B-141945, MARCH 21, 1963, 42 COMP. GEN. 500

B-141945, MARCH 21, 1963, 42 COMP. GEN. 500

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - ANNULMENT OF WIDOW'S REMARRIAGE THE ANNULMENT OF A SECOND MARRIAGE DOES NOT REVIVE ENTITLEMENT TO ANNUITY PAYMENTS UNDER THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT, APPROVED AUGUST 8, 1953 (NOW RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431-1446), WHICH WERE TERMINATED WHEN THE SECOND MARRIAGE WAS ENTERED INTO, IN THE ABSENCE OF LEGISLATION AUTHORIZING THE REINSTATEMENT OF THE ANNUITY, AND IN VIEW OF THE CONFLICTING COURT DECISIONS CONCERNING THE EFFECT OF THE ANNULMENT OF A SECOND MARRIAGE ON THE REVIVAL OF TERMINATED BENEFITS.

TO MRS. FRANCES ROSENFIELD, MARCH 21, 1963:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 22, 1963, REQUESTING RECONSIDERATION OF OUR DECISION THAT YOUR REMARRIAGE ON JULY 28, 1956, TERMINATED YOUR ENTITLEMENT TO ANNUITY PAYMENTS AS WIDOW OF LIEUTENANT MYRON ROSENFIELD UNDER THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT, APPROVED AUGUST 8, 1953, CH. 393, 67 STAT. 501, AS AMENDED (NOW RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431- 1446), AND THAT THE SUBSEQUENT ANNULMENT OF YOUR REMARRIAGE DID NOT REVIVE YOUR ENTITLEMENT TO SUCH ANNUITY PAYMENTS.

IN THE CASE OF YEAGER V. FLEMMING, 282 F.2D 779 (1960), CITED BY YOU, THE COURT AUTHORIZED REVIVAL OF SOCIAL SECURITY BENEFITS AFTER INTERRUPTION BY A PURPORTED REMARRIAGE WHICH WAS DECLARED BY THE CONNECTICUT COURT TO BE NULL AND VOID AB INITIO. THAT DECISION WAS BASED ON THE LAWS GOVERNING THE SOCIAL SECURITY PROGRAM, REFERRED TO BY THE COURT AS "A PROGRAM WHICH THE COURTS HAVE DECLARED SHOULD BE LIBERALLY ENFORCED.' THE CASE OF SANTUELLI V. FOLSOM, 165 F.SUPP. 224 (1958), INVOLVED A SIMILAR SITUATION AND THE COURT THEREIN ALSO ALLOWED REINSTATEMENT OF A WIDOW'S SOCIAL SECURITY BENEFITS UPON ANNULMENT OF HER REMARRIAGE. AS INDICATED BY YOU, HOWEVER, THE ANNUITY SYSTEM SET UP UNDER THE CONTINGENCY OPTION ACT IS ENTIRELY SEPARATE AND DISTINCT FROM THE SOCIAL SECURITY SYSTEM, IS GOVERNED BY DIFFERENT LAWS, AND COURT DECISIONS INTERPRETING THE LAWS GOVERNING ONE SYSTEM ARE NOT NECESSARILY PROPER FOR APPLICATION IN CASES INVOLVING THE OTHER. THE YEAGER AND SANTUELLI DECISIONS, FOLLOWING THE EXPRESSED POLICY OF LIBERALLY CONSTRUING THE SOCIAL SECURITY LAWS, THEREFORE, DO NOT PROVIDE A BASIS FOR REVIVING YOUR ANNUITY UNDER THE CONTINGENCY OPTION ACT UPON ANNULMENT OF YOUR REMARRIAGE.

