RENDERED: AUGUST 26, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
WHITNEY BLAKE SPURGEON
APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE WALTER MAGUIRE, JUDGE
ACTION NO. 07-CI-00965
TAMARA DAWN SPURGEON
VACATING AND REMANDING
** ** ** ** **
BEFORE: CLAYTON, KELLER, AND MOORE, JUDGES.
MOORE, JUDGE: Whitney Blake Spurgeon, pro se, appeals orders from the
Pulaski Circuit Court arising out of a dispute over modification of child support
and proceedings subsequent thereto. Whitney’s main contention is that the circuit
court denied him his rights under the Servicemember’s Civil Relief Act (SCRA),
50 U.S.C. App. 501, et seq.,1 and we agree with him. Accordingly, this matter is
remanded to the circuit court for proceedings consistent with the SCRA.
Because Whitney’s SCRA claims are dispositive in this matter, we
will only set forth the factual and procedural history germane to resolving these
issues. Both parties briefed much of the history of the problems between them, but
that history is not relevant to the issues before us; nor are they helpful to the
resolution of this matter.
For general background information, Whitney and Tamara were
married in 2002; they had two children. In an uncontested divorce proceeding
commenced in 2006 and finalized in 2007 in Pulaski Circuit Court, the parties
agreed that they would share the joint care and custody of their minor children,
with Tamara designated as the primary residential custodian. Whitney was ordered
to pay $492.03 per month in child support.
Whitney was--and still is-- a member of the United States Army and
was deployed to Iraq in 2006. The fact of his military status did not impede the
Throughout the relevant time regarding the issues surrounding postdecree child support, Whitney has been stationed in Virginia. The record
documents that Whitney was in the military.
Whitney also raises in his appeal arguments that that his rights under the Americans with
Disabilities Act of 1990 and the Health Insurance Portability and Accountability Act were
violated; however, those issues are not properly brought in the family court action. Hence, we
will not review them.
Although Whitney had counsel in the other post-decree proceedings in
circuit court with Tamara, his counsel filed a motion to withdraw by the time that
issues surrounding modification arose. The court granted the motion on January
27, 2009. No other counsel entered an appearance on behalf of Whitney.
On February 4, 2009, Tamara filed a motion to modify child support,
and the motion was noticed for a hearing on February 13, 2009. The certificate of
service shows that it was mailed to “Ms. Whitney Spurgeon” in Virginia.
(Emphasis added). Whitney contends, consequently, that it was mailed to his
current wife, not him. Having failed to properly notice Whitney of the hearing to
modify child support, the motion was continued. An amended notice of the motion
was then sent to Whitney on February 27, 2009, in Virginia for a March 13, 2009
On March 3, 2009, Whitney sent a letter to the circuit court, entered in
the record on March 6, 2009. In this letter, inter alia, Whitney stated that he
represented himself pro se and he requested that “the court postpone any and all
possible future proceedings until a telephonic hearing is properly scheduled and
confirmed with all parties due to my out-of-state residency and military
obligations.” From another entry in the record, it appears that Whitney and the
court arranged a telephonic conference for between 1:00 and 1:15 p.m. for the
March 13 hearing. However, the court’s signed docket entry states that the “case
[was] called at 3:15 p.m. Mr. Spurgeon was unable to await the Court’s
availability for teleconference and, therefore, declined to participate.” The court
relied on “public records available on the internet” to modify Whitney’s child
support obligations from $492.03 to $870.09. The order was to take effect on
March 1, 2009.
On July 16, 2009, Tamara filed a motion for Whitney to show cause
why he should not be held in contempt regarding her allegations that Whitney had
failed to comply with the court’s order modifying child support beginning on
March 1, 2009. The motion was noticed for a hearing on July 24, 2009.
On July 23, 2009, Whitney, pro se, filed via facsimile2 his response to the
show cause order and a motion for a continuance. Whitney styled the motion, in
part, as one for a continuance. But throughout the documents he submitted, he also
used the term “stay.” Liberally construing his motion, both under the SCRA and
because of Whitney’s pro se status, we determine that he properly requested a stay.
In this latter motion, he also requested sanctions, an order of protection and a
motion for reduction in his child support obligation.
In Whitney’s response to the show cause order, he specifically stated
that he is an active duty soldier in Virginia and that his Acting Commanding
Officer specifically ordered him not to travel to Kentucky. He also stated that he
had paid the full amount of child support owed.
A notation regarding a facsimile dated July 23, 2009, on the docket sheet provides that
“FOUND DATE STAMPED IN FILE BUT HAD NOT BEEN ENTERED IN COMPUTER SO
ENTERED THIS DATE [July 30, 2009].” On the July 30, 2009 entry, an earlier date appears
covered, and the document was date stamped as July 30, 2009.
