B-144413, DEC. 2, 1960

B-144413: Dec 2, 1960

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WHEREIN YOU HAVE REQUESTED ADVANCE DECISION WHETHER CAPTAIN JAMES EDWARD REDMOND. IS ENTITLED TO INCREASED ALLOWANCES FOR QUARTERS FOR THE PERIOD COMMENCING MAY 29. IT IS DISCLOSED BY THE COPY OF CERTIFIED TRANSLATION AND COPIES OF DOCUMENTS THAT THE OFFICER. THAT THE PARTIES WERE MARRIED ON MARCH 25. IT IS FURTHER DISCLOSED THAT ON MAY 29. HAD DIRECTED THE ISSUANCE OF A MARRIAGE LICENSE TO THE OFFICER AND AUDREY SHELBY FOWLER WITHOUT THE LAPSE OF THE REQUIRED THREE-DAY WAITING PERIOD AND THAT THEY WERE MARRIED LATER THAT DAY IN HONOLULU. AMONG WHICH ARE THAT THE RESIDENCE OF THE OFFICER IS COLUMBUS. THAT AT THE TIME HE FILED SUIT FOR DIVORCE IN MEXICO HE WAS NOT A RESIDENT OF THAT COUNTRY OR OF THE STATE OF CALIFORNIA.

B-144413, DEC. 2, 1960

TO CAPTAIN C. R. SWANN, DISBURSING OFFICER:

BY SECOND ENDORSEMENT DATED NOVEMBER 8, 1960, THE COMMANDANT OF THE MARINE CORPS FORWARDED TO US YOUR LETTER OF OCTOBER 25, 1960, WITH ENCLOSURES (ASSIGNED DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE NO. DO-MC-542), WHEREIN YOU HAVE REQUESTED ADVANCE DECISION WHETHER CAPTAIN JAMES EDWARD REDMOND, 064337, UNITED STATES MARINE CORPS, IS ENTITLED TO INCREASED ALLOWANCES FOR QUARTERS FOR THE PERIOD COMMENCING MAY 29, 1959, UNDER THE CIRCUMSTANCES SET FORTH IN YOUR LETTER AND ENCLOSURES.

IT IS DISCLOSED BY THE COPY OF CERTIFIED TRANSLATION AND COPIES OF DOCUMENTS THAT THE OFFICER, THROUGH AN ATTORNEY WHO APPEARED ON HIS BEHALF, OBTAINED IN THE THIRD CIVIL COURT OF BRAVOS DISTRICT, STATE OF CHIHUAHUA, REPUBLIC OF MEXICO, A "RESOLUTION" OF MAY 9, 1959, DIVORCING HIM FROM HIS WIFE, MARCELLA LOUISE MOSER REDMOND. THAT "RESOLUTION" RECITES, AMONG OTHER THINGS, THAT THE PARTIES WERE MARRIED ON MARCH 25, 1950, AT THE MARINE CORPS RECITES, DEPOT, "PARRIS ISLAND, SOUTH CAROLINA," THAT THE MARRIAGE PRODUCED NO CHILDREN AND THAT THERE EXISTED NO ESTATE OF THE CONJUGAL UNION FOR DIVISION. IT IS FURTHER DISCLOSED THAT ON MAY 29, 1959, A DISTRICT MAGISTRATE OF HONOLULU, OF THE THEN TERRITORY OF HAWAII, HAD DIRECTED THE ISSUANCE OF A MARRIAGE LICENSE TO THE OFFICER AND AUDREY SHELBY FOWLER WITHOUT THE LAPSE OF THE REQUIRED THREE-DAY WAITING PERIOD AND THAT THEY WERE MARRIED LATER THAT DAY IN HONOLULU.

ON JUNE 22, 1960, THE ALLEN SUPERIOR COURT NUMBER 3 OF ALLEN COUNTY, INDIANA, IN A PROCEEDING INSTITUTED BY MARCELLA REDMOND, ISSUED AN ORDER DECLARING THE OFFICER'S MEXICAN DIVORCE OF MAY 9, 1959, AS NULL AND VOID, GRANTING HER A LIMITED SEPARATION FROM BED AND BOARD FROM THE OFFICER FOR A PERIOD OF TWO YEARS AND ADJUDGING AND DECREEING HIM TO BE LIABLE FOR HER SUPPORT. SUCH ORDER CONTAINS SEVERAL FINDINGS BY THE COURT, AMONG WHICH ARE THAT THE RESIDENCE OF THE OFFICER IS COLUMBUS, OHIO, THAT AT THE TIME HE FILED SUIT FOR DIVORCE IN MEXICO HE WAS NOT A RESIDENT OF THAT COUNTRY OR OF THE STATE OF CALIFORNIA, AND THAT NOTWITHSTANDING THE KNOWLEDGE OF HIS WIFE'S RESIDENCE, HE CAUSED NO NOTICE TO BE SERVED UPON HER.

IN YOUR LETTER YOU HAVE EXPRESSED THE CONCLUSION THAT DOMICILE "NORMALLY FOLLOWS THE HUSBAND" AND ON THIS BASIS YOU HAVE EVINCED DOUBT AS TO THE JURISDICTION OF THE INDIANA COURT, SINCE THE OFFICER WHO FORMERLY WAS A RESIDENT OF THE STATE OF OHIO HAS BEEN RESIDING IN THE TERRITORY AND STATE OF HAWAII SINCE MAY 7, 1958. ALSO, YOU HAVE FURNISHED INFORMATION THAT IN COMPLIANCE WITH THE STATUTES OF THE TERRITORY OF HAWAII THE OFFICER HAD REVEALED HIS MEXICAN DIVORCE TO THE AUTHORITIES IN HONOLULU THROUGH HIS APPLICATION FOR THE ISSUANCE OF AN ACCELERATED MARRIAGE LICENSE AND THAT PURSUANT TO FURTHER STATUTORY REQUIREMENT A COURT ORDERED THE ISSUANCE OF SUCH LICENSE. IN THIS CONNECTION, YOU HAVE FORWARDED AS ONE OF THE ENCLOSURES, LETTER OF OCTOBER 21, 1960, FROM THE DEPