B-135306, MAR. 13, 1958

B-135306: Mar 13, 1958

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REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO CONTINUE TO CREDIT CWO-2 EDWARD O. INCLUDED AMONG THE ENCLOSURES SUBMITTED WITH YOUR LETTER IS A FORM DD 137. IT APPEARS THAT THE OFFICER AND ANNA WERE MARRIED IN FORT MONMOUTH. RESULTED FROM THIS UNION AND WERE LISTED AS DEPENDENTS ON FORM DD 137 FILED ON JULY 1. A COMPLAINT FOR DIVORCE WAS FILED BY THE OFFICER AGAINST ANNA IN THE ABOVE MEXICAN COURT ON THE GROUND OF INCOMPATIBILITY. THE DECREE OF COURT ABSOLVING THE MARRIAGE WAS ENTERED ON JUNE 28. THE WIFE WAS ORDERED TO BE SERVED NOTICE THROUGH SUMMONS ADDRESSED TO THE SHERIFF'S OFFICE OF MONMOUTH COUNTY. RESIDENCE WAS NOT ESTABLISHED IN MEXICO BY THE OFFICER. IT APPEARING TO THE COURT THERE WAS NONE.

B-135306, MAR. 13, 1958

TO COLONEL W. C. MEYER, U.S.A., FINANCE AND ACCOUNTING OFFICER, DEPARTMENT OF THE ARMY:

BY FIRST ENDORSEMENT DATED FEBRUARY 14, 1958, THE OFFICE CHIEF OF FINANCE FORWARDED TO US YOUR LETTER DATED FEBRUARY 4, 1958, WITH ENCLOSURES, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO CONTINUE TO CREDIT CWO-2 EDWARD O. THOMAS, K-2153313, WITH A BASIC ALLOWANCE FOR QUARTERS AS FOR AN OFFICER WITH DEPENDENTS UNDER THE CIRCUMSTANCES SET FORTH IN THE ENCLOSURES. INCLUDED AMONG THE ENCLOSURES SUBMITTED WITH YOUR LETTER IS A FORM DD 137, APPLICATION FOR BASIC ALLOWANCE FOR QUARTERS FOR MEMBER WITH DEPENDENTS, EFFECTIVE DATE JULY 7, 1957, AND A COPY OF A CERTIFIED COPY OF A DECREE OF DIVORCE ENTERED IN THE SECOND CIVIL COURT IN AND FOR THE DISTRICT OF BRAVOS, STATE OF CHIHUAHUA, REPUBLIC OF MEXICO, ON JUNE 28, 1957, IN THE CASE OF EDWARD O. THOMAS, PLAINTIFF, V. ANNA T. THOMAS, DEFENDANT, DOCKET 1318-957.

IT APPEARS THAT THE OFFICER AND ANNA WERE MARRIED IN FORT MONMOUTH, STATE OF NEW JERSEY, ON MAY 8, 1949. THREE CHILDREN, GREGORY, JEFFERY, AND MICHAEL, RESULTED FROM THIS UNION AND WERE LISTED AS DEPENDENTS ON FORM DD 137 FILED ON JULY 1, 1957. ON MAY 2, 1957,A COMPLAINT FOR DIVORCE WAS FILED BY THE OFFICER AGAINST ANNA IN THE ABOVE MEXICAN COURT ON THE GROUND OF INCOMPATIBILITY. THE DECREE OF COURT ABSOLVING THE MARRIAGE WAS ENTERED ON JUNE 28, 1957. THE WIFE WAS ORDERED TO BE SERVED NOTICE THROUGH SUMMONS ADDRESSED TO THE SHERIFF'S OFFICE OF MONMOUTH COUNTY, STATE OF NEW JERSEY, BUT SHE DID NOT APPEAR OR CONTEST THE PROCEEDINGS. RESIDENCE WAS NOT ESTABLISHED IN MEXICO BY THE OFFICER, WHO MADE PERSONAL APPEARANCE TO RATIFY THE COMPLAINT AND CONFIRM HIS EXPRESS SUBMISSION TO THE JURISDICTION AND COMPETENCE OF THE COURT. THE DECREE AWARDED CUSTODY OF THE MINOR CHILDREN TO ANNA BUT MADE NO PROVISION FOR THEIR SUPPORT AND MADE NO ADJUDICATION REGARDING COMMUNITY PROPERTY, IT APPEARING TO THE COURT THERE WAS NONE.