In Whitney’s motion for a continuance, sanctions, protection and a
reduction in child support, he again stated that he was an active duty soldier
stationed in Virginia and that he “respectfully requests under the Service Member’s
Civil Relief Act (SCRA) (50 USC 501-591) this court grant a 90 day continuance
for the Motion to Show Cause.” Thereafter, Whitney requested that “[i]n the event
a 90 day continuance is not granted, the Respondent respectfully requests a 30 day
continuance to obtain legal counsel.” Finally, he requested that if none of his other
requests was granted, that the court schedule a telephonic hearing. Attached to his
motion for a continuance is a letter from his Acting Commander stating
SSG Spurgeon, Whitney is an active duty soldier stationed at
Fort Eustis, in the State of Virginia.
2. SSG Spurgeon is currently recovering from surgery and will be
continuing to receive additional medical treatment for an extended
period of time.
3. To ensure SSG Spurgeon’s physical and mental health, SSG
Spurgeon is not authorized to travel to the State of Kentucky.
Furthermore SSG Spurgeon is to refrain from any and all contact
from Tamara Dawn Spurgeon.
In addition to the letter from Whitney’s Acting Commander, his Nurse
Case Manager submitted a letter which stated:
1. Service Member (SM) SSG Spurgeon, Whitney is currently on
[sic] active duty soldier stationed at Fort Eustis, VA.
2. SM is currently enrolled in the Warrior Transition Unit and is
receiving extensive medical treatment for injuries.
3. SM is [sic] underwent surgery on 19 June 2009 which requires
intensive rehabilitation. SM is also currently being evaluated for
another surgery which will again require intensive and extensive
4. SM is currently under the care of a Mental Health Provider and
will require further treatment and evaluation by that provider for
no less than six months. . . .
A letter submitted by Whitney, which is filed in the record, provides
that he had a telephone conversation with the Circuit Court Clerk, who stated that
the court would accept the motion for the continuance via facsimile and that it
would be placed in the court’s file for the hearing. Regardless of whether
Whitney’s facsimiles of July 23 were in the court’s file for the July 24 hearing, a
review of the hearing reveals that Tamara’s counsel specifically referenced that
one of the issues raised by Whitney was that he requested a 90-day continuance; a
30-day continuance to obtain an attorney; or a telephonic hearing. Despite this and
the fact the record fully reveals that Whitney was in the military, the court allowed
the hearing to continue without comment on any of Whitney’s requests or any
inquiry into his military status.
During the brief hearing, Tamara testified regarding whether Whitney
was in arrears. Her testimony was that since the court modified child support
retroactively to March 1, 2009, Whitney was in arrears approximately $419. 3
The court granted Tamara’s motion, finding Whitney in contempt and
fined him $500. The court ordered that Whitney could purge himself of the
Tamara’s testimony at the hearing was that Whitney had paid $500 each for the months of
March, April and May, and the full amount for June and July. She testified that she had not yet
cashed a check from Whitney in the amount of approximately $690.36. She stated she had not
cashed the check “because she wanted to make certain she had everything right before she
cashed the check.”
contempt by bringing his child support obligations current within thirty days. The
court also ordered Whitney to pay Tamara’s attorney $250.
Whitney thereafter filed a motion to vacate the order modifying child
support and all subsequent orders relevant thereto. Again, he noted that he is an
active duty soldier and entitled to rights under the SCRA. He again attached the
affidavit from his Acting Commander.
The court denied Whitney’s
motion(s) for telephonic hearings . . . due to “economy of justice” and
other issues, including prior order for contempt entered 8/11/09,
require the Respondent to appear before the Court to seek any relief.
Today’s motions are continued generally for a “reasonable time” to
permit Mr. Spurgeon to make necessary leave and travel arrangements
for his personal appearance w/in a “reasonable time” following his
rescheduling of his motion for this date. His failure to do so w/in “a
reasonable time” may result in his motions being stricken or denied.
Then on October 23, 2009, the court entered an order as follows:
Respondent [Mr. Spurgeon] did not appear. Due to Mr. Spurgeon’s
failure to prosecute his motion to vacate, DNA testing having
established that movant [Mr. Spurgeon] is biological father of the
children in question, his motion to vacate is denied. Order to be
Subsequently, the court entered a more comprehensive order on November
18, 2009, denying all relief Whitney sought upon a finding that “a reasonable
period of time has passed for the Respondent to have made appropriate
arrangements and he has not appeared for the scheduled event.” Whitney
thereafter filed a notice of appeal.
Turning to the analysis of the issues, the SCRA applies to the judicial
proceedings under review. 50 U.S.C. App. 512(a) & (b). We first note that 50
U.S.C. App. 522, not 50 U.S.C. App. 521 applies to the case before us. The
primary difference relevant to the facts of this case is that Whitney had notice of
the commencement of the proceedings against him. The provisions of 50 U.S.C.
App. 521 apply to situations when a servicemember does not have notice of the
proceedings commenced against him. Section 522 specifically applies, however,
when a servicemember does have notice of proceedings commenced against him.
