B-132498, NOV. 7, 1957

B-132498: Nov 7, 1957

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FAMILY ALLOWANCE ON HER BEHALF WAS AUTHORIZED ON SEPTEMBER 22. THE SOLDIER WAS PREVIOUSLY MARRIED TO VIRGINIA MAE GORE WHO WAS GRANTED A DECREE OF DIVORCE BY THE CIRCUIT COURT OF CULPEPER COUNTY. BE AND SHE IS HEREBY GRANTED AN ABSOLUTE DIVORCE (A VINCULE) FROM HER HUSBAND. BE AND SHE IS HEREBY PERMITTED TO RESUME HER MAIDEN NAME OF VIRGINIA MAE HAWKINS. * * *" THE LAST-QUOTED PROVISION OF THE DECREE APPEARS TO HAVE BEEN MANDATORY UNDER SECTION 5113 OF THE VIRGINIA CODE OF 1942. THIS SECTION WAS CONSTRUED AND ITS VALIDITY ESTABLISHED IN THE PRINCIPAL CASE OF HELFLINGER V. COOK IN MARYLAND WITHIN THE SIX-MONTHS' PROHIBITORY PERIOD CONTAINED IN THE VIRGINIA DIVORCE DECREE WAS CONSIDERED BY THE CHIEF OF THE LEGAL BRANCH OF THE OFFICE MAKING THE FAMILY ALLOWANCE PAYMENTS.

B-132498, NOV. 7, 1957

TO THE SECRETARY OF THE ARMY:

UNDER DATE OF MARCH 30, 1955, THE FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, REFERRED TO OUR OFFICE AS UNCOLLECTIBLE A CLAIM AGAINST RICHARD F. AND REBECCA GORE IN THE NET AMOUNT OF $1,528, ARISING OUT OF THE ERRONEOUS PAYMENT OF FAMILY ALLOWANCE DURING THE PERIOD JUNE 1, 1942, THROUGH DECEMBER 31, 1945. THE RECORD SHOWS THAT ON AUGUST 27, 1942, THE SOLDIER FILED A CLAIM FOR FAMILY ALLOWANCE ON BEHALF OF REBECCA COOK GORE, WHOM HE CEREMONIALLY MARRIED ON MAY 8, 1942, AT HYATTSVILLE, MARYLAND. FAMILY ALLOWANCE ON HER BEHALF WAS AUTHORIZED ON SEPTEMBER 22, 1942, EFFECTIVE JUNE 1, 1942. THE SOLDIER WAS PREVIOUSLY MARRIED TO VIRGINIA MAE GORE WHO WAS GRANTED A DECREE OF DIVORCE BY THE CIRCUIT COURT OF CULPEPER COUNTY, VIRGINIA, ON APRIL 10, 1942.

THE DECREE OF DIVORCE ENTERED BY THE CIRCUIT COURT OF CULPEPER COUNTY CONTAINS THE FOLLOWING PROVISION:

"* * * DOTH ADJUDGE, ORDER AND DECREE THAT THE PLAINTIFF, VIRGINIA MAE GORE, BE AND SHE IS HEREBY GRANTED AN ABSOLUTE DIVORCE (A VINCULE) FROM HER HUSBAND, RICHARD F. GORE; THAT THE PLAINTIFF, VIRGINIA MAE GORE, BE AND SHE IS HEREBY PERMITTED TO RESUME HER MAIDEN NAME OF VIRGINIA MAE HAWKINS; THAT NEITHER PARTY TO THIS SUIT SHALL REMARRY WITHIN SIX MONTHS FROM THE ENTRY OF THIS DECREE; * * *"

THE LAST-QUOTED PROVISION OF THE DECREE APPEARS TO HAVE BEEN MANDATORY UNDER SECTION 5113 OF THE VIRGINIA CODE OF 1942. THIS SECTION WAS CONSTRUED AND ITS VALIDITY ESTABLISHED IN THE PRINCIPAL CASE OF HELFLINGER V. HELFLINGER, 136 VA. 289, 118 S.E. 316. IN THAT CASE THE SUPREME COURT OF APPEALS OF VIRGINIA AFFIRMED A DECISION OF A LOWER COURT HOLDING A REMARRIAGE IN BALTIMORE, MARYLAND, WITHIN THE SIX-MONTH PROHIBITORY PERIOD TO BE NULL AND VOID.

