B-140646, SEP. 14, 1959

B-140646: Sep 14, 1959

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THERE WAS SUBMITTED WITH YOUR LETTER A COPY OF A FINAL DECREE OF DIVORCE ENTERED IN THE CORPORATION COURT OF THE CITY OF ALEXANDRIA. IN PERTINENT PART: "IT IS THEREFORE ADJUDGED. THE SAME HEREBY IS. ARE HEREBY ABSOLUTELY DIVORCED. THE BONDS OF MATRIMONY HERETOFORE EXISTING BETWEEN THE SAID PARTIES ARE HEREBY FOREVER DISSOLVED. "IT IS FURTHER ADJUDGED. "IT IS FURTHER ADJUDGED. THEY HEREBY ARE. "IT IS FURTHER ADJUDGED. THEY HEREBY ARE. "IT IS FURTHER ADJUDGED. ORDERED AND DECREED THAT THIS DECREE IS NOT EFFECTIVE TO PERMIT EITHER OF THE PARTIES HERETO TO REMARRY UNTIL THE EXPIRATION OF FOUR (4) MONTHS FROM THE ENTRY HEREOF. "AND THIS DECREE IS FINAL.'. YOU STATE IN PARAGRAPH 3 OF YOUR BASIC LETTER THAT THE QUESTION INVOLVED IS WHETHER UNDER THE DIVORCE STATUTES OF THE STATE OF VIRGINIA THE FINAL JUDGMENT OR WHETHER THE MARITAL STATUS CONTINUES UNTIL THE END OF THE PERIOD ALLOWED FOR APPEAL.

B-140646, SEP. 14, 1959

TO LIEUTENANT COMMANDER E. B. EHLERS, DEPARTMENT OF THE NAVY:

BY FIRST ENDORSEMENT DATED AUGUST 31, 1959, THE COMPTROLLER OF THE NAVY FORWARDED YOUR LETTER DATED AUGUST 10, 1959, WITH ENCLOSURES (ASSIGNED SUBMISSION NO. DO-N-452 BY THE DEPARTMENT OF DEFENSE, MILITARY PAY AND ALLOWANCE COMMITTEE), REQUESTING A DECISION AS TO THE RIGHT OF CAPTAIN STEVAN MANDARICH, 72537, U.S. NAVY, TO BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A DEPENDENT WIFE FOR THE PERIOD MARCH 12, 1959, TO JULY 11, 1959.

THERE WAS SUBMITTED WITH YOUR LETTER A COPY OF A FINAL DECREE OF DIVORCE ENTERED IN THE CORPORATION COURT OF THE CITY OF ALEXANDRIA, VIRGINIA ON MARCH 11, 1959, IN THE CASE OF STEVEN MANDARICH V. RUBY L. MANDARICH, WHOLLY DISSOLVING THE BONDS OF MATRIMONY BETWEEN THE PARTIES. THE JUDGMENT PROVIDED, IN PERTINENT PART:

"IT IS THEREFORE ADJUDGED, ORDERED AND DECREED THAT THE AFORESAID DECREE OF DIVORCE A MENSA ET THORO BE, AND THE SAME HEREBY IS, MERGED INTO A DIVORCE A VINCULO MATRIMONII, AND THAT THE COMPLAINANT AND CROSS- DEFENDANT, STEVEN MANDARICH, AND THE DEFENDANT THE CROSS COMPLAINANT, RUBY L. MANDARICH, ARE HEREBY ABSOLUTELY DIVORCED, AND THE BONDS OF MATRIMONY HERETOFORE EXISTING BETWEEN THE SAID PARTIES ARE HEREBY FOREVER DISSOLVED.

"IT IS FURTHER ADJUDGED, ORDERED AND DECREED THAT ALL OF THE PROVISIONS OF THE DECREE HERETOFORE ENTERED IN THIS CASE ON THE 25TH DAY OF FEBRUARY, 1958, NOT INCONSISTENT HEREWITH, SHALL BE CONTINUED IN FULL FORCE AND EFFECT AND MADE A PART OF THIS DECREE.

"IT IS FURTHER ADJUDGED, ORDERED AND DECREED THAT THE PROVISIONS CONTAINED IN THE AGREEMENT BETWEEN THE PARTIES HERETO DATED NOVEMBER 15, 1957, BE, AND THEY HEREBY ARE, RATIFIED AND CONFIRMED.

"IT IS FURTHER ADJUDGED, ORDERED AND DECREED THAT ALL CONTINGENT RIGHTS OF THE PARTIES IN THE REAL AND PERSONAL PROPERTY OF THE OTHER NOT EXISTING OR HEREAFTER EXISTING OR ACQUIRED BE, AND THEY HEREBY ARE, EXTINGUISHED.

"IT IS FURTHER ADJUDGED, ORDERED AND DECREED THAT THIS DECREE IS NOT EFFECTIVE TO PERMIT EITHER OF THE PARTIES HERETO TO REMARRY UNTIL THE EXPIRATION OF FOUR (4) MONTHS FROM THE ENTRY HEREOF.

"AND THIS DECREE IS FINAL.'

YOU STATE IN PARAGRAPH 3 OF YOUR BASIC LETTER THAT THE QUESTION INVOLVED IS WHETHER UNDER THE DIVORCE STATUTES OF THE STATE OF VIRGINIA THE FINAL JUDGMENT OR WHETHER THE MARITAL STATUS CONTINUES UNTIL THE END OF THE PERIOD ALLOWED FOR APPEAL. PARAGRAPH 2 OF THE FIRST ENDORSEMENT TO YOUR LETTER FURNISHED ADDITIONAL INFORMATION THAT CAPTAIN MANDARICH HAD A $200 PER MONTH DEPENDENCY ALLOTMENT IN FAVOR OF RUBY L. MANDARICH FOR THE PERIOD INVOLVED.

APPARENTLY, THE PROVISO IN THE FINAL DECREE QUOTED ABOVE WITH REFERENCE TO REMARRIAGE WAS INCLUDED IN THE DECREE PURSUANT TO TITLE 20-118, CODE OF VIRGINIA, WHICH PROVIDES AS FOLLOWS:

"SEC. 20-118. DISSOLUTION OF BOND OF MATRIMONY; NEITHER PARTY TO MARRY FOR FOUR MONTHS. ---ON THE DISSOLUTION OF THE BOND OF MATRIMONY FOR ANY CAUSE ARISING SUBSEQUENT TO THE DATE OF THE MARRIAGE, NEITHER PARTY SHALL BE PERMITTED TO MARRY AGAIN FOR FOUR MONTHS FROM THE DATE OF SUCH DECREE, AND SUCH BOND OF MATRIMONY SHALL NOT BE DEEMED TO BE DISSOLVED AS TO ANY MARRIAGE SUBSEQUENT TO SUCH DECREE, OR IN ANY PROSECUTION ON ACCOUNT THEREOF, UNTIL THE EXPIRATION OF SUCH FOUR MONTHS; PROVIDED, THAT NOTHING HEREIN CONTAINED SHALL BE DEEMED TO PROHIBIT DIVORCED PERSONS FROM REMARRYING EACH OTHER AT ANY TIME.'

THIS SECTION (THEN SECTION 5113 OF THE VIRGINIA CODE) HAS BEEN CONSIDERED BY THE COURTS OF VIRGINIA AND IT HAS BEEN HELD IN HEFLINGER V. HEFLINGER, 136 VA. 289, 118 SE 316 AND 32 ALR 1088 (1923) THAT THE EFFECT OF SUCH SECTION WAS TO DISSOLVE A MARRIAGE FOR ALL PURPOSES EXCEPT REMARRIAGE.

THE DECREE IN THE PRESENT CASE DISSOLVED THE MARRIAGE BETWEEN STEVEN MANDARICH AND RUBY L. MANDARICH. IT IS ABSOLUTE AND FINAL AS OF THE DATE IT WAS ENTERED, MARCH 11, 1959, AND THERE REMAINED NOTHING MORE TO BE DONE TO PERFECT THE COMPLETE DISSOLUTION OF THE BONDS OF MATRIMONY. THE PROVISION THAT NEITHER OF THE PARTIES SHALL REMARRY FOR A PERIOD OF FOUR MONTHS FROM THE ENTRY OF THE DECREE WAS A CONDITION SUBSEQUENT FIXED BY STATUTE. HENCE, CAPTAIN MANDARICH WAS NOT AN OFFICER WHO HAD "A LAWFUL WIFE" AFTER THE DATE OF THAT DECREE. NOT HAVING A LAWFUL WIFE HE WOULD NOT BE ENTITLED TO BASIC ALLOWANCE FOR QUARTERS. SECTIONS 102 AND 302 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 231 AND 252.

ACCORDINGLY, SINCE PROPER ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS TERMINATED AS OF THE DATE OF ENTRY OF THE DECREE IN THIS CASE, CREDITING THE PAY ACCOUNT OF CAPTAIN STEVAN MANDARICH WITH BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A LAWFUL WIFE FOR THE PERIOD SUBSEQUENT TO MARCH 11, 1959, THE DATE OF ENTRY OF THE FINAL DECREE OF DIVORCE, IS NOT AUTHORIZED.