Hence, pursuant to the SCRA, the provisions of section 522 apply herein because
Whitney was on notice that Tamara sought a modification of child support.
Despite Whitney’s self representation, he was still under the
protection of the SCRA. Snodgrass v. Snodgrass, 297 S.W.3d 878, 892 (Ky. App.
2009) (“Although [Appellant] chose to forego representation by a lawyer in the
dissolution, he was under the protection of the Soldiers’ and Sailors’ Civil Relief
Act of 1940.”). As explained by this Court
[t]he Act “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.” Boone v. Lightner, 319 U.S. 561, 575, 63 S.Ct. 1223,
1231, 87 L.Ed. 1587 (1943). Even where the service member does
not seek a stay of the proceedings, the Act requires that before going
forward the trial court has first “determined that the military service of
the appellant would not have a material, adverse effect upon his rights
[.]” Cooper v. Roberts, 722 S.W.2d 910, 911 (Ky.App.1987).
Snodgrass, 297 S.W.3d at 892.
Thus, when Whitney could not make a physical appearance at the hearing on
Tamara’s motion to modify child support due to his military obligations, “the Act
require[d] that before going forward the trial court has first ‘determined that the
military service of the appellant would not have a material, adverse effect upon his
rights[.]’” Id. The court did not undertake this inquiry.
The court did agree to schedule a telephonic hearing with Whitney on
Tamara’s motion to modify child support. According to a document filed in the
record, the March 13, 2009 hearing was arranged with Whitney to be between 1:00
p.m. and 1:15 p.m. However, the telephonic hearing was not commenced by the
court until 3:15 p.m. Regarding this, the court order noted that the “case was
called [at] 3:15 pm. Mr. Spurgeon was unable to await the Court’s availability for
teleconference, and therefore, declined to participate.”
We understand the court’s need to manage its docket. However, given that
the Act “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,” we believe that the
SCRA “trumps” day-to-day docket management, at least under the limited
circumstances of this case. The court was required to give Whitney an opportunity
to present his defense. Here, the court made no inquiry into whether Whitney
could participate two hours later than the arranged time. Accordingly, Whitney
was not given the opportunity, even through a telephonic hearing, to defend against
Tamara’s motion for modification of child support. Therefore, giving the SCRA a
liberal interpretation to fulfill its purpose of protecting the rights of
servicemembers, we conclude that Whitney was deprived of his right to participate
in the court proceeding, wherein his child support obligation increased from
$492.03 to $870.09.
We next turn to whether the court erred in failing to grant a stay upon
Whitney’s July 23 request. To qualify for a stay, the servicemember must submit
(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 servicemember at the time of the letter.
50 U.S.C. App. 522(b).
Regarding the application of a stay under the SCRA, Tamara cites to cases
interpreting the Soldiers’ and Sailor’s Civil Relief Act of 1940 regarding the
discretionary nature of granting or denying stays. However, that Act has been
significantly amended since that time and in 2003 Congress enacted SCRA.
Contrary to her argument, the patent language of the SCRA restricts the court’s
discretion with respect to a request for a 90-day continuance if the perquisites for
the continuance are met. 50 U.S.C. App. 522 (b)(1).
Liberally construing the
requirements of the SCRA, as we are required to do, Whitney fulfilled the
requirements for a mandatory stay of at least 90 days.
Regarding Whitney’s contention that he is entitled to appointment of
counsel, as noted supra, section 521 does not apply. Accordingly, he is not
generally entitled to the appointment of counsel. However, Whitney “may apply
for an additional stay based on continuing material affect of military duty on the
[his] ability to appear.” 50 U.S.C. App. 522 (d)(1). If Whitney meets the criteria
for an additional stay, the court may grant his request. Id. Or, the court may deny
the additional stay. But if it denies his request, the court must appoint counsel to
represent Whitney. 50 U.S.C. App. 522(d)(2).4
In conclusion, having construed the SCRA liberally to fulfill its purposes, as
we are required to do, Whitney was not afforded an opportunity to defend against
Tamara’s motion to increase child support. Moreover, the court was on notice that
Whitney was in the military but did not review whether his service and inability to
appear “would not have a material, adverse effect upon his rights[.]’” Snodgrass,
297 S.W.3d at 892. And, clearly it did as his child support obligation was nearly
doubled. Accordingly, the court’s order modifying child support is vacated, as is
the subsequent order finding Whitney in contempt, fining him $500 and ordering
him to pay Tamara’s counsel $250. Additionally, we reverse the circuit court’s
orders denying Whitney’s motion for a stay, and the court’s denial of his motion to
vacate the previous orders. We remand this matter to the circuit court with
This section provides that “If the court refuses to grant an additional stay of proceedings under
paragraph (1), the court shall appoint counsel to represent the servicemember in the action or
instructions to comply with the SCRA in conducting proceedings on modification
of child support in this matter.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Whitney Blake Spurgeon, Pro Se
Ralph D. Gibson