B-135953, JUN. 26, 1958

B-135953: Jun 26, 1958

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A PHOTOSTATIC COPY OF WHICH AGREEMENT WAS ENCLOSED WITH YOUR LETTER. THAT COMMENCING WITH THE MONTH OF MAY 1958 THE OFFICER WILL PAY TO JENNIE M. IF SHE IS PHYSICALLY UNABLE TO SUPPORT HERSELF. THERE WERE ALSO ENCLOSED WITH YOUR LETTER THREE DD FORMS 137 (APPLICATION FOR BASIC ALLOWANCE FOR QUARTERS FOR MEMBERS WITH DEPENDENTS) SUPPORTED BY MILITARY PAY ORDERS (DD FORM 114). TO WHOM THE OFFICER WAS MARRIED ON DECEMBER 29. IS EFFECTIVE FROM THAT DATE. IS EFFECTIVE JANUARY 1. ON THE REVERSE OF THE THIRD APPLICATION IS THE FOLLOWING STATEMENT: "CUSTODY OF CHILD TERMINATED 21 JAN 58.'. SINCE A MEXICAN DIVORCE WAS OBTAINED BY THE OFFICER. THERE WAS ENCLOSED WITH YOUR LETTER A LETTER DATED MARCH 11.

B-135953, JUN. 26, 1958

TO CAPTAIN R. W. PIGG, FC, DISBURSING OFFICER, THROUGH CHIEF OF FINANCE, DEPARTMENT OF THE ARMY:

BY FIRST INDORSEMENT DATED APRIL 21, 1958, THE CHIEF OF FINANCE FORWARDED YOUR LETTER DATED MARCH 18, 1958 (ASSIGNED D.O. NUMBER 334), WITH ENCLOSURES, REQUESTING DECISION AS TO THE RIGHT OF MAJOR GORDON C. ANDREWS, 01284262, TO BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF DEPENDENTS.

IT APPEARS THAT ON DECEMBER 20, 1957, THE OFFICER OBTAINED IN THE FIRST CIVIL COURT OF BRAVES DISTRICT, STATE OF CHIHUAHUA, REPUBLIC OF MEXICO, A "RESOLUTION" DIVORCING HIM FROM HIS WIFE, JENNIE M. ANDREWS, ON THE GROUND OF INCOMPATIBILITY OF TEMPERAMENTS. THE OFFICER APPEARED IN PERSON AND THE DEFENDANT APPEARED BY MANUEL ROMO GANDARA, HER SPECIAL ATTORNEY, PURSUANT TO A POWER OF ATTORNEY EXECUTED BY HER ON DECEMBER 17, 1957, IN WAYNE COUNTY, MICHIGAN. THE ,RESOLUTION" ALSO APPROVED A SEPARATION AGREEMENT EXECUTED DECEMBER 17, 1957, IN WAYNE COUNTY, MICHIGAN, BETWEEN THE PARTIES, A PHOTOSTATIC COPY OF WHICH AGREEMENT WAS ENCLOSED WITH YOUR LETTER. THE AGREEMENT PROVIDES, AMONG OTHER THINGS, THAT COMMENCING WITH THE MONTH OF MAY 1958 THE OFFICER WILL PAY TO JENNIE M. ANDREWS BY THE TENTH OF EACH MONTH THE MINIMUM SUM OF $100 FOR HER SUPPORT, IF SHE IS PHYSICALLY UNABLE TO SUPPORT HERSELF, AND $70 A MONTH FOR EACH OF THEIR THREE CHILDREN LIVING WITH HER. THERE WERE ALSO ENCLOSED WITH YOUR LETTER THREE DD FORMS 137 (APPLICATION FOR BASIC ALLOWANCE FOR QUARTERS FOR MEMBERS WITH DEPENDENTS) SUPPORTED BY MILITARY PAY ORDERS (DD FORM 114). THE FIRST APPLICATION DATED FEBRUARY 20, 1958, CLAIMS BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A MINOR SON, GORDON G. ANDREWS, JR., EFFECTIVE DECEMBER 22, 1957. THE SECOND APPLICATION DATED MARCH 13, 1958, CLAIMS SUCH ALLOWANCE ON ACCOUNT OF THE SAME MINOR SON AND ELEANOR S. ANDREWS, TO WHOM THE OFFICER WAS MARRIED ON DECEMBER 29, 1957, IN THE STATE OF NEW YORK, AND IS EFFECTIVE FROM THAT DATE. THE THIRD APPLICATION ALSO DATED MARCH 13, 1958, CLAIMS SUCH ALLOWANCE ON ACCOUNT OF THE SAME MINOR SON AND ELEANOR S. ANDREWS, AND IS EFFECTIVE JANUARY 1, 1958. ALL OF THE APPLICATIONS SHOW THE CURRENT ADDRESS OF THE MINOR SON AS 21 MANSFIELD ROAD, DARIEN, CONNECTICUT, AND THE FIRST TWO APPLICATIONS SHOW THE ADDRESS OF HIS MOTHER AS FLINT, MICHIGAN. ON THE REVERSE OF THE THIRD APPLICATION IS THE FOLLOWING STATEMENT: "CUSTODY OF CHILD TERMINATED 21 JAN 58.'

YOU ASK WHETHER ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS EXISTS ON AND AFTER DECEMBER 22, 1957, ON ACCOUNT OF THE MINOR SON, SINCE THE SEPARATION AGREEMENT ONLY SPECIFIES PAYMENT FOR SUPPORT COMMENCING WITH THE MONTH OF MAY 1958. YOU ALSO ASK, SINCE A MEXICAN DIVORCE WAS OBTAINED BY THE OFFICER, WHETHER HIS SECOND WIFE MAY BE REGARDED AS HIS LAWFUL WIFE FOR THE PURPOSES OF ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS FOR THE PERIOD FROM DECEMBER 29, 1957.

THERE WAS ENCLOSED WITH YOUR LETTER A LETTER DATED MARCH 11, 1958, FROM MR. MARTIN TUCKER OF BUHLER, KING AND BUHLER, COUNSELLORS AT LAW, 274 MADISON AVENUE, NEW YORK 16, NEW YORK, CONTENDING THAT THE MEXICAN DIVORCE OBTAINED BY THE OFFICER WAS VALID, CITING SHERRER V. SHERRER, 334 U.S. 343; COE V. COE, 334 U.S. 378; CASWELL V. CASWELL, 111 N.Y. SUPP. 2D 875; AND MOUNTAIN V. MOUNTAIN, 109 N.Y. SUPP. 2D 828.

RESPECTING THE VALIDITY OF THE DIVORCE OBTAINED BY THE OFFICER, FROM JENNIE M. ANDREWS, THE CIRCUMSTANCES HERE INVOLVED APPEAR TO BE ANALOGOUS TO THOSE INVOLVED IN OUR DECISION OF AUGUST 16, 1956, 36 COMP. GEN. 121, WITH THE EXCEPTION THAT IN THAT DECISION THE HUSBAND AND WIFE WERE BOTH PERSONALLY PRESENT AT THE TIME THE MEXICAN DIVORCE WAS GRANTED. IN THAT DECISION WE HELD, QUOTING THE SYLLABUS, AS FOLLOWS:

"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 GROUND 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.'

THAT DECISION CONSIDERED THE NEW YORK CASES CITED IN MR. TUCKER'S LETTER, BUT POINTED OUT THAT THE FEDERAL GOVERNMENT OR A STATE WOULD NOT BE ESTOPPED FROM CHALLENGING THE VALIDITY OF SUCH FOREIGN DIVORCE DECREE WHEN THEIR INTERESTS MIGHT BE ADVERSELY AFFECTED, CITING PETITION OF TAFFEL (DISTRICT COURT, S.D., NEW YORK), 49 F.SUPP. 109. IN THE SHERRER AND THE COE CASES, THE SUPREME COURT OF THE UNITED STATES HELD THAT A DIVORCE DECREE BASED UPON A FINDING OF DOMICILE BY THE DIVORCE GRANTING STATE, AND ENTERED IN A PROCEEDING IN WHICH THE DEFENDANT APPEARED, IS ENTITLED TO FULL FAITH AND CREDIT AND CANNOT BE IMPEACHED BY A COURT OF A SISTER STATE ON THE GROUND THAT THE COURT GRANTING THE DIVORCE DECREE HAD NO JURISDICTION FOR LACK OF REQUISITE DOMICILE OF ANY OF THE PARTIES. EACH OF THOSE CASES, HOWEVER, INVOLVED APPLICATION OF THE FULL FAITH AND CREDIT CLAUSE OF THE UNITED STATES CONSTITUTION TO A SUBSEQUENT SUIT BY ONE OF THE PARTIES TO AN ORIGINAL DIVORCE SUIT IN WHICH BOTH PARTIES HAD APPEARED; THE ORIGINAL SUITS HAVING BEEN DECIDED BY THE COURTS OF FLORIDA AND NEVADA. THE FULL FAITH AND CREDIT CLAUSE OF THE UNITED STATES CONSTITUTION IS NOT HERE INVOLVED AND CLAIM IS HERE ASSERTED AGAINST THE UNITED STATES, WHICH WAS NOT A PARTY TO THE DIVORCE ACTION; HENCE THOSE CASES DO NOT CONTROL THE DISPOSITION OF THIS CASE.

