A-41163, MARCH 22, 1932, 11 COMP. GEN. 361

A-41163: Mar 22, 1932

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RENTAL ALLOWANCE - DEPENDENT CHILD OF COAST GUARD OFFICER WHERE BY DECREE OF A COURT OF MASSACHUSETTS THE CUSTODY OF A COAST GUARD OFFICER'S MINOR CHILD IS GIVEN TO THE MOTHER WITHOUT ANY REQUIREMENT AS TO THE SUPPORT OF THE CHILD. THE OFFICER IS NOT LEGALLY LIABLE FOR SUCH CHILD'S SUPPORT. GEN. 304 IS NOT APPLICABLE. IN THE ABSENCE OF EVIDENCE SHOWING A NECESSITY ON HIS PART TO AID THE MOTHER TO CARE FOR THE CHILD THE OFFICER IS NOT ENTITLED TO RENTAL ALLOWANCE BY REASON OF HAVING A DEPENDENT CHILD. 1932: THERE IS FOR CONSIDERATION THE CLAIM OF BOATSWAIN FRANK E. AN OFFICER IS ENTITLED TO RENTAL ALLOWANCE ON ACCOUNT OF LEGITIMATE MINOR CHILDREN ONLY WHEN SUCH CHILDREN ARE IN FACT DEPENDENT UPON HIM. 9 COMP.

A-41163, MARCH 22, 1932, 11 COMP. GEN. 361

RENTAL ALLOWANCE - DEPENDENT CHILD OF COAST GUARD OFFICER WHERE BY DECREE OF A COURT OF MASSACHUSETTS THE CUSTODY OF A COAST GUARD OFFICER'S MINOR CHILD IS GIVEN TO THE MOTHER WITHOUT ANY REQUIREMENT AS TO THE SUPPORT OF THE CHILD, THE OFFICER IS NOT LEGALLY LIABLE FOR SUCH CHILD'S SUPPORT. IN SUCH SITUATION THE CERTIFICATE PUBLISHED IN 9 COMP. GEN. 304 IS NOT APPLICABLE, AND IN THE ABSENCE OF EVIDENCE SHOWING A NECESSITY ON HIS PART TO AID THE MOTHER TO CARE FOR THE CHILD THE OFFICER IS NOT ENTITLED TO RENTAL ALLOWANCE BY REASON OF HAVING A DEPENDENT CHILD.

DECISION BY COMPTROLLER GENERAL MCCARL, MARCH 22, 1932:

THERE IS FOR CONSIDERATION THE CLAIM OF BOATSWAIN FRANK E. HOLBROOK, UNITED STATES COAST GUARD, FOR RENTAL ALLOWANCE FROM OCTOBER 14, 1930, TO JUNE, 1931, AS AN OFFICER WITH DEPENDENTS (MINOR CHILD).

UNDER THE ACT OF FEBRUARY 21, 1929, 45 STAT. 1254, AMENDING SECTION 4 OF THE ACT OF JUNE 10, 1922, 42 STAT. 627, AN OFFICER IS ENTITLED TO RENTAL ALLOWANCE ON ACCOUNT OF LEGITIMATE MINOR CHILDREN ONLY WHEN SUCH CHILDREN ARE IN FACT DEPENDENT UPON HIM. 9 COMP. GEN. 299.

CLAIMANT FURNISHES AN AUTHENTICATED COPY OF A DECREE OF THE PROBATE COURT OF THE COUNTY OF ESSEX, COMMONWEALTH OF MASSACHUSETTS, GRANTING FLORENCE M. HOLBROOK, LIBELANT, AN ABSOLUTE DIVORCE FROM FRANK E. HOLBROOK, LIBELEE, EFFECTIVE OCTOBER 26, 1927, WHICH ORDER DECREES THE CUSTODY OF THEIR MINOR CHILD, PHYLLIS I. HOLBROOK, BE GIVEN TO SAID LIBELANT, BUT WITHOUT PROVISION REQUIRING LIBELEE TO CONTRIBUTE TO THE SUPPORT AND MAINTENANCE OF THE CHILD. CLAIMANT AVERS THAT HE IS NOT REQUIRED BY SAID DECREE TO PAY ALIMONY FOR THE SUPPORT OF SAID CHILD, BUT THAT UNDER THE LAWS OF MASSACHUSETTS HIS PARENTAL RESPONSIBILITY FOR THE CARE, MAINTENANCE, AND SUPPORT OF HIS CHILD WAS NOT AFFECTED BY THE DECREE. THE QUESTION IS THE CORRECTNESS OF HIS CONCLUSION AS TO THE LAW OF MASSACHUSETTS.

AT COMMON LAW A FATHER IS ENTITLED TO THE CUSTODY OF HIS MINOR CHILDREN AND, IF OF SUFFICIENT ABILITY, IS BOUND TO SUPPORT THEM. THE FATHER'S OBLIGATION IN THIS RESPECT, HOWEVER, IS ACCOMPANIED BY THE RIGHT ON THE PART OF THE FATHER TO THE CUSTODY, SOCIETY, AND SERVICE OF HIS CHILDREN. BROW V. BRIGHTMAN, 136 MASS. 187; FOSS V. HARTWELL,168 MASS. 66; TREASURER V. SERMINI, 229 MASS. 248; STONE V. DUFFY, 219 MASS. 178; AND MILLER'S CASE, 244 MASS. 281. THE COURTS OF MASSACHUSETTS HOLD THAT IF THE FATHER IS DEPRIVED OF THE CUSTODY OF HIS CHILDREN BY ORDER OF THE COURT HIS COMMON-LAW DUTY TO SUPPORT THEM CEASES, AND, APART FROM STATUTE, HIS OBLIGATION IN THIS RESPECT IS DETERMINED BY JUDICIAL DECREE. CREELEY V. CREELEY, SUPREME COURT OF MASSACHUSETTS, MARCH 4, 1927; A.L.R. 52-285, 286.

IT MUST, THEREFORE, BE HELD IN A CASE LIKE THIS, WHERE BY DECREE OF A COURT OF MASSACHUSETTS THE CUSTODY OF AN OFFICER'S MINOR CHILD IS GIVEN TO THE MOTHER WITHOUT ANY REQUIREMENT AS TO THE SUPPORT OF THE CHILD, THE OFFICER IS NOT LEGALLY LIABLE FOR SUCH CHILD'S SUPPORT. THE CERTIFICATE PUBLISHED AT 9 COMP. GEN 304 IS NOT APPLICABLE TO THE SITUATION, AND IN THE ABSENCE OF EVIDENCE SHOWING A NECESSITY ON HIS PART TO AID HIS FORMER WIFE, WHO HAS REMARRIED, TO CARE FOR THE CHILD, BOATSWAIN HOLBROOK IS NOT ENTITLED TO RENTAL ALLOWANCE BY REASON OF HAVING A DEPENDENT CHILD. HIS CLAIM FOR RENTAL ALLOWANCE FOR THE PERIOD ABOVE STATED WILL ACCORDINGLY BE DISALLOWED.