B-142790, JUN. 14, 1961

B-142790, JUN. 14, 1961

TO MRS. MURIEL S. THURBER:

REFERENCE IS MADE TO LETTER DATED APRIL 13, 1961, AND PRIOR CORRESPONDENCE, FROM CULP, DWYER AND GUTERSON, ATTORNEYS, SUBMITTING IN YOUR BEHALF A CLAIM FOR REINSTATEMENT OF AN ANNUITY UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501, 10 U.S.C. 1431- 1444, AS THE UNREMARRIED WIDOW OF COLONEL PHILIP LOOMIS THURBER.

THE FACTS IN YOUR CASE ARE SET FORTH IN OUR DECISION B-142790, DATED AUGUST 16, 1960, TO LIEUTENANT COLONEL R. H. MACPHERSON, FC. DISBURSING OFFICER, UNITED STATES ARMY, COPY ENCLOSED. THE BASIS FOR THE DECISION WAS THAT YOU, SUBSEQUENT TO COLONEL THURBER'S DEATH, HAD MARRIED AGAIN IN HAWAII; THAT THIS MARRIAGE WAS ANNULLED SOME EIGHT MONTHS LATER BY A NEVADA COURT ON THE GROUND OF FRAUD; THAT SINCE IT DID NOT APPEAR IN THE RECORD BEFORE US THAT THE LAW OF HAWAII WAS ALLEGED AND PROVED IN THE NEVADA PROCEEDINGS, THE LAW OF NEVADA GOVERNED AS TO THE EFFECTIVE DATE OF THE ANNULMENT; AND THAT UNDER THE NEVADALAW AN ANNULMENT OF A MARRIAGE, VOIDABLE FOR FRAUD, IS EFFECTIVE ONLY FROM THE DATE OF THE ANNULMENT DECREE.

IN SUBMITTING THE CLAIM YOUR ATTORNEYS DISAGREED WITH THE CONCLUSION AS TO THE EFFECT OF THE NEVADA STATUTE AND TO OUR APPARENT RELIANCE UPON THE COURT'S RULING IN THE CASE, IN RE GOSNELL'S ESTATE, 146 P. 2D 42, AS A PRECEDENT FOR OUR FINDING IN YOUR CASE THAT THE EFFECT OF THE NEVADA DECREE WAS PROSPECTIVE ONLY. YOUR ATTORNEYS CITE THE CASE OF SANTUELLI V. FOLSON, 165 F. SUPP. 224, AS AUTHORITY FOR THE HOLDING THAT UNDER NEVADA LAW A VOIDABLE MARRIAGE BECOMES VOID AB INITIO WHEN A COURT OF COMPETENT AUTHORITY ENTERS ITS DECREE OF ANNULMENT, AND, THAT THE SANTEULLI CASE DISTINGUISHES THE JUDGMENT IN THE GOSNELL CASE, BY SAYING THAT THE LATTER DECISION WAS BASED ON A DESIRE TO CREATE AN EQUITABLE RESULT. WE ADVISED YOUR ATTORNEYS IN OUR LETTER OF DECEMBER 29, 1960, THAT IF A CLAIM IS SUBMITTED IN YOUR BEHALF, THE ACTION TAKEN THEREON NECESSARILY WOULD BE BASED ON THE ANNULMENT DECREE AS ISSUED BY THE COURT. IT APPEARS THAT NO FURTHER COURT PROCEEDINGS HAVE BEEN HAD WITH RESPECT TO THE JUDGMENT IN YOUR CASE AND, THEREFORE, OUR CONSIDERATION OF THE CLAIM ON ITS MERITS MUST BE BASED ON THE RECORD PRESENTLY BEFORE THIS OFFICE.

THE ISSUE OF LAW INVOLVED IN THE MATTER IS WHETHER, WHEN AN ANNUITY UNDER THE CONTINGENCY OPTION ACT OF 1953 ACCRUING TO A WIDOW IS TERMINATED BY REASON OF HER REMARRIAGE, HER RIGHT TO THAT ANNUITY REVIVES UPON THE ANNULMENT OF THE REMARRIAGE FOR FRAUD, EVEN THOUGH THE REMARRIAGE WAS NOT VOID BUT WAS MERELY VOIDABLE, AND UNDER APPLICABLE LAW THE ANNULMENT DECREE WAS EFFECTIVE ONLY "FROM THE TIME ITS NULLITY SHALL BE DECLARED BY A COURT OF COMPETENT AUTHORITY.'

