B-130674, APR. 23, 1957

B-130674: Apr 23, 1957

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REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO CREDIT CAPTAIN GERALD L. THE FACTS OF THE MATTER MAY BE SUMMARIZED BRIEFLY AS FOLLOWS: THE OFFICER AND BEULAH WERE MARRIED ON JULY 28. THE OFFICER WAS TRANSFERRED TO AN OVERSEAS STATION. WAS NULL AND VOID FROM ITS INCEPTION AND THAT THE MARRIAGE TO THE OFFICER HAD NEVER BEEN DISSOLVED BY DIVORCE OR OTHERWISE AND WAS STILL IN FULL FORCE AND EFFECT. THE JUDGMENT OF THE SUPERIOR COURT WAS AFFIRMED BY THE DISTRICT COURT OF APPEAL. IT WAS ADJUDGED AND DECREED "THAT THE BONDS OF MATRIMONY HERETOFORE CONTRACTED BETWEEN PLAINTIFF AND DEFENDANT BE. THE SAME ARE HEREBY DISSOLVED AND FOR NAUGHT HELD. PLAINTIFF IS FOREVER FREED FROM THE OBLIGATIONS THEREOF AND THAT PLAINTIFF HAVE JUDGMENT THEREFOR.'.

B-130674, APR. 23, 1957

TO MAJOR C. R. PEARSON, USAF, DISBURSING OFFICER, DEPARTMENT OF THE AIR FORCE:

BY LETTER DATED FEBRUARY 4, 1957, THE AIR FORCE FINANCE CENTER, FORWARDED TO US YOUR LETTER OF DECEMBER 13, 1956, WITH ENCLOSURES, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO CREDIT CAPTAIN GERALD L. DAVIS, AO 77 2307, USAFR, WITH AN INCREASED BASIC ALLOWANCE FOR QUARTERS AS FOR AN OFFICER WITH A DEPENDENT (BEULAH L. DAVIS--- LAWFUL WIFE) FOR THE PERIOD MARCH 11, 1951, TO DECEMBER 31, 1955, UNDER THE CIRCUMSTANCES SET FORTH IN THE ENCLOSURES.

INCLUDED AMONG THE ENCLOSURES SUBMITTED WITH YOUR LETTER IN THE OFFICER'S EXPLANATORY LETTER OF JULY 31, 1956, AND A CERTIFIED COPY OF A DECREE OF DIVORCE ENTERED IN THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI, AT KANSAS CITY, ON MAY 10, 1956, IN THE CASE OF GERALD L. DAVIS, PLAINTIFF V. BEULAH LORETTA DAVIS, SOMETIMES KNOWN AS MRS. BEULAH L. RUDNICK, DEFENDANT.

