B-108189, MAY 1, 1952

B-108189: May 1, 1952

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THERE WAS RECEIVED YOUR COMMUNICATION DATED JANUARY 30. REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER. THE VOUCHER IS STATED IN FAVOR OF MRS. WHO CERTIFIES THAT SHE IS THE "LAWFUL WIDOW" OF THE DECEDENT. AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE RECEIVED BY SUCH OFFICER OR ENLISTED MAN AT THE DATE OF HIS DEATH. ***" THE PROVISIONS OF SAID ACT WERE EXTENDED TO OTHER FORCES OF THE ARMY BY THE ACT OF DECEMBER 10. COPY OF THE FINAL REPORT OF DEATH WHICH ACCOMPANIED YOUR SUBMISSION IS DATED APRIL 2. THAT HIS DEATH WAS IN LINE OF DUTY AND WAS NOT THE RESULT OF HIS OWN MISCONDUCT AND THAT HE NAMED AS BENEFICIARY MRS. ROACH (ROCHE) WAS GRANTED AN INTERLOCUTORY JUDGMENT ADJUDGING THAT SHE WAS ENTITLED TO A DIVORCE FROM THE DECEDENT.

B-108189, MAY 1, 1952

PRECIS-UNAVAILABLE

MAJOR E.M. DUNCAN, FC, DEPARTMENT OF THE ARMY:

BY FIRST INDORSEMENT DATED FEBRUARY 19, 1952, OF THE CHIEF OF FINANCE, THERE WAS RECEIVED YOUR COMMUNICATION DATED JANUARY 30, 1952, REQUESTING DECISION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER, TRANSMITTED THEREWITH, COVERING PAYMENT OF THE SIX MONTHS' DEATH GRATUITY IN THE CASE OF GERALD A. ROCHE, 0 416 427, FIRST LIEUTENANT, ARTILLERY, WHO DIED JANUARY 12, 1951. THE VOUCHER IS STATED IN FAVOR OF MRS. RUTH M. ROCHE, WHO CERTIFIES THAT SHE IS THE "LAWFUL WIDOW" OF THE DECEDENT.

THE ACT OF DECEMBER 17, 1919, 41 STAT. 367, AS AMENDED, 10 U.S.C. 903, PROVIDES, IN MATERIAL PART, AS FOLLOWS:

"IMMEDIATELY UPON OFFICIAL NOTIFICATION OF THE DEATH FROM WOUNDS OR DISEASE, NOT THE RESULT OF HIS OWN MISCONDUCT, OF ANY OFFICER OR ENLISTED MAN ON THE ACTIVE LIST OF THE REGULAR ARMY OR ON THE RETIRED LIST WHEN ON ACTIVE DUTY, THE CHIEF OF FINANCE OF THE ARMY SHALL CAUSE TO BE PAID TO THE WIDOW, AND IF THERE BE NO WIDOW TO THE CHILD OR CHILDREN, AND IF THERE BE NO WIDOW OR CHILD TO ANY OTHER DEPENDENT RELATIVE OF SUCH OFFICER OR ENLISTED MAN PREVIOUSLY DESIGNATED BY HIM, AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE RECEIVED BY SUCH OFFICER OR ENLISTED MAN AT THE DATE OF HIS DEATH. ***"

THE PROVISIONS OF SAID ACT WERE EXTENDED TO OTHER FORCES OF THE ARMY BY THE ACT OF DECEMBER 10, 1941, 55 STAT. 796, RETROACTIVELY EFFECTIVE TO AUGUST 27, 1940.

COPY OF THE FINAL REPORT OF DEATH WHICH ACCOMPANIED YOUR SUBMISSION IS DATED APRIL 2, 1951, AND SHOWS THAT FIRST LIEUTENANT ROCHE DIED JANUARY 12, 1951, AT SALT LAKE CITY, UTAH; THAT HIS DEATH WAS IN LINE OF DUTY AND WAS NOT THE RESULT OF HIS OWN MISCONDUCT AND THAT HE NAMED AS BENEFICIARY MRS. RUTH M. ROCHE, WIFE.

