{
  "id": 1156892,
  "name": "In re MARRIAGE OF MARIA C. BRAZAS, Petitioner-Appellee, and WESLEY J. BRAZAS, JR., Respondent-Appellant",
  "name_abbreviation": "In re Marriage of Brazas",
  "decision_date": "1996-02-28",
  "docket_number": "No. 2 \u2014 95 \u2014 0790",
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  "last_updated": "2023-07-14T17:33:42.611238+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "In re MARRIAGE OF MARIA C. BRAZAS, Petitioner-Appellee, and WESLEY J. BRAZAS, JR., Respondent-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE INGLIS\ndelivered the opinion of the court:\nRespondent, Wesley J. Brazas, Jr., appeals the order of the .circuit court of Kane County which denied his motion to vacate a judgment entered while he was serving on reserve duty. We reverse.\nOn March 11, 1993, petitioner, Maria C. Brazas, filed a petition for dissolution of marriage. The case proceeded to trial on August 1, 1994. The hearing was continued from time to time, and on February 21, 1995, a petition was filed requesting that respondent pay for the cost of a real estate appraisal of the parties\u2019 marital residence.\nIt would appear from the record that prior to the filing of this petition testimony was produced which valued the marital residence at between $140,000 and $145,000. Respondent, however, in direct contravention of a court order, caused a quitclaim deed to be recorded which allegedly extinguished an easement for ingress and egress to the marital residence. The quitclaim deed was executed by respondent in favor of his parents, Wesley J. Brazas, Sr., and Dolores M. Brazas. It is unclear whether respondent\u2019s actions in executing the quitclaim deed significantly affected the value of the parties\u2019 marital residence.\nOn April 27,1995, the trial court entered an order which directed that respondent pay petitioner\u2019s attorney the sum of $750 within 14 days so that her attorney could hire an expert witness to ascertain what effect respondent\u2019s actions had on the value of the marital residence. The trial court was going to' set a trial date for June 1, 1995, but respondent informed the court in the presence of petitioner\u2019s attorney that he would be serving on reserve duty and would be unable to appear in court on that date. The court scheduled a trial date of June 16, 1995.\nRespondent failed to pay the $750, and on May 26, 1995, petitioner\u2019s attorney mailed a notice of hearing on a motion for judgment, which hearing was set for .Tune 1,1995. The notice was mailed at 5 p.m. on Friday, May 26. The following Monday, May 29, was. Memorial Day and, thus, there was no mail service. Petitioner\u2019s motion alleged that respondent had not yet paid the $750 and requ\u00e9sted that the court enter a judgment against respondent in the amount of $750. Neither respondent nor his attorney was able to attend the \u25a0 hearing on June 1, 1995. Respondent was serving on reserve duty as he had previously notified the court and counsel. Respondent\u2019s counsel did not receive notice of the hearing until the morning of June 1, 1995. The court entered judgment against respondent on June 1, 1995, and specifically found that there was no just reason to stay appeal from or enforcement of the above judgment.\nOn June 16, 1995, respondent filed a motion to vacate the judgment entered on June 1, 1995, stating that he had been on reserve duty. At a hearing on that same date, the trial court inquired as to the nature of respondent\u2019s legal defenses to the judgment. Respondent\u2019s counsel responded that the judgment should be vacated because (1) the Soldiers\u2019 and Sailors\u2019 Civil Relief Act of 1940 (SSCRA) (50 U.S.C.A. app. \u00a7 501 et seq. (West 1990)) precluded the trial court from entering the judgment and (2) respondent did not have the money to pay the judgment. This appeal followed.\nWe note that petitioner has chosen not to file a brief in this proceeding. Respondent argues that the trial court erred in entering a judgment against him while he was in military service outside of the State of Illinois.\nThe SSCRA provides:\n\"At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as plaintiff or defendant, during the period of such service or within sixty days thereafter *** shall, on application to it by such person or some person on his behalf, be stayed as provided in this Act[,] *** unless, in the opinion of the court, the ability of *** the defendant to conduct his defense is not materially affected by reason of his military service.\u201d 50 U.S.C.A. app. \u00a7 521 (West 1990).\nThe provisions of the SSCRA apply to military reservists. See Stephan v. United States, 490 F. Supp. 323, 325 (W.D. Mich. 1980). The SSCRA confers substantial rights and should be liberally construed. Continental Illinois National Bank & Trust Co. v. University of Notre Dame du Lac, 394 Ill. 584, 589 (1946). While a trial court does hav\u00e9 the discretion as to whether to grant a stay or continuance, a person\u2019s absence when his rights and liabilities are being adjudged is usually prima facie prejudicial. See Continental, 394 Ill. at 590.\nIn the case at bar, respondent informed the court that he would be unavailable on June 1,1995, because he would be on reserve duty. Petitioner\u2019s attorney was present in court when respondent made this representation. Petitioner\u2019s attorney then proceeded to notice up the motion for judgment on the same date that respondent had previously indicated he would be on reserve duty. Further, petitioner\u2019s attorney sent notice of the hearing late on a Friday afternoon before a holiday weekend.\nAfter having examined the facts in the case at bar, we find that the trial court abused its discretion in entering the judgment against respondent while he was on reserve duty. While we recognize that respondent had failed to pay the court-ordered $750, petitioner and the trial court should have deferred judgment until respondent finished serving reserve duty.\nWe recognize petitioner\u2019s exasperation in attempting to obtain respondent\u2019s compliance with the court\u2019s order. However, we will not condone the actions of petitioner\u2019s counsel in setting a hearing date while respondent was serving on reserve duty in light of the protections afforded military personnel by the SSCRA. Mailing the notice late Friday afternoon on a holiday weekend, although seemingly proper, appears calculated to deny respondent\u2019s counsel a fair opportunity to be present when the motion was presented.\nThus, the judgment of the circuit court of Kane County is reversed.\nReversed.\nMcLaren, P.J, and HUTCHINSON, J., concur.",
        "type": "majority",
        "author": "JUSTICE INGLIS"
      }
    ],
    "attorneys": [
      "Wesley J. Brazas, Jr., of Hampshire, appellant pro se.",
      "No brief filed for appellee.",
      "Jeffrey B., Rifken, of Brittain & Ketcham, P.C., of Elgin, guardian ad litem."
    ],
    "corrections": "",
    "head_matter": "In re MARRIAGE OF MARIA C. BRAZAS, Petitioner-Appellee, and WESLEY J. BRAZAS, JR., Respondent-Appellant.\nSecond District\nNo. 2 \u2014 95 \u2014 0790\nOpinion filed February 28, 1996.\nRehearing denied April 2, 1996.\nWesley J. Brazas, Jr., of Hampshire, appellant pro se.\nNo brief filed for appellee.\nJeffrey B., Rifken, of Brittain & Ketcham, P.C., of Elgin, guardian ad litem."
  },
  "file_name": "0001-01",
  "first_page_order": 19,
  "last_page_order": 22
}