B-176867, OCT 12, 1972

B-176867, OCT 12, 1972

MILITARY PERSONNEL - ALLOTMENTS FOR ALIMONY - ERRONEOUS PAYMENTS - RECOVERY DECISION REGARDING THE LIABILITY OF JULAIN E. LARAMORE FOR REPAYMENT OF THE SUM OF $2,975, REPRESENTING MONTHLY ALLOTMENTS OF $175 EACH FOR A 17- MONTH PERIOD ERRONEOUSLY PAID TO HER ON THE ACCOUNT OF HER FORMER HUSBAND, COMMANDER CHARLES E. SOUTHWICK, USN, WHO IS NOW A PRISONER OF WAR. SINCE MRS. LARAMORE WAS AWARE OF THE TERMS OF THE DIVORCE DECREE, IT MAY BE PRESUMED THAT SHE BELIEVED OR HAD REASON TO BELIEVE THAT THE ALLOTMENT PAYMENTS COVERED NOT ONLY SUPPORT FOR THE CHILDREN BUT ALSO HER ALIMONY. THEREFORE, EVEN THOUGH THE NAVY MAY HAVE ERRED IN CONTINUING PAYMENT OF THE ALLOTMENT AFTER RECEIPT OF NOTIFICATION OF MRS. LARAMORE'S REMARRIAGE, THE GOVERNMENT WOULD NOT BE PRECLUDED FROM RECOVERING THE OVERPAYMENT BECAUSE IT IS A FUNDAMENTAL RULE THAT PERSONS WHO RECEIVE MONEY ERRONEOUSLY PAID BY A GOVERNMENT AGENCY OR OFFICIAL ACQUIRE NO RIGHT TO THE MONEY AND ARE BOUND TO REPAY IT. SEE UNITED STATES V. BENTLEY, 107 F.2D 382 (2D CIR., 1939). HOWEVER, NO AUTHORITY EXISTS FOR REDUCING OR TEMPORARILY TERMINATING THE ALLOTMENTS NOW BEING PAID MRS. LARAMORE FOR SUPPORT OF THE CHILDREN.

TO MR. SECRETARY:

BY LETTER DATED AUGUST 18, 1972, WITH ENCLOSURES, THE UNDER SECRETARY OF THE NAVY REQUESTED A DECISION AS TO THE LIABILITY OF MRS. JULIAN E. LARAMORE FOR REPAYMENT OF THE SUM OF $2,975, REPRESENTING MONTHLY ALLOTMENTS OF $175 EACH FOR A 17-MONTH PERIOD ERRONEOUSLY PAID TO HER ON THE ACCOUNT OF HER FORMER HUSBAND, COMMANDER CHARLES E. SOUTHWICK, UNITED STATES NAVY, WHO IS NOW A PRISONER OF WAR. THIS REQUEST WAS ASSIGNED SUBMISSION NUMBER SS-N-1163 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE FACTS IN THIS CASE AS RELATED BY THE UNDER SECRETARY IN HIS LETTER ARE AS FOLLOWS:

"A. ON APRIL 7, 1964, COMMANDER CHARLES E. SOUTHWICK, UNITED STATES NAVY (THEN LIEUTENANT COMMANDER), AND HIS FORMER WIFE, PRESENTLY MRS. JULIAN E. LARAMORE, WERE SEPARATED BY AN INTERLOCUTORY JUDGMENT OF DIVORCE. COMMANDER SOUTHWICK WAS ORDERED TO PAY $225.00 PER MONTH TOTAL SUPPORT FOR HIS THREE CHILDREN AND $175.00 PER MONTH ALIMONY TO HIS FORMER WIFE.

"B. ON JANUARY 24, 1967, COMMANDER SOUTHWICK AUTHORIZED AN ALLOTMENT IN THE AMOUNT OF $400.00 TO BE PAID TO HIS FORMER WIFE AND CONTAINING THE LANGUAGE '... FOR THE SUPPORT OF CHARLES E., JR., MICHAEL C., AND CLARINE E. SOUTHWICK, ET AL.' (COMMANDER SOUTHWICK'S CHILDREN).

