B-141895, MAR 25, 1960

B-141895, MAR 25, 1960

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL DAN E. ROBERTSON:

FINANCE AND ACCOUNTING OFFICER

THROUGH OFFICE OF CHIEF OF FINANCE

DEPARTMENT OF THE ARMY

BY THIRD INDORSEMENT DATED FEBRUARY 2, 1960, THE OFFICE OF CHIEF OF FINANCE, U.S. ARMY (UNDER D.C. NO. 476, ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE), FORWARDED YOUR LETTER OF NOVEMBER 18, 1959, REQUESTING A DECISION AS TO THE MARITAL STATUS OF COMMISSIONED WARRANT OFFICER PHILLIPS T. KIMBALL AND HIS ELIGIBILITY FOR ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS AND TRANSPORTATION AS FOR AN OFFICER WITH DEPENDENT WIFE UNDER THE CIRCUMSTANCES SET FORTH IN THE ENCLOSURES SUBMITTED WITH YOUR LETTER: DD FORM 137, APPLICATION FOR BASIC ALLOWANCE FOR QUARTERS FOR MEMBER WITH DEPENDENTS DATED OCTOBER 19, 1959; DA FORM 3129, MILITARY PAY VOUCHER DATED NOVEMBER 16, 1959; A MEXICAN MARRIAGE CERTIFICATE DATED OCTOBER 10, 1959, AND A MEXICAN DECREE OF DIVORCE DATED OCTOBER 7, 1959.

IT APPEARS FROM THE MATERIAL SUBMITTED THAT THE OFFICER AND DORIS IRENE CRUICKSHANK WERE MARRIED ON SEPTEMBER 9 1942, IN LOWELL, MASSACHUSETTS; THAT AS THE ISSUE OF THE MARRIAGE THERE ARE THREE CHILDREN, PHILLIPS, JR., VICKARY, AND DORIS, ALL BORN IN LOWELL, MASSACHUSETTS, AT PRESENT IN THE CUSTODY OF THEIR MOTHER; THAT ON OCTOBER 7, 1959, THE OFFICER WAS GRANTED A DIVORCE DECREE FROM DORIS BY THE FIRST CIVIL COURT OF THE DISTRICT OF BRAVOS, STATE OF CHIHUAHUA, REPUBLIC OF MEXICO; THAT DEFENDANT, DORIS, WAS SERVED WITH SUMMONS BY AUTHORITIES OF EAU GALLIE, FLORIDA, AND RETURN OF SERVICE RECORDED IN THE MEXICAN COURT, BUT SHE DID NOT APPEAR OR CONTEST THE PROCEEDINGS; THAT THE HUSBAND CONTRIVED CONSTRUCTIVE RESIDENCE IN MEXICO BY A CERTIFICATE SHOWING REGISTRATION AS A RESIDENT IN THE MUNICIPAL REGISTER IN THE CITY OF JUAREZ, BUT APPARENTLY DID NOT OTHERWISE ESTABLISH A RESIDENCE OR DOMICILE THERE; THAT THE COURT IN ITS DECREE AWARDED CUSTODY OF THE CHILDREN TO DORIS BUT MADE NO PROVISION FOR THEIR SUPPORT; AND THAT ON OCTOBER 10, 1959, THE OFFICER CONTRACTED MARRIAGE WITH GLORIA C. GILL AT JUAREZ, MEXICO.

DOMICILE IS MATERIAL WITH RESPECT TO THE VALIDITY OF AN OUT OF STATE DIVORCE. WILLIAMS V. NORTH CAROLINA, 325 U.S. 226. IT IS WELL ESTABLISHED THAT UNLESS A FOREIGN COURT GRANTING A DIVORCE HAD JURISDICTION OVER THE SUBJECT MATTER OF THE DIVORCE BY REASON OF BONA FIDE RESIDENCE OR DOMICILE OF AT LEAST ONE OF THE PARTIES, ITS DECREE WILL NOT, UNDER THE RULES OF INTERNATIONAL COMITY, BE RECOGNIZED IN THE UNITED STATES, EVEN THOUGH THE LAWS OF SUCH FOREIGN COUNTRIES DO NOT MAKE RESIDENCE OR DOMICILE A CONDITION TO ITS COURTS TAKING JURISDICTION. SEE ANNOTATIONS IN 143 A.L.R. 1312, 157 A.L.R. 1422 AND 163 A.L.R. 377, AND CASES THERE CITED. INDICATIVE OF THE JUDICIAL ATTITUDE OF STATE COURTS IN THE UNITED STATES IS A CASE WHERE A DIVORCE GRANTED IN MEXICO TO THE HUSBAND (NEITHER HE NOR THE WIFE BEING RESIDENT OR DOMICILED IN MEXICO, ALTHOUGH THE HUSBAND REGISTERED THERE AS A RESIDENT, IT APPEARING THAT HE LEFT THE UNITED STATES FOR THE PURPOSE OF GETTING A DIVORCE) WAS HELD WHOLLY INVALID IN GOLDEN V. GOLDEN, 41 N.M. 356, 68 P.2D 928. THE COURT SAID:

