B-129766, FEBRUARY 5, 1957, 36 COMP. GEN. 574

B-129766: Feb 5, 1957

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REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO CREDIT AN OFFICER IN THE UNITED STATES AIR FORCE WITH AN INCREASED BASIC ALLOWANCE FOR QUARTERS AS FOR AN OFFICER WITH A DEPENDENT WIFE FOR THE MONTH OF FEBRUARY 1955. ARE AFFIDAVITS EXECUTED BY THE OFFICER'S FORMER WIFE AND TWO OTHER UNITED STATES AIR FORCE OFFICERS AND A CERTIFIED PHOTOSTATIC COPY OF A FINAL JUDGMENT AND DECREE OF DIVORCE IN THE CASE OF THE OFFICER AND HIS WIFE ENTERED ON SEPTEMBER 2. THE ESSENTIAL FACTS OF THE MATTER MAY BE SUMMARIZED BRIEFLY AS FOLLOWS: THE OFFICER AND HIS WIFE WERE MARRIED IN 1946. WHILE THE OFFICER WAS STATIONED IN GERMANY. THE OFFICER RETURNED TO THE UNITED STATES IN MAY 1952 AND FROM THAT TIME TO DECEMBER 1952 HE WAS STATIONED AT MACDILL AIR FORCE BASE.

B-129766, FEBRUARY 5, 1957, 36 COMP. GEN. 574

MILITARY PERSONNEL - QUARTERS ALLOWANCE ON ACCOUNT OF LAWFUL WIFE - COMMON-LAW MARRIAGE OF PARTIES AFTER DIVORCE BRIEF PERIODS OF INTERMITTENT COHABITATION BY AN OFFICER AND HIS FORMER WIFE AFTER FINAL DIVORCE, AND EVIDENCE THAT HE HELD HER OUT TO HIS ASSOCIATES AS HIS WIFE, DOES NOT CONSUMMATE A VALID COMMON-LAW MARRIAGE UNDER THE LAWS OF FLORIDA SO AS TO ENTITLE THE OFFICER TO BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A LAWFUL WIFE.

TO MAJOR JOE ROBUSTELLINI, DEPARTMENT OF THE AIR FORCE, FEBRUARY 5, 1957:

BY LETTER DATED OCTOBER 16, 1956, THE AIR FORCE FINANCE CENTER, DENVER, COLORADO, FORWARDED TO US YOUR LETTER OF SEPTEMBER 5, 1956, WITH ENCLOSURES, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO CREDIT AN OFFICER IN THE UNITED STATES AIR FORCE WITH AN INCREASED BASIC ALLOWANCE FOR QUARTERS AS FOR AN OFFICER WITH A DEPENDENT WIFE FOR THE MONTH OF FEBRUARY 1955, UNDER THE CIRCUMSTANCES SET FORTH IN THE ENCLOSURES.

AMONG THE ENCLOSURES SUBMITTED WITH YOUR LETTER, IN ADDITION TO THE OFFICER'S SEVERAL STATEMENTS, ARE AFFIDAVITS EXECUTED BY THE OFFICER'S FORMER WIFE AND TWO OTHER UNITED STATES AIR FORCE OFFICERS AND A CERTIFIED PHOTOSTATIC COPY OF A FINAL JUDGMENT AND DECREE OF DIVORCE IN THE CASE OF THE OFFICER AND HIS WIFE ENTERED ON SEPTEMBER 2, 1952, IN THE SUPERIOR COURT OF MUSCOGEE COUNTY, GEORGIA.