"C. ON MAY 14, 1967, COMMANDER SOUTHWICK WAS DECLARED A PRISONER OF WAR IN NORTH VIETNAM. THAT STATUS REMAINS UNCHANGED TO DATE.

"D. ON DECEMBER 1, 1970, HIS FORMER WIFE REMARRIED AND NOTIFIED THE NAVY OF HER REMARRIAGE SHORTLY THEREAFTER, REQUESTING THAT 'MY CHILDREN'S SUPPORT CHECK' BE MADE PAYABLE ACCORDING TO HER NEW NAME.

"E. AFTER HER REMARRIAGE, MRS. LARAMORE CONTINUED TO RECEIVE THE FULL $400.00 ALLOTMENT FOR A PERIOD OF 17 MONTHS. THE TOTAL AMOUNT OF OVERPAYMENT WAS $2,975.00.

"F. IN DECEMBER OF 1971, THE NAVY REQUESTED OF MRS. LARAMORE AND OBTAINED A COPY OF THE DECREE OF HER DIVORCE FROM COMMANDER SOUTHWICK. IT WAS AT THIS POINT THAT THE NAVY FIRST BECAME AWARE THAT THE COURT HAD ORDERED COMMANDER SOUTHWICK TO PAY $225.00 PER MONTH CHILD SUPPORT AND $175.00 PER MONTH ALIMONY.

"G. ON JANUARY 12, 1972, THE NAVY NOTIFIED MRS. LARAMORE THAT, UNDER SEC 4801 CALIFORNIA CIVIL CODE, UPON HER REMARRIAGE SHE WAS NO LONGER ENTITLED TO RECEIVE ALIMONY PAYMENTS. IT WAS REQUESTED THAT MRS. LARAMORE RETURN THE FULL AMOUNT OF THE OVERPAYMENTS OR MAKE ARRANGEMENTS FOR REPAYMENT. THE PART OF THE ALLOTMENT ALLOCABLE TO ALIMONY WAS TERMINATED.

"H. ON FEBRUARY 2, 1972, MRS. LARAMORE'S ATTORNEY NOTIFIED THE NAVY THAT MRS. LARAMORE DID NOT INTEND TO REPAY THE OVERPAYMENT. HER ATTORNEY CONTENDS THAT THE CHILD SUPPORT OF $225.00 FOR THREE CHILDREN AWARDED IN 1964 IS NOW INSUFFICIENT BUT THAT, INASMUCH AS COMMANDER SOUTHWICK IS NOT NOW AVAILABLE TO TAKE TO COURT, MRS. LARAMORE IS UNABLE TO HAVE THE SUPPORT INCREASED UNTIL HIS RETURN. HE ALSO ARGUES THAT THE ALLOTMENT WAS MADE OUT VOLUNTARILY BY COMMANDER SOUTHWICK; THAT THE MONEY CONCERNED WAS HIS MONEY; THAT THE NAVY WAS THEREFORE UNDER A DUTY TO MAKE THE PAYMENT AS DIRECTED; AND, CONSEQUENTLY, THE NAVY NOW HAS NO STANDING TO DEMAND REPAYMENT."

COPIES OF THE INTERLOCUTORY JUDGMENT OF DIVORCE DATED APRIL 15, 1964, DECLARATION/AFFIDAVIT FOR FINAL JUDGMENT OF DIVORCE, DATED APRIL 16, 1965, ALLOTMENT AUTHORIZATION EXECUTED BY COMMANDER SOUTHWICK, AND THE CORRESPONDENCE MENTIONED ABOVE ACCOMPANIED THE UNDER SECRETARY'S LETTER.

THE UNDER SECRETARY HAS STATED THAT THE FACTUAL SITUATION IN THIS CASE DOES NOT APPEAR TO BE DIRECTLY COVERED BY THE MISSING PERSONS ACT AND SINCE THERE APPEARS TO BE PRESENT IN THE CASE A MATTER OF SIMPLE NEGLIGENCE OR MISTAKE IT IS QUESTIONABLE AS TO WHETHER THE ONLY PROVISION OF THAT ACT WHICH WOULD RELATE TO THE CASE, 37 U.S.C. 556(E), IS FOR APPLICATION. THAT PROVISION OF LAW STIPULATES THAT WHEN THE ACCOUNT OF A MEMBER HAS BEEN CHARGED OR DEBITED WITH AN ALLOTMENT "PAID UNDER THIS CHAPTER," THE AMOUNT SO CHARGED OR DEBITED SHALL BE RECREDITED TO THE ACCOUNT OF THE MEMBER IF THE SECRETARY CONCERNED, OR HIS DESIGNEE, DETERMINES THAT THE PAYMENT WAS INDUCED BY FRAUD OR MISREPRESENTATION TO WHICH THE MEMBER WAS NOT A PARTY.

IN HIS DISCUSSION OF THE LEGAL ISSUES INVOLVED IN THIS CASE, THE UNDER SECRETARY SAYS THAT IT COULD BE ARGUED THAT MRS. LARAMORE KNEW SHE WAS BEING UNJUSTLY ENRICHED AND SHOULD HAVE SPECIFICALLY REQUESTED THE DISCONTINUANCE OF THAT PORTION OF THE ALLOTMENT ALLOCABLE TO ALIMONY, BUT THAT THIS ISSUE IS CLOUDED BECAUSE THE ALLOTMENT AUTHORIZATION ONLY NAMES COMMANDER SOUTHWICK'S CHILDREN AND NOT HIS WIFE, EVEN THOUGH IT MAY BE REASONABLY ASSUMED THAT A PORTION WAS INTENDED FOR ALIMONY.

THE UNDER SECRETARY ALSO SAYS THAT IT COULD BE ARGUED, ON THE OTHER HAND, THAT CONSIDERING THE WIDE RANGE OF RESPONSIBILITY TO A MISSING MEMBER IMPOSED UPON THE ARMED SERVICES UNDER THE MISSING PERSONS ACT, THE NAVY SHOULD HAVE TAKEN SPECIAL PRECAUTIONS TO INQUIRE FURTHER AS TO THE NATURE OF THE ALLOTMENT WHEN IT WAS NOTIFIED BY MRS. LARAMORE IN DECEMBER 1970 THAT SHE HAD REMARRIED, RATHER THAN WAITING A YEAR LATER TO OBTAIN A COPY OF THE DECREE OF DIVORCE WHICH REVEALED HER ENTITLEMENT TO ALIMONY OF $175 PER MONTH. IN THIS CONNECTION, HE POINTS OUT THAT THE EFFECT OF THE NAVY'S INACTION WOULD SEEM TO BE MITIGATED BY THE LANGUAGE OF MRS. LARAMORE'S LETTER IN THAT SHE REFERRED TO THE ALLOTMENT SIMPLY AS "MY CHILDREN'S SUPPORT CHECK" AND DID NOT INDICATE THAT ACTUALLY PART OF THE AMOUNT APPLIED TO ALIMONY.

IN VIEW OF THE CIRCUMSTANCES SURROUNDING THE OVERPAYMENT OF THE ALLOTMENT, THE UNDER SECRETARY HAS REQUESTED AN ADVANCE DECISION WITH RESPECT TO RECOVERY OF THE OVERPAYMENTS FROM MRS. LARAMORE ON BEHALF OF THE NAVY OR COMMANDER SOUTHWICK; MRS. LARAMORE'S LEGAL LIABILITY TO REPAY THE OVERPAYMENTS AND, IF SUCH LIABILITY IS ESTABLISHED, WHETHER THE ALLOTMENT OF $225 FOR THE CHILDREN'S SUPPORT CAN BE REDUCED OR TEMPORARILY TERMINATED TO EFFECT REPAYMENT.

SECTION 702, TITLE 37, U. S. CODE, PROVIDES THAT THE SECRETARY OF THE NAVY, UNDER REGULATIONS PRESCRIBED BY HIM, MAY PERMIT AN OFFICER OF THE NAVY OR MARINE CORPS TO MAKE ALLOTMENTS OF HIS PAY, FOR THE SUPPORT OF HIS FAMILY OR RELATIVES, FOR HIS OWN SAVINGS, OR FOR OTHER PURPOSES. SECTION 553(A) OF THE SAME TITLE PROVIDES THAT NOTWITHSTANDING THE END OF THE PERIOD FOR WHICH IT WAS MADE, AN ALLOTMENT, INCLUDING ONE FOR THE PURCHASE OF UNITED STATES SAVINGS BONDS, MADE BY A MEMBER OF A UNIFORMED SERVICE BEFORE HE WAS IN A MISSING STATUS MAY BE CONTINUED FOR THE PERIOD HE IS ENTITLED TO PAY AND ALLOWANCES UNDER SECTION 552 OF THAT TITLE.

IMPLEMENTING REGULATIONS ARE CONTAINED IN THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL. PARAGRAPH 60213A THEREOF SPECIFIES THAT OFFICERS AND ENLISTED MEMBERS OF THE SERVICES MAY AUTHORIZE ALLOTMENTS OF PAY FOR THE SUPPORT OF THEIR DEPENDENTS, RELATIVES, OR DIVORCED WIFE AND PARAGRAPH 60213B SPECIFIES THAT A CLASS D ALLOTMENT MAY BE ESTABLISHED BY THE NAVY AND MARINE CORPS FOR THOSE PURPOSES. PARAGRAPH 40304 SPECIFIES THAT ALLOTMENTS IN EFFECT BEFORE A MEMBER ENTERS A MISSING STATUS MAY BE CONTINUED AND AS DIRECTED BY THE SECRETARY OF THE DEPARTMENT CONCERNED OR HIS DESIGNEE, ALLOTMENTS MAY BE INITIATED, SUSPENDED, RESUMED, INCREASED, DECREASED, OR DISCONTINUED WHERE CIRCUMSTANCES SO WARRANT IN THE INTEREST OF THE MISSING MEMBER, HIS DEPENDENTS, OR THE GOVERNMENT.

SECTION 4801 OF DEERING'S CALIFORNIA CODES, ANNOTATED, MENTIONED IN THE UNDER SECRETARY'S LETTER, PROVIDES IN PART AS FOLLOWS:

"(B) EXCEPT AS OTHERWISE AGREED BY THE PARTIES IN WRITING, THE OBLIGATION OF ANY PARTY UNDER ANY ORDER OR JUDGMENT FOR THE SUPPORT AND MAINTENANCE OF THE OTHER PARTY SHALL TERMINATE UPON THE DEATH OF EITHER PARTY OR THE REMARRIAGE OF THE OTHER PARTY. ***"

THE PREDECESSOR LAW, SECTION 139, WHICH WAS IN EFFECT UNTIL JANUARY 1, 1970, WAS SUBSTANTIALLY SIMILAR IN WORDING.

IN THE ABSENCE OF EVIDENCE SHOWING THAT COMMANDER SOUTHWICK WAS MAKING PAYMENTS DIRECTLY TO MRS. LARAMORE AS ALIMONY PAYMENTS, WE VIEW THE CLASS D ALLOTMENT OF $400 PER MONTH WHICH HE INITIATED ON JANUARY 24, 1967, AS BEING INTENDED TO COVER ALIMONY OF $175 PER MONTH FOR MRS. LARAMORE AND MONTHLY SUPPORT PAYMENTS OF $225 FOR THE THREE CHILDREN IN COMPLIANCE WITH THE DIVORCE DECREE. IT WILL BE NOTED IN THIS CONNECTION THAT THE ALLOTMENT AUTHORIZATION FORM WHICH HE EXECUTED ON THAT DATE DID NOT REQUIRE AN EXPLANATION OF THE PURPOSE OF THE ALLOTMENT. HOWEVER, IN ORDER TO MAKE FULL PAYMENT IN ACCORDANCE WITH THE DIVORCE DECREE COMMANDER SOUTHWICK NAMED MRS. LARAMORE AS RECIPIENT AND IN THE SPACE PROVIDED FOR "ACCOUNT NUMBER OR FOR ACCOUNT OF" HE MADE THE FOLLOWING EXPLANATION: "FOR SUPPORT OF CHARLES E. JR., MICHAEL C. & CLARINE E. SOUTHWICK ET AL." MAY BE PRESUMED IN SUCH INSTANCE THAT THE WORDS "ET AL" (AND OTHERS) CONNOTED THE SUPPORT OF MRS. LARAMORE AS WELL, THAT IS, PAYMENT OF ALIMONY UNDER THE DIVORCE DECREE.

SINCE THE DIVORCE DECREE PROVIDED FOR THE CHILDREN'S SUPPORT AT THE RATE OF $225 PER MONTH WHEREAS EACH MONTHLY PAYMENT RECEIVED BY MRS. LARAMORE FROM FEBRUARY 1, 1967, THE EFFECTIVE DATE OF THE ALLOTMENT, WAS FOR $400, IT MAY ALSO BE PRESUMED THAT SHE BELIEVED OR HAD REASON TO BELIEVE THAT THE ALLOTMENT PAYMENTS CONSTITUTED NOT ONLY SUPPORT FOR THE CHILDREN BUT ALSO HER ALIMONY. IT SEEMS OBVIOUS THAT SHE KNEW THE PAYMENTS WERE NOT SOLELY FOR THE SUPPORT OF THE CHILDREN OR SHE WOULD HAVE REQUESTED THE NAVY TO HAVE SUCH PAYMENTS INCREASED TO THE EXTENT OF HER ALIMONY AWARD OF $175 PER MONTH.

UNDER THE ABOVE-QUOTED PROVISION OF THE CALIFORNIA LAW THE ALIMONY AWARD IN FAVOR OF MRS. LARAMORE WAS AUTOMATICALLY TERMINATED ON THE DATE OF HER REMARRIAGE, DECEMBER 1, 1970. THEREAFTER THERE WAS NO LEGAL OBLIGATION ON THE PART OF THE NAVY TO CHARGE COMMANDER SOUTHWICK'S ALLOTMENT ACCOUNT FOR ANY AMOUNT OVER AND ABOVE THE SUPPORT PAYMENT OF $225 TO THE CHILDREN.

IT IS OUR OPINION THAT MRS. LARAMORE SHOULD HAVE SPECIFICALLY INDICATED IN HER LETTER OF DECEMBER 1, 1970, THAT HER REMARRIAGE AFFECTED THAT PORTION OF THE ALLOTMENTS WHICH COVERED HER ALIMONY PAYMENTS AND THAT SHE SHOULD HAVE REQUESTED THE NAVY TO FORWARD TO HER IN HER CHANGED NAME CHECKS ONLY IN THE AMOUNT OF $225 PER MONTH FOR THE CHILDREN'S SUPPORT. IT IS ALSO OUR OPINION, ON THE OTHER HAND, THAT UPON RECEIPT OF THAT LETTER THE NAVY DEPARTMENT WAS PLACED ON NOTICE OF A POSSIBILITY THAT THE CHECKS MAY ALSO HAVE COVERED ALIMONY PAYMENTS IN VIEW OF THE CONTENTS OF THAT LETTER AND THE INFORMATION CONTAINED IN COMMANDER SOUTHWICK'S ALLOTMENT AUTHORIZATION - A CLASS D ALLOTMENT AUTHORIZATION WHICH COULD BE VIEWED AS COVERING SUPPORT OF DEPENDENTS AND A DIVORCED WIFE AND WHICH CONTAINED INFORMATION DISCLOSING THAT THE ALLOTMENT WAS FOR THE SUPPORT OF HIS NAMED CHILDREN "AND OTHERS." THEREFORE, HAD THE NAVY PRUDENTLY AND TIMELY INQUIRED INTO THIS MATTER IT WOULD HAVE ASCERTAINED THAT THE ALIMONY PORTION OF THE ALLOTMENT HAD TERMINATED UPON MRS. LARAMORE'S REMARRIAGE.

HOWEVER, NOTWITHSTANDING THAT THE NAVY MAY HAVE ERRED IN PERMITTING ALLOTMENT CHECKS OF $400 EACH TO BE MAILED TO MRS. LARAMORE AFTER THE RECEIPT OF HER LETTER OF DECEMBER 1, 1970, THE GOVERNMENT WOULD NOT BE PRECLUDED FROM RECOVERING THE OVERPAYMENT OF $2,975 MADE TO HER. IT IS A FUNDAMENTAL RULE THAT PERSONS WHO RECEIVE MONEY ERRONEOUSLY PAID BY A GOVERNMENT AGENCY OR OFFICIAL ACQUIRE NO RIGHT TO SUCH MONEY AND THE COURTS CONSISTENTLY HAVE HELD THAT SUCH PERSONS ARE BOUND IN EQUITY AND GOOD CONSCIENCE TO MAKE RESTITUTION. IN THE CASE OF UNITED STATES V. BENTLEY, 107 F.2D 382 (2ND CIR., 1939), IT WAS HELD THAT PAYMENTS MADE THROUGH MISTAKES OF OFFICERS OF THE UNITED STATES ARE RECOVERABLE AND THAT THE SUPPOSED HARDSHIP OF REFUNDING WHAT THE DEFENDANT MAY HAVE SPENT CANNOT STAND AGAINST THE INJUSTICE OF KEEPING WHAT NEVER RIGHTFULLY BELONGED TO HIM. A SIMILAR RULE WAS ENUNCIATED IN THE CASE OF UNITED STATES V. DORGAN, 157 F. SUPP. 864 (MAINE, ND 1958). LIKEWISE IN THE RECENT CASE OF DISILVESTRO V. UNITED STATES, 405 F.2D 150 (2ND CIR., 1968), THE COURT IN CITING A SERIES OF DECISIONS INCLUDING UNITED STATES V. WURTS, 303 U.S. 414, 415 (1938) AND GRAND TRUNK W. RY. V. UNITED STATES, 252 U.S. 112, 120-121 (1920), SAID THAT

"IT IS, OF COURSE, WELL ESTABLISHED THAT PARTIES RECEIVING MONIES FROM THE GOVERNMENT UNDER A MISTAKE OF FACT OR LAW ARE LIABLE EX AEQUO ET BONO TO REFUND THEM, AND THAT NO SPECIFIC STATUTORY AUTHORIZATION UPON WHICH TO BASE A CLAIMED RIGHT OF SET-OFF OR AN AFFIRMATIVE ACTION FOR THE RECOVERY OF THESE MONIES IS NECESSARY."

ACCORDINGLY, IT IS OUR CONCLUSION THAT NO LEGAL BASIS EXISTS FOR PERMITTING MRS. LARAMORE TO RETAIN THE AMOUNT OF $2,975 ERRONEOUSLY PAID TO HER. INASMUCH AS SUCH ERRONEOUS PAYMENT REPRESENTS THE ALIMONY PORTION OF THE ALLOTMENTS RECEIVED BY HER AND SINCE ALIMONY WAS REQUIRED TO BE PAID IN COMPLIANCE WITH A PROVISION IN THE DIVORCE DECREE WHICH IS SEPARATE AND APART FROM THAT PROVISION IN THE DECREE DIRECTING PAYMENTS FOR THE SUPPORT OF THE CHILDREN, NO LEGAL AUTHORITY EXISTS FOR REDUCING OR TEMPORARILY TERMINATING THE ALLOTMENTS NOW BEING PAID TO MRS. LARAMORE FOR SUPPORT OF THE CHILDREN TO LIQUIDATE HER INDEBTEDNESS.