A Georgia judge has discretion over a servicemember’s request to pause a case, but it is not unlimited and it can be reversed on appeal.
The Standard
Allen v. Howard, 192 Ga. App. 363 (1989), describes it as a discretion “to determine, from the facts in evidence, whether the absence of the defendant on the trial of the case will materially affect his ability to defend the action.” The judge’s conclusion “must be supported by some facts or data, and can not rest upon mere supposition or conjecture.”
What Made the Difference in Allen
The same sailor lost this argument once and won it once. On his first appeal, at 185 Ga. App. 758 (1988), he had relied only on the fact of Navy service and a duty station in California, and the denial of a stay was affirmed.
He came back with two official leave requests for the trial dates, both denied by his commander, and a letter from that commander saying leave would not be granted. This time the Court of Appeals held the trial court abused its discretion, noting that leaving a duty station without authority is itself a crime.
Discretion Runs Both Ways
A stay can also be too generous. In Shelor v. Shelor, 259 Ga. 462 (1989), a Marine Corps captain headed to Guantanamo Bay obtained a stay of a modification case. The Georgia Supreme Court left the stay in place but held it was an abuse of discretion to refuse to hear the pending motion for a temporary increase in child support, because relief of that kind is interlocutory and can be revised later.
Both decisions were made under the Act’s earlier version, which Congress replaced in 2003. What they still show is that a judge’s ruling either way has to be tied to evidence in the record.
Contact Us
This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!