B-109198, MAY 14, 1952

B-109198: May 14, 1952

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THERE WAS RECEIVED YOUR COMMUNICATION DATED FEBRUARY 6. IT APPEARS THAT COLONEL FISKE WAS MARRIED TO HELEN DOYLE FISKE IN LAS CRUCES. WAS GRANTED A FINAL DECREE OF DIVORCE FROM THE SAID HELEN DOYLE FISKE BY THE GIZA NATIONAL COURT OF FIRST INSTANCE. WHEN THE PAYMENT OF SUCH ALLOWANCE WAS DISCONTINUED IN COMPLIANCE WITH LETTER OF THE CHIEF OF FINANCE DATED NOVEMBER 15. HELEN FISKE WAS AWARDED A DECREE OF SEPARATE MAINTENANCE FROM THE OFFICER BY THE SUPERIOR COURT OF THE STATE OF CALIFORNIA. SUCH DECREE APPARENTLY WAS BASED UPON THE RECITALS IN A "FINDINGS OF FACT AND CONCLUSION OF LAW. THAT THE OFFICER AND HELEN FISKE ARE HUSBAND AND WIFE. OFFICERS OF THE ARMY ARE ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENTS AND SECTION 102 OF SUCH STATUTE.

B-109198, MAY 14, 1952

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL N.B. HILL, F.C., USA:

BY SECOND INDORSEMENT DATED APRIL 11, 1952, OF THE CHIEF OF FINANCE, THERE WAS RECEIVED YOUR COMMUNICATION DATED FEBRUARY 6, 1952, TRANSMITTING A MILITARY PAY ORDER, AND SUPPORTING PAPERS, AUTHORIZING YOU TO CREDIT COLONEL NORMAN E. FISKE, 0-4741, WITH BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENTS (WIFE) EFFECTIVE DECEMBER 1, 1951, AND REQUESTING DECISION AS TO THE PROPRIETY OF PAYMENT OF SUCH ALLOWANCE.

IT APPEARS THAT COLONEL FISKE WAS MARRIED TO HELEN DOYLE FISKE IN LAS CRUCES, NEW MEXICO, ON JULY 4, 1917, AND WAS GRANTED A FINAL DECREE OF DIVORCE FROM THE SAID HELEN DOYLE FISKE BY THE GIZA NATIONAL COURT OF FIRST INSTANCE, KINGDOM OF EGYPT, ON JUNE 26, 1950. IT FURTHER APPEARS THAT ON OCTOBER 5, 1950, THE OFFICER MARRIED FANNIE BILLINGS PATRIZI IN THE CITY OF HELIOPOLIS, CAIRO, EGYPT, AND RECEIVED BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENTS TO NOVEMBER 30, 1951, WHEN THE PAYMENT OF SUCH ALLOWANCE WAS DISCONTINUED IN COMPLIANCE WITH LETTER OF THE CHIEF OF FINANCE DATED NOVEMBER 15, 1951.

ON SEPTEMBER 11, 1951, HELEN FISKE WAS AWARDED A DECREE OF SEPARATE MAINTENANCE FROM THE OFFICER BY THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO, WHICH AWARDED HER CERTAIN PROPERTY BELONGING TO THE OFFICER, NAMELY HIS INTEREST IN AN IMPROVED PIECE OF REAL ESTATE IN THE CITY OF SAN FRANCISCO, AN AUTOMOBILE, AND A POLICY OF LIFE INSURANCE. SUCH DECREE APPARENTLY WAS BASED UPON THE RECITALS IN A "FINDINGS OF FACT AND CONCLUSION OF LAW," FILED BY THE CALIFORNIA COURT, WHICH STATES INTER ALIA, THAT THE OFFICER AND HELEN FISKE ARE HUSBAND AND WIFE. HOWEVER, THE SAID DECREE DOES NOT EXPRESSLY SO ADJUDGE, NOR DOES IT CONTAIN ANY JUDGMENT AS TO THE VALIDITY OF THE EGYPTIAN DIVORCE DECREE.

