B-131893, APR. 29, 1958

B-131893: Apr 29, 1958

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WAS NOT AUTHORIZED. WAS VOID AB INITIO. YOU STATE THAT RECONSIDERATION OF THE MATTER IS REQUESTED UNDER THE PROVISIONS OF SECTION 14 OF THE SESSION LAWS OF ALASKA. SETTING FORTH SECTION 2 OF THE 1917 STATUTE) WHILE ONE OF THEM IS MARRIED TO ANOTHER. THEY SHALL BE HELD TO HAVE BEEN LEGALLY MARRIED FROM AND AFTER THE REMOVAL OF THE IMPEDIMENT. THAT STATUTE IS PRACTICALLY IDENTICAL TO AN EARLIER MASSACHUSETTS STATUTE. IT IS NOT SUFFICIENT TO SHOW THAT THE PARTIES WENT THROUGH A MARRIAGE CEREMONY. IT IS NOTED THAT THE FINAL DECREE ENTERED CONTAINED ADVICE THAT THE DECREE "NISI" WOULD "BECOME ABSOLUTE AFTER THE EXPIRATION OF SIX MONTHS. UNLESS THE COURT SHALL HAVE FOR SUFFICIENT CAUSE. IT IS NOTED THAT AT THE TIME THE CLAIMANT OBTAINED THE DIVORCE SHE WAS.

B-131893, APR. 29, 1958

TO LIEUTENANT COLONEL C. W. GRIFFIN, USAF:

IN YOUR UNDATED LETTER FORWARDED HERE BY HEADQUARTERS USAF WITH LETTER DATED MARCH 25, 1958 (AIR FORCE REQUEST NO. 329), YOU REQUEST REVIEW OF OUR DECISION DATED AUGUST 7, 1957, TO YOU, B-131893. THAT DECISION HELD THAT PAYMENT OF THE SIX MONTHS' DEATH GRATUITY TO MRS. HELEN RITA STOREY AS WIDOW OF MASTER SERGEANT LESLIE J. STOREY, AF 6 571 103, WAS NOT AUTHORIZED, SINCE THE CEREMONIAL MARRIAGE OF THE PARTIES IN ALASKA ON SEPTEMBER 10, 1953, WAS VOID AB INITIO, FOR THE REASON THAT THE DECREE "NISI" ISSUED HELEN RITA IN HER SUIT FOR DIVORCE AGAINST JAMES ARTHUR CONNOR BY THE PROBATE COURT FOR THE COUNTY OF HAMPDEN, MASSACHUSETTS, ON JULY 8, 1953, HAD NOT BECOME FINAL AT THE TIME.

YOU STATE THAT RECONSIDERATION OF THE MATTER IS REQUESTED UNDER THE PROVISIONS OF SECTION 14 OF THE SESSION LAWS OF ALASKA, 1917 (SECTION 21-1 -5, ALASKA COMPILED LAWS ANNOTATED 1949). THAT SECTION PROVIDES THAT, IF PERSONS ENTER INTO A MARRIAGE CONTRACT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 1 OF THE ACT (THE LICENSE REQUIREMENT PROVISION REPEALED IN 1933 AND REENACTED IN 1939 AS AN AMENDMENT TO THAT SECTION OF THE COMPILED LAWS OF ALASKA, 1933, SETTING FORTH SECTION 2 OF THE 1917 STATUTE) WHILE ONE OF THEM IS MARRIED TO ANOTHER, ONE OF THEM ENTERING SUCH MARRIAGE IN GOOD FAITH, AND THEY CONTINUE TO LIVE TOGETHER AS HUSBAND AND WIFE AFTER REMOVAL OF THE IMPEDIMENT TO THEIR MARRIAGE, IN GOOD FAITH ON THE PART OF ONE OF THEM, THEY SHALL BE HELD TO HAVE BEEN LEGALLY MARRIED FROM AND AFTER THE REMOVAL OF THE IMPEDIMENT.

THAT STATUTE IS PRACTICALLY IDENTICAL TO AN EARLIER MASSACHUSETTS STATUTE. UNDER THE MASSACHUSETTS DECISION CONSTRUING ITS STATUTE, THERE MUST BE AN ABSENCE OF KNOWLEDGE OF FACTS RESPECTING THE MARITAL STATUS OF THE MARRIED PERSON BOTH AT THE TIME OF THE MARRIAGE AND AT THE TIME OF THE REMOVAL OF THE IMPEDIMENT. IT IS NOT SUFFICIENT TO SHOW THAT THE PARTIES WENT THROUGH A MARRIAGE CEREMONY, ETC., IN ACCORDANCE WITH THE FORM PRESCRIBED BY LAW OR THAT THEY LIVED TOGETHER AS HUSBAND AND WIFE. SEE LEVANOSKY V. LEVANOSKY, 311 MASS. 638, 42 N.E.2D 561; GARDNER V. GARDNER, 232 MASS. 253, 122 N.E. 308. CF. TOZIER V. HAVERHILL AND A.ST.RY. CO., 187 MASS. 179, 72 N.E. 953; FRASER V. FRASER, 133 N.E.2D 236.