ON JULY 1, 1946, IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF LOS ANGELES, EDITH B. ROACH (ROCHE) WAS GRANTED AN INTERLOCUTORY JUDGMENT ADJUDGING THAT SHE WAS ENTITLED TO A DIVORCE FROM THE DECEDENT; AND, IN THE ABSENCE OF APPEAL, OR A NEW TRIAL, OR DISMISSAL OF THE ACTION THE PLAINTIFF, UNDER THE CALIFORNIA STATUTES, HEREINAFTER SET OUT, WAS ENTITLED TO A FINAL JUDGMENT OF DIVORCE, JULY 2, 1947. THE OFFICER AND RUTH MARIAN LIPPENBERGER - THE MRS. RUTH M. ROCHE NAMED IN THE SUBMITTED VOUCHER - WERE CEREMONIALLY MARRIED AT YANKTON, SOUTH DAKOTA, ON JUNE 22, 1948, AND HE DIED JANUARY 12, 1951, AT SALT LAKE CITY, UTAH. SEPTEMBER 24, 1951, THE SAID CALIFORNIA COURT, ON ITS OWN MOTION, GRANTED A FINAL JUDGMENT OF DIVORCE IN THE AFORESAID DIVORCE ACTION, SUCH JUDGMENT STATING:

"GOOD CAUSE APPEARING IT IS ORDERED THAT THE FINAL JUDGMENT OF DIVORCE HEREIN BE DATED, SIGNED, FILED, AND ENTERED NUNC PRO TUNC AS OF JULY 2, 1947."

THE CIVIL CODE OF CALIFORNIA PROVIDES FOR THE ENTRY OF AN INTERLOCUTORY JUDGMENT OF DIVORCE AND PROVIDES FURTHER:

"SEC. 132. WHEN ONE YEAR HAS EXPIRED AFTER THE ENTRY OF SUCH INTERLOCUTORY JUDGMENT, THE COURT ON MOTION OF EITHER PARTY, OR UPON ITS OWN MOTION, MAY ENTER THE FINAL JUDGMENT GRANTING THE DIVORCE, AND SUCH FINAL JUDGMENT SHALL RESTORE THEM TO THE STATUS OF SINGLE PERSONS, AND PERMIT EITHER TO MARRY AFTER THE ENTRY THEREOF: AND SUCH OTHER AND FURTHER RELIEF AS MAY BE NECESSARY TO COMPLETE DISPOSITION OF THE ACTION, BUT IF ANY APPEAL IS TAKEN FROM THE INTERLOCUTORY JUDGMENT OR MOTION FOR A NEW TRIAL MADE, FINAL JUDGMENT SHALL NOT BE ENTERED UNTIL SUCH MOTION OR APPEAL HAS BEEN FINALLY DISPOSED OF, NOR THEN, IF THE MOTION HAS BEEN GRANTED OR JUDGMENT REVERSED. THE DEATH OF EITHER PARTY AFTER THE ENTRY OF THE INTERLOCUTORY JUDGMENT DOES NOT IMPAIR THE POWER OF THE COURT TO ENTER FINAL JUDGMENT AS HEREINBEFORE PROVIDED; BUT SUCH ENTRY SHALL NOT VALIDATE ANY MARRIAGE CONTRACTED BY EITHER PARTY BEFORE THE ENTRY OF SUCH FINAL JUDGMENT, NOR CONSTITUTE ANY DEFENSE OF ANY CRIMINAL PROSECUTION MADE AGAINST EITHER.