UNDER THE PROVISIONS OF SECTION 302 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 812, OFFICERS OF THE ARMY ARE ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENTS AND SECTION 102 OF SUCH STATUTE, 53 STAT. 804, PROVIDES IN PERTINENT PART THAT:

"(G) THE TERM 'DEPENDENT' SHALL INCLUDE AT ALL TIMES AND IN ALL PLACES THE LAWFUL WIFE ***."

IT SEEMS OBVIOUS THAT ONE OF THIS OFFICER'S TWO SPOUSES, IS HIS "LAWFUL WIFE." IF THE EGYPTIAN DIVORCE DECREE BE REGARDED AS VALID, NO REASON IS APPARENT IN THE RECORD WHY THE OFFICER WOULD NOT HAVE A CLEAR RIGHT TO BASIC ALLOWANCE FOR QUARTERS FOR A DEPENDENT ON ACCOUNT OF HIS SECOND WIFE. IF, ON THE OTHER HAND, THE DECREE BE REGARDED AS A NULLITY, MAKING THE OFFICER'S FIRST SPOUSE HIS LAWFUL WIFE, HE WOULD BE ENTITLED TO SUCH ALLOWANCE ON HER BEHALF, UNLESS HIS REMARRIAGE AFTER HIS PURPORTED DIVORCE OPERATED TO BRING HIM WITHIN THE HOLDING OF THE CASE OF ROBEY V, UNITED STATES, 71 C. CLS. 561, TO THE EFFECT THAT EVEN THOUGH AN OFFICER MAY HAVE A LAWFUL WIFE, HE IS NOT ENTITLED TO ALLOWANCES ON HER ACCOUNT IF HE HAS REPUDIATED HIS MORAL AND LEGAL OBLIGATIONS TO PROVIDE FOR HER. SEE 25 COMP. GEN. 821. HOWEVER, IN THAT CONNECTION IT IS NOTED THAT NO QUESTION WAS RAISED IN THE ROBEY CASE RESPECTING THE VALIDITY OF DEPENDENCY PAYMENTS TO ROBEY FOR A SIX MONTH PERIOD DURING WHICH HE WAS COMPELLED BY A COURT ORDER TO MAKE SUPPORT PAYMENTS TO HIS WIFE. HENCE, IF, AS THIS OFFICE HAS INFORMALLY BEEN GIVEN TO UNDERSTAND, THE REAL ESTATE AWARDED TO HELEN FISKE BY THE DECREE OF SEPARATE MAINTENANCE CONSISTS OF AN APARTMENT BUILDING WHERE SHE RESIDES AND FROM WHICH SHE RECEIVES A FAIRLY SUBSTANTIAL ANNUAL INCOME, IT HARDLY MAY BE SAID THAT COLONEL FISKE DOES NOT HAVE A DEPENDENT WITHIN THE MEANING OF THE STATUTE, UNDER THE DOCTRINE OF THE ROBEY CASE, INSOFAR AS SHE IS CONCERNED. ALSO, SEE ABSON V. UNITED STATES, 73 C. CLS. 442; STRAUSS V UNITED STATES, 73 C. CLS. 690; HERITAGE V. UNITED STATES 81 C. CLS. 492; RAWLING V. UNITED STATES, 93 C. CLS. 231.

ACCORDINGLY, IF THE MILITARY PAY ORDER BE FURTHER SUPPORTED BY EVIDENCE SHOWING THAT THE SAID PIECE OF REAL ESTATE CONSISTS OF AN APARTMENT BUILDING FROM WHICH THE FIRST WIFE RECEIVES A FAIRLY SUBSTANTIAL ANNUAL INCOME, PAYMENT OF BASIS ALLOWANCE FOR QUARTERS ON ACCOUNT OF A "LAWFUL WIFE" IN COLONEL FISKE'S CASE WOULD BE PASSED TO CREDIT, IF OTHERWISE CORRECT, REGARDLESS OF THE LEGAL EFFECT OF THE EGYPTIAN DIVORCE DECREE.

THE MILITARY PAY ORDER IS RETURNED HEREWITH.