THE ESSENTIAL FACTS OF THE MATTER MAY BE SUMMARIZED BRIEFLY AS FOLLOWS: THE OFFICER AND HIS WIFE WERE MARRIED IN 1946. EARLY IN 1952, WHILE THE OFFICER WAS STATIONED IN GERMANY, THEY SEPARATED AND HIS WIFE RETURNED TO THE UNITED STATES WHERE SHE FILED SUIT FOR DIVORCE IN THE AUGUST 1952 TERM OF THE SUPERIOR COURT OF MUSCOGEE COUNTY, GEORGIA. THE OFFICER RETURNED TO THE UNITED STATES IN MAY 1952 AND FROM THAT TIME TO DECEMBER 1952 HE WAS STATIONED AT MACDILL AIR FORCE BASE, TAMPA, FLORIDA. FOR ABOUT 50 DAYS IN FEBRUARY AND MARCH 1953 HE WAS ON TEMPORARY DUTY AT THAT BASE. SEPTEMBER 1952, WHILE HIS WIFE WAS LIVING IN EVANSVILLE, INDIANA, THE OFFICER RECEIVED A CERTIFIED COPY OF THE ABOVE-MENTIONED DIVORCE DECREE. BY THE TERMS OF THE DECREE THE MARRIAGE BETWEEN THE PARTIES WAS DISSOLVED, EACH WAS GIVEN THE RIGHT TO REMARRY, AND THE PLAINTIFF'S MAIDEN NAME WAS RESTORED. SUBSEQUENTLY THEY ALLEGEDLY RESIDED TOGETHER IN TAMPA, FLORIDA, FOR SEVERAL WEEKS AT A TIME, IN SEPTEMBER AND NOVEMBER 1952, AND FEBRUARY 1953. IT IS ALLEGED THAT SEVERAL WEEKS AFTER THE DIVORCE PROCEEDINGS WERE INSTITUTED, THE OFFICER'S FORMER WIFE REQUESTED HER ATTORNEY TO DISCONTINUE THE ACTION AND THAT IN SEPTEMBER 1952, WHEN THE OFFICER INFORMED HER THAT HE HAD RECEIVED A COPY OF THE DIVORCE DECREE, SHE TOLD HIM THAT IT WAS VOID INASMUCH AS SHE HAD REQUESTED DISCONTINUANCE OF THE ACTION. IT IS ALSO ALLEGED THAT IN FEBRUARY 1955 THE FORMER WIFE, DESIRING TO MARRY ANOTHER MAN, MADE INQUIRY OF THE MUSCOGEE COUNTY COURT RELATIVE TO THE INITIATION OF DIVORCE PROCEEDINGS AND WAS ADVISED THAT SHE HAD BEEN DIVORCED FROM THE OFFICER SINCE SEPTEMBER 2, 1952. SHE THEN MARRIED ANOTHER MAN. IT IS ALLEGED FURTHER THAT DURING THE ENTIRE PERIOD FROM SEPTEMBER 1952 TO FEBRUARY 1955 SHE USED THE NAME OF HER FORMER HUSBAND, THE CLAIMING OFFICER; THAT THE OFFICER CONTRIBUTED APPROXIMATELY $200 A MONTH FOR HER SUPPORT; AND THAT FOR A TIME DURING THAT PERIOD SHE LIVED IN A HOUSE AT HIALEAH, FLORIDA, WHICH HAD BEEN PURCHASED BY THE OFFICER. THE SEVERAL WEEKS AT A TIME IN SEPTEMBER AND NOVEMBER 1952 AND FEBRUARY 1953 IS CORROBORATED BY THE AFFIDAVITS EXECUTED BY TWO OFFICERS OF THE AIR FORCE, IN WHICH THEY AVER THAT WHILE STATIONED AT MACDILL AIR FORCE BASE, TAMPA, FLORIDA, DURING THOSE MONTHS, THEY WERE INTRODUCED TO THE OFFICER'S FORMER WIFE BY HIM AS HIS WIFE AND THAT THESE TWO HELD THEMSELVES OUT TO THESE OFFICERS AND TO THE PUBLIC AS MAN AND WIFE.

THE OFFICER RECEIVED A BASIC ALLOWANCE FOR QUARTERS AS FOR AN OFFICER WITH A DEPENDENT (LAWFUL WIFE) FROM SEPTEMBER 2, 1952, TO FEBRUARY 28, 1955. THE INCREASED BASIC ALLOWANCE FOR QUARTERS PAID TO HIM FOR THE MONTH OF FEBRUARY 1955, IN THE AMOUNT OF $119.70, WAS COLLECTED FROM HIM IN AUGUST 1956.

ON THE BASIS OF THESE FACTS THE OFFICER CONTENDS THAT HIS RELATIONS WITH HIS FORMER WIFE SUBSEQUENT TO THE DIVORCE DECREE OF SEPTEMBER 2, 1952, BOTH BELIEVING THAT SUCH DECREE WAS VOID, RESULTED IN THE CONSUMMATION OF A VALID COMMON-LAW MARRIAGE; THAT HE SHOULD BE ALLOWED TO RETAIN THE BASIC ALLOWANCE FOR QUARTERS PAID TO HIM FOR THE PERIOD SEPTEMBER 2, 1952, TO JANUARY 31, 1955, AND THAT THE AMOUNT COLLECTED FROM HIM IN AUGUST 1956 SHOULD BE REFUNDED.

