B-122566, FEBRUARY 14, 1955, 34 COMP. GEN. 378

B-122566, FEBRUARY 14, 1955, 34 COMP. GEN. 378

QUARTERS - ALLOWANCE - DEPENDENTS - SUBSTITUTION OF ALLOWANCE ON BEHALF OF ADOPTED MINOR CHILDREN IN LIEU OF LAWFUL WIFE INCREASED QUARTERS ALLOWANCE IMPROPERLY PAID TO NAVY OFFICER ON ACCOUNT OF DEPENDENT WIFE FOLLOWING FINAL DIVORCE DECREE MAY BE RETAINED BY OFFICER ON ACCOUNT OF DEPENDENTS--- ADOPTED MINOR CHILDREN--- WHO ARE IN FACT DEPENDENT UPON HIM FOR MAINTENANCE AND SUPPORT WITHIN THE MEANING OF SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO LIEUTENANT COMMANDER W. M. MARTIN, DEPARTMENT OF THE NAVY, FEBRUARY 14, 1955:

YOUR LETTER OF DECEMBER 7, 1954, REQUESTS AN ADVANCE DECISION WHETHER CHIEF SHIP'S CLERK CLINTON A. MCCAIN, 342660, USN, MAY RETAIN THE AMOUNT OF THE INCREASED BASIC ALLOWANCE FOR QUARTERS ON BEHALF OF ADOPTED CHILDREN, IN LIEU OF A LAWFUL WIFE, CREDITED DURING THE PERIOD SEPTEMBER 15, 1953, TO SEPTEMBER 17, 1954, AND WHETHER HE MAY BE CREDITED WITH AN INCREASED BASIS ALLOWANCE FOR QUARTERS ON ACCOUNT OF ADOPTED CHILDREN ON AND AFTER SEPTEMBER 18, 1954. ALSO, THERE HAVE BEEN RECEIVED YOUR LETTER OF JANUARY 19, 1955, WITH ENCLOSURES, AND THE OFFICER'S EXPLANATORY LETTER OF JANUARY 18, 1955.

AMONG THE PAPERS SUBMITTED IS A PHOTOSTATIC COPY OF AN ORDER OF ADOPTION, DATES JUNE 8, 1950, IN THE CIRCUIT COURT OF THE COUNTY OF ARLINGTON, COMMONWEALTH OF VIRGINIA, IN THE MATTER OF THE ADOPTION OF MALE TWINS (NAMES CHANGED BY THE ORDER OF RONALD LEE MCCAIN AND DONALD LYLE MCCAIN) BY CLINTON ARTHUR MCCAIN AND MARY ROSETTA LONG MCCAIN, HIS WIFE. THERE WAS ALSO SUBMITTED A PHOTOSTATIC COPY OF A FINAL DECREE OF DIVORCE ENTERED IN THE SAME COURT ON SEPTEMBER 15, 1953, IN THE CASE OF MARY LONG MCCAIN, COMPLAINANT V. CLINTON ARTHUR MCCAIN, DEFENDANT, MERGING A LIMITED DECREE OF DIVORCE, PREVIOUSLY AWARDED TO THE COMPLAINANT, INTO A FINAL DECREE OF DIVORCE. THERE IS ALSO A PHOTOSTATIC COPY OF A PROPERTY SETTLEMENT AGREEMENT EXECUTED BY THE PARTIES ON APRIL 2, 1952, WHICH WAS REAFFIRMED AND RATIFIED IN THE FINAL DECREE OF DIVORCE.

THE PROPERTY SETTLEMENT AGREEMENT PROVIDED THAT MARY LONG MCCAIN WOULD HAVE THE COMPLETE CUSTODY AND CONTROL OF THE CHILDREN, AND THAT BEGINNING APRIL 15, 1952, CLINTON ARTHUR MCCAIN WOULD PAY HER $150 PER MONTH, FOR THE MAINTENANCE AND SUPPORT OF THE CHILDREN UNTIL THEY BECOME OF AGE, OR ARE SELF-SUPPORTING, PLUS $100 A MONTH FOR HER INDIVIDUAL SUPPORT, FOR A PERIOD OF TWO YEARS, OR UNTIL THE SUM OF $2,400 HAS BEEN PAID.

