B-128267, AUGUST 16, 1956, 36 COMP. GEN. 121

B-128267: Aug 16, 1956

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WHICH WAS OBTAINED BY A NAVY OFFICER AND HIS WIFE WHILE TEMPORARILY DOMICILED IN MEXICO AND WHICH DISSOLVED THEIR MARRIAGE ON THE GROUNDS OF MUTUAL CONSENT. WHICH WILL BE CONSIDERED A REQUEST FOR DECISION AS TO THE RIGHT OF CHIEF BOATSWAIN. AT WHICH TIME THEY STATED AND SIGNED THE MARRIAGE REGISTER OF FOREIGNERS TO THE EFFECT THAT THEY WERE MARRIED IN SAN FRANCISCO. THAT THEY WERE "TEMPORARILY DOMICILED" IN THE CITY OF NUEVO LAREDO. - TO CONSIDER US AS HAVING APPEARED IN DUE TIME AND IN DUE FORM WITH THIS BRIEF AND WITH THE ORIGINAL DOCUMENT WHICH WE ARE ATTACHING HERETO. THAT BOTH OF US ARE DULY QUALIFIED TO CONTRACT A NEW MARRIAGE. ON THE SAME DAY THE REGISTRAR OF THE BUREAU OF VITAL STATISTICS "RESOLVED" AS FOLLOWS: THERE IS HEREWITH DECLARED AS DISSOLVED IN THE NAME OF THE LAW AND IN THE NAME OF SOCIETY.

B-128267, AUGUST 16, 1956, 36 COMP. GEN. 121

HUSBAND AND WIFE - MEXICAN DIVORCE - VALIDITY - MILITARY PERSONNEL - ALLOWANCES ON ACCOUNT OF DEPENDENT UNTIL A UNITED STATES COURT DETERMINES THE VALIDITY OF A MEXICAN DIVORCE DECREE, WHICH WAS OBTAINED BY A NAVY OFFICER AND HIS WIFE WHILE TEMPORARILY DOMICILED IN MEXICO AND WHICH DISSOLVED THEIR MARRIAGE ON THE GROUNDS OF MUTUAL CONSENT, THE OFFICER'S SECOND WIFE MAY NOT BE REGARDED AS A LAWFUL WIFE FOR PURPOSES OF THE OFFICER'S ENTITLEMENT TO INCREASED RENTAL AND SUBSISTENCE ALLOWANCES AND BASIC ALLOWANCE FOR QUARTERS.

TO R. C. FAILMEZHER, DEPARTMENT OF THE NAVY, AUGUST 16, 1956:

BY LETTER DATED JUNE 11, 1956, FILE JAG:II:JRS, THE JUDGE ADVOCATE GENERAL OF THE NAVY TRANSMITTED YOUR FIRST ENDORSEMENT OF MAY 18, 1956, WITH ENCLOSURES, WHICH WILL BE CONSIDERED A REQUEST FOR DECISION AS TO THE RIGHT OF CHIEF BOATSWAIN, USN, TO INCREASED RENTAL AND SUBSISTENCE ALLOWANCES AND BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A DEPENDENT LAWFUL WIFE FOR THE PERIOD BEGINNING DECEMBER 30, 1948, UNDER THE CIRCUMSTANCES SET FORTH IN THE ENCLOSURES.

IT APPEARS THAT ON DECEMBER 3, 1946, AT 11:00 A.M., THE OFFICER AND HIS WIFE APPEARED BEFORE THE REGISTRAR OF THE BUREAU OF VITAL STATISTICS IN NUEVO LAREDO, STATE OF TAMAULIPAS, MEXICO, AT WHICH TIME THEY STATED AND SIGNED THE MARRIAGE REGISTER OF FOREIGNERS TO THE EFFECT THAT THEY WERE MARRIED IN SAN FRANCISCO, CALIFORNIA, ON DECEMBER 22, 1944, THAT THEY RESIDED IN THAT PLACE, AND THAT THEY WERE "TEMPORARILY DOMICILED" IN THE CITY OF NUEVO LAREDO. AT 12:00 NOON ON THE SAME DAY THEY FILED A "BRIEF" WITH THE REGISTRAR OF VITAL STATISTICS OF NUEVO LAREDO, TOGETHER WITH A CERTIFIED TRANSCRIPT FROM THE REGISTER OF FOREIGNERS' MARRIAGES, REQUESTING THE REGISTRAR OF VITAL STATISTICS "TO GRANT US DIVORCE BY MUTUAL CONSENT, WITHOUT SETTING FORTH THE CAUSES OR GROUNDS FOR SUCH INTENTION.' THE PARTIES FURTHER REQUESTED THE REGISTRAR OF VITAL STATISTICS TO TAKE THE FOLLOWING ACTION:

FIRST--- TO CONSIDER US AS HAVING APPEARED IN DUE TIME AND IN DUE FORM WITH THIS BRIEF AND WITH THE ORIGINAL DOCUMENT WHICH WE ARE ATTACHING HERETO, REQUESTING THE DISSOLUTION OF OUR MARRIAGE BY MUTUAL CONSENT, WITHOUT SETTING FORTH THE CAUSES OR GROUNDS FOR SUCH INTENTION. SECOND--- TO ORDER THAT WE RATIFY THIS BRIEF IN ALL ITS PARTS. THIRD--- AFTER SUCH RATIFICATION, TO PRONOUNCE THE DIVORCE REQUESTED, ORDERING, THAT BOTH OF US ARE DULY QUALIFIED TO CONTRACT A NEW MARRIAGE.

AT 1:00 P.M. ON THE SAME DAY THE REGISTRAR OF THE BUREAU OF VITAL STATISTICS "RESOLVED" AS FOLLOWS:

THERE IS HEREWITH DECLARED AS DISSOLVED IN THE NAME OF THE LAW AND IN THE NAME OF SOCIETY, THE MARRIAGE CONTRACTED BY AND BETWEEN (THE OFFICER AND HIS WIFE) AND THERE IS DECLARED AS RESCINDED THE CIVIL MARRIAGE CONTRACT EXECUTED BY BOTH OF THEM IN THE CITY OF SAN FRANCISCO, CALIFORNIA, UNITED STATES OF AMERICA, ON DECEMBER 22, 1944. BOTH PARTIES ARE AUTHORIZED TO CONTRACT A NEW CIVIL MARRIAGE AND (THE OFFICER'S WIFE) IS AUTHORIZED TO RESUME HER MAIDEN NAME, (--- --- --- ). THE DIVORCE DECREE, BY MUTUAL CONSENT, IS TO BE RECORDED IN THE CORRESPONDING REGISTER.

IN A LETTER DATED MAY 21, 1956, THE OFFICER STATES THAT HIS FORMER WIFE WAS REMARRIED IN 1947 AND THAT ON THE BASIS OF THE MEXICAN DIVORCE DECREE, AND THE FACT THAT HIS FORMER WIFE HAD REMARRIED, HE MARRIED ANOTHER WOMAN ON DECEMBER 30, 1948.

IT IS WELL ESTABLISHED THAT UNLESS A FOREIGN COURT GRANTING A DIVORCE HAD JURISDICTION OVER THE SUBJECT MATTER OF THE DIVORCE BY REASON OF BONA FIDE RESIDENCE OR DOMICILE THERE, OF AT LEAST ONE OF THE PARTIES, ITS DECREE OF DIVORCE WILL NOT, UNDER THE RULES OF INTERNATIONAL COMITY, BE RECOGNIZED IN ONE OF THE STATES OF THE UNITED STATES, EVEN THOUGH THE LAWS OF SUCH FOREIGN COUNTRY DO NOT MAKE RESIDENCE OR DOMICILE A CONDITION TO ITS COURT'S TAKING JURISDICTION. ANNOTATION, 143 A.L.R. 1312, AND CASES CITED.

IN THE SECOND INDORSEMENT OF THE COMPTROLLER OF THE NAVY, DATED JUNE 4, 1956, FORWARDING YOUR REQUEST FOR ADVANCE DECISION TO THE SECRETARY OF THE NAVY ( JUDGE ADVOCATE GENERAL), IT IS STATED:

3. WHILE THE DIVORCE DECREE IN THE INSTANT CASE RECITES THAT BOTH THE MEMBER AND HIS SPOUSE WERE RESIDENT IN MEXICO AT THE TIME OF APPLICATION FOR DIVORCE, THE RECORD IS PROBABLY NOT SUFFICIENT TO SUPPORT A FINDING OF BONA FIDE RESIDENCE OR DOMICILE ESTABLISHED WITH INTENT TO REMAIN. GENERALLY, THEREFORE A REQUEST SUCH AS THE PRESENT ONE WOULD BE ANSWERED TO THE EFFECT THAT THE ENTITLEMENT REQUESTED COULD NOT LEGALLY BE AFFORDED. HOWEVER, IN THE PRESENT CASE THERE ARE FACTORS WHICH MAY JUSTIFY OR REQUIRE AN OPPOSITE CONCLUSION. THEY ARE THE FACTS THAT BOTH PARTIES WERE PRESENT AT THE TIME OF APPLICATION FOR DIVORCE AND THEREFORE THE COURT HAD JURISDICTION OF THEIR PERSONS. THEY WERE IN FACT RESIDENT IN MEXICO, AT LEAST FOR A SHORT TIME, AND IT MAY BE THAT TOGETHER WITH THE FACT OF PERSONAL APPEARANCE BY BOTH PARTIES THAT IT IS JUSTIFIABLE TO CONCLUDE THAT THE COURT HAD JURISDICTION OF THE SUBJECT MATTER OF THE SUIT. IN ADDITION, BOTH PARTIES INVOLVED IN THE DIVORCE PROCEEDING IN QUESTION HAVE REMARRIED AND THERE WAS NO ISSUE OF THEIR MARRIAGE. THEREFORE, THE DECREE MAY BE LEGALLY EFFECTIVE ON AN ESTOPPEL BASIS. WITH REGARD TO THE FOREGOING REMARKS, SEE 17 AM. JUR., DIVORCE AND SEPARATION, SECTIONS 745, 759 AND 760.