COMMON-LAW MARRIAGES ARE RECOGNIZED AS VALID IN THE STATE OF FLORIDA. MARSICANO V. MARISICANO, 79 FLA. 278, 84 SO. 156; CHAVES V. CHAVES, 79 FLA. 602, 84 SO. 672. UNDER THE LAWS OF THAT STATE THE TWO ESSENTIALS TO A VALID COMMON-LAW MARRIAGE ARE CAPACITY OF THE PARTIES AND MUTUAL CONSENT, AND IT IS WELL SETTLED THAT UNDER THE COMMON LAW THE MARRIAGE RELATION MAY BE FORMED BY WORDS OF PRESENT INTENT, PER VERBA DE PRAESENTI. TO CONSTITUTE A VALID MARRIAGE PER VERBA DE PRAESENTI THERE MUST BE AN AGREEMENT TO BECOME HUSBAND AND WIFE IMMEDIATELY FROM THE TIME WHEN THE MUTUAL CONSENT IS GIVEN. AN EXPRESS FUTURE CONDITION IS ABSOLUTELY FATAL TO A CLAIM OF MARRIAGE, AND CANNOT BE EXPLAINED AWAY BY CIRCUMSTANCES. MARRIAGES "PER VERBA BE FUTURO CUM COPULA" ARE NOT RECOGNIZED IN THAT STATE. UNITED STATES V. LAYTON, 68 F.SUPP. 247; MARISCANO V. MARISICANO, SUPRA. IN ORDER TO ENTER INTO A VALID COMMON-LAW MARRIAGE THE PARTIES MUST INTEND THAT THEIR RELATIONSHIP AS HUSBAND AND WIFE BE A PERMANENT ONE AND NOT A MERELY TEMPORARY LIVING TOGETHER SO LONG AS MUTUALLY CONVENIENT OR DESIRABLE FOR THE PARTIES. CORNELL V. MABE ( U.S.C.A. 5TH CIR. TEX.), 206 F.2D 514. TO COHABIT AS MAN AND WIFE MEANS TO LIVE TOGETHER, TO HAVE THE SAME HABITATION, SO THAT WHERE ONE LIVES, THERE WILL THE OTHER LIVE ALSO. IT DOES NOT CONTEMPLATE A MERE SOJOURN, VISIT, OR LIVING TOGETHER FOR A TIME. LEBLANC V. YAWN ( FLA. 1930), 99 FLA. 328, 126 SO. 789. OCCASIONAL OR INTERMITTENT COHABITATION BETWEEN THE PARTIES AFTER DIVORCE HAS BEEN HELD TO SHOW ONLY AN ILLICIT RELATION. O-MALLEY V. O-MALLEY, 46 MONT. 549. 549, 129 P. 501. THE REQUISITES OF COMMON LAW MARRIAGE BETWEEN STRANGERS ARE EQUALLY APPLICABLE TO PARTIES OF A DIVORCE WHO HAVE RESUMED COHABITATION. NO PRESUMPTION IS INDULGED IN FAVOR OF THE LEGALITY OF THEIR COHABITATION FROM THE FACT THAT THEIR FORMER RELATIONSHIP WAS LEGAL RATHER THAN MERITRICIOUS. ARNOLD V. ARNOLD, 255 MICH. 248, 238 N.W. 209; ANNOTATION, 79 A.L.R. 213.

IN THE PRESENT CASE THE EVIDENCE SUBMITTED IN SUPPORT OF THE ALLEGED COMMON-LAW MARRIAGE TENDS TO SHOW THAT THE OFFICER AND HIS FORMER WIFE LIVED AND COHABITED TOGETHER IN THE STATE OF FLORIDA FOR A FEW WEEKS AT A TIME IN SEPTEMBER AND NOVEMBER 1952 AND FEBRUARY 1953 AND THAT IT WAS UNDERSTOOD AMONG SOME OF THEIR ASSOCIATES THAT THEY WERE HUSBAND AND WIFE. THE EVIDENCE FAILS, HOWEVER, TO SHOW THAT AT ANY TIME AFTER THE DIVORCE THE PARTIES ENTERED INTO AN AGREEMENT BETWEEN THEMSELVES, EITHER EXPRESS OR IMPLIED, TO ESTABLISH, RENEW, OR CONTINUE THEIR CONJUGAL RELATIONS UNDER THE GUISE OF A COMMON-LAW MARRIAGE. IN FACT THE EVIDENCE ACTUALLY NEGATIVES SUCH AN INTENT IN VIEW OF THE INTERMITTENT AND BRIEF PERIODS OF COHABITATION OF THE PARTIES AFTER THE DIVORCE WHICH MIGHT JUST AS WELL BE CONSTRUED AS MERE TRIAL RENEWALS OF THEIR MARITAL RELATION WITH, PERHAPS, THE INTENTION TO MARRY AGAIN IN THE FUTURE. IT NECESSARILY FOLLOWS THAT THEY MAY NOT IN ANY EVENT BE RECOGNIZED AS HUSBAND AND WIFE SO AS TO ENTITLE THE OFFICER TO A BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A LAWFUL WIFE AFTER SEPTEMBER 2, 1952.

ACCORDINGLY, IT IS CONCLUDED THAT THE OFFICER MAY NOT BE CREDITED WITH AN INCREASED BASIC ALLOWANCE FOR QUARTERS AS AN OFFICER WITH A LAWFUL WIFE FOR THE MONTH OF FEBRUARY 1955.