"THE MEXICAN DIVORCE DECREE WAS VOID. IT IS AS INVALID AS THOUGH IT HAD BEEN DECREED BY THE PROBATE JUDGE WHO SOLEMNIZED THE MARRIAGE CEREMONY. IT IS AS VOID AS THOUGH IT HAD NEVER BEEN ISSUED. IT CAN BE DISREGARDED ANYWHERE. ITS VALIDITY CAN BE QUESTIONED IN ANY SUIT WHERE IT IS PROPOSED AS VALID, AND APPELLEE IS NOT ESTOPPED TO QUESTION IT IN THIS CASE ANY MORE THAN SHE WOULD BE DENIED THE RIGHT TO QUESTION A DIVORCE GRANTED APPELLANT BY A JUSTICE OF THE PEACE BEFORE WHOM BOTH APPEARED AND CONSENTED TO A DECREE. TO HOLD OTHERWISE WOULD PERMIT COUPLES IMPATIENT OF MARITAL RESTRAINTS, AND IN MOMENTS OF EMOTIONAL IMPULSES, IRRESPECTIVE OF THEIR DUTY TO THEIR CHILDREN, THEIR FAMILIES, OR THE STATE, TO CROSS OVER THE INTERNATIONAL BRIDGE TO JUAREZ, AND BY A MERE FLOURISH OF THE PEN DISSOLVE THE MATRIMONIAL TIE AND THEN REMARRY AT WILL IRRESPECTIVE OF CONSEQUENCES. ***"

AMERICAN COURTS HAVE AS A RULE SHOWN NO TENDENCY TO RECOGNIZE THE VALIDITY OF DIVORCES GRANTED UNDER THE VARIOUS MEXICAN STATE LAWS WHEN THE STATUS OF AMERICAN CITIZENS NOT BONA FIDE RESIDENTS OF MEXICO IS INVOLVED. SEE 36 COMP.GEN. 121 AND CASES CITED THEREIN.

ACCORDINGLY, ON THE PRESENT RECORD, IT MUST BE CONCLUDED THAT UNTIL THE MEXICAN DIVORCE DECREE OBTAINED BY THE OFFICER IS RECOGNIZED AS VALID BY A COURT OF COMPETENT JURISDICTION IN THE UNITED STATES, THE OFFICER MAY NOT BE CONSIDERED TO HAVE A LAWFUL WIFE, INSOFAR AS HIS MARRIAGE FOLLOWING THE MEXICAN DIVORCE IS CONCERNED, WITHIN THE MEANING AND SPIRIT OF THE APPLICABLE STATUTORY PROVISIONS AND REGULATIONS PROMULGATED THEREUNDER AUTHORIZING PAYMENT OF A BASIC ALLOWANCE FOR QUARTERS OR OTHER BENEFITS SO AS TO ENTITLE HIM TO CREDIT OF SUCH ALLOWANCE FOR ANY PART OF THE PERIOD COVERED BY HIS CLAIM.

FORM DD 137 DATED OCTOBER 19, 1959, SHOWS THAT THE OFFICER CLAIMS BASIC ALLOWANCE FOR QUARTERS FOR GLORIA C. KIMBALL, WIFE, AND THE ABOVE NAMED MINOR CHILDREN AS HIS DEPENDENTS EFFECTIVE OCTOBER 10, 1959. THE APPLICATION CONTAINS THE OFFICER'S STATEMENT THAT HE CONTRIBUTES $200 MONTHLY TO THE SUPPORT OF THE CHILDREN WHO ARE SHOWN TO BE IN THE CUSTODY OF THEIR MOTHER IN EAU GALLIE, FLORIDA. WITH REGARD TO ENTITLEMENT TO THE BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF THE DEPENDENT MINOR CHILDREN, IT HAS BEEN HELD THAT THE FACT THAT A DIVORCE DECREE OR OTHER COURT ORDER GIVING CUSTODY OF THE MINOR CHILDREN TO THE MOTHER DOES NOT PROVIDE SPECIFICALLY THAT THE FATHER IS REQUIRED TO SUPPORT HIS CHILDREN DOES NOT OF ITSELF OPERATE TO DEPRIVE AN OFFICER OF THE ALLOWANCES, REGARDLESS OF THE JURISDICTION IN WHICH THE DECREE WAS ISSUED OR IN WHICH THE CHILDREN ARE DOMICILED, IF IT IS SHOWN THAT HE IS IN FACT CONTRIBUTING TO THEIR SUPPORT. SEE 23 COMP.GEN. 625.

SINCE IT APPEARS THAT THE OFFICER IS IN FACT CONTRIBUTING TO THE SUPPORT OF HIS CHILDREN, PAYMENT OF THE BASIC ALLOWANCE FOR QUARTERS AS FOR AN OFFICER WITH DEPENDENTS FOR THE PERIOD HERE INVOLVED IS AUTHORIZED. THE ENCLOSURES SUBMITTED WITH YOUR LETTER OF NOVEMBER 18, 1959, ARE RETURNED.