B-141895, JUN. 22, 1960

B-141895, JUN. 22, 1960

TO CHIEF WARRANT OFFICER PHILLIPS T. KIMBALL, USA, SAULT STE. MARIE, MICHIGAN:

REFERENCE IS MADE TO YOUR LETTER DATED APRIL 30, 1960, RESPECTING THE MATTERS INVOLVED IN OUR DECISION DATED MARCH 24, 1960, B-141895, TO LIEUTENANT COLONEL DAN E. ROBERTSON, FINANCE AND ACCOUNTING OFFICER, WHEREIN IT WAS HELD THAT UNTIL THE MEXICAN DIVORCE DECREE OBTAINED BY YOU IS RECOGNIZED AS VALID BY A COURT OF COMPETENT JURISDICTION IN THE UNITED STATES, YOU MAY NOT BE CONSIDERED TO HAVE A LAWFUL WIFE FOR PURPOSES OF PAYMENT OF ALLOWANCES ON ACCOUNT OF A DEPENDENT WIFE, INSOFAR AS YOUR MARRIAGE FOLLOWING THE MEXICAN DIVORCE IS CONCERNED.

IT WAS STATED IN YOUR LETTER THAT YOU HAVE BEEN FURNISHED WITH A COPY OF THE DECISION DATED MARCH 24, 1960. YOU QUESTION THE CORRECTNESS OF THE HOLDING THEREIN, STATING THAT IN INITIATING AN ACTION FOR DIVORCE FROM DORIS I. KIMBALL, YOUR FORMER WIFE, YOU ACTED ON THE ADVICE OF HONORABLE SCOTT PFUETSE, RILEY COUNTY PROBATE JUDGE, MANHATTAN, KANSAS, THAT YOUR FORMER WIFE WAS GIVEN PERSONAL NOTICE OF THE ACTION ON SEPTEMBER 11, 1959; THAT SINCE SHE DID NOT PROTEST THE ACTION A DECREE OF DIVORCE WAS GRANTED YOU ON OCTOBER 7, 1959; AND THAT AFTER WAITING THE STATUTORY PERIOD OF THREE DAYS YOU REMARRIED ON OCTOBER 10, 1959.

YOU REPORT FURTHER THAT YOU WERE ADVISED BY JUDGE PFUETSE THAT YOUR DIVORCE WOULD BE UPHELD "IN HIS COURT AT ANY TIME IT MIGHT BE CHALLENGED; " THAT IN HIS OPINION YOUR DIVORCE WAS A VALID ONE; AND THAT SINCE THE SUPREME COURT OF THE UNITED STATES HAS NEVER RENDERED A DECISION RESPECTING THE VALIDITY OF A MEXICAN DIVORCE, THE DECREE GRANTED YOU BY THE FIRST CIVIL COURT OF THE DISTRICT OF BRAVES, STATE OF CHIHIXBAN, REPUBLIC OF MEXICO, MUST, UNDER INTERNATIONAL COMITY, BE RECOGNIZED AS VALID AND LEGAL EVERYWHERE UNTIL PROVEN INVALID IN COURT UPON A SUIT FILED BY YOUR FORMER SPOUSE. YOU ALSO INDICATED YOUR DOUBT AS TO THE AUTHORITY OF OUR OFFICE TO QUESTION THE VALIDITY OF YOUR MEXICAN DIVORCE, IT BEING SUGGESTED IN YOUR LETTER THAT THE DECREE OF DIVORCE GRANTED YOU MUST BE CONSIDERED VALID EVERYWHERE UNTIL DISPROVED IN A PROPER COURT ACTION.

SINCE YOU HAVE BEEN FURNISHED WITH A COPY OF THE DECISION DATED MARCH 24, 1960, IT SEEMS UNNECESSARY TO REFER TO ALL OF THE FACTUAL MATTERS SET FORTH THEREIN. THE RECORD INDICATES THAT YOU ATTEMPTED TO ESTABLISH A CONSTRUCTIVE RESIDENCE IN MEXICO BY A CERTIFICATE SHOWING REGISTRATION AS A RESIDENT IN THE MUNICIPAL REGISTER IN THE CITY OF JUARES, BUT THAT OTHERWISE YOU DID NOT ESTABLISH A RESIDENCE OR DOMICILE IN THAT CITY. WAS POINTED OUT IN OUR DECISION THAT DOMICILE IS MATERIAL WITH RESPECT TO THE VALIDITY OF AN OUT OF STATE DIVORCE, CITING THE CASE OF WILLIAMS V. NORTH CAROLINA, 325 U.S. 226. IN THAT CASE THE COURT CONCLUDED THAT A DECREE OF DIVORCE RENDERED IN ONE STATE MAY BE COLLATERALLY ATTACKED BY THE STATE OF NORTH CAROLINA IN ANOTHER PROCEEDING BY PROOF THAT THE COURT WHICH RENDERED THE DECREE HAD NO JURISDICTION, SINCE THE PLAINTIFF HAD NO DOMICILE IN SUCH OTHER STATE, EVEN THOUGH THE RECORDS OF THE PROCEEDINGS IN THAT COURT PURPORTED TO SHOW JURISDICTION.

IT SEEMS DOUBTFUL THAT YOU EVER ESTABLISHED A BONA FIDE DOMICILE OR RESIDENCE IN MEXICO SINCE, OBVIOUSLY, YOU NEVER INTENDED TO REMAIN IN THAT COUNTRY. WHILE YOU STATE THAT YOUR WIFE CHOSE NOT TO OBJECT TO THE DIVORCE PROCEEDINGS IN MEXICO, YOUR ATTENTION IS INVITED TO THE FACT THAT IN THE ABSENCE OF FACTS GIVING RISE TO APPLICATION OF THE DOCTRINE OF ESTOPPEL THE COURTS OF THE UNITED STATES GENERALLY HAVE REFUSED TO RECOGNIZE THE VALIDITY OF A DECREE OF DIVORCE OBTAINED IN MEXICO BY PARTIES DOMICILED IN THE UNITED STATES WHO WENT TO MEXICO TEMPORARILY FOR THE SOLE PURPOSE OF OBTAINING A "CONSENT DECREE" AND WHO RETURNED TO THEIR DOMICILES AFTER STAYING IN MEXICO FOR ONLY A FEW HOURS OR A FEW DAYS (GOLDEN V. GOLDEN (NEW MEXICO), 68 F.2D 928, 122 A.L.R. 1327); WHERE THE HUSBAND STAYED IN MEXICO FOR A PERIOD OF ONLY FIVE DAYS (WELLS V. WELLS (ALABAMA), 161 SO. 794, 105 A.L.R. 822); THERE THE HUSBAND STAYED IN MEXICO ONLY NINE DAYS (BETHUME V. BETHUME (ARKANSAS), 94 S.W.2D 1043, 105 A.L.R. 814 AND 824); WHERE THE HUSBAND REMAINED IN MEXICO LESS THAN ONE WEEK (RAWTON V. RAWTON (NEW JERSEY), 179 A. 621); WHERE THE HUSBAND WAS IN MEXICO ON A 60-DAY LEAVE OF ABSENCE FROM PERMANENT EMPLOYMENT IN THE UNITED STATES (BOBALA V. BOBALA (OHIO), 33 N.S.2D 845); AND WHERE THE HUSBAND HAD NEVER BEEN IN MEXICO EXCEPT FOR A PERIOD OF SEVERAL DAYS PRIOR TO THE RENDITION OF THE DECREE (RYDER V. RYDER (CALIFORNIA), 37 F.2D 1069). IN REIK V. REIK, 158 A. 519, IT WAS HELD THAT THE FACT THAT PERSONAL SERVICE WAS MADE UPON THE WIFE IN MARYLAND DID NOT RENDER VALID THE DECREE OF DIVORCE GRANTED HER HUSBAND IN MEXICO.

WITH RESPECT TO YOUR DOUBT AS TO THE AUTHORITY OF OUR OFFICE TO QUESTION THE VALIDITY OF YOUR DIVORCE, YOUR ATTENTION IS INVITED TO THE PETITION OF TAFFEL, 49 F.SUPP. 109, IN WHICH THE COURT HAD UNDER CONSIDERATION THE VALIDITY OF A MEXICAN "MAIL ORDER" DIVORCE DECREE. IT WAS HELD THAT THE FEDERAL GOVERNMENT, OR A STATE, NOT HAVING BEEN A PARTY TO THE COLLUSIVE ARRANGEMENTS OF THE LITIGANTS WAS NOT ESTOPPED TO ASSERT THE INVALIDITY OF THE DIVORCE DECREE. FURTHERMORE, THERE IS INVOLVED IN THIS CASE A QUESTION AS TO THE PROPRIETY OF PAYMENT FROM PUBLIC FUNDS OF BASIC ALLOWANCE FOR QUARTERS, A MATTER PARTICULARLY WITHIN THE JURISDICTION OF OUR OFFICE. THE QUESTION SUBMITTED BY COLONEL ROBERTSON CONCERNING YOUR RIGHT TO A BASIC ALLOWANCE FOR QUARTERS AS A MEMBER WITH DEPENDENTS, WAS BASED ON YOUR APPLICATION FOR SUCH ALLOWANCE IN WHICH YOU LISTED GLORIA C. KIMBALL AS YOUR WIFE. TO THE EXTENT THAT SUCH RIGHT IS DEPENDENT ON THE VALIDITY OF YOUR MARRIAGE TO HER, IT WAS NECESSARY TO CONSIDER AND RULE ON THAT MATTER. A SIMILAR QUESTION WILL ARISE IN THE FUTURE IF, IN CONNECTION WITH A PERMANENT CHANGE OF STATION AS A MEMBER OF THE ARMED FORCES, YOU REQUEST REIMBURSEMENT FOR HER EXPENSES OF TRANSPORTATION.

FOR THE REASONS SET FORTH HEREIN WE ADHERE TO THE CONCLUSIONS REACHED IN THE DECISION OF MARCH 24, 1960.