B-129962, NOV 26, 1974

B-129962, NOV 26, 1974

WHILE DIVORCED STATE DEPARTMENT EMPLOYEE IS FINANCIALLY RESPONSIBLE FOR THE SUPPORT OF HIS CHILDREN, HE IS NOT ENTITLED TO TRANSPORTATION ALLOWANCES FOR THEM SINCE MOTHER WAS AWARDED LEGAL CARE AND CUSTODY OF THE CHILDREN, CHILDREN'S PRIMARY PLACE OF ADOBE IS NOT WITH EMPLOYEE, AND THEY CANNOT BE CONSIDERED AS "RESIDING" WITH THE EMPLOYEE FOR PURPOSES OF SECTION 124.3C, VOLUME 3, FOREIGN AFFAIRS MANUAL.

PHILIP H CHADBOURN, JR. - TRAVEL OF DIVORCED EMPLOYEE'S CHILD:

BY LETTER DATED AUGUST 6, 1974, THE DEPUTY ASSISTANT SECRETARY OF STATE FOR BUDGET AND FINANCE, IN EFFECT REQUESTED REVIEW OF OUR DECISION REGARDING GENERAL ACCOUNTING OFFICE NOTICE OF EXCEPTION NO. 300045, ISSUED TO A DEPARTMENT OF STATE DISBURSING OFFICER ON JUNE 21, 1973, WHICH ASSERTED THAT THE CHILDREN OF A FOREIGN SERVICE OFFICER, PHILIP H. CHADBOURN, JR., DID NOT QUALIFY AS DEPENDENTS FOR TRAVEL REIMBURSEMENT PURPOSES. SINCE THE REQUEST INVOLVES THE GENERAL APPLICATION OF A REGULATION OF THE DEPARTMENT, THE LETTER WILL BE TREATED AS A REQUEST FOR A DECISION BY THE SECRETARY OF STATE. 31 U.S.C. 74 (1970).

THE RECORD INDICATES THAT THE EMPLOYEE SUBMITTED A RESIDENCE AND DEPENDENCY REPORT (FORM FS-304, NOW FORM JF-20) ON JULY 8, 1964, WHICH GAVE HIS MARITAL STATUS AS DIVORCED AND LISTED TWO CHILDREN AS DEPENDENTS WHO WOULD TRAVEL WITH HIM AT GOVERNMENT EXPENSE AND RESIDE WITH HIM ABROAD. THE CUSTODY PROVISIONS OF THE EMPLOYEE'S DIVORCE DECREE (CHADBOURN V. CHADBOURN, NO. 1476-A (CIRCUIT COURT OF WINSTON COUNTY, ALABAMA, MAY 13, 1964)), PROVIDES IN PART, THAT:

"SUBJECT TO THE ORDER OF ANY COURT OF COMPETENT JURISDICTION, THE WIFE SHALL HAVE THE LEGAL CARE, CUSTODY AND CONTROL OF THE TWO MINOR CHILDREN OF THE PARTIES HERETO, SUBJECT TO THE RIGHT OF REASONABLE VISITATION IN HUSBAND, AND SUBJECT FURTHER TO THE HUSBAND HAVING THE ACTUAL PHYSICAL CUSTODY AND CONTROL OF THE TWO MINOR CHILDREN OF THE PARTIES HERETO FOR THE ENTIRE SUMMER VACATION EACH YEAR, BEGINNING WITH THE SUMMER VACATION IN 1964. *** IT IS FURTHER AGREED THAT HUSBAND SHALL BEAR THE SOLE RESPONSIBILITY OF PROVIDING FOR AND PAYING FOR THE TRANSPORTATION OF SAID MINOR CHILDREN TO HIS POST OR LOCATION DURING AND FOR THE AFORE DESCRIBED SUMMER VISITATION." THE DIVORCE DECREE FURTHER PROVIDES THAT THE EMPLOYEE IS TO PAY $150 PER MONTH FOR THE SUPPORT OF EACH CHILD, AS WELL AS THE CHILD'S TRAVEL TO AND FROM HIS POST OF DUTY FOR THE SUMMER VISITATION.

THE EMPLOYEE TRAVELED ON PERMANENT CHANGE OF STATION FROM WASHINGTON, D.C., TO NICE, FRANCE, IN MARCH 1968 PURSUANT TO TRAVEL AUTHORIZATION NO. 8-63347, DATED DECEMBER 19, 1967, WHICH ALSO AUTHORIZED TRAVEL OF THE EMPLOYEE'S TWO CHILDREN. THE TWO CHILDREN TRAVELED TO NICE IN JUNE 1968 AT GOVERNMENT EXPENSE. THE OLDER DAUGHTER RETURNED TO THE UNITED STATES UNDER AN EDUCATION TRAVEL AUTHORIZATION IN AUGUST 1968, AND THE YOUNGER DAUGHTER RETURNED AT THE EMPLOYEE'S EXPENSE ON AUGUST 22, 1968. THE EMPLOYEE CLAIMED REIMBURSEMENT FOR THE YOUNGER CHILD'S TRAVEL ON VOUCHER NO. 236/468, DATED JULY 15, 1970, UNDER AUTHORITY OF A HOME LEAVE TRAVEL AUTHORIZATION, NO. 0-62866, DATED JANUARY 23, 1970. EXCEPTION WAS TAKEN TO CERTIFICATION OF THIS CLAIM. SUBSEQUENTLY, THIS EXCEPTION WAS BROADENED TO INCLUDE ADDITIONAL TRAVEL EXPENSES OF THE EMPLOYEE'S TWO CHILDREN, INCLUDING EDUCATION TRAVEL AUTHORIZATIONS, SO THAT THE AMOUNT OF THE EXCEPTION TOTALS $3,020.51.

VOLUME 3 OF FOREIGN AFFAIRS MANUAL, SECTION 124.3C, PROVIDES IN PART AS FOLLOWS:

"ONLY THOSE DEPENDENTS, OTHER THAN SPOUSE, WHO WILL TRAVEL AT GOVERNMENT EXPENSE AND RESIDE WITH THE EMPLOYEE ARE LISTED ON JF-20. ***"

(FOREIGN AFFAIRS MANUAL, VOLUME 3, TRANSMITTAL LETTER: PER-283, MAY 8, 1970, INDICATES FS 304 WAS A PRIOR FORM OF JF-20.)

WHILE THE INFORMATION FURNISHED BY THE EMPLOYEE INDICATES THAT THE CHILDREN ARE HIS LEGAL DEPENDENTS, THE DIVORCE DECREE DATED MAY 13, 1964, STATES THAT THE MOTHER SHALL HAVE THE LEGAL CARE, CUSTODY AND CONTROL OF THE TWO MINOR CHILDREN AND THE HUSBAND SHALL HAVE THE ACTUAL PHYSICAL CUSTODY AND CONTROL OF THE TWO MINOR CHILDREN ONLY FOR THE SUMMER VACATION EACH YEAR. A SIMILAR SITUATION WAS CONSIDERED IN B 129962, JANUARY 4, 1957, IN WHICH THE EMPLOYEE'S CHILDREN ACTUALLY RESIDED WITH THEIR MOTHER FOR 10 MONTHS OF THE YEAR AND THE EMPLOYEE WAS GRANTED CUSTODY FOR 2 MONTHS. WE CONCLUDED THAT THE CHILDREN'S STAY WITH THE EMPLOYEE WAS IN THE NATURE OF A PERMITTED VISIT, AND THAT THEY THEREFORE DID NOT "RESIDE" WITH THE EMPLOYEE AS REQUIRED BY 3 FAM 124.2 (NOW 3 FAM 124.3C QUOTED ABOVE). THE TERMS "RESIDE" AND "RESIDENCE" VARY IN MEANING ACCORDING TO THEIR CONTEXT WITHIN THE STATUTE OR REGULATION AND THE LEGISLATIVE OR ADMINISTRATIVE PURPOSES. SEE DISCUSSION IN 25 AM. JUR. 2D DOMICIL 4 (1966) AND RESTATEMENT (SECOND) OF CONFLICT OF LAWS 11K (1971). IN SOME INSTANCES RESIDENCE REQUIRES MERE PHYSICAL PRESENCE, IN OTHERS A MORE PERMANENT CONNECTION TO A PLACE IS NECESSARY. IN VIEW OF THE FACT THAT DEPARTMENT OF STATE REGULATIONS DO NOT PROVIDE FOR FAMILY TRAVEL TO MERELY VISIT THE EMPLOYEE FOR A SHORT PERIOD OF TIME AT HIS POST OF DUTY, "RESIDE" AS USED IN SECTION 124.3C WOULD REQUIRE AT LEAST THAT THE DEPENDENT'S PRIMARY PLACE OF YEARLY ADOBE BE WITH THE EMPLOYEE, WHEREVER THAT MAY BE, OR THAT THE EMPLOYEE HAVE LEGAL CARE OR CUSTODY OF THE DEPENDENT FOR THE GREATER PART OF A YEAR. THE LATTER REQUIREMENT, BEING BASED ON A LEGAL CARE OR CUSTODY CONCEPT, WOULD PROVIDE SUFFICIENT AUTHORITY TO CONSIDER DEPENDENTS AS "RESIDING" WITH THE PERSON HAVING CUSTODY WITHIN THE MEANING OF 3 FAM 124.3C WHEN IT IS TO THEIR ADVANTAGE TO LIVE ELSEWHERE THAN IN THE ACTUAL RESIDENCE OF THE PARTY HAVING CUSTODY FOR THE PURPOSE OF ATTENDING SCHOOL, ETC.

IN THE INSTANT CASE MR. CHADBOURN DID NOT HAVE LEGAL CUSTODY OF THE CHILDREN AND THEY LIVED WITH HIM ONLY WHILE VISITING HIM DURING THEIR VACATION. ACCORDINGLY, THEY MAY NOT BE CONSIDERED AS "RESIDING" WITH THE EMPLOYEE FOR THE PURPOSE OF CHARGING THE GOVERNMENT WITH THE EXPENSES OF THEIR TRAVEL. SEE B-129962, SUPRA. CF. 52 COMP. GEN. 878 (1973).