A-14722, NOVEMBER 29, 1926, 6 COMP. GEN. 369

A-14722: Nov 29, 1926

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RENTAL ALLOWANCE - DEPENDENTS OF DIVORCED OFFICER - INADEQUACY OF QUARTERS WHERE AN OFFICER OF THE ARMY HAS BEEN DIVORCED AND THE CUSTODY OF THE CHILD OF THE MARRIAGE IS GIVEN TO THE FORMER WIFE WITHOUT ALIMONY OR MAINTENANCE FOR THE CHILD. THE OFFICER IS NOT ENTITLED TO RENTAL OR SUBSISTENCE ALLOWANCES AS AN OFFICER WITH DEPENDENTS BECAUSE OF SUCH CHILD. NOTWITHSTANDING HE MAY HAVE VOLUNTARILY SENT AN ALLOWANCE FOR THE CHILD EVERY MONTH. THERE HAS BEEN A DETERMINATION BY THE COMPETENT SUPERIOR AUTHORITY IN THE PARTICULAR CASE THAT A LESS NUMBER OF ROOMS ARE ADEQUATE FOR THE OCCUPANCY OF THE OFFICER. A CERTIFICATE BY THE SAME AUTHORITY THAT ASSIGNED THE QUARTERS THAT THE QUARTERS SO ASSIGNED WERE NOT ADEQUATE FOR THE OFFICER DOES NOT ENTITLE THE OFFICER TO RENTAL ALLOWANCE.

A-14722, NOVEMBER 29, 1926, 6 COMP. GEN. 369

QUARTERS, RENTAL ALLOWANCE - DEPENDENTS OF DIVORCED OFFICER - INADEQUACY OF QUARTERS WHERE AN OFFICER OF THE ARMY HAS BEEN DIVORCED AND THE CUSTODY OF THE CHILD OF THE MARRIAGE IS GIVEN TO THE FORMER WIFE WITHOUT ALIMONY OR MAINTENANCE FOR THE CHILD, THE OFFICER IS NOT ENTITLED TO RENTAL OR SUBSISTENCE ALLOWANCES AS AN OFFICER WITH DEPENDENTS BECAUSE OF SUCH CHILD, NOTWITHSTANDING HE MAY HAVE VOLUNTARILY SENT AN ALLOWANCE FOR THE CHILD EVERY MONTH. WHERE THERE HAS BEEN AN ASSIGNMENT OF PUBLIC QUARTERS TO AN OFFICER OF THE ARMY WITHOUT DEPENDENTS, OR AN ASSIGNMENT OF QUARTERS TO AN OFFICER AND HIS DEPENDENTS, OF LESS THAN THE NUMBER OF ROOMS PROVIDED BY LAW FOR AN OFFICER OF HIS RANK, THERE HAS BEEN A DETERMINATION BY THE COMPETENT SUPERIOR AUTHORITY IN THE PARTICULAR CASE THAT A LESS NUMBER OF ROOMS ARE ADEQUATE FOR THE OCCUPANCY OF THE OFFICER, OR OF THE OFFICER AND HIS DEPENDENTS, AND A CERTIFICATE BY THE SAME AUTHORITY THAT ASSIGNED THE QUARTERS THAT THE QUARTERS SO ASSIGNED WERE NOT ADEQUATE FOR THE OFFICER DOES NOT ENTITLE THE OFFICER TO RENTAL ALLOWANCE.

DECISION BY COMPTROLLER GENERAL MCCARL, NOVEMBER 29, 1926:

EUSTACE M. PEIXOTTO, CAPTAIN, INFANTRY, D.O.L., HAS REQUESTED REVIEW OF SETTLEMENT CERTIFICATE NO. 0100938, NOVEMBER 18, 1925, IN WHICH WAS DISALLOWED HIS CLAIM AS AN OFFICER WITH DEPENDENTS FOR RENTAL ALLOWANCE NOVEMBER 18, 1922, TO MAY 31, 1924, WHILE STATIONED AT FORT WILLIAM MCKINLEY, P.I. THE DEPENDENT SHOWN IN THE VOUCHERS IS "SON JAMES M. PEIXOTTO, 5 YEARS C/O MRS. A. BRILL, SCHOFIELD BARRACKS, T.H.' AS IT APPEARED THAT THE OFFICER HAD OCCUPIED GOVERNMENT QUARTERS HIMSELF AND FROM THE ADDRESS OF THE DEPENDENT GIVEN, THE DEPENDENT MIGHT ALSO HAVE OCCUPIED PUBLIC QUARTERS, THE CLAIMANT WAS ASKED FOR INFORMATION AS TO THE OCCUPANCY OF PUBLIC QUARTERS BY HIS DEPENDENT, TO WHICH HE REPLIED MAY 28, 1926, AS FOLLOWS:

1. REFERENCE YOUR LETTER OF MAY 22, 1926, 0101990 JS 813 IT SEEMS TO BE DIFFICULT FOR ME TO MAKE YOUR OFFICE UNDERSTAND THAT MY CLAIM FOR RENTAL ALLOWANCE IS NOT BASED ON THE FACT OF MY HAVING DEPENDENTS. I MAINTAIN, AND MY CONTENTION IS SUSTAINED BY THE POST COMMANDER AT FORT WILLIAM MCKINLEY, P.I., THAT THE PUBLIC QUARTERS ASSIGNED ME DURING THE PERIOD OF MY CLAIM WERE INADEQUATE FOR ME PERSONALLY AS A CAPTAIN OF INFANTRY, U.S. ARMY, WITH OR WITHOUT DEPENDENTS, AND THAT SUCH ADEQUACY OR INADEQUACY IS A MATTER DETERMINABLE BY LAW BY SUCH POST COMMANDER AND NOT SUBJECT TO REVIEW BY YOUR OFFICE.

2. AS A MATTER OF FACT, I DO NOT KNOW POSITIVELY WHETHER OR NOT MRS. A. BRILL OCCUPIED PUBLIC QUARTERS AT SCHOFIELD BARRACKS. MRS. BRILL IS MY DIVORCED WIFE AND HAS CUSTODY OF MY SON. I SEND HER AN ALLOWANCE FOR THE CHILD (NOT ALIMONY) EVERY MONTH AND THE ADDRESS GIVEN WAS HER MAIL ADDRESS DURING THE PERIOD STATED. IF SHE DID OCCUPY PUBLIC QUARTERS SHE DID SO BECAUSE SHE HAPPENS TO BE THE PRESENT WIFE OF 1ST LT. ALBERT BRILL, F.A., U.S. ARMY, NOT BECAUSE OF ANY RIGHTS OR CLAIMS OF MINE.

THE INFORMATION CONTAINED IN THE SECOND PARAGRAPH OF THE OFFICER'S LETTER RAISES A QUESTION WHETHER HE IS ENTITLED TO ALLOWANCES AS AN OFFICER WITH DEPENDENTS.

SECTION 4 OF THE ACT OF JUNE 10, 1922, 42 STAT. 627, PROVIDES:

THAT THE TERM "DEPENDENT" AS USED IN THE SUCCEEDING SECTIONS OF THIS ACT SHALL INCLUDE AT ALL TIMES AND IN ALL PLACES A LAWFUL WIFE AND UNMARRIED CHILDREN UNDER TWENTY-ONE YEARS OF AGE. * * *

THE THEORY ON WHICH THE OFFICER HAS APPARENTLY CLAIMED ALLOWANCES AS AN OFFICER WITH DEPENDENTS IS THAT HE IS THE FATHER OF THE CHILD AND THAT IT IS UNMARRIED AND UNDER 21 YEARS OF AGE. OBVIOUSLY, THE STATUTE CONTEMPLATES A SITUATION IN WHICH THE PARENTAL AUTHORITY AND OBLIGATION MAINTAIN. THE DECREE OF DIVORCE IN THIS CASE HAS NOT BEEN FURNISHED AND ON THE ASSUMPTION THAT THE CLAIMANT HAS CORRECTLY STATED ITS EFFECT; THAT IS, THAT HIS FORMER WIFE WAS GIVEN CUSTODY OF THE CHILD AND THAT THE DECREE DOES NOT REQUIRE HIM TO PAY ALIMONY OR CONTRIBUTE TO THE MAINTENANCE OF THE CHILD, HIS RIGHT TO INCREASED ALLOWANCES FOR A DEPENDENT UNDER THE ACT OF JUNE 10, 1922, IS FOR CONSIDERATION. SCHOULER IN "DOMESTIC RELATIONS," SIXTH EDITION, PAGE 876, WHEN CONSIDERING THE LIABILITY OF THE FATHER FOR NECESSARIES OF HIS MINOR CHILDREN STATES THE LAW TO BE (BASED UPON THE CASES CITED) AS FOLLOWS:

* * * WHILE IN CASE OF EITHER SEPARATION OR DIVORCE, WITHOUT ORDERS OF CUSTODY, THE OBLIGATION IN GENERAL CONTINUES AS BEFORE, IT MAY BE MATERIALLY AFFECTED BY THE SPECIAL CIRCUMSTANCES OF EACH CASE; WHILE A JUDICIAL AWARD OF CHILDREN TO THE MOTHER SHOULD BE PRESUMED TO CARRY WITH IT A TRANSFER OF PARENTAL DUTIES, AS WELL AS OF PARENTAL RIGHTS. * * *.

SO, ALSO, IT HAS BEEN HELD THAT WHEN THE CUSTODY OF A CHILD IS GIVEN TO THE MOTHER ON HER DIVORCE FROM THE CHILD'S FATHER, THE LATTER HAVING NO RIGHT TO THE CHILD'S SERVICES IS FREE FROM LIABILITY TO THE MOTHER FOR THE CHILD'S MAINTENANCE; HUSBAND V. HUSBAND, 67 IND. 583; AND ESPECIALLY IF THE MOTHER REMARRIES AND HER SECOND HUSBAND ASSUMES THE PLACE OF FATHER, JOHNSON V. ONSTED, 74 MICH. 437. SO, ALSO, SCHOULER, IN HIS TEXT ON "MARRIAGE AND DIVORCE," SIXTH EDITION, PAGE 2054, CITING AUTHORITIES, SUMMARIZES THE LAW AS:

* * * WHERE THE CHILDREN ARE ON DIVORCE AWARDED TO THE MOTHER, THE QEUSTION OF THE FATHER'S LIABILITY FOR THEIR SUPPORT, IN THE ABSENCE OF EXPRESS DIRECTION IN THE DECREE, IS A MOOTED QUESTION, AND IT HAS BEEN HELD THAT UNDER SUCH CIRCUMSTANCES SHE COULD NOT RECOVER FROM HIM FOR THEIR SUPPORT. ON THE ENTRY OF THE DIVORCE DECREE THE WOMAN BECAME A SINGLE WOMAN, WITH THE RIGHTS OF A SURVIVING PARENT, AS FULLY AS THOUGH THE FATHER HAD BEEN TAKEN BY DEATH. THE FATHER WAS DIVESTED OF ALL PATERNAL RIGHTS, AND HIS PATERNAL DUTIES, IF ANY, WHICH SURVIVED WERE DEFINED BY THE DECREE OF THE COURT IN DIVORCE.

SECTION 4 WAS DRAWN WITH RESPECT TO THE NORMAL SITUATION OF A HUSBAND AND FATHER AS THE HEAD OF A FAMILY CHARGED WITH THE LEGAL DUTY OF SUPPORT OF WIFE AND CHILD OR CHILDREN AND ITS LANGUAGE WAS NOT DESIGNED TO AUTHORIZE INCREASED ALLOWANCES FOR AN OFFICER, ALTHOUGH A FATHER, WHO BY DECREE OF DIVORCE HAS BEEN DIVESTED OF ALL OF HIS PARENTAL AUTHORITY AND DUTIES (THE SITUATION ASSUMED IN THIS CASE) WITH RESPECT TO THE CHILD OR CHILDREN. SUCH A CASE, AND FOR THE PURPOSES OF SECTION 4, THE OFFICER DOES NOT HAVE AN UNMARRIED CHILD UNDER 21 YEARS OF AGE AND MUST BE TREATED AS AN OFFICER WITHOUT DEPENDENTS FOR THE PURPOSES OF RENTAL AND SUBSISTENCE ALLOWANCES.

THE BASIS OF THE CLAIM AS AN OFFICER WITHOUT DEPENDENTS (HIS LETTER QUOTED ABOVE INDICATES HE SO CLAIMS) IS THE THIRD INDORSEMENT OF THE COMMANDING GENERAL OF THE PHILIPPINE DEPARTMENT MARCH 17, 1926:

1. THE RECORDS OF THESE HEADQUARTERS SHOW CAPTAIN EUSTACE M. PEIXOTTO, INF., TO HAVE BEEN ASSIGNED ONE (1) ROOM ONLY FOR HIS EXCLUSIVE USE IN A BACHELOR BUILDING AT THIS STATION FROM NOV. 21, 1922, TO NOV. 27, 1924, BOTH DATES INCLUSIVE, WHICH IS NOT CONSIDERED ADEQUATE FOR AN OFFICER OF THE GRADE OF CAPTAIN.