THE FACTS OF THE MATTER MAY BE SUMMARIZED BRIEFLY AS FOLLOWS: THE OFFICER AND BEULAH WERE MARRIED ON JULY 28, 1944. BEULAH FILED AN ACTION FOR DIVORCE AGAINST THE OFFICER IN AUGUST 1949, AND LATER DISMISSED THAT ACTION PRIOR TO THE ENTRY OF A DECREE. IN APRIL 1951, THE OFFICER WAS TRANSFERRED TO AN OVERSEAS STATION. IN SEPTEMBER 1951, BEULAH INFORMED THE OFFICER THAT SHE HAD OBTAINED A MEXICAN DIVORCE, EFFECTIVE MARCH 10, 1951. ON AUGUST 11, 1951, BEULAH WENT THROUGH A MARRIAGE CEREMONY WITH SAM H. RUDNICK IN LAS VEGAS, NEVADA. ON SEPTEMBER 11, 1951, BEULAH AND RUDNICK SEPARATED. ON OCTOBER 5, 1951, RUDNICK FILED AN ACTION FOR ANNULMENT OF THE MARRIAGE OF AUGUST 11, 1951. BEULAH APPEALED FROM AN ADVERSE JUDGMENT OF THE SUPERIOR COURT, KERN COUNTY, CALIFORNIA, WHICH HELD, AMONG OTHER THINGS, THAT THE MARRIAGE OF AUGUST 11, 1951, WAS NULL AND VOID FROM ITS INCEPTION AND THAT THE MARRIAGE TO THE OFFICER HAD NEVER BEEN DISSOLVED BY DIVORCE OR OTHERWISE AND WAS STILL IN FULL FORCE AND EFFECT. THE JUDGMENT OF THE SUPERIOR COURT WAS AFFIRMED BY THE DISTRICT COURT OF APPEAL, FOURTH DISTRICT, CALIFORNIA, ON MARCH 2, 1955, IN THE CASE OF SAM H. RUDNICK, PLAINTIFF AND RESPONDENT V. BEULAH LORETTA RUDNICK, ALSO KNOWN AS BEULAH LORETTA DAVIS, DEFENDANT AND APPELLANT, 280 P.2D 96. IN THE DIVORCE DECREE OF MAY 10, 1956, IN THE ACTION BROUGHT BY THE OFFICER, IT WAS ADJUDGED AND DECREED "THAT THE BONDS OF MATRIMONY HERETOFORE CONTRACTED BETWEEN PLAINTIFF AND DEFENDANT BE, AND THE SAME ARE HEREBY DISSOLVED AND FOR NAUGHT HELD, AND PLAINTIFF IS FOREVER FREED FROM THE OBLIGATIONS THEREOF AND THAT PLAINTIFF HAVE JUDGMENT THEREFOR.'

THE OFFICER CONTENDS, INSOFAR AS HERE MATERIAL, THAT REGULAR MONTHLY CONTRIBUTIONS WERE MADE FOR BEULAH'S SUPPORT THROUGH SEPTEMBER 1951, EVEN THOUGH THEY HAD BEEN SEPARATED PRIOR TO HIS DEPARTURE FROM THE UNITED STATES; THAT SUBSEQUENT TO SEPTEMBER 30, 1951, HE REMITTED VARIOUS SUMS AT IRREGULAR INTERVALS TO RELIEVE HER FINANCIAL CONDITION; THAT PRIOR TO THE DIVORCE DECREE OF MAY 10, 1956, A CASH SETTLEMENT WAS EFFECTED; THAT THE AMOUNT EXPENDED BY HIM IN MEETING HIS MARITAL OBLIGATIONS DURING THE PERIOD INVOLVED--- INCLUDING HIS REGULAR AND IRREGULAR CONTRIBUTIONS, THE AMOUNT OF THE CASH SETTLEMENT, COURT COSTS AND ATTORNEY FEES--- WAS IN EXCESS OF $6,000; AND THAT SINCE HIS MARRIAGE WITH BEULAH WAS NOT DISSOLVED UNTIL MAY 10, 1956, HE IS ENTITLED TO THE INCREASED ALLOWANCES PAYABLE TO AN OFFICER WITH A DEPENDENT (LAWFUL WIFE) FOR THE PERIOD OF HIS CLAIM. THE OFFICER SAYS THAT HE WAS CREDITED WITH INCREASED ALLOWANCES AS FOR AN OFFICER WITH A DEPENDENT (LAWFUL WIFE) FOR THE PERIOD MARCH 11, 1951, THROUGH MAY 31, 1952, AND FOR THE PERIOD JANUARY 1 THROUGH MAY 9, 1956. HE ALSO SAYS THAT THE INCREASED ALLOWANCES CREDITED TO HIS PAY ACCOUNT FOR THE EARLIER PERIOD HAVE BEEN COLLECTED BY CHECK AGE FROM HIS PAY.

