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LTC Pamela Joy Lee Johnson, D.O. v. Johnson

Court of Appeals of Michigan

July 18, 2019

LTC PAMELA JOY LEE JOHNSON, D.O., Plaintiff-Appellant,
v.
EDGAR JOHNSON, III, Defendant-Appellee.

          Clinton Circuit Court Family Division LC No. 2010-022282-DM

          Before: M. J. Kelly, P.J., and Markey and Gleicher, JJ.

          PER CURIAM.

         These consolidated cases[1] involve postjudgment proceedings following the parties' 2011 divorce. In Docket No. 345955, plaintiff-mother, Lieutenant Colonel Pamela Joy Lee Johnson, D.O., appeals by leave granted[2] the trial court's April 2018 order denying her request for an adjournment under the Servicemembers Civil Relief Act (SCRA), 50 USC 3901 et seq. The April 2018 order also held plaintiff in contempt, issued a bench warrant for her arrest with a cash bond of $15, 000, and required her to pay $1, 500 to defendant-father, Edgar Johnson, III. In Docket No. 345803, plaintiff appeals by right the trial court's September 2018 order increasing her bench warrant bond to $25, 000, suspending her driver's license and any occupational license, and awarding defendant temporary physical placement of the minor children. For the reasons stated in this opinion, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

         I. BASIC FACTS

         The parties divorced in 2011. Their divorce judgment awarded the parties joint legal custody of the minor children and awarded plaintiff primary physical custody. In 2016, plaintiff moved for a change of domicile to Springfield, Virginia, because she was called for active duty as a medical review officer in the United States Army. In January 2017, the trial court allowed the move, and entered a detailed parenting-time order.[3] Relevant to this appeal, defendant asserts that between January 11, 2017 and May 21, 2018, plaintiff failed to facilitate Skype parenting-time sessions between defendant and the children, to provide the minor children to him for Thanksgiving break, to provide the children to him for Christmas break, to provide the children for defendant's summer parenting time, and to provide him with medical information regarding the children or information about their wellbeing. On multiple occasions, the Friend of the Court (FOC) petitioned the court to issue an order to show cause for why plaintiff should not be held in contempt for violating the parenting-time schedule.

         Plaintiff failed to appear for a show cause hearing scheduled for March 20, 2017, and the hearing was changed to May 1, 2017. Plaintiff did not appear for the May 1, 2017 hearing. Instead, on April 27, 2017, she submitted a letter to the court stating that starting on April 28, 2017 she was "on active duty military orders assigned to the U.S. Army Physical Disability Agency (USAPDA) and serving at the National Capital Region (NCR)-Physical Evaluation Board (PEB) in Crystal City, Arlington, Virginia." She explained:

The USAPDA is charged with evaluating physical disability cases of Soldiers. The NCR-PEB is one of three U.S. Army Physical Evaluation Boards. Cases pertain to both active duty and reserve component Soldiers. Our work load has dramatically increased due to the Global War on Terrorism and remains consistently high. My duties are directly related to processing Soldier disability cases which are very time-sensitive. Delays in case proceeding have a significantly detrimental effect on not only on Army readiness but also the Soldiers and their families.
Accordingly, I most respectfully request that I be afforded the rights and protection offered under the [SCRA], as my military duties preclude proper representation in the court. Current required training for my new position minimally requires ninety days of uninterrupted training for mission success. Any delays or interruptions in training will adversely impact Soldier and military readiness.

         Plaintiff submitted a copy of her orders, which confirmed that she was on active duty starting April 28, 2017. Without explanation, the trial court entered an order adjourning the show cause hearing to June 5, 2017 and ordering plaintiff to appear telephonically. Plaintiff did not to appear for the June 5, 2017 show cause hearing.

         Another show cause hearing was scheduled for February 5, 2018. On January 10, 2018, approximately one month before the scheduled hearing, the FOC investigator/mediator sent plaintiff's commanding officer a letter explaining that plaintiff was required to appear for the February 5, 2018 hearing and requesting that plaintiff be made available. The February 5, 2018 show cause hearing was rescheduled for April 16, 2018, and the FOC investigator/mediator advised plaintiff's commanding officer of the change in date and again requested that plaintiff appear.

         On April 5, 2018, plaintiff submitted another letter to the trial court, once again seeking a stay of the proceeding under the SCRA. The letter explained that plaintiff was on active duty, described the nature and importance of her duties, explained that plaintiff's commanding officer supported the request, stated that plaintiff's military duties precluded her participation in the court proceedings, and added that military leave was not authorized at the time of the letter. It also provided an "anticipated possible date of availability" for participation in any hearings away from plaintiff's duty station. Plaintiff's commanding officer signed the letter.