THE QUESTION OF THE VALIDITY OF THE SOLDIER'S MARRIAGE TO REBECCA E. COOK IN MARYLAND WITHIN THE SIX-MONTHS' PROHIBITORY PERIOD CONTAINED IN THE VIRGINIA DIVORCE DECREE WAS CONSIDERED BY THE CHIEF OF THE LEGAL BRANCH OF THE OFFICE MAKING THE FAMILY ALLOWANCE PAYMENTS, AND IN AN OPINION DATED DECEMBER 29, 1947, HE CONCLUDED THAT THE VIRGINIA DIVORCE DID NOT SEVER THE SOLDIER'S MARITAL STATUS WITH VIRGINIA MAE GORE UNTIL THE EXPIRATION OF SIX MONTHS AFTER IT WAS GRANTED; THAT THE SOLDIER DID NOT HAVE THE CAPACITY TO ENTER INTO A MARRIAGE CONTRACT WITH REBECCA E. COOK ON MAY 8, 1942, AND THAT SUCH MARRIAGE WAS VOID.

UPON THE BASIS OF THE FOREGOING FACTS, IT WAS ADMINISTRATIVELY DETERMINED THAT THE FORMER SERVICEMAN'S MARRIAGE TO REBECCA E. GORE COULD NOT BE RECOGNIZED TO ESTABLISH HER ENTITLEMENT TO FAMILY ALLOWANCE BENEFITS. ACCORDINGLY, IT WAS CONCLUDED THAT MR. AND MRS. GORE ARE JOINTLY AND SEVERALLY LIABLE FOR THE REFUND OF THE SUM OF $1,528. UPON VERIFICATION A SMALL ADDITIONAL AMOUNT WAS FOUND TO BE DUE AND THE INDEBTEDNESS NOW STANDS AT THE SUM OF $1,552 AFTER CREDITING A REMITTANCE OF $20 MADE UNDER DATE OF JUNE 14, 1957.

FOLLOWING DEMANDS MADE UPON THE DEBTORS FOR PAYMENT OF THE AMOUNT DUE, THERE WAS RECEIVED FROM HONORABLE BURR P. HARRISON, HOUSE OF REPRESENTATIVES, A LETTER DATED JULY 9, 1957, IN WHICH THE FOLLOWING INQUIRY WAS MADE:

"1. ASSUMING GOOD FAITH ON THE PART OF THE SERVICEMAN AND HIS WIFE, AND AN HONEST BELIEF IN THE VALIDITY OF THEIR MARRIAGE, ARE THE REQUIREMENTS OF THE LAW MANDATORY THAT A REFUND SHOULD BE MADE, OR DOES THE G.A.O. OR THE DEPARTMENT OF DEFENSE HAVE ANY DISCRETION IN COMPOSING THE CLAIM?

UNDER DATE OF JULY 29, 1957, WE ADVISED CONGRESSMAN HARRISON AS TO THE BASIS FOR THE GOVERNMENT'S CLAIM IN THIS CASE AND, RESPONDING TO THE FOREGOING INQUIRY, WE INVITED HIS ATTENTION TO THE PROVISIONS OF SECTION 13 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, 64 STAT. 797, UNDER WHICH THE COMPTROLLER GENERAL OF THE UNITED STATES, UPON THE RECOMMENDATION OF THE HEAD OF THE DEPARTMENT CONCERNED, OR SUCH SUBORDINATE AS HE MAY DESIGNATE, AND A SHOWING THAT COLLECTION WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE, MAY WAIVE INDEBTEDNESS GROWING OUT OF ERRONEOUS PAYMENTS OF ALLOWANCES UNDER THE AUTHORITY OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942. IT DOES NOT APPEAR FROM OUR RECORDS THAT YOUR DEPARTMENT HAS MADE A RECOMMENDATION CONCERNING A WAIVER OF THIS INDEBTEDNESS.

THERE IS ENCLOSED FOR THE INFORMATION OF YOUR DEPARTMENT A COPY OF A FURTHER LETTER DATED OCTOBER 24, 1957, FROM CONGRESSMAN HARRISON, TOGETHER WITH THE ENCLOSURES TRANSMITTED THEREWITH, IN WHICH HE REQUESTS TO BE ADVISED AS TO WHETHER ANY AUTHORITY REMAINS IN ANYONE TO CONSIDER THE WAIVER OR FORGIVENESS OF ANY PART OF THIS CLAIM. IN ADDITION TO THE FOREGOING ENCLOSURES THERE IS ENCLOSED THE FILE OF THE FINANCE CENTER, U.S. ARMY, AS WELL AS COPIES OF A LETTER DATED SEPTEMBER 26, 1957, TO YOU FROM CONGRESSMAN HARRISON AND AN AFFIDAVIT EXECUTED ON SEPTEMBER 24, 1957, BY MR. GORE. THE MATTER IS REFERRED FOR YOUR CONSIDERATION AND RECOMMENDATION AS TO WHETHER COLLECTION OF THIS INDEBTEDNESS SHOULD BE WAIVED AS BEING AGAINST EQUITY AND GOOD CONSCIENCE.