"WHILE A COPY OF THE DECREE "NISI" HAS NOT BEEN FURNISHED, IT IS NOTED THAT THE FINAL DECREE ENTERED CONTAINED ADVICE THAT THE DECREE "NISI" WOULD "BECOME ABSOLUTE AFTER THE EXPIRATION OF SIX MONTHS, UNLESS THE COURT SHALL HAVE FOR SUFFICIENT CAUSE, ON APPLICATION OF ANY PARTY INTERESTED, OTHERWISE ORDERED.' ALSO, THE STATEMENTS ATTRIBUTED TO THE DECEASED SERVICE MEMBER DO NOT SHOW THAT HE MET THE REQUIREMENTS OF THE STATUTE ON HIS PART. IN THIS CONNECTION, IT IS NOTED THAT AT THE TIME THE CLAIMANT OBTAINED THE DIVORCE SHE WAS, ACCORDING TO THE DIVORCE DECREE, A RESIDENT OF HOLYOKE, MASSACHUSETTS, WHICH WAS THE RESIDENCE OF THE AIRMAN BEFORE HE ENTERED THE SERVICE. SINCE THE RECORD SHOWS THAT HE WAS AWARE OF HER PRIOR MARRIAGE, IT REASONABLY MAY BE ASSUMED THAT HE ALSO WAS AWARE OF THE DETAILS THEREOF, INCLUDING THE FACT THAT HER DIVORCE WAS NOT FINAL IN MASSACHUSETTS UNTIL SIX MONTHS AFTER THE DECREE "NISI" HAD BEEN ENTERED ON JULY 8, 1953. IN THAT CONNECTION, IN LETTER OF JANUARY 20, 1958, THE CLAIMANT STATES THAT,"WHEN WE MOVED ON BASE HE TOOK MY DIVORCE PAPERS AND OUR MARRIAGE PAPERS WITH HIM * * *," WHICH PRESUMABLY INDICATED WHEN THE DIVORCE WOULD BECOME EFFECTIVE.

YOU INDICATE THAT IN BRIGGS V. UNITED STATES, 116 C.CLS. 638, THE COURT OF CLAIMS APPLIED A PRESUMPTION OF GOOD FAITH WITH RESPECT TO A REMARRIAGE PRIOR TO THE DATE THE WOMAN'S DIVORCE FROM HER FORMER HUSBAND BECAME EFFECTIVE AND STATED THAT THERE WAS A STRONG PRESUMPTION IN FAVOR OF BRIGGS THAT HE DID NOT KNOWINGLY CONTRACT A BIGAMOUS MARRIAGE, LIVE IN ADULTERY, AND DEFRAUD THE GOVERNMENT.

IN 27 COMP. GEN. 432, WE SAID WITH RESPECT TO DECISIONS OF THE COURT OF CLAIMS THAT---

"IT LONG HAS BEEN ESTABLISHED THAT WHILE THE ACCOUNTING OFFICERS OF THE GOVERNMENT WILL GIVE SERIOUS CONSIDERATION TO THE DECISIONS OF THE COURT OF CLAIMS, THEY ARE NOT REQUIRED TO FOLLOW SUCH DECISIONS AS PRECEDENTS EXCEPT AS THEY ARE DEEMED TO BE CORRECT EXPOSITIONS OF THE LAW WITH RESPECT TO MATTERS COMING BEFORE THEM INVOLVING THE EXPENDITURE OF APPROPRIATIONS BY THE DEPARTMENTS AND AGENCIES OF THE GOVERNMENT. SEE 31 U.S.C. 74; 14 COMP. GEN. 648.'

CONCERNING THE PRESUMPTION OF THE VALIDITY OF A SECOND MARRIAGE, IT SEEMS TO US THAT THIS PRESUMPTION IN THIS CASE IS REBUTTED BY THE FACT THAT THIS MARRIAGE TOOK PLACE BEFORE THE CLAIMANT'S DIVORCE FROM HER PREVIOUS HUSBAND BECAME FINAL, AND HENCE THAT THE BURDEN WOULD BE ON HER TO ESTABLISH THE VALIDITY OF HER MARRIAGE TO THE DECEDENT. SEE COHN V. UNITED STATES, 83 F.SUPP. 1003; CAVENAUGH V. UNITED STATES, 94 F.SUPP. 776; HENDRICH V. ANDERSON, 191 F.2D 242. COMPARE LAWSON V. UNITED STATES, 192 F.2D 479, AND THE DISCUSSION AND AUTHORITIES CITED IN 23 COMP. GEN. 128.

IN ORDER TO RECEIVE THE DEATH GRATUITY, THE CLAIMANT MUST SHOW THAT SHE IS THE WIDOW OF THE DECEDENT. THIS SHE HAS NOT DONE. THE GOVERNMENT IS NOT REQUIRED TO SHOW THAT SHE IS NOT THE WIDOW. ON THE RECORD BEFORE US IT HAS NOT BEEN ESTABLISHED THAT THE PROVISIONS OF SECTION 21-1-5, ALASKA COMPILED LAWS ANNOTATED 1949, ARE FOR APPLICATION HERE. ON THE PRESENT RECORD PAYMENT OF THE DEATH GRATUITY TO HER IS NOT AUTHORIZED.

Nov 22, 2017

Nov 21, 2017

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    We deny the protest in part and dismiss the protest in part.
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Nov 16, 2017

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    We dismiss the protest because it raises a matter of contract administration over which we do not exercise jurisdiction.
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Nov 15, 2017

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