Pursuant to the Servicemembers
Civil Relief Act (SCRA), 50 U.S.C. App.
'522, the
defendant moves this court for [an initial 90-day stay of proceedings][a
further stay of proceedings], showing that his ability to defend herein is
materially affected by his military duties.
In support of this motion and in compliance with the SCRA, the
defendant has included --
As ATCH 1, a letter or other communication that:
-
states
the manner in which current military duty requirements materially
affect the defendant's
ability to appear, and
-
gives
a date when the defendant will be available to appear, and
As ATCH 2, a letter or other communication from the defendant's
commanding officer stating that:
-
the
defendant's current military duty prevents appearance, and
-
that
military leave is not authorized for the defendant at the time of the
letter.
WHEREFORE
the defendant prays that this court grant him a stay of proceedings until
[date] and such other relief as is just and proper.
__________________________________
Date:
Janet A. Smith, Attorney for Defendant
123 Bartlett Street, Salisbury, NC 26799
919-555-1234
........................................................
ATCH 1
[While
this example is written by the defendant, the letter, affidavit, e-mail or
other communication may be written by the defendant's
military legal assistance attorney (JAG officer), the supervisor or
commander of the servicemember, or someone else in a position to know and
relate the facts required. It may be addressed to the court, the clerk, the presiding
judge, the defendant's
attorney, opposing counsel or even, as below, "To
Whom It May Concern."
While the example here gives limited information, a good letter
should set out the facts in detail -- not merely conclusions - as to how
the defendant's
military duties adversely affect his ability to prepare and present the
case, including appearances at depositions, responses to interrogatories
and document requests, and appearance at trial.
Although not required by the SCRA, it is a wise idea to set out how
much leave the defendant has accrued, whether he has asked for leave, and
whether the request has been approved or denied, including who approved or
denied it, the date of such action, the limitations, if any, on an
approved leave, etc. The purpose of this is to show that the defendant is
exercising good faith and due diligence in his application for a stay.]
SSG
Leopold Legume, SSN 123-45-6789
Company C, 3d Battalion
123d Underground Balloon Regiment
V Corps, U.S. Army
APO AE 91099
[date]
TO
WHOM IT MAY CONCERN:
My
current military duty requirements materially affect my ability to
appear in the following manner:
I
am currently serving as a truck driver in the above unit at Camp Bondsteel
in Kosovo. My tour of duty is for 180 days, beginning February 1, 2004.
I was recalled to active duty in the U.S. Army from my assignment
in the Army Reserve, which is the 122d
Transportation Battalion, Salisbury, North Carolina.
I
am in the field every day of the week, and I am unavailable to appear at
my hearing on child support. I
have asked for one week's
leave in order to fly back to North Carolina and attend the hearing.
This was denied by my commander.
I
need to be personally present in court on my hearing date of May 1, 2004,
to testify as to my compensation, both civilian (before the Reserve
call-up) and military (a substantial reduction from my civilian pay), my
reasonable living expenses (before and after the call-up) and certain
bills of the plaintiff that I have taken over at her request since the
last child support order herein that would constitute grounds for a
variance from the Child Support Guidelines.
I
will be available to appear on or after September 10, 2004
[signature
of defendant]
........................................................
ATCH
2
Major
Regina Richards, Commander
Company C, 3d Battalion
123d Underground Balloon Regiment
V Corps, U.S. Army
APO AE 91099