DOMICILE IS MATERIAL WITH RESPECT TO THE VALIDITY OF AN OUT-OF-STATE DIVORCE. WILLIAMS V. NORTH CAROLINA, 325 U.S. 226. WHILE IT APPEARS THAT THE OFFICER AND HIS WIFE WERE PRESENT IN MEXICO AT THE TIME OF THE DIVORCE PROCEEDINGS, IT WILL BE NOTED THAT THE "BRIEF" FILED BY THE PARTIES REQUESTING DISSOLUTION OF THEIR MARRIAGE WAS NOT ADDRESSED TO ANY COURT AND THAT THEY ADMITTED THAT THEY WERE RESIDENTS OF THE STATE OF CALIFORNIA AND ONLY "TEMPORARILY DOMICILED" IN NUEVO LAREDO, MEXICO. IT SEEMS CLEAR, THEREFORE, THAT THE PARTIES DID NOT HAVE A BONA FIDE DOMICILE OR RESIDENCE IN THAT COUNTRY (INTENDING TO REMAIN THERE). THE COURTS OF THE UNITED STATES HAVE REFUSED TO RECOGNIZE THE VALIDITY OF A DECREE OF DIVORCE OBTAINED IN MEXICO BY PARTIES DOMICILED IN THE UNITED STATES WHEN THEY WENT TO MEXICO TEMPORARILY FOR THE SOLE PURPOSE OF OBTAINING A CONSENT DIVORCE" AND RETURNED TO THEIR DOMICILE AFTER STAYING IN MEXICO FOR ONLY A FEW HOURS ( GOLDEN V. GOLDEN ( NEW MEXICO), 68 P.2D 928, 122 A.L.R. 1327); WHERE THE HUSBAND STAYED IN MEXICO FOR A PERIOD OF FIVE DAYS ONLY ( WELLS V. WELLS ( ALABAMA), 161 SO. 794, 105 A.L.R. 822); WHERE THE HUSBAND STAYED IN MEXICO ONLY NINE DAYS ( BETHUNE V. BETHUNE ( ARKANSAS), 94 S.W.2D 1043, 105 A.L.R. 814 AND 824); WHERE THE HUSBAND REMAINED IN MEXICO LESS THAN ONE WEEK ( NEWTON V. NEWTON) ( NEW JERSEY), 179 A. 621); WHERE THE HUSBAND WAS IN MEXICO ON A 60-DAY LEAVE OF ABSENCE FROM PERMANENT EMPLOYMENT IN THE UNITED STATES (1BOBALA V. BOBALA ( OHIO), 33 N.E.2D 845); WHERE THE HUSBAND HAD NEVER BEEN IN MEXICO EXCEPT FOR A PERIOD OF SEVERAL DAYS PRIOR TO THE RENDITION OF THE DECREE ( RYDER V. RYDER (CALIFORNIA), 37 P.2D 1069). AND WHILE THERE IS AUTHORITY TO THE EFFECT THAT A SPOUSE, AGAINST WHOM A DIVORCE HAS BEEN GRANTED AND WHO THEREAFTER MARRIES, IS DEEMED THEREBY TO ACCEPT THE BENEFITS OF THE DECREE AND IS ESTOPPED TO ATTACK IT (17 AM. JUR., DIVORCE AND SEPARATION, SECTION 760, AND CASES CITED IN THE FOOTNOTE), THE PARTIES IN THE MEXICAN DIVORCE PROCEEDINGS INVOLVED IN THE AFORESAID CASES WERE PERMITTED TO ASSERT THE INVALIDITY OF A MEXICAN DIVORCE. THE ONLY STATE IN WHICH THE COURTS APPLY THE ESTOPPEL DOCTRINE (AS TO THE PARTIES TO THE DIVORCE PROCEEDINGS) APPEARS TO BE NEW YORK. SEE COSTI V. COSTI, 133 N.Y.S.2D 447; CASWELL V. CASWELL, 111 N.Y.S.2D 75; MOUNTAIN V. MOUNTAIN, 109 N.Y.S.2D 828; IN RE FLEISCHER'S ESTATE, 80 N.Y.S.2D 543; LEVITON V. LEVITON, 6 N.Y.S.2D 535; MITCHELL V. MITCHELL, 85 N.Y.S. 627. THE FEDERAL GOVERNMENT OR A STATE, HOWEVER WOULD NOT BE ESTOPPED FROM CHALLENGING THE VALIDITY OF SUCH A FOREIGN DIVORCE DECREE WHEN THEIR INTERESTS MIGHT BE ADVERSELY AFFECTED. SEE PETITION OF TAFFEL ( DISTRICT COURT, S.D., NEW YORK), 49F./SUPP. 109. FURTHERMORE, SINCE THE GROUND MUTUAL CONSENT OF THE PARTIES UPON WHICH THE OFFICER'S MARRIAGE WAS ALLEGEDLY DISSOLVED, IS NOT A CAUSE FOR DIVORCE IN THE STATE OF CALIFORNIA, IT IS HIGHLY QUESTIONABLE WHETHER THE COURTS OF THAT STATE WOULD RECOGNIZE A MEXICAN DIVORCE DECREE OBTAINED BY RESIDENTS OF THAT STATE ON SUCH GROUND.

ACCORDINGLY, BASED ON THE PRESENT RECORD AND THE HOLDINGS IN THE CITED REPORTED CASES, IT MUST BE CONCLUDED THAT UNTIL THE MEXICAN DIVORCE DECREE OBTAINED BY THE OFFICER AND HIS WIFE IS RECOGNIZED AS VALID BY A COURT OF COMPETENT JURISDICTION IN THE UNITED STATES, THE OFFICER MAY NOT BE CONSIDERED TO HAVE A LAWFUL WIFE INSOFAR AS HIS MARRIAGE FOLLOWING THE ILLEGAL DIVORCE IS CONCERNED, WITHIN THE MEANING OF THE APPLICABLE STATUTORY PROVISIONS, SO AS TO ENTITLE HIM TO INCREASED RENTAL AND SUBSISTENCE ALLOWANCES AND BASIC ALLOWANCE FOR QUARTERS ON HER ACCOUNT.

THE PAPERS ACCOMPANYING YOUR SUBMISSION ARE BEING RETAINED HERE.

WITH RESPECT TO THE OFFICER'S STATEMENT THAT HE HAS BEEN ADVISED THAT A ( STATE) COURT WOULD NOT GRANT A DECLARATORY JUDGMENT IN THE CIRCUMSTANCES OF HIS CASE, HE MAY BE ADVISED OF HIS RIGHT TO HAVE HIS RIGHT TO ALLOWANCES ON ACCOUNT OF A LAWFUL WIFE LITIGATED IN THE UNITED STATES COURT OF CLAIMS.