Smith v. Smith

222 Ga. 246 (1966)

149 S.E.2d 468

SMITH v. SMITH.

23447.

Supreme Court of Georgia.

Argued May 9, 1966.

Decided June 9, 1966.

Roberts & Thornton, Jack M. Thornton, Roy S. Levinson, James A. Elkins, Jr., for appellant.

Milton Hirsch, Ray, Owens, Keil & Hirsch, Joseph S. Ray, for appellee.

*249 COOK, Justice.

1. "The Soldiers' and Sailors' Civil Relief 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. The discretion that is vested in trial courts to that end is not to be withheld on nice calculations as to whether prejudice may result from absence, or absence result from the service. Absence when one's rights or liabilities are being adjudged is usually prima facie prejudicial. But *247 in some few cases absence may be a policy, instead of the result of military service, and discretion is vested in the courts to see that the immunities of the Act are not put to such unworthy use." Boone v. Lightner, 319 U.S. 561, 575 (63 SC 1223, 87 LE 1587).

2. "Under the Soldiers' and Sailors' Civil Relief Act, a person in military service is entitled as a matter of law to a stay of any proceeding by or against him in a case to which the statute is applicable, upon his bare application showing that he is in the military service, unless it is made to appear by further relevant evidence that his ability to prosecute or defend the proceeding is not materially impaired by reason of his military service." Lankford v. Milhollin, 197 Ga. 227 (28 SE2d 752).

3. In the present case the record shows without contradiction that the appellant was in the military service undergoing intensive training at Fort Bragg, North Carolina, in preparation for active duty in Viet Nam, and that he was not authorized to absent himself from Fort Bragg in order to be present at the hearing on temporary alimony and child custody. The trial judge was not authorized to find from the evidence that the appellant was wilfully attempting to evade determination of the issues involved in the cause, or that the ability of the appellant to defend against the cross action was "not materially affected by reason of his military service." 50 U. S.C.A., App. § 521. It was error to deny the appellant's plea for stay of the proceedings, and to enter a judgment for temporary alimony against him. Parker v. Parker, 207 Ga. 588 (63 SE2d 366).

Judgment reversed. All the Justices concur.