2. THIS OFFICER HAD NO DEPENDENTS.

SECTION 6 OF THE ACT OF JUNE 10, 1922, AS AMENDED BY THE ACT OF MAY 31, 1924, 43 STAT. 250, PROVIDES, SO FAR AS HERE MATERIAL:

NO RENTAL ALLOWANCE SHALL ACCRUE TO AN OFFICER, HAVING NO DEPENDENTS, WHILE HE IS ON FIELD OR SEA DUTY, NOR WHILE AN OFFICER WITH OR WITHOUT DEPENDENTS IS ASSIGNED AS QUARTERS AT HIS PERMANENT STATION THE NUMBER OF ROOMS PROVIDED BY LAW FOR AN OFFICER OF HIS RANK OR A LESS NUMBER OF ROOMS IN ANY PARTICULAR CASE WHEREIN, IN THE JUDGMENT OF COMPETENT SUPERIOR AUTHORITY OF THE SERVICE CONCERNED, A LESS NUMBER OF ROOMS WOULD BE ADEQUATE FOR THE OCCUPANCY OF THE OFFICER AND HIS DEPENDENTS.

THE ACT OF MARCH 2, 1907, 34 STAT. 1168, PROVIDES:

THAT AT ALL POSTS AND STATIONS WHERE THERE ARE PUBLIC QUARTERS BELONGING TO THE UNITED STATES OFFICERS MAY BE FURNISHED WITH QUARTERS IN KIND IN SUCH PUBLIC QUARTERS, AND NOT ELSEWHERE, BY THE QUARTERMASTER'S DEPARTMENT ASSIGNING TO THE OFFICERS OF EACH GRADE, RESPECTIVELY, SUCH NUMBER OF ROOMS AS IS STATED IN THE FOLLOWING TABLE, NAMELY: * * * CAPTAINS, FOUR ROOMS; * * *.

CLEARLY UNDER THE PARAGRAPH OF SECTION 6 OF THE ACT OF JUNE 10, 1922, AS AMENDED, QUOTED ABOVE, THERE CAN BE NO QUESTION OF ADEQUACY OF ASSIGNED QUARTERS IF THE NUMBER OF ROOMS PROVIDED BY LAW ARE ASSIGNED, NOR CAN THERE BE ANY QUESTION OF ADEQUACY WHEN THE COMPETENT SUPERIOR AUTHORITY HAS ASSIGNED A LESS NUMBER OF ROOMS. SUCH AN ASSIGNMENT IS EVIDENCE OF "THE JUDGMENT OF COMPETENT SUPERIOR AUTHORITY" IN THE PARTICULAR CASE THAT A LESS NUMBER OF ROOMS IS ADEQUATE. THE PURPOSE OF THE JOINT PAY ACT, AS CLEARLY EXEMPLIFIED BY THE AMENDMENT OF MAY 31, 1924, WAS TO ASSURE TO AN OFFICER A DEFINITE PAY INCLUDING QUARTERS AT ALL TIMES OR IN LIEU OF QUARTERS, A DEFINITE AMOUNT FOR THE RENTAL OF QUARTERS. THE RENTAL ALLOWANCE IS AN ALLOWANCE PERMITTING THE OFFICER TO RENT QUARTERS WITHOUT SUFFERING A DIMINUTION OF HIS PAY WHERE QUARTERS ARE NOT ASSIGNED TO HIM. THE STATUTE DOES NOT CONTEMPLATE, AND A FAIR AND REASONABLE CONSTRUCTION DOES NOT AUTHORIZE, THE FURNISHING OF QUARTERS TO AN OFFICER WITHOUT DEPENDENTS AND THE PAYMENT OF RENTAL ALLOWANCE IN ADDITION. THE QUOTED PROVISION FROM THE ACT IS NOT A PROVISION IN THE NATURE OF DAMAGES IF QUARTERS ASSIGNED TO THE OFFICER OF A NUMBER OF ROOMS LESS THAN HIS PERMITTED ALLOWANCE ARE NOT UP TO THE STANDARD OF PERFECTION DESIRED BY THE OFFICER OR THE OFFICER'S LOCAL COMMANDER. THE CHARACTER AND CONDITION OF AVAILABLE PUBLIC QUARTERS ARE FREQUENTLY BEYOND THE CONTROL OF THE LOCAL COMMANDING OFFICER. SUCH AS ARE HABITABLE MUST BE ASSIGNED AND RENTAL ALLOWANCES MAY NOT BE PAID IN ADDITION. THE OFFICER IN SUCH A SITUATION HAS BEEN QUARTERED BY THE GOVERNMENT WITHOUT EXPENSE TO HIMSELF AND THE OBLIGATION OF THE GOVERNMENT UNDER THE LAW IS FULFILLED.