"SEC. 133. WHENEVER EITHER OF THE PARTIES IN A DIVORCE ACTION IS UNDER THE LAW, ENTITLED TO A FINAL JUDGMENT, BUT BY MISTAKE, NEGLIGENCE OR INADVERTENCE THE SAME HAS NOT BEEN SIGNED, FILED OR ENTERED, IF NO APPEAL HAS BEEN TAKEN FROM THE INTERLOCUTORY JUDGMENT OR MOTION FOR A NEW TRIAL MADE, THE COURT, ON THE MOTION OF EITHER PARTY THERETO OR UPON ITS OWN MOTION, MAY CAUSE A FINAL JUDGMENT TO BE SIGNED, DATED, FILED AND ENTERED THEREIN GRANTING THE DIVORCE AS OF THE DATE WHEN THE SAME COULD HAVE BEEN GIVEN OR MADE BY THE COURT IF APPLIED FOR. THE COURT MAY CAUSE SUCH FINAL JUDGMENT TO BE SIGNED, DATED, FILED AND ENTERED NUNC PRO TUNC AS AFORESAID, EVEN THOUGH A FINAL JUDGMENT MAY HAVE BEEN PREVIOUSLY ENTERED WHERE BY MISTAKE, NEGLIGENCE OR INADVERTENCE THE SAME HAS NOT BEEN SIGNED, FILED OR ENTERED AS SOON AS IT COULD HAVE BEEN ENTERED UNDER THE LAW IF APPLIED FOR. UPON THE FILING OF SUCH FINAL JUDGMENT, THE PARTIES TO SUCH ACTION SHALL BE DEEMED TO HAVE BEEN RESTORED TO THE STATUS OF SINGLE PERSONS AS OF THE DATE AFFIXED TO SUCH JUDGMENT, AND ANY MARRIAGE OF EITHER OF SUCH PARTIES SUBSEQUENT TO ONE YEAR AFTER THE GRANTING OF THE INTERLOCUTORY JUDGMENT AS SHOWN BY THE MINUTES OF THE COURT, AND AFTER THE FINAL JUDGMENT COULD HAVE BEEN ENTERED UNDER THE LAW IF APPLIED FOR, SHALL BE VALID FOR ALL PURPOSES AS OF THE DATE AFFIXED TO SUCH FINAL JUDGMENT, UPON THE FILING THEREOF."

IN VIEW OF SUCH PROVISIONS THERE CAN BE NO DOUBT THAT THE CALIFORNIA COURT HAD THE POWER TO ENTER THE SAID FINAL DECREE OF DIVORCE NUNC PRO TUNC AS OF JULY 2, 1947, AND THE QUOTED STATUTES HAVE BEEN LIBERALLY CONSTRUED IN CALIFORNIA AND ELSEWHERE TO EFFECT THEIR PURPOSES. SEE MACEDO V. MACEDO, 84 P. 2D 552; IN RE ESTATE OF HUGHES, 182 P. 2D 253; WILLSON V. SUPERIOR COURT, 190 P. 2D 333; ARMSTRONG V. ARMSTRONG, 193 P. 2D 495; HULL V. HULL, 227 P. 2D 546; BANNISTER V. BANNISTER, 29 A. 2D 287; SHIPPEE V. SHIPPEE, 66 A. 2D 77. IN THIS RESPECT THE CASE OF IN RE HUGHES ESTATE, SUPRA, HOLDS THAT UNDER SUCH STATUTORY PROVISIONS THE MERE ENTRY OF A NUNC PRO TUNC JUDGMENT OPERATES RETROACTIVELY TO RESTORE THE PARTIES TO THE STATUS OF SINGLE PERSONS, NOTWITHSTANDING ONE OF THEM DIED PRIOR TO THE TIME THE NUNC PRO TUNC JUDGMENT WAS ORDERED, AND AT THE SAME TIME OPERATES TO GIVE THEM AND THEIR LATER ACQUIRED SPOUSES LEGAL MARRIED STATUS.

HOWEVER, THE VALIDITY OF THE MARRIAGE CEREMONY PERFORMED IN YANKTON, SOUTH DAKOTA, ON JUNE 22, 1948, AND UPON WHICH THE STATUS OF MRS. RUTH B. ROCHE AS LAWFUL WIDOW RESTS, DEPENDS UPON THE LAW OF SOUTH DAKOTA. RESTATEMENT, CONFLICT OF LAWS, SECTION 121.

