B-136010, AUGUST 1, 1958, 38 COMP. GEN. 89

B-136010, AUGUST 1, 1958, 38 COMP. GEN. 89

MILITARY PERSONNEL - QUARTERS ALLOWANCE - DEPENDENTS - CHILDREN - DIVORCE - SUPPORT DETERMINATION WHERE THE CUSTODY OF THREE MINOR CHILDREN IS PLACED IN THE FATHER, AN OFFICER OF THE UNIFORMED SERVICES, BY A DECREE OF DIVORCE BUT THE CHILDREN, BY MUTUAL AGREEMENT OF THE PARENTS, REMAINED WITH THE MOTHER WHO WAS SOLELY RESPONSIBLE FOR THEIR SUPPORT, THE OFFICER MAY NOT BE REGARDED AS HAVING DEPENDENTS WITHIN THE MEANING OF SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949, 37 U.S.C. 231 (G), FOR ENTITLEMENT TO INCREASED BASIC ALLOWANCE FOR QUARTERS IN THE ABSENCE OF A SHOWING OF CONTRIBUTIONS BY THE OFFICER FOR THE SUPPORT OF THE CHILDREN.

TO LIEUTENANT COLONEL W. T. SAVILLE, AUGUST 1, 1958:

BY LETTER DATED APRIL 29, 1958, THE DIRECTORATE OF ACCOUNTING AND FINANCE FORWARDED YOUR LETTER OF MARCH 25, 1958, REQUESTING AN ADVANCE DECISION, APPROVED BY THE MILITARY PAY AND ALLOWANCE COMMITTEE AS AIR FORCE REQUEST NO. 343, AS TO THE ENTITLEMENT OF COLONEL ROBERT J. DIXON, USAF, 14462A, TO INCREASED BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENT MINOR CHILDREN.

IT APPEARS THAT COLONEL DIXON WAS DIVORCED ON JULY 15, 1957, AND THAT THE DECREE OF DIVORCE APPROVED A SEPARATION AGREEMENT WHICH HE AND HIS WIFE ENTERED INTO THE PRECEDING YEAR. THAT AGREEMENT PROVIDED, AMONG OTHER THINGS, THAT THE CUSTODY OF THEIR THREE MINOR CHILDREN WAS THEREBY GIVEN TO THE HUSBAND UNTIL SUCH TIME AS THE PARTIES MIGHT OTHERWISE AGREE, PROVIDED THAT IF AT ANY TIME AFTER JUNE 30, 1957, THE WIFE REQUESTED OF THE HUSBAND AND FAILED TO OBTAIN CUSTODY OF THE CHILDREN, SHE COULD APPLY TO THE CIRCUIT COURT OF MONTGOMERY COUNTY, MARYLAND, TO DETERMINE CUSTODY. THE AGREEMENT ALSO CONTAINED A PROVISION THAT NO PAYMENTS WOULD BE MADE BY EITHER PARTY TO THE AGREEMENT TO THE OTHER PARTY FOR THE CARE, SUPPORT, MAINTENANCE, OR EDUCATION OF THE CHILDREN OR ANY OF THEM.

IT APPEARS FURTHER THAT, DUE TO THE CHILDREN'S SCHOOLING AND THE ASSIGNMENTS OF COLONEL DIXON, THE CHILDREN BY MUTUAL AGREEMENT OF THEIR PARENTS, HAVE BEEN RESIDING WITH THEIR MOTHER SINCE JULY 16, 1957, AND WILL CONTINUE SO TO RESIDE FOR AN INDEFINITE PERIOD, IT IS INDICATED THAT ONE OR MORE OF THE CHILDREN WILL RESUME RESIDENCE WITH COLONEL DIXON SOMETIME IN THE FUTURE, CONTINGENT UPON HIS REASSIGNMENT AND OTHER CONSIDERATIONS.

YOU STATE THAT PAYMENTS OF BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENTS HAVE BEEN MADE TO COLONEL DIXON FOR THE PERIOD FROM JULY 16, 1957, THROUGH DECEMBER 31, 1957, BUT THAT SINCE JANUARY 1, 1958, HE HAS BEEN PAID BASIC ALLOWANCE FOR QUARTERS AS AN OFFICER WITHOUT DEPENDENTS.

YOU INDICATE THAT YOU ARE IN DOUBT AS TO THE OFFICER'S ENTITLEMENT TO SUCH INCREASED ALLOWANCES IN VIEW OF THE FACT THAT THE CHILDREN HAVE NOT RESIDED WITH HIM SINCE JULY 16, 1957, AND WILL NOT RESIDE WITH HIM UNTIL SOMETIME IN THE FUTURE AND SINCE HE IS NOT CONTRIBUTING TO THEIR IMMEDIATE SUPPORT WHILE THEY ARE RESIDING WITH THEIR MOTHER. THEREFORE, YOU REQUEST DECISION ON TWO SPECIFIC QUESTIONS AS FOLLOWS:

1. ARE THE INCREASED QUARTERS ALLOWANCE PAYMENTS MADE TO COLONEL DIXON FOR THE PERIOD 16 JULY 1957 TO 31 DECEMBER 1957 PROPER?

2. MAY THE INCREASED QUARTERS ALLOWANCE BE MADE FROM 1 JANUARY 1958 UNTIL THE CHILDREN REJOIN THE OFFICER TO RESIDE WITH HIM?

SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 804, 37 U.S.C. 231 (G), PROVIDES IN PERTINENT PART:

(G) THE TERM "DEPENDENT" SHALL INCLUDE AT ALL TIMES AND IN ALL PLACES * * * UNMARRIED LEGITIMATE CHILDREN, UNDER TWENTY-ONE YEARS OF( AGE, OF ANY MEMBER OF THE UNIFORMED SERVICES * * *.

FOR REASONS WHICH WILL APPEAR HEREINAFTER YOUR QUESTION NUMBERED 2 WILL BE ANSWERED FIRST.

SINCE THE SEPARATION AGREEMENT PROVIDES THAT CUSTODY OF THE CHILDREN "IS HEREBY GIVEN TO THE HUSBAND UNTIL SUCH TIME AS THE PARTIES MAY OTHERWISE AGREE * * *," IT APPEARS THAT, WHEN THE PARTIES AGREED THAT THE WIFE WOULD HAVE CUSTODY OF THE CHILDREN, THE OFFICER NO LONGER HAD LAWFUL CUSTODY AND THAT HE THEREBY BECAME ABSOLVED FROM THE RESPONSIBILITY TO SUPPORT HIS CHILDREN--- PARTICULARLY SINCE THE SEPARATION AGREEMENT FURTHER PROVIDES, IN EFFECT, THAT NO PAYMENTS WOULD BE MADE BY THE OFFICER FOR THE CARE, SUPPORT, MAINTENANCE, OR EDUCATION OF THE CHILDREN WHILE THEY ARE RESIDING WITH THE MOTHER. DURING PERIODS WHEN, BY MUTUAL AGREEMENT OF THE PARENTS, THE CHILDREN ARE IN THE CUSTODY OF THEIR MOTHER THE SITUATION IS THE SAME AS THOUGH THE DECREE HAD SPECIFICALLY AWARDED THE CHILDREN TO THE MOTHER DURING SUCH PERIODS WITH NO PROVISION IN THE DECREE FOR PAYMENT BY THE HUSBAND FOR SUPPORT OF HIS CHILDREN.

IT WAS HELD IN 23 COMP. GEN. 454, UNDER SECTION 4 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 361, 37 U.S.C. 104 (1946 USED.), CONTAINING LANGUAGE ALMOST IDENTICAL WITH THAT USED IN THE CAREER COMPENSATION ACT OF 1949, THAT THERE MUST BE A SHOWING OF CONTRIBUTIONS OF THE OFFICER TO THE SUPPORT OF HIS CHILDREN IN A CASE SUCH AS THE ONE NOW UNDER CONSIDERATION. SEE 23 COMP. GEN. 71; 23 ID. 625; AND 24 ID. 233.

ACCORDINGLY, YOUR SECOND QUESTION IS ANSWERED IN THE NEGATIVE.

YOUR QUESTION NUMBERED 1 CONCERNS PAYMENTS WHICH HAVE ALREADY BEEN MADE. THE ACCOUNTING OFFICERS OF THE GOVERNMENT HAVE HELD FOR MANY YEARS THAT THE AUTHORITY CONTAINED IN SECTION 8 OF THE ACT OF JULY 31, 1894, AS AMENDED, 28 STAT. 207, 31 U.S.C. 74, DOES NOT AUTHORIZE THEM TO RENDER DECISIONS TO DISBURSING OFFICERS UPON QUESTIONS OF LAW PERTAINING TO PAYMENTS WHICH HAVE BEEN MADE BY THEM. SEE 5 COMP. DEC. 727. HOWEVER, THE MATTER WILL BE REFERRED TO OUR DEFENSE ACCOUNTING AND AUDITING DIVISION FOR ACTION NOT INCONSISTENT WITH THE ACTION TAKEN HEREIN.