B-140786, NOVEMBER 16, 1959, 39 COMP. GEN. 374

B-140786: Nov 16, 1959

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MILITARY PERSONNEL - QUARTERS ALLOWANCE - SECOND MARRIAGE PRIOR TO FINAL DIVORCE DECREE THE MARRIAGE OF AN OFFICER OF THE UNIFORMED SERVICES CONTRACTED IN THE STATE OF NEVADA TO AN INDIVIDUAL PRIOR TO THE DATE THE WIFE'S CALIFORNIA INTERLOCUTORY DIVORCE DECREE TERMINATING HER MARRIAGE TO ANOTHER BECAME FINAL IS A NULLITY UNDER THE LAWS OF NEVADA SO THAT THE PARTIES CANNOT BE RECOGNIZED AS HUSBAND AND WIFE DURING THE PERIOD PRIOR TO THE FINAL DECREE TO ENTITLE THE OFFICER TO BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A LAWFUL WIFE FOR SUCH PERIOD. AFTER THE IMPEDIMENT WHICH NULLIFIED THE MARRIAGE WAS REMOVED. CONSTITUTES A COMMON-LAW MARRIAGE SO THAT THE OFFICER IS ENTITLED TO QUARTERS ALLOWANCE FOR A DEPENDENT WIFE FROM THE DATE OF THE FINAL DECREE.

B-140786, NOVEMBER 16, 1959, 39 COMP. GEN. 374

MILITARY PERSONNEL - QUARTERS ALLOWANCE - SECOND MARRIAGE PRIOR TO FINAL DIVORCE DECREE THE MARRIAGE OF AN OFFICER OF THE UNIFORMED SERVICES CONTRACTED IN THE STATE OF NEVADA TO AN INDIVIDUAL PRIOR TO THE DATE THE WIFE'S CALIFORNIA INTERLOCUTORY DIVORCE DECREE TERMINATING HER MARRIAGE TO ANOTHER BECAME FINAL IS A NULLITY UNDER THE LAWS OF NEVADA SO THAT THE PARTIES CANNOT BE RECOGNIZED AS HUSBAND AND WIFE DURING THE PERIOD PRIOR TO THE FINAL DECREE TO ENTITLE THE OFFICER TO BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A LAWFUL WIFE FOR SUCH PERIOD; HOWEVER, AFTER THE IMPEDIMENT WHICH NULLIFIED THE MARRIAGE WAS REMOVED, THE COHABITATION OF THE OFFICER AND WIFE IN THE STATE OF COLORADO, WHICH RECOGNIZES COMMON-LAW MARRIAGES, CONSTITUTES A COMMON-LAW MARRIAGE SO THAT THE OFFICER IS ENTITLED TO QUARTERS ALLOWANCE FOR A DEPENDENT WIFE FROM THE DATE OF THE FINAL DECREE.

TO CAPTAIN R. G. HARNEY, DEPARTMENT OF THE ARMY, NOVEMBER 16, 1959:

BY FIRST ENDORSEMENT DATED SEPTEMBER 14, 1959, THE CHIEF OF FINANCE FORWARDED YOUR LETTER OF AUGUST 18, 1959, WITH ENCLOSURES, REQUESTING A DECISION WHETHER PAYMENT OF BASIC ALLOWANCE FOR QUARTERS FOR A MEMBER WITH DEPENDENTS IS AUTHORIZED IN THE CASE OF COLONEL FRANK G. FORREST, 1022101, UNITED STATES ARMY. THE REQUEST FOR DECISION WAS ASSIGNED D.O. NUMBER 456 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE. YOUR DOUBT IN THE MATTER APPEARS TO BE DUE TO THE FACT THAT THE OFFICER MARRIED DIANN STEWART AFTER SHE HAD OBTAINED AN INTERLOCUTORY DECREE OF DIVORCE BUT PRIOR TO THE DATE OF THE FINAL DECREE.