IT IS STATED IN 1 FREEMAN, JUDGMENTS (5 ED.), 263, THAT -

"WITH THE EXCEPTION POINTED OUT IN THE PREVIOUS SECTION, AS TO INTERVENING RIGHTS OF THIRD PERSONS, A JUDGMENT PREVIOUSLY RENDERED BUT SUBSEQUENTLY ENTERED NUNC PRO TUNC MUST BE EVERYWHERE RECEIVED AND ENFORCED IN THE SAME MANNER AS THOUGH ENTERED AT THE PROPER TIME."

THE CASE OF SHIPPEE V. SHIPPEE, SUPRA, WHICH AROSE IN NEW HAMPSHIRE ON A PETITION BY JOHN H. SHIPPEE AGAINST MARY M. SHIPPEE FOR ANNULMENT OF A MARRIAGE PRESENTED THE QUESTION OF THE EFFECT OF A CALIFORNIA NUNC PRO TUNC FINAL DECREE OF DIVORCE UPON THE VALIDITY OF A SECOND MARRIAGE IN A JURISDICTIONAL SITUATION SIMILAR TO THAT HERE INVOLVED. IN THAT CASE THE DEFENDANT HAD OBTAINED AN INTERLOCUTORY DIVORCE DECREE IN CALIFORNIA ON OCTOBER 18, 1944; THE PETITIONER AND THE DEFENDENT HAD BEEN MARRIED IN NEW YORK CITY ON APRIL 5, 1946; AND THE FINAL DECREE OF DIVORCE WAS ENTERED BY THE CALIFORNIA COURT ON MAY 13, 1948, NUN PRO TUNC AS OF OCTOBER 24, 1945. ON THE BASIS OF THE LAW OF JUDGMENTS AS STATED IN THE ABOVE-QUOTED AUTHORITIES AND AS IT DID NOT APPEAR TO BE CONTRARY TO PUBLIC POLICY IN NEW YORK OR NEW HAMPSHIRE TO GRANT A NUNC PRO TUNC DIVORCE DECREE VALIDATING A SECOND MARRIAGE, THE SUPREME COURT OF NEW HAMPSHIRE HELD THAT THE MARRIAGE OF THE PARTIES ON APRIL 5, 1946, SHOULD BE DECLARED VALID.

WHILE NO SOUTH DAKOTA CASE CONSIDERING THIS PROPOSITION HAS BEEN FOUND, NEITHER HAS ANY AUTHORITY BEEN FOUND TO THE EFFECT THAT IT IS CONTRARY TO PUBLIC POLICY IN SOUTH DAKOTA, OR IN UTAH, TO GRANT A NUNC PRO TUNC DIVORCE DECREE VALIDATING A MARRIAGE. ON THE OTHER HAND, IT IS HELD GENERALLY THAT SOUND PUBLIC POLICY REQUIRES SUSTAINING THE VALIDITY OF A MARRIAGE IF AT ALL POSSIBLE. 35 AM. JUR., MARRIAGE, SEC. 3. AND IT RECENTLY HAS BEEN HELD BY THE SOUTH DAKOTA COURT THAT A CALIFORNIA JUDGMENT OF DIVORCE RENDERED BY A COURT HAVING JURISDICTION OF THE SUBJECT MATTER IS BINDING ON THE SOUTH DAKOTA COURT. NELSON V. NELSON, 24 N.W. 2D 327, 331. ALSO, SEE WILLIAMS V. NORTH CAROLINA, 317 U.S. 287, AND 325 U.S. 226.

IT FOLLOWS THAT THE MARRIAGE OF THE DECEDENT AND RUTH MARIAN LIPPENBERGER ON JUNE 22, 1948, IS TO BE REGARDED AS VALID AND THAT SHE IS TO BE RECOGNIZED AS THE LAWFUL WIDOW OF THE DECEDENT. NO PAYMENT OF THE SIX MONTHS' DEATH GRATUITY HAVING BEEN MADE IN THIS CASE, PAYMENT ON THE VOUCHER, WHICH IS RETURNED HEREWITH, IS AUTHORIZED, IF OTHERWISE PROPER.