COMMENCING WITH THE MONTH OF JANUARY 1953, THE OFFICER HAD IN EFFECT AN ALLOTMENT OF HIS PAY IN THE AMOUNT OF $250 A MONTH FOR THE MAINTENANCE AND SUPPORT OF THE CHILDREN AND THE INDIVIDUAL SUPPORT OF HIS FORMER WIFE. THIS ALLOTMENT WAS TERMINATED AFTER THE OCTOBER 1954 PAYMENT AND A NEW ALLOTMENT IN THE AMOUNT OF $150 A MONTH, BEGINNING WITH THE MONTH OF FEBRUARY 1955, HAS BEEN REGISTERED FOR THE MAINTENANCE AND SUPPORT OF THE CHILDREN.

THE OFFICER EXPLAINS THAT FROM THE DATE OF THE SEPARATION AGREEMENT UNTIL THE REGISTRATION OF THE $250 ALLOTMENT HE CONTRIBUTED $150 A MONTH BY CASH OR MONEY ORDER FOR THE MAINTENANCE AND SUPPORT OF THE CHILDREN. ASSERTS THAT EFFORTS TO OBTAIN FROM HIS FORMER WIFE THE PRESCRIBED AFFIDAVIT, AS TO THE CUSTODY AND INCOME OF THE CHILDREN AND THE AMOUNT OF HIS CONTRIBUTIONS TO THEIR MAINTENANCE AND SUPPORT, HAVE BEEN UNSUCCESSFUL. HE FURTHER EXPLAINS THAT THE $250 ALLOTMENT WAS TERMINATED AFTER THE OCTOBER 1954 PAYMENT IN ORDER TO RECOVER THE SUM OF $600 PAID TO HIS FOR WIFE FOR HER INDIVIDUAL SUPPORT IN EXCESS OF THE AMOUNT HE WAS REQUIRED TO PAY BY THE TERMS OF THE PROPERTY SETTLEMENT AGREEMENT. THE OFFICER'S DEPENDENCY CERTIFICATE ( DD FORM 137) RELATES THAT THE CHILDREN WERE BORN ON JULY 29, 1948, THAT THE RESIDE WITH THEIR ADOPTED MOTHER, AND THAT THEY ARE NOT POSSESSED OF ANY OTHER PROPERTY OR INCOME ADEQUATE FOR THEIR SUPPORT AND EDUCATION.

THE OFFICER'S MARRIAGE HAVING BEEN FINALLY DISSOLVED ON SEPTEMBER 15, 1953, HE WAS NOT ENTITLED AFTER THAT DATE TO AN INCREASED BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A "LAWFUL WIFE.' NO REASON IS PERCEIVED, HOWEVER, WHY PAYMENT OF THE SAME ALLOWANCE FOR QUARTERS, IF OTHERWISE CORRECT, COULD NOT HAVE BEEN MADE TO HIM AS FOR AN OFFICER WITH DEPENDENTS (ADOPTED MINOR CHILDREN) FOR THE PERIOD COMMENCING SEPTEMBER 15, 1953. SEE, GENERALLY, 23 COMP. GEN. 404; 29 ID. 435.

ON THE EVIDENCE SUBMITTED, THE OFFICER WILL BE CONSIDERED TO HAVE HAD DEPENDENTS (ADOPTED MINOR CHILDREN) WITHIN THE MEANING OF SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 804, DURING THE PERIOD SEPTEMBER 15, 1953, TO SEPTEMBER 17, 1954, AND ON SEPTEMBER 18, 1954. ACCORDINGLY, THE OFFICER IS ENTITLED, ON ACCOUNT OF THE ADOPTED CHILDREN, TO RETAIN THE INCREASED BASIC ALLOWANCE FOR QUARTERS IMPROPERLY PAID TO HIM ON ACCOUNT OF A "LAWFUL WIFE" FOR THE PERIOD SEPTEMBER 15, 1953, TO SEPTEMBER 17, 1954, AND PAYMENT TO HIM OF AN INCREASED BASIC ALLOWANCE FOR QUARTERS AS FOR AN OFFICER WITH DEPENDENTS (ADOPTED MINOR CHILDREN) IS AUTHORIZED, BEGINNING SEPTEMBER 18, 1954, FOR SUCH TIME AS HE HAS IN EFFECT AN ALLOTMENT OF HIS PAY FOR THE MAINTENANCE AND SUPPORT OF THE CHILDREN AND THERE IS NO MATERIAL CHANGE IN THEIR DEPENDENCY STATUS.

THE OFFICER'S DEPENDENCY CERTIFIES ( DD FORM 137) IS RETURNED, THE OTHER PAPERS BEING RETAINED IN THIS OFFICE. THIS DECISION, OR A COPY, SHOULD BE INCLUDED IN THE ACCOUNT WHERE CREDIT FOR PAYMENT UNDER THE DECISION IS FIRST CLAIMED AS AN OFFICER WITH DEPENDENT CHILDREN.