IN OUR DECISION IN 37 COMP. GEN. 188, WE STATED THAT THE GENERAL RULE IS THAT THE LAW WHICH DETERMINES THE VALIDITY OF THE MARRIAGE, THAT IS, THE LAW OF THE STATE WHERE THE CONTRACT OF MARRIAGE TAKES PLACE, IS APPLICABLE IN A PROCEEDING TO ANNUL A FOREIGN MARRIAGE. RESTATEMENT OF THE LAW OF CONFLICT OF LAWS, SECTION 121 AND 136. THAT GENERAL RULE IS NOT APPLICABLE IN YOUR CASE IN VIEW OF THE STATUTES OF NEVADA, WHERE THE ANNULMENT WAS OBTAINED, THERE BEING NO SHOWING THAT THE LAW OF ANOTHER JURISDICTION WAS CONSIDERED. THE NEVADA REVISED STATUTES, SECTION 125.340, PROVIDE:

"1. IF THE CONSENT OF EITHER PARTY WAS OBTAINED BY FRAUD AND FRAUD HAS BEEN PROVED, THE MARRIAGE SHALL BE VOID FROM THE TIME ITS NULLITY SHALL BE DECLARED BY A COURT OF COMPETENT AUTHORITY.'

SECTION 125.420 OF THE NEVADA REVISED STATUTES PROVIDES:

"IN ANY SUIT IN THIS STATE FOR AN ANNULMENT OF MARRIAGE IN ANY WISE AFFECTED BY THE LAW OF ANOTHER STATE, IT SHALL BE PRESUMED THAT THE LAW OF SUCH OTHER STATE IS THE SAME AS THE LAW OF THIS STATE, UNLESS AND UNTIL THE LAW OF SUCH OTHER STATE SHALL BE ALLEGED AND PROVED.'

THE ANNULMENT HEREIN WAS OBTAINED IN NEVADA OF A MARRIAGE PERFORMED IN HAWAII. EVEN ASSUMING THAT THE LAW OF HAWAII IS THAT A MARRIAGE ANNULLED FOR FRAUD IS ANNULLED FOR ITS BEGINNING, THE RECORD BEFORE THIS OFFICE DOES NOT SHOW THAT THE LAW OF HAWAII WAS ALLEGED AND PROVED IN THE COURSE OF THE PROCEEDINGS. IN THE ABSENCE OF ANY INDICATION IN THE RECORD THAT THE FOREIGN LAW WAS THE BASIS FOR ANNULMENT DECREE, IT FOLLOWS THAT THE NEVADA LAW MUST BE PRESUMED TO HAVE BEEN APPLIED.

WE DO NOT AGREE WITH THE COURT'S VIEW IN THE SANTUELLI CASE UNDER THE NEVADA STATUTE AN ANNULMENT OF A VOIDABLE MARRIAGE IS EFFECTIVE FROM THE INCEPTION OF THE MARRIAGE. IT IS OUR OPINION THAT UNDER THE NEVADA LAW THE ANNULMENT WAS EFFECTIVE ONLY FROM THE DATE OF THE ANNULMENT DECREE. IN RE GOSNELL'S ESTATE, 146 P. 2D 42. RESTATEMENT OF THE LAW OF CONFLICT OF LAWS, SECTION 115. IN THAT VIEW THE ANNULMENT WOULD NOT SERVE TO REVIVE YOUR RIGHT TO RECEIVE THE ANNUITY, WHICH WAS LOST UPON THE REMARRIAGE. SEE IN RE GOSNELL'S ESTATE, SUPRA, AND HAHN V. GRAY, 203 F. 2D 625. WHILE WE RECOGNIZE THAT THERE ARE CASES TO THE CONTRARY (COMPARE PEARSALL V. FOLSOM, 138 F. SUPP. 939; SANTUELLI V. FOLSON, 165 F. SUPP. 224), IT IS OUR VIEW THAT YOU WERE VALIDLY MARRIED FROM MARCH 4, 1959, UNTIL THE ISSUANCE OF THE ANNULMENT DECREE AND ACCORDINGLY, ON THE PRESENT RECORD, WE MUST CONCLUDE THAT YOU LOST ALL RIGHT TO AN ANNUITY UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953.