IN THE CASE OF HELEN I. GLOSS V. RAILROAD RETIREMENT BOARD, CASE NO. 16,906, UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA, DECIDED DECEMBER 27, 1962, INVOLVING A SITUATION SIMILAR TO YOURS, THE COURT HELD THAT THE ANNULMENT OF THE PETITIONER'S SECOND MARRIAGE "FROM ITS INCEPTION" DID NOT REVIVE HER RIGHT TO AN ANNUITY UNDER SECTION 5 (B) OF THE RAILROAD RETIREMENT ACT, APPROVED JUNE 24, 1937, CH. 382, 50 STAT. 312, AS AMENDED, 45 U.S.C. 228E (B). THE COURT DISTINGUISHED BETWEEN BENEFITS UNDER THE RAILROAD RETIREMENT ACT AND THOSE PROVIDED UNDER THE SOCIAL SECURITY ACT AND REFERRED TO A RECENT AMENDMENT TO THE LATTER ACT WHICH PROVIDES THAT WHERE A PROTECTED WIDOW'S SECOND HUSBAND DIES WITHIN A YEAR OF THE MARRIAGE, THE WIDOW'S SOCIAL SECURITY RIGHTS REVIVE. (SECTION 113, ACT OF AUGUST 1, 1956, CH. 836, 70 STAT. 831, 42 U.S.C. 402.) THE COURT POINTED OUT THAT ITS DECISION WAS IN ACCORD WITH THE DECISION IN THE CASE OF NOTT V. FLEMMING, 272 F.2D 380 (1959), INVOLVING SOCIAL SECURITY BENEFITS, AND THAT CONGRESS HAS NOT MADE PROVISION FOR REVIVAL OF ANNUITY UNDER THE RAILROAD RETIREMENT ACT.

ATTENTION IS INVITED TO THE FACT THAT CONGRESS HAS MADE SPECIFIC PROVISION FOR REVIVING WIDOWS' BENEFITS UNDER THE VETERANS ADMINISTRATION LAWS IN CERTAIN CASES UPON ANNULMENT OF A REMARRIAGE. PUBLIC LAW 87-674, APPROVED SEPTEMBER 19, 1962, 76 STAT. 558, 38 U.S.C. 103. HOWEVER, NO LEGISLATION HAS BEEN ENACTED TO AUTHORIZE REINSTATEMENT OF AN ANNUITY UNDER THE CONTINGENCY OPTION ACT UPON ANNULMENT OF A REMARRIAGE.

IN THE GLOSS DECISION, THE COURT REFERRED TO THE LAWS OF NEW YORK WHICH PROVIDE AUTHORITY TO AWARD ALIMONY WHERE A MARRIAGE HAS BEEN ANNULLED AND STATED:

THUS, TO THIS EXTENT AT LEAST, THE ANNULMENT DOES NOT RELATE BACK TO THE MARRIAGE AND OBLITERATE IT, AS APPELLANT HERE ARGUES. MOREOVER, THERE ARE OTHER MORE OBVIOUS LEGAL SEQUELAE OF ANNULLED MARRIAGES WHICH, UNDER THE LAWS OF VARIOUS STATES, INCLUDING NEW YORK, CANNOT BE OBLITERATED: FOR EXAMPLE, THE RIGHTS OF CHILDREN. SUCH CHILDREN ARE USUALLY LEGITIMATE. THUS IT CANNOT NOW BE SAID, AS CHIEF JUSTICE CARDOZO, SPEAKING FOR THE NEW YORK COURT OF APPEALS, ONCE DID, THAT ANNULMENT EFFACES A MARRIAGE "AS IF IT HAD NEVER BEEN.' SLEICHER V. SLEICHER, 251 N.Y. 366.

LIEUTENANT ROSENFIELD COULD HAVE ELECTED TO PROVIDE AN ANNUITY PAYABLE TO OR ON BEHALF OF HIS SURVIVING CHILDREN IN THE EVENT OF YOUR REMARRIAGE WHICH, PRESUMABLY, WOULD HAVE REQUIRED A LARGER DEDUCTION FROM HIS RETIRED PAY. THE AMOUNTS OF THE DEDUCTIONS ARE BASED ON ACTUARIAL TABLES AND IN THE COMPUTATIONS THEREOF THE PROBABILITY OF REMARRIAGE OF WIDOWS IS ONE OF THE FACTORS CONSIDERED.

IN VIEW OF THE CONFLICT IN THE COURT DECISIONS CONCERNING THE EFFECT OF THE ANNULMENT OF A SECOND MARRIAGE WITH RESPECT TO THE REVIVAL OF BENEFITS WHICH WERE TERMINATED WHEN THAT MARRIAGE WAS ENTERED INTO, AND IN THE ABSENCE OF EVIDENCE OF CONGRESSIONAL INTENT TO REVIVE AN ANNUITY UNDER THE CONTINGENCY OPTION ACT, OR ITS SUCCESSOR, THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, UPON ANNULMENT OF A REMARRIAGE, WE FIND NO BASIS FOR THE REINSTATEMENT OF YOUR ANNUITY. ACCORDINGLY, WE MUST ADHERE TO THE ACTION PREVIOUSLY TAKEN IN YOUR CASE.