BY FORM DD 137, DATED OCTOBER 18, 1957, THE OFFICER CLAIMED BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENTS ERMA E. THOMAS, WIFE, AND THE ABOVE MINOR CHILDREN, EFFECTIVE JULY 7, 1957. THE APPLICATION CONTAINS THE OFFICER'S STATEMENT THAT HE CONTRIBUTES $150 MONTHLY TO THE SUPPORT OF THE CHILDREN, WHO ARE SHOWN TO BE IN CUSTODY OF THEIR MOTHER IN EATONTOWN, NEW JERSEY.

DOMICILE IS MATERIAL WITH RESPECT TO THE VALIDITY OF AN OUT-OF-STATE DIVORCE. WILLIAMS V. NORTH CAROLINA, 325 U.S. 226. 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 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 COURTS TAKING JURISDICTION. SEE ANNOTATIONS IN 143 A.L.R. 1312, 157 A.L.R. 1422, 163 A.L.R. 377, AND CASES THERE CITED. IT IS NOTED THAT THE OFFICER DID NOT ESTABLISH RESIDENCE IN MEXICO AND IT FURTHER APPEARS THAT NEITHER OF THE PARTIES HAD A BONA FIDE DOMICILE OR RESIDENCE IN THAT COUNTRY. AMERICAN COURTS HAVE AS A RULE SHOWN NO TENDENCY TO RECOGNIZE THE VALIDITY OF DIVORCES UNDER THE VARIOUS MEXICAN STATE LAWS, WHEN THE STATUS OF AMERICAN CITIZENS NOT BONA FIDE RESIDENTS OF MEXICO IS INVOLVED. SEE 36 COMP. GEN. 121 AND CASES CITED THEREIN.

ACCORDINGLY, ON THE PRESENT RECORD, IT MUST BE CONCLUDED THAT UNTIL THE MEXICAN DIVORCE DECREES OBTAINED BY THE OFFICER 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 MEXICAN DIVORCE IS CONCERNED, WITHIN THE MEANING AND SPIRIT OF THE APPLICABLE STATUTORY PROVISIONS AND REGULATIONS PROMULGATED THEREUNDER, AUTHORIZING PAYMENT OF A BASIC ALLOWANCE FOR QUARTERS SO AS TO ENTITLE HIM TO CREDIT OF SUCH ALLOWANCE FOR ANY PART OF THE PERIOD COVERED BY HIS CLAIM.

WITH REGARD TO ENTITLEMENT TO THE BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF THE DEPENDENT MINOR CHILDREN, IT HAS BEEN HELD THAT THE FACT THAT A DIVORCE DECREE OR OTHER COURT ORDER GIVING CUSTODY OF THE MINOR CHILDREN TO THE MOTHER DOES NOT PROVIDE SPECIFICALLY THAT THE FATHER IS REQUIRED TO SUPPORT HIS CHILDREN DOES NOT OF ITSELF OPERATE TO DEPRIVE AN OFFICER OF THE ALLOWANCES, REGARDLESS OF THE JURISDICTION IN WHICH THE DECREE WAS ISSUED, OR IN WHICH THE CHILDREN ARE DOMICILED, IF IT IS SHOWN THAT HE IS IN FACT CONTRIBUTING TO THEIR SUPPORT. SEE 23 COMP. GEN. 625.

SINCE IT APPEARS THAT THE OFFICER IS IN FACT CONTRIBUTING TO THE SUPPORT OF HIS CHILDREN, PAYMENT OF THE BASIC ALLOWANCE FOR QUARTERS AS FOR AN OFFICER WITH DEPENDENTS FOR THE PERIOD HERE INVOLVED IS AUTHORIZED. THE ENCLOSURES SUBMITTED WITH LETTER OF FEBRUARY 4, 1958, ARE RETURNED.