IT IS CLEAR THAT THE BONDS OF MATRIMONY BETWEEN THE OFFICER AND BEULAH WERE NOT DISSOLVED UNTIL MAY 10, 1956. HOWEVER, IN DETERMINING WHETHER AN OFFICER HAS A "LAWFUL WIFE" WITHIN THE MEANING OF THE STATUTORY PROVISIONS AUTHORIZING THE PAYMENT OF INCREASED ALLOWANCES, WE HAVE PROCEEDED ON THE THEORY THAT SUCH STATUTES CONTEMPLATE A PARTIAL REIMBURSEMENT OF ACTUAL EXPENSES INCURRED ON BEHALF OF A DEPENDENT AND NOT EXTRA PAY FOR A MERE TECHNICAL STATUS OF A MARRIED MAN. 26 COMP. GEN. 514. THAT VIEW IS CONSISTENT WITH THE DECISIONS OF THE COURT OF CLAIMS OF THE UNITED STATES IN THE CASES OF ROBEY V. UNITED STATES, 71 C.CLS. 561; ABSON V. UNITED STATES, 73 C.CLS. 442, 446; STRAUSS V. UNITED STATES, 73 C.CLS. 690; HERITAGE V. UNITED STATES, 81 C.CLS. 492; AND RAWLINS V. UNITED STATES, 93 C.CLS. 231.

THE EVIDENCE IN THE PRESENT CASE SHOWS THAT THE OFFICER HAD BEEN SEPARATED FROM HIS WIFE PRIOR TO THE ALLEGED EFFECTIVE DATE OF THE PURPORTED MEXICAN DIVORCE DECREE AND THAT HE MADE NO REGULAR CONTRIBUTIONS TO HER SUPPORT AFTER SEPTEMBER 1951. FURTHER, WHILE THE OFFICER CONTENDS THAT HE EXPENDED $6,000 DURING THE PERIOD INVOLVED FOR THE BENEFIT OF HIS WIFE, HE FAILS TO SHOW THE AMOUNTS OF HIS REMITTANCES, THE AMOUNT OF THE CASH SETTLEMENT, OR THAT THE AMOUNTS OF THE REMITTANCES AND THE CASH SETTLEMENT WERE IN LIEU OF SUPPORT. IN THE CIRCUMSTANCES THE OFFICER'S UNSUPPORTED EX PARTE STATEMENTS MAY NOT BE ACCEPTED AS PROOF OF THE REPRESENTATIONS MADE. IN THAT CONNECTION IT CAN HARDLY BE SAID THAT IRREGULAR REMITTANCES TO ALLEVIATE THE FINANCIAL SITUATION OF A WOMAN BELIEVED TO BE MARRIED TO ANOTHER MAN OR PAYMENT OF AMOUNTS GRANTED THE WIFE AS COURT COSTS AND ATTORNEY FEES IN THE DIVORCE ACTION CONSTITUTE CONTRIBUTIONS TO THE SUPPORT OF A "LAWFUL WIFE.'

ACCORDINGLY, ON THE PRESENT RECORD, IT IS NOT ESTABLISHED THAT THE OFFICER HAD A DEPENDENT ,LAWFUL WIFE" WITHIN THE MEANING AND SPIRIT OF THE STATUTORY PROVISIONS AUTHORIZING PAYMENT OF AN INCREASED ALLOWANCE SO AS TO ENTITLE HIM TO CREDIT OF SUCH ALLOWANCE FOR ANY PART OF THE PERIOD COVERED BY HIS CLAIM. THIS CONCLUSION IS WITHOUT PREJUDICE TO THE OFFICER'S RIGHT TO HAVE THE MATTER LITIGATED IN THE UNITED STATES COURT OF CLAIMS.

THE ENCLOSURES WITH YOUR LETTER ARE RETAINED HERE.

THE INCREASED ALLOWANCES CREDITED TO THE OFFICER'S PAY ACCOUNT FOR THE PERIOD JANUARY 1 TO MAY 9, 1956, WILL BE THE SUBJECT OF AUDIT EXAMINATION IF NOT ALREADY UNDERTAKEN.