IN OUR DECISION OF AUGUST 16, 1956, 36 COMP. GEN. 121, 122, WE SAID:

"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, END CASES CITED.'

ACCORDINGLY, IT MUST BE CONCLUDED THAT UNTIL THE MEXICAN DIVORCE DECREE OBTAINED BY THE OFFICER IS RECOGNIZED AS VALID BY A COURT OF COMPETENT JURISDICTION IN THE UNITED STATES, THE OFFICER MAY NOT BE CONSIDERED AS HAVING A LAWFUL WIFE INSOFAR AS HIS MARRIAGE FOLLOWING THE DIVORCE IS CONCERNED, WITHIN THE MEANING OF THE APPLICABLE STATUTORY PROVISIONS, SO AS TO BE ENTITLED TO BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A WIFE.

WITH RESPECT TO THE CLAIM FOR SUCH ALLOWANCE ON ACCOUNT OF THE OFFICER'S MINOR SON ON AND AFTER DECEMBER 22, 1957, IT IS INDICATED IN THE STATEMENT ON THE REVERSE OF HIS THIRD APPLICATION THAT THE OFFICER HAD CUSTODY OF THE MINOR SON FROM DECEMBER 22, 1957, TO JANUARY 20, 1958, THE DAY PRECEDING THE DATE IT IS STATED THAT CUSTODY WAS TERMINATED. IF SUCH BE THE CASE, IT WOULD APPEAR THAT THE OFFICER HAD THE RESPONSIBILITY FOR THE SUPPORT OF THE SON DURING THE PERIOD DECEMBER 22, 1957, THROUGH JANUARY 20, 1958. ON THAT BASIS IT IS CONSIDERED THAT THE OFFICER HAD A DEPENDENT MINOR CHILD WITHIN THE MEANING OF SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 804, AS AMENDED, AND, ACCORDINGLY, PAYMENT GF BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A DEPENDENT MINOR CHILD MAY BE CREDITED FOR THAT PERIOD, PROVIDED THE OFFICER FILES AN APPROPRIATE DD FORM 137 RECITING THAT HE WAS RESPONSIBLE FOR THE SUPPORT OF SUCH CHILD DURING THAT PERIOD. COMPARE 34 COMP. GEN. 378.

AS TO THE PERIOD FROM JANUARY 21 TO APRIL 30, 1958, IN THE ABSENCE OF A SHOWING THAT THE OFFICER ACTUALLY SUPPORTED HIS MINOR CHILD, PAYMENT OF THE ALLOWANCE IS NOT AUTHORIZED. SEE THE DISCUSSION IN 24 COMP. GEN. 233 AND 34 COMP. GEN. 101.

IN THE EVENT PAYMENT IS MADE FOR THE PERIOD DECEMBER 22, 1957, THROUGH JANUARY 20, 1958, THIS DECISION, OR A COPY, SHOULD BE ATTACHED TO THE VOUCHER ON WHICH PAYMENT IS MADE. THE ENCLOSURES RECEIVED WITH YOUR LETTER ARE RETAINED, WITH THE EXCEPTION OF THE LETTER OF MARCH 11, 1958, A COPY OF SUCH LETTER HAVING BEEN MADE FOR OUR FILES.