         At the April 16, 2018 show cause hearing, the trial court held that plaintiff's letter did not satisfy the conditions for a mandatory stay of the proceedings under 50 USC 3932(b)(2). Accordingly, it denied plaintiff's request for a stay. Furthermore, the court held plaintiff in contempt of court for failing to appear as directed and the court issued a bench warrant with a $15, 000 cash bond. The court also ordered plaintiff to pay defendant $1, 500 by May 15, 2018 based on the fact that he had appeared at three scheduled hearings that plaintiff had not attended.

         Another show cause hearing was scheduled for July 16, 2018, but it was never held. Instead, another show cause petition was filed by the FOC, alleging additional violations of the parenting-time schedule and requesting a show cause hearing on why plaintiff should not be held in contempt for her refusal to abide by the parenting-time schedule. A hearing was scheduled for September 17, 2018. Plaintiff made no formal request for a stay of the hearing under SCRA. At the hearing, however, her lawyer requested permission from the court to make "a proper application" under the SCRA. The court did not permit it. Following the hearing, the court entered an order increasing plaintiff's bench warrant bond to $25, 000 for her failure to appear on September 17, 2018. The court also ordered that plaintiff transfer the minor children to defendant by noon on September 21, 2018, and it directed that defendant shall have temporary physical placement of the minor children. The court also suspended plaintiff's driver's license and any occupational licenses that she held.

         II. RELIEF UNDER THE SCRA

         A. STANDARD OF REVIEW

         Plaintiff argues that the trial court erred by denying her request for a stay under the SCRA. Questions of statutory interpretation, construction, and application are reviewed de novo. Dextrom v Wexford Co, 287 Mich.App. 406, 416; 789 N.W.2d 211 (2010). This standard also applies to the interpretation of federal statutes. In re LFOC, 319 Mich.App. 476, 480; 901 N.W.2d 906 (2017). This Court reviews for an abuse of discretion the trial court's decision whether to adjourn or continue a proceeding. In re King, 186 Mich.App. 458, 466; 465 N.W.2d 1 (1990).

         B. ANALYSIS

         1. APPLICATION FOR A STAY

         Resolution of the issues raised on appeal requires interpretation of the SCRA, which is a federal statute. In Hegadorn v Dep't of Human Servs Dir, Mich, ; N.W.2d (2019) (Docket No. 156132, 156333, 156334), slip op at 9, our Supreme Court explained:

"The principal goal of statutory interpretation is to give effect to the Legislature's intent, and the most reliable evidence of that intent is the plain language of the statute." South Dearborn Environmental Improvement Ass'n, Inc v Dep't of Environmental Quality, 502 Mich. 349, 360-361; 917 N.W.2d 603 (2018). When interpreting federal statutes, we strive to "give effect to the will of Congress[.]" Walters[ v Nadell], 481 Mich. [377, ] 381[; 751 N.W.2d 431 (2008)] (quotation marks and citations omitted.)

         Ascertaining legislative intent is accomplished "by giving the words selected by the [Congress] their plain and ordinary meanings, and by enforcing the statute as written." Griffin v Griffin, 323 Mich.App. 110, 120; 916 N.W.2d 292 (2018) (quotation marks and citation omitted). This Court may not read something into the statute "that is not within the manifest intent of the Legislature as derived from the words of the statute itself."). McQueer v Perfect Fence Co, 502 Mich. 276, 286; 917 N.W.2d 584 (2018) (quotation marks and citation omitted). Moreover, like its predecessor, the Soldiers' and Sailors' Civil Relief Act, 50 USC 501 et seq., the SCRA "is always to be liberally construed to protect those who have been obliged to drop their own affairs to take up the burdens of the nation." See Boone v Lightner, 319 U.S. 561, 575; 63 S.Ct. 1223; 87 L.Ed. 1587 (1943).[4]

         The SCRA provides protection to United States service members, so that they may "devote their entire energy to the defense needs of the Nation," by providing "temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of servicemembers during their military service." 50 USC 3902(1) and (2). The SCRA provides that a servicemember, who "is in military service . . ." and who "has received notice" of "any civil action or proceeding, including any child custody proceeding," may apply for a stay of the action "for a period of not less than 90 days." 50 USC 3932(a) and (b)(1).[5] In order to apply for a stay, the servicemember must provide the court with the following:

(A) A letter or other communication setting forth facts stating the manner in which current military duty requirements materially affect the servicemember's ability to appear and stating a date when the servicemember will be available to appear.
(B) A letter or other communication from the servicemember's commanding officer stating that the servicemember's current military duty prevents appearance and that military leave is not authorized for the ...

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