B-125802, NOV. 16, 1955

B-125802, NOV. 16, 1955

TO MR. ROLLO E. KARKEET, ATTORNEY AT LAW:

REFERENCE IS MADE TO YOUR LETTER DATED APRIL 21, 1954, WRITTEN IN BEHALF OF FLORA MAE PHILLIPS, CONCERNING HER INDEBTEDNESS TO THE UNITED STATES FOR FAMILY ALLOWANCE PAID TO HER FOR HERSELF AND THE TWO CHILDREN OF ROBERT M. PHILLIPS INCIDENT TO HIS MILITARY SERVICE. THE INDEBTEDNESS WAS ASSERTED ON THE BASIS THAT FLORA MAE PHILLIPS WAS NOT THE LEGAL WIFE OF ROBERT M. PHILLIPS.

IN YOUR LETTER YOU SAY THAT THE DEBTOR'S MARRIAGE TO THE SERVICEMAN WAS VALID UNDER SECTION 799.02 FLORIDA STATUTES ANNOTATED. AS EXPLAINED TO YOU BY THE DEPARTMENT OF THE ARMY IN THEIR LETTER TO YOU OF MAY 14, 1952, THIS SECTION DOES NOT MAKE A SUBSEQUENT MARRIAGE VALID WHERE THE SPOUSE OF THE FIRST MARRIAGE HAS BEEN MISSING FOR MORE THAN THREE YEARS AND THERE IS NO DIVORCE. IT WOULD APPEAR THAT ITS SOLE EFFECT IS TO MAKE AN EXCEPTION TO THE BIGAMY PENALTY PROVISIONS OF SECTION 799.01 OF THE STATUTES. CASE IN SUPPORT OF YOUR VIEW THAT THE DEBTOR'S MARRIAGE WAS VALID UNDER SECTION 799.02 HAS BEEN FOUND. HOWEVER, IF YOU WILL FURNISH US CITATIONS TO PERTINENT CASES ON THIS POINT, WE WILL GIVE THE MATTER FURTHER CONSIDERATION. OTHERWISE, WE MUST ADHERE TO OUR POSITION THAT IN THE ABSENCE OF A DIVORCE THE MARRIAGE TO THE SERVICEMAN WAS INVALID AND THEREFORE SHE WAS NOT ENTITLED TO THE PAYMENTS OF THE FAMILY ALLOWANCE ON HER BEHALF.

YOU ALSO STATED THAT ALLOTMENTS MADE ON BEHALF OF THE MINOR CHILDREN WERE TURNED OVER TO THEIR MOTHER. IF THAT STATEMENT CAN BE SUPPORTED BY A STATEMENT FROM THE MOTHER OF THE CHILDREN SHOWING THE PERIOD AND THE AMOUNT OF THE ALLOTMENTS WHICH SHE RECEIVED ON THEIR BEHALF, FURTHER CONSIDERATION WILL BE GIVEN THAT PART OF THE INDEBTEDNESS. IN THE EVENT YOU ARE UNABLE TO FURNISH US WITH INFORMATION AS TO THE PORTION OF THE ALLOTMENT TURNED OVER TO THE CHILDREN, FLORA MAE PHILLIPS REMAINS INDEBTED FOR THAT AMOUNT ALSO.