THERE WAS SUBMITTED WITH YOUR LETTER A COPY OF INTERLOCUTORY JUDGMENT OF DIVORCE, FILE NO. D290646, DATED OCTOBER 10, 1945, ENTERED IN THE SUPREME COURT OF THE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES, IN THE CASE OF DIANN E. CALEY V. MILTON D. CALEY, WHEREIN IT WAS PROVIDED, IN PERTINENT PART, AS FOLLOWS:

IT IS ADJUDGED THAT PLAINTIFF IS ENTITLED TO A DIVORCE FROM DEFENDANT; THAT WHEN ONE YEAR SHALL HAVE EXPIRED AFTER THE ENTRY OF THIS INTERLOCUTORY JUDGMENT A FINAL JUDGMENT DISSOLVING THE MARRIAGE BETWEEN PLAINTIFF AND DEFENDANT BE ENTERED, AND AT THAT TIME THE COURT SHALL GRANT SUCH OTHER AND FURTHER RELIEF AS MAY BE NECESSARY TO COMPLETE DISPOSITION OF THIS ACTION.

IT IS FURTHER ADJUDGED THAT THE PROPERTY SETTLEMENT AGREEMENT MADE AND ENTERED INTO BETWEEN THE PARTIES HERETO ON SEPTEMBER 8, 1945, A TRUE AND CORRECT COPY OF WHICH IS RECEIVED IN EVIDENCED AS EXHIBIT "1," BE AND THE SAME IS HEREBY APPROVED.

IT IS ORDERED, ADJUDGED AND DECREED THAT PLAINTIFF'S MAIDEN NAME TO WIT: DIANN STEWART BE, AND THE SAME IS HEREBY RESTORED TO HER.

ALSO SUBMITTED WAS A COPY OF MARRIAGE CERTIFICATE NO. 105934, STATE OF NEVADA, COUNTY OF CLARK, WHEREIN IT IS CERTIFIED AS FOLLOWS:

THIS IS TO CERTIFY THAT THE UNDERSIGNED F. C. CARPENTER, DID, ON THE 25 DAY OF DEC. A.D. 1945 JOIN IN LAWFUL WEDLOCK FRANK G. FORREST OF LOS ANGELES STATE OF CALIF AND DIANN STEWART OF LOS ANGELES STATE OF CALIF WITH THEIR MUTUAL CONSENT, IN THE PRESENCE OF JERRE WYCKOFF AND DUDLEY H. FOY WHO WERE WITNESSES.

THERE WAS ALSO SUBMITTED A COPY OF FINAL JUDGMENT OF DIVORCE GRANTED ON OCTOBER 14, 1946, IN THE CASE OF DIANN E. CALEY V. MILTON D. CALEY, PROVIDING IN PERTINENT PART:

IN THIS CAUSE AN INTERLOCUTORY JUDGMENT WAS ENTERED ON THE 10TH DAY OF OCTOBER, 1945, ADJUDGING THAT PLAINTIFF WAS ENTITLED TO A DIVORCE FROM DEFENDANT, AND MORE THAN ONE YEAR HAVING ELAPSED, AND NO APPEAL HAVING BEEN TAKEN FROM SAID JUDGMENT, AND NO MOTION FOR A NEW TRIAL HAVING BEEN GRANTED AND THE ACTION NOT HAVING BEEN DISMISSED;

NOW, UPON THE COURT'S OWN MOTION, IT IS ADJUDGED THAT PLAINTIFF BE AND IS GRANTED A FINAL JUDGMENT OF DIVORCE FROM DEFENDANT AND THAT THE BONDS OF MATRIMONY BETWEEN PLAINTIFF AND DEFENDANT BE, AND THE SAME ARE, DISSOLVED.

THE GENERAL RULE OF LAW IS THAT THE VALIDITY OF A MARRIAGE IS DETERMINED BY THE LAW OF THE PLACE WHERE IT WAS CONTRACTED. IF VALID THERE, IT WILL BE HELD VALID EVERYWHERE. THE MARRIAGE CONTRACT CANNOT BE REVOKED BY THE PARTIES BUT ONLY BY THE SOVEREIGN POWER OF THE STATE. THE MARRIAGE STATUS ONCE COMING INTO EXISTENCE REMAINS IN FORCE UNTIL IT IS DISSOLVED BY LAW OR THE DEATH OF A SPOUSE. IN OTHER WORDS, THE STATUS OF MARRIAGE ORDINARILY CONTINUES DURING THE JOINT LIVES OF THE PARTIES OR UNTIL DIVORCE OR ANNULMENT.

UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE HERE PRESENTED, IT IS ASSUMED THAT PRIOR TO THE DATE OF THE INTERLOCUTORY JUDGMENT OF DIVORCE THE ABOVE MENTIONED DIANN STEWART AND MILTON D. CALEY CONTRACTED A VALID AND SUBSISTING MARRIAGE. ON THAT BASIS, THE RECORD SHOWS THAT BY PROVISION OF THE INTERLOCUTORY JUDGMENT OF DIVORCE THE PLAINTIFF WAS ADJUDGED ENTITLED TO A DIVORCE FROM THE DEFENDANT AND THAT ONLY AFTER THE EXPIRATION OF ONE YEAR A FINAL JUDGMENT DISSOLVING THE MARRIAGE WOULD BE ENTERED. IT IS A WELL-ESTABLISHED RULE THAT UNDER THE LAWS OF THE STATE OF CALIFORNIA THE LEGAL RELATION OF HUSBAND AND WIFE IS NOT TERMINATED BY AN INTERLOCUTORY JUDGMENT OF DIVORCE.

THE SUPREME COURT OF CALIFORNIA IN CONSIDERING THE EFFECT OF SUCH AN INTERLOCUTORY JUDGMENT STATED IN THE CASE OF IN RE DARGIE'S ESTATE, 121 P. 320:

IT IS THE FINAL JUDGMENT THAT GRANTS THE DIVORCE. THE INTERLOCUTORY JUDGMENT DOES NOT HAVE THAT EFFECT. IT MERELY DECLARES THE RIGHT: THAT THE PARTY IS "ENTITLED" TO A DIVORCE, A DIVORCE TO BE AFTERWARDS ADJUDGED. BY THE TERMS OF THE STATUTE, IT IS THE FINAL JUDGMENT ALONE THAT GRANTS THE DIVORCE, DISSOLVES THE MARRIAGE, RESTORES THE PARTIES TO THE STATUS OF SINGLE PERSONS, AND PERMITS EACH TO MARRY AGAIN. THE STATUTE DOES NOT ITSELF DECLARE THE MARRIAGE DISSOLVED AT THE EXPIRATION OF THE YEAR FROM THE INTERLOCUTORY JUDGMENT. IT MERELY SUSPENDS FOR ONE YEAR THE POWER OF THE COURT TO DISSOLVE IT, AND, IN EFFECT, PROVIDES THAT IT BECOMES DISSOLVED ONLY WHEN, AFTER THE EXPIRATION OF THAT PERIOD, THE COURT HAS, BY ITS FINAL JUDGMENT, SO DECLARED. IN THE MEANTIME THE PARTIES REMAIN IN THE LEGAL RELATION OF HUSBAND AND WIFE. * * *

HENCE, IT IS APPARENT THAT UNTIL THE FINAL DECREE OF DIVORCE, DIANN STEWART REMAINED THE WIFE OF MILTON D. CALEY. THE CEREMONIAL MARRIAGE DURING THE PERIOD BETWEEN THE DATE OF THE INTERLOCUTORY DECREE AND THE FINAL DECREE AS ATTESTED TO BY THE CERTIFICATE OF MARRIAGE ABOVE MENTIONED WAS A NULLITY SINCE UNDER SECTION 4066, NEVADA COMPILED LAWS (1929), THEN IN EFFECT, SUCH MARRIAGES ARE ,ABSOLUTELY VOID WITHOUT ANY DECREE OF DIVORCE OR ANY OTHER LEGAL PROCEEDINGS.' SEE VILLALON V. BOWEN, 273 P. 2D 409. IT NECESSARILY FOLLOWS THAT THE PARTIES MAY NOT BE LEGALLY RECOGNIZED AS HUSBAND AND WIFE DURING THE PERIOD PRIOR TO THE FINAL DECREE SO AS TO ENTITLE THE OFFICER TO A BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A LAWFUL WIFE FOR SUCH PERIOD.

IN HIS AFFIDAVIT (INCLUDED WITH THE ENCLOSURES IN YOUR LETTER) RELATING THE MARITAL CEREMONY COLONEL FORREST AND DIANN STEWART RESIDED TOGETHER AS MAN AND WIFE AT VARIOUS LOCATIONS UNTIL JUNE 1956, INCLUDING RESIDENCE IN THE STATE OF COLORADO FROM AUGUST 1946 TO JANUARY 31, 1947. IT IS NOTED THAT THE IMPEDIMENT WHICH NULLIFIED THE NEVADA MARRIAGE WAS REMOVED ON OCTOBER 14, 1946, BY THE GRANTING OF THE FINAL DIVORCE DECREE.

AS A GENERAL RULE CONTINUED COHABITATION AFTER THE REMOVAL OF AN IMPEDIMENT OF AN INVALID MARRIAGE WHICH THE PARTIES CONTRACTED IN GOOD FAITH CREATES A VALID INFORMAL OR COMMON LAW MARRIAGE IN A JURISDICTION WHICH RECOGNIZES SUCH MARRIAGES. 55 C.J.S. MARRIAGES, SECTION 36. UNDER THE LAWS OF THE STATE OF COLORADO, MARRIAGE IS CONSIDERED A CIVIL CONTRACT ( COLORADO REVISED STATUTES 90-1-1) WHICH WHEN POSSESSING THE PREREQUISITE ELEMENTS SUFFICIENT TO CONSTITUTE A COMMON LAW MARRIAGE MAY BE VALID ALTHOUGH STATUTORY PROVISIONS RELATING TO MARRIAGE ARE NOT COMPLIED WITH. KLIPFEL'S ESTATE V. KLIPFEL, 92 P. 26.

ALTHOUGH THE RELATIONSHIP OF THE PARTIES WAS AT ITS INCEPTION UNLAWFUL BECAUSE OF THE EXISTING MARRIAGE OF DIANN STEWART, AFTER THE REMOVAL OF SUCH BAR BY THE FINAL DECREE OF DIVORCE, THEIR CONJUGAL COHABITATION IN THE STATE OF COLORADO APPEARS TO HAVE CONSTITUTED A COMMON LAW MARRIAGE. SEE DAVIS V. PEOPLE, 264 P. 658. WHILE MUTUAL CONSENT IS ONE OF THE ESSENTIALS OF A VALID COMMON LAW MARRIAGE, IT WAS HELD IN SMITH V. PEOPLE, 64 COLO. 290, 170 P. 959, THAT AN AGREEMENT IN WORDS TO BECOME HUSBAND AND WIFE IS NOT NECESSARY TO A COMMON LAW MARRIAGE. THE AGREEMENT MAY BE INFERRED FROM HABIT AND REPUTE. ALSO, IT HAS BEEN HELD THAT WHERE THE PARTIES IN GOOD FAITH ATTEMPTED TO BE MARRIED IN DUE FORM, AND BECAUSE OF A DISABILITY OF ONE OF THE PARTIES THE MARRIAGE CONTRACT IS A NULLITY, AND THEY CONTINUE TO LIVE TOGETHER AFTER SUCH DISABILITY IS REMOVED, THEY ARE IN LAW HUSBAND AND WIFE FROM THE DATE OF THE REMOVAL OF THE DISABILITY. POOLE V. PEOPLE, 24 COLO. 510, 52 P. 1025.

ACCORDINGLY, IT IS CONCLUDED THAT COLONEL FORREST DID NOT HAVE A LAWFUL WIFE FOR THE PERIOD FROM DECEMBER 25, 1945, TO OCTOBER 14, 1946, BUT THEREAFTER THE COHABITATION OF THE PARTIES AS HUSBAND AND WIFE APPEARS TO HAVE CONSTITUTED A COMMON LAW MARRIAGE IN THE STATE OF COLORADO, WHERE SUCH MARRIAGES ARE RECOGNIZED, AND, IF OTHERWISE PROPER, BASIC ALLOWANCE FOR QUARTERS AS FOR AN OFFICER WITH A LAWFUL WIFE WOULD BE AUTHORIZED SO LONG AS SUCH STATUS REMAINED UNCHANGED. IT APPEARS FROM COLONEL FORREST'S APPLICATION, FORM DD 137, FOR BASIC ALLOWANCE FOR QUARTERS FOR A MEMBER WITH DEPENDENTS, EFFECTIVE JULY 1, 1959, THAT, AS WELL AS A WIFE, HE HAS A MINOR SON WHO IS RESIDING WITH THE WIFE. MRS. FORREST HAS FURNISHED A STATEMENT DATED AUGUST 1, 1959, THAT SINCE THEIR SEPARATION IN JUNE 1956, THE OFFICER HAS CONTRIBUTED MONTHLY SUMS RANGING FROM $375 TO CURRENT PAYMENTS OF $427 FOR THE SUPPORT OF HIS WIFE AND SON. HENCE, IF OTHERWISE ENTITLED, COLONEL FORREST MAY BE CREDITED WITH BASIC ALLOWANCE FOR QUARTERS AS FOR AN OFFICER WITH A LAWFUL WIFE AND MINOR CHILD, EFFECTIVE JULY 1, 1959.