B-137204, OCTOBER 13, 1958, 38 COMP. GEN. 295

B-137204: Oct 13, 1958

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WHICH WAS ELECTED BY THE OFFICER ON BEHALF OF HIS WIFE PRIOR TO THE DIVORCE AND. THE OFFICER IS ENTITLED TO FULL RETIRED PAY WITHOUT DEDUCTION FOR THE COST OF THE ANNUITY UPON THE ENTRY OF THE DIVORCE DECREE. IS AN ELIGIBLE BENEFICIARY UNDER THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953. THE SUBMISSION OF YOUR REQUEST FOR DECISION WAS APPROVED BY THE MILITARY PAY AND ALLOWANCE COMMITTEE. IT IS REPORTED THAT COMMANDER PRUE WAS PLACED ON THE RETIRED LIST EFFECTIVE APRIL 1. THE ELECTION OF OPTIONS SUBMITTED BY HIM PROVIDES THAT " NO FURTHER DEDUCTIONS SHALL BE MADE FROM MY RETIRED PAY COMMENCING WITH THE FIRST DAY OF THE MONTH FOLLOWING THAT IN WHICH THERE IS NO BENEFICIARY ELIGIBLE TO RECEIVE AN ANNUITY UPON MY DEATH.'.

B-137204, OCTOBER 13, 1958, 38 COMP. GEN. 295

MILITARY PERSONNEL - HUSBAND AND WIFE - DIVORCE - ANNUITY ELECTION FOR DEPENDENTS - TERMINATION A WISCONSIN DIVORCE DECREE OBTAINED BY A NAVAL OFFICER PURSUANT TO A WISCONSIN STATUTE, WHICH PROVIDES THAT IF EITHER PARTY DIES WITHIN THE ONE -YEAR PERIOD PRIOR TO FINALITY OF THE DIVORCE, THE DECREE WOULD BE DEEMED TO SEVER THE MARRIAGE RELATIONSHIP IMMEDIATELY BEFORE SUCH DEATH, PRECLUDES THE DIVORCED WIFE FROM BECOMING THE OFFICER'S WIDOW OR LEGITIMATE BENEFICIARY TO BE ENTITLED TO A SURVIVORSHIP ANNUITY, UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, WHICH WAS ELECTED BY THE OFFICER ON BEHALF OF HIS WIFE PRIOR TO THE DIVORCE AND, THEREFORE, THE OFFICER IS ENTITLED TO FULL RETIRED PAY WITHOUT DEDUCTION FOR THE COST OF THE ANNUITY UPON THE ENTRY OF THE DIVORCE DECREE.

TO R. A. WILSON, DEPARTMENT OF THE NAVY, OCTOBER 13, 1958:

BY LETTER OF AUGUST 21, 1958, THE JUDGE ADVOCATE GENERAL OF THE NAVY FORWARDED YOUR LETTER OF JULY 28, 1958, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO WHETHER HARRIET FRANCES PRUE, THE WIFE OF COMMANDER GRANT W. PRUE, U.S. NAVY, RETIRED, IS AN ELIGIBLE BENEFICIARY UNDER THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501 (NOW CODIFIED IN 10 U.S.C. 1431-1444), IN THE CIRCUMSTANCES SHOWN. THE SUBMISSION OF YOUR REQUEST FOR DECISION WAS APPROVED BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, AS SUBMISSION NO. 366.

IT IS REPORTED THAT COMMANDER PRUE WAS PLACED ON THE RETIRED LIST EFFECTIVE APRIL 1, 1958. PRIOR TO HIS RETIREMENT HE SUBMITTED A VALID ELECTION UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT, ELECTING OPTIONS 1 AND 4 FOR ONE-HALF OF HIS REDUCED RETIRED PAY, PAYABLE UPON HIS DEATH TO OR ON BEHALF OF HIS WIDOW, HARRIET FRANCES PRUE, UNTIL HER REMARRIAGE OR DEATH. THE ELECTION OF OPTIONS SUBMITTED BY HIM PROVIDES THAT " NO FURTHER DEDUCTIONS SHALL BE MADE FROM MY RETIRED PAY COMMENCING WITH THE FIRST DAY OF THE MONTH FOLLOWING THAT IN WHICH THERE IS NO BENEFICIARY ELIGIBLE TO RECEIVE AN ANNUITY UPON MY DEATH.' COMMANDER PRUE'S ATTORNEY CONTENDS THAT THE ELECTION MADE BY THE RETIRED MEMBER IS NO LONGER APPLICABLE SINCE HE WAS DIVORCED ON FEBRUARY 27, 1958, PRIOR TO THE EFFECTIVE DATE OF HIS RETIREMENT, AND THAT HIS FULL RETIRED PAY SHOULD BE PAID TO HIM. YOU STATE THAT MONTHLY DEDUCTIONS OF $67.92 TO COVER THE COST OF THE ELECTION HAVE BEEN MADE FROM COMMANDER PRUE'S RETIRED PAY SINCE APRIL 1, 1958, AND THAT SUCH DEDUCTIONS WILL CONTINUE TO BE MADE PENDING OUR DECISION.

THERE WAS SUBMITTED WITH YOUR LETTER A COPY OF A JUDGMENT OF DIVORCE ENTERED IN THE CIRCUIT COURT, MILWAUKEE COUNTY, WISCONSIN, ON FEBRUARY 27, 1958, IN THE CASE OF HARRIET PRUE V. GRANT PRUE, NO. 269-460, WHICH PROVIDES, IN PART, AS FOLLOWS:

IT IS ADJUDGED AND DECREED: THAT THE BONDS OF MATRIMONY HERETOFORE SUBSISTING BETWEEN THE PLAINTIFF HARRIET PRUE AND THE DEFENDANT GRANT PRUE BE AND THE SAME ARE HEREBY WHOLLY DISSOLVED AND THEY ARE FOREVER FREED FROM THE OBLIGATIONS THEREOF, PROVIDED, THAT THE JUDGMENT SO FAR AS IT AFFECTS THE STATUS OF THE PARTIES SHALL NOT BE EFFECTIVE, EXCEPT FOR THE PURPOSE OF AN APPEAL TO REVIEW THE SAME, UNTIL THE EXPIRATION OF ONE YEAR FROM THE DATE OF THE GRANTING OF SAID JUDGMENT OR DECREE.

IT IS FURTHER ADJUDGED AND DECREED: THAT NEITHER OF THE PARTIES TO THIS ACTION SHALL MARRY AGAIN UNTIL ONE YEAR AFTER THE GRANTING OF SAID JUDGMENT OR DECREE ON THE 27TH DAY OF FEBRUARY, 1958, AND THE MARRIAGE OF EITHER OF THE PARTIES TO THIS ACTION SOLEMNIZED BEFORE THE EXPIRATION OF ONE YEAR FROM THE DATE OF THE GRANTING OF THIS JUDGMENT OR DECREE SHALL BE NULL AND VOID.

SECTION 247.37 (1), WISCONSIN STATUTES, 1957, PROVIDES AS FOLLOWS:

EFFECT OF JUDGMENT OF DIVORCE FROM BONDS. (1) WHEN A JUDGMENT OR DECREE OF DIVORCE FROM THE BONDS OF MATRIMONY IS GRANTED SO FAR AS IT AFFECTS THE STATUS OF THE PARTIES IT SHALL NOT BE EFFECTIVE UNTIL THE EXPIRATION OF ONE YEAR FROM THE DATE OF THE GRANTING OF SUCH JUDGMENT OR DECREE; EXCEPTING THAT IT SHALL IMMEDIATELY BAR THE PARTIES FROM COHABITATION TOGETHER AND THAT IT MAY BE REVIEWED ON APPEAL DURING SAID PERIOD. BUT IN CASE EITHER PARTY DIES WITHIN SAID PERIOD, SUCH JUDGMENT OR DECREE, UNLESS VACATED OR REVERSED, SHALL BE DEEMED TO HAVE ENTIRELY SEVERED THE MARRIAGE RELATION IMMEDIATELY BEFORE SUCH DEATH. SHOULD THE PARTIES COHABIT TOGETHER AFTER GRANTING OF SUCH JUDGMENT OR DECREE AND BEFORE VACATION OR REVERSAL OF SAME, THEY SHALL BE SUBJECT TO THE PENALTIES PROVIDED BY SECTION 247.39.

WHILE THE COURTS OF THE STATE OF WISCONSIN HAVE HELD THAT, UNDER A JUDGMENT OR DECREE OF DIVORCE GRANTED PURSUANT TO THE ABOVE STATUTE, THE PARTIES CONTINUE TO BE HUSBAND AND WIFE DURING THE PERIOD OF ONE YEAR FOLLOWING SUCH DECREE OR JUDGMENT UNLESS THE STATUS IS TERMINATED AS INDICATED IN THE STATUTE (SEE STATE V. GRENGS, 253 WIS. 248, 33 N.W.2D 248, AND OTHER CASES THERE CITED), IT IS SPECIFICALLY PROVIDED IN THE STATUTE THAT IF EITHER PARTY DIES IWTHIN THE ONE-YEAR PERIOD, THE DECREE, UNLESS VACATED OR REVERSED, SHALL BE DEEMED TO HAVE SEVERED THE MARRIAGE RELATIONSHIP IMMEDIATELY BEFORE SUCH DEATH. UNDER SUCH STATUTORY PROVISIONS, MRS. PRUE WILL NOT BE COMMANDER PRUE'S WIDOW IF HE SHOULD DIE AT ANY TIME WITHIN ONE YEAR FROM FEBRUARY 27, 1958, AND THE MARRIAGE RELATIONSHIP WILL TERMINATE ONE YEAR AFTER THAT DATE IF HE IS STILL ALIVE AT THAT TIME. SINCE IT APPEARS THAT SHE CANNOT BECOME HIS WIDOW IN ANY EVENT, IT WOULD SEEM THAT SHE HAS NOT BEEN ELIGIBLE TO RECEIVE AN ANNUITY SINCE THE ENTRY OF THE DECREE OF A DIVORCE. WHILE THIS DECREE MAY BE VACATED OR SET ASIDE FOR SUFFICIENT CAUSE AT ANY TIME WITHIN THE ONE-YEAR PERIOD, UNDER THE PROVISIONS OF PARAGRAPH (2), SECTION 247.37, WISCONSIN STATUTES, 1957, IT IS A VALID AND SUBSISTING DECREE AT THE PRESENT TIME AND THE RIGHTS OF THE PARTIES ARE FIXED BY THE PROVISIONS OF LAW RELATING THERETO, UNLESS AND UNTIL SUCH DECREE IS VACATED, SET ASIDE, OR REVERSED.

IT APPEARING THAT MRS. PRUE HAS NOT BEEN AN ELIGIBLE BENEFICIARY SINCE FEBRUARY 27, 1958, THE DEDUCTIONS WHICH HAVE BEEN MADE FROM COMMANDER PRUE'S RETIRED PAY SHOULD BE PAID TO HIM.