is also receiving mental health services and should not have contact with Wife.
Husband also requests sanctions and a protective order against Wife and requests that his child support be reduced.
The family court ignores Husband’s efforts to invoke federal legal protections for service members, as well as Husband’s medical status and efforts to arrange counsel and telephonic participation in the proceedings. Even though Wife’s attorney does bring them to the attention of the family court.
The family court holds Husband in contempt and fines him for failing to comply with the recently modified child support order. Husband is found to be in arrears by approximately $400. The family court also orders Husband to pay Wife’s modest attorney’s fees.
Husband subsequently files to overturn the modified child support order and all the orders entered afterwards, based upon it. Repeatedly indicating that he is in the military and invoking protections under federal law.
The family court denies all of Husband’s requests to appear by phone but allows “reasonable time” for him to arrange to appear in person … or his requests for relief might be stricken or denied without his participation.
The family court then proceeds to deny Husband’s motions based upon his failure to set hearings and attend to press his motions.
On appeal, the appellate court overturns all of the child support modification, contempt and related orders entered. The family court failed to consider, as required by law, whether Husband’s inability to participate in the modification hearing would adversely affect his interests.
The Service Member’s Civil Relief Act is supposed to be construed liberally to protect service members called up to active duty to serve their country. Husband substantially complied with the Act.
The family court proceeded to the modification hearing without Husband, despite Husband’s efforts to appear, and denied his later requests to appear by phone or to obtain a continuance due to his service.
The appellate court remands for a new hearing on modification of child support, to be conducted in compliance with the Service Member’s Civil Relief Act.
Read more in this Kentucky Court of Appeals opinion.