Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

In re Marriage of Schmidt

Supreme Court of Montana

July 2, 2013

IN RE THE MARRIAGE OF TODD DELROY SCHMIDT, Petitioner and Appellee,
v.
AIMEE CATHERINE SCHMIDT, Respondent and Appellant.

ORDER

The Eleventh Judicial District Court has denied the motion of Respondent and Appellant Aimee Catherine Schmidt (Aimee) for a stay of that court's October 23, 2012 Decree of Dissolution of Marriage pending this appeal. Aimee now asks this Court to stay the portions of the judgment regarding division of the marital estate pending the appeal, pursuant to M. R. App. P. 22(2) and 50 U.S.C. Appx. § 524, the federal Service members Civil Relief Act. She also asks us to order Todd to return any and all funds that have been seized or are in the process of being seized under the judgment, with the exception of future child support payments. Petitioner and Appellee Todd Delroy Schmidt (Todd) has filed a response in which he objects to the motion for a stay.

As Todd points out, under M. R. App. P. 22(3), this Court may grant, modify, or deny a motion to stay execution of a district court judgment pending appeal. However, an appellant requesting such a stay must file a supersedeas bond to cover the amount of the judgment, costs on appeal, interest, and damages for delay. See M. R. App. P. 22(1)(b). Aimee has not filed a supersedeas bond.

50 U.S.C. Appx. § 524 allows for a stay of a judgment against a United States servicemember who, ;tin the opinion of the court, is materially affected by reason of military service in complying with a court judgment or orderf.]" Aimee argues that her present military service in Afghanistan materially affects her ability to take part in these proceedings and comply with the District Court's judgments and orders. She contends that the District Court "continues to issue orders allowing Todd to seize funds from Aimee's bank accounts and seize personal property that was not awarded to Todd. Additionally, Todd is dishonestly attempting to collect fifty percent (50%) of Aimee's entire retirement account instead of fifty percent (50%) of what was acquired during their marriage." Aimee maintains that she suffers migraine headaches and anxiety as a result of those ongoing proceedings. In addition, she has attached to her motion a copy of a memorandum from U.S. Navy Officer Benjamin M Neely, who states that "|t]he court allowing this case to continue and judgments to be enforced during this soldier's deployment in my judgment has impacted the soldier's over all ability to accomplish her mission."

Neither party has cited authority establishing that the provisions of either M. R. App. P. 22(3) or 50 U.S.C. Appx. § 524 supersede the provisions of the other. Nor have we located any such authority. We are, of course, obliged to follow the federal statute, which is designed to protect the legal rights of those who are serving our country; the statute does not however, "require a continuance on a mere showing that the [party seeking the stay] is in the military service." SCRA Guide, The Judge Advocate General's School, JA 260. March 2006 at 3-27. Nor does the statute indicate whether a state court may require a bond. The District Court concluded that Aimee had not provided proof that her military service materially affects her ability to comply with her financial obligations.

Aimee does not ask us to stay her future child support obligations. We will not stay the collection of past child support obligations or Todd's collection of the personal property awarded to him in the dissolution, or order him to return funds that already have been seized. However, in light of Aimee's status as an active duty service member and the submissions from her superior officers, we find good cause to stay further execution of the Final Decree to satisfy Aimee's additional financial obligations under the Decree, including that portion of the Decree concerning division of the marital estate. Aimee's submissions have not satisfied us that she is financially unable to file a supersedeas bond, nor has she presented authority that such a bond may not be required.

Therefore,

IT IS ORDERED that Aimee's motion for a stay is GRANTED IN PART. Upon the filing of an appropriate supersedeas bond, all further enforcement of the portion of the Final Decree of Dissolution of the parties' marriage concerning division of the marital estate is STAYED pending this appeal. Stay of the Decree's provisions regarding child support, both amounts past due and for future payments, is DENIED.

The Clerk is directed to provide copies of this order to all counsel of record.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.