B-136190, AUGUST 4, 1958, 38 COMP. GEN. 97

B-136190: Aug 4, 1958

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ATTEMPTED TO HAVE A MEXICAN DIVORCE DECREE OBTAINED BY HIS WIFE INVALIDATED AND THE MARRIAGE REESTABLISHED IS SO DOUBTFUL. IN THE ABSENCE OF A DECISION BY A COURT OF COMPETENT JURISDICTION IN THE UNITED STATES THAT THE DIVORCE DECREE IS A NULLITY. THAT PAYMENT OF BASIC ALLOWANCE FOR QUARTERS TO THE OFFICER ON ACCOUNT OF A LAWFUL WIFE AFTER THE MARRIAGE WAS REESTABLISHED MAY NOT BE AUTHORIZED. PAYMENT TO THE OFFICER OF BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A DEPENDENT WIFE WAS DISCONTINUED AS OF THAT DATE. SUCH CERTIFICATES WERE EXECUTED DECEMBER 3. THERE WAS ENCLOSED WITH YOUR LETTER A PHOTOSTATIC COPY OF A LETTER DATED MARCH 31. BROTMAN EXPRESSES THE OPINION THAT THE MARRIAGE WAS EFFECTIVELY AND VALIDLY DISSOLVED BY THE MEXICAN DIVORCE DECREE AND THAT THE FURTHER PROCEEDINGS IN MEXICO DECLARING THAT THE PARTIES WERE REJOINED IN MATRIMONY WERE WITHOUT FORCE OR EFFECT AND WOULD NOT BE RECOGNIZED BY THE STATE OF NEW YORK.

B-136190, AUGUST 4, 1958, 38 COMP. GEN. 97

MILITARY PERSONNEL - HUSBAND AND WIFE - DIVORCE - VALIDITY - FOREIGN - MARRIAGE REESTABLISHMENT THE MARITAL STATUS OF AN OFFICER OF THE UNIFORMED SERVICES WHO, THROUGH MEXICAN ATTORNEYS, ATTEMPTED TO HAVE A MEXICAN DIVORCE DECREE OBTAINED BY HIS WIFE INVALIDATED AND THE MARRIAGE REESTABLISHED IS SO DOUBTFUL, IN THE ABSENCE OF A DECISION BY A COURT OF COMPETENT JURISDICTION IN THE UNITED STATES THAT THE DIVORCE DECREE IS A NULLITY, THAT PAYMENT OF BASIC ALLOWANCE FOR QUARTERS TO THE OFFICER ON ACCOUNT OF A LAWFUL WIFE AFTER THE MARRIAGE WAS REESTABLISHED MAY NOT BE AUTHORIZED.

TO THE CAPTAIN L. P. BULDAIN, DEPARTMENT OF THE ARMY, AUGUST 4, 1958,*

BY FIRST ENDORSEMENT DATED JUNE 13, 1958, THE CHIEF OF FINANCE FORWARDED YOUR LETTER DATED APRIL 17, 1958, WITH ENCLOSURES, REQUESTING DECISION (ASSIGNED D.O. NUMBER 351 BY THE DEPARTMENT OF DEFENSE MILITARY PAY ALLOWANCE COMMITTEE) AS TO THE RIGHT OF AN OFFICER TO BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A DEPENDENT WIFE, PAID TO HIM FOR THE PERIOD BEGINNING JANUARY 6, 1956, UNDER THE CIRCUMSTANCES SET FORTH IN YOUR LETTER AND THE ENCLOSURES.

ON MAY 6, 1955, THE OFFICER'S WIFE OBTAINED A DECREE ISSUED BY THE FIRST CIVIL COURT OF BRAVOS DISTRICT, STATE OF CHIHUAHUA, REPUBLIC OF MEXICO, DIVORCING HER FROM THE OFFICER, AND PAYMENT TO THE OFFICER OF BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A DEPENDENT WIFE WAS DISCONTINUED AS OF THAT DATE. BY LETTER DATED APRIL 14, 1958, TO YOU, ENCLOSED WITH YOUR LETTER, THE OFFICER SAYS THAT HE AND HIS WIFE EXECUTED THEIR SEPARATE CERTIFICATES APPOINTING MEXICAN ATTORNEYS AS THEIR REPRESENTATIVES TO INVALIDATE THE PREVIOUS MEXICAN DIVORCE AND REESTABLISH THEIR MARRIAGE. SUCH CERTIFICATES WERE EXECUTED DECEMBER 3, 1955, IN THE STATE OF NEW YORK. THE OFFICER FURTHER SAYS THAT ON JANUARY 6, 1956, THEY RECEIVED NOTIFICATION THAT THE ACTION REQUESTED BY THEM HAD BEEN ACCOMPLISHED. THE OFFICER HAS BEEN RECEIVING PAYMENT OF BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A DEPENDENT WIFE SINCE JANUARY 6, 1956, THAT BEING THE DATE OF HIS MARRIAGE AS SHOWN ON DD FORM NO. 137, DEPENDENCY CERTIFICATE, WHICH HE EXECUTED ON FEBRUARY 9, 1956. BEGINNING JUNE 1, 1957, THE PARTIES DISCONTINUED LIVING TOGETHER.

THERE WAS ENCLOSED WITH YOUR LETTER A PHOTOSTATIC COPY OF A LETTER DATED MARCH 31, 1958, FROM MR. MELVIN S. BROTMAN, ATTORNEY AT LAW, 60 EAST 42ND STREET, NEW YORK 17, NEW YORK, TO THE OFFICER IN WHICH LETTER MR. BROTMAN EXPRESSES THE OPINION THAT THE MARRIAGE WAS EFFECTIVELY AND VALIDLY DISSOLVED BY THE MEXICAN DIVORCE DECREE AND THAT THE FURTHER PROCEEDINGS IN MEXICO DECLARING THAT THE PARTIES WERE REJOINED IN MATRIMONY WERE WITHOUT FORCE OR EFFECT AND WOULD NOT BE RECOGNIZED BY THE STATE OF NEW YORK.

WHILE IT APPEARS FROM THE REPORTED CASES THAT THE COURTS OF THE STATE OF NEW YORK--- THE APPARENT DOMICILE OF THE PARTIES AT THE TIME THE MEXICAN DIVORCE DECREE WAS ISSUED--- HAVE REFUSED TO RECOGNIZE THE VALIDITY OF CERTAIN TYPES OF MEXICAN DIVORCES, WHEN SUCH DIVORCES ARE ATTACKED IN COLLATERAL PROCEEDINGS ( ANONYMOUS V. ANONYMOUS, 174 MISC. 906, 22 N.Y.S.2D 598, AND CASES THERE CITED), NO EVIDENCE HAS BEEN PRESENTED TO SHOW THAT SUCH DIVORCE DECREE IS NOT VALID ACCORDING TO THE LAWS OF THE STATE OF CHIHUAHUA, MEXICO. WHEN ONE SPOUSE OBTAINS A FINAL DECREE OF DIVORCE PURPORTING TO TERMINATE THE MARRIAGE RELATIONSHIP, THAT ACTION--- EVEN THOUGH THE VALIDITY OF SUCH DECREE MAY BE DOUBTFUL (SEE 36 COMP. GEN. 121/--- CREATES SUBSTANTIAL DOUBT AS TO THE MARITAL STATUS OF THE PARTIES CONCERNED AND IN THE ABSENCE OF A FINDING BY A COURT OF COMPETENT JURISDICTION IN THE UNITED STATES THAT SUCH DECREE IS A NULLITY, THE MATTER ADMITS OF TOO MUCH DOUBT FOR OUR OFFICE TO AUTHORIZE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS TO THE HUSBAND OF SUCH MARRIAGE ON ACCOUNT OF A LAWFUL WIFE. THE SAME IS TRUE WITH RESPECT TO THE ACTION BY THE PARTIES IN ATTEMPTING TO SET ASIDE THE MEXICAN DIVORCE WITH A VIEW TO REESTABLISHING THEIR MARRIAGE STATUS.

ACCORDINGLY, BASED UPON THE PRESENT RECORD, AND IN THE ABSENCE OF A DECREE BY A COURT OF COMPETENT JURISDICTION AS TO THE MARITAL STATUS OF THE OFFICER ON AND AFTER JANUARY 6, 1956, PAYMENT OF BASIC ALLOWANCE FOR QUARTERS TO HIM FOR A LAWFUL WIFE ON AND AFTER THAT DATE DOES NOT APPEAR TO BE AUTHORIZED. APPROPRIATE AUDIT ACTION WILL BE TAKEN WITH RESPECT TO ANY PAYMENTS OF SUCH ALLOWANCE ON AND AFTER THAT DATE.

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