Opinion
No. FA 06-4022551 S
September 14, 2006
MEMORANDUM OF DECISION
Plaintiff, Robert Nerkowski, commenced the captioned dissolution action against his wife Jennifer Nerkowski and the file reflects a return date of May 9, 2006. Defendant thereafter appeared, filed a cross-complaint, and filed pendente lite motions addressing issues such as child support, alimony and the sale of the marital home. Plaintiff is located at Fort Benning, Georgia, asserting that he is stationed there before an anticipated deployment to Iraq. Although not at all clear from the representations made by counsel at the hearing in this matter, it would appear that plaintiff was a serviceman at the time that he initiated this dissolution proceeding, and had some idea, if not a complete understanding that, he would be sent to bases outside the state of Connecticut. Plaintiff now moves to stay the proceedings, invoking 50 U.S.C. Sec. 501 et seq, the so-called Service members Civil Relief Act or the Soldiers' and Sailors' Civil Relief Act of 1940.
The quoted statute certainly provides a basis for stay of actions against servicemen, recognizing that they are serving a cause on behalf of the citizens of this great country, and further recognizing that servicemen should not be subjected to civil process when they are engaged in this service. However, the Act does not provide an absolute protection, and certainly should not be used as a sword rather than a shield. Plaintiff himself initiated this dissolution and cannot viably invoke the protection of law to escape the financial obligations to his one-year-old child and his spouse.
It is certainly unclear what plaintiff's position in this matter is at present. In the papers filed on his behalf, counsel for plaintiff asserts that plaintiff stands ready to provide child support and sell the parties' marital home (the latter apparently necessary to avoid foreclosure and preserve this marital asset). In addition, despite repeated attempts by the court at the hearing on this matter to have certain questions answered, the court was unsuccessful in getting straight answers to those inquiries.
There is a significant question as to whether the federal statute invoked by the plaintiff applies in this case. See Section 522 of the act pertaining to "contract" actions. Even if the act is applicable, however, the law is clear that the court has discretion in this matter. See Section 521 of the Act, see also Boone v. Lighton, 391 U.S. 561 (1943).
To the extent that it pertains to any child support or alimony pendente lite motions, and to the extent that it pertains to any motions addressing the preservation of the parties' marital assets, such as the sale of the marital home, plaintiff's motion to stay is denied. The motion is granted to the extent it pertains to the ultimate dissolution of the parties' marriage.