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In re Marriage of Peck

July 12, 1996

IN RE THE MARRIAGE OF: DAVID A. PECK, APPELLANT, AND CATHY JOANNE PECK, RESPONDENT.


Superior Court of Pierce County. Superior Court Docket No. 92-3-04344-0. Date Filed In Superior Court: September 9, 1994. Superior Court Judge Signing: Thomas Felnagle.

Released for Publication August 9, 1996.

Written By: Armstrong, J. Concurred IN By: Turner, J., Bridgewater, J.

The opinion of the court was delivered by: Armstrong

ARMSTRONG, J. -- David A. Peck appeals the decree dissolving his marriage to Cathy J. Peck, contending that the trial court lacked personal jurisdiction to adjudicate his child support obligation and divide the parties' property, including his military pension. He also contends that the trial court should have stayed the dissolution proceedings under the Federal Soldiers' and Sailors' Civil Relief Act because he was on active sea duty. We reverse for lack of jurisdiction.

The parties were married in Virginia in 1986. They separated in 1991, when Cathy moved from Maine to Washington with their two minor children. David has been on active duty with the U.S. Navy since before the parties were married. The parties never lived together in Washington, and David has never been in Washington except to visit Cathy's family during the marriage.

Cathy petitioned for divorce in 1992 in Pierce County. David moved to dismiss for lack of personal jurisdiction over him, and for an award of attorney's fees. A superior court commissioner denied the motion, and David moved unsuccessfully to revise.

Trial was originally set for January 28, 1994. On January 20, 1994, David's lawyer moved for a stay of proceedings pursuant to the Soldiers' and Sailors' Civil Relief Act. The trial court granted a continuance.

On the rescheduled trial date of May 13, 1994, the court asked David's lawyer if it was his "preference to have the matter set over either because your client is not here or because there was not a settlement conference or both?" Counsel responded that he was not requesting another continuance because the court would probably deny it. He and Cathy's lawyer then had a brief but unproductive settlement Discussion, and trial began. David was on naval duty overseas, and Cathy was the only witness. At the end of Cathy's case, David's lawyer requested a continuance for two months so his client could come to Washington and testify. The court denied the motion. After trial, the court entered a decree dissolving the marriage, fixing the amount of child support payable by David, adopting a parenting plan, and dividing the marital property, including David's Navy pension.

David has continuously objected to Washington's assertion of personal jurisdiction over him. He concedes that the Washington court has jurisdiction to dissolve the marriage based on Cathy's Pierce County residency, RCW 26.09.010(2), .030, and jurisdiction to adjudicate the children's custody under the Uniform Child Custody Jurisdiction Act, RCW 26.27.030, but he argues that Washington lacks the personal jurisdiction over him necessary to order child support or divide the parties' marital property, including his Navy Pension.

I

Preliminarily, we consider whether the trial court should have stayed proceedings pursuant to the Soldiers' and Sailors' Civil Relief Act, 50 U.S.C. app. § 521 (1940), which provides:

§ 521. Stay of proceedings where military service affects conduct thereof.

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.

This statute vests the trial court with discretion to decide whether to stay proceedings so a person in military service can attend court and raise a valid defense. Smith v. Fitch, 25 Wash. 2d 619, 629, 171 P.2d 682 (1946), (citing In re Bashor, 16 Wash. 2d 168, 170, 132 P.2d 1027 (1943)). The Act plainly provides, however, that the court can proceed if presentation of the sailor's case is "not materially affected by reason of his military service." David was able to raise his primary defense of lack of jurisdiction through his attorney, without appearing personally. He does not show what his testimony would have been had he been present, or that it would probably have changed the result. Absent such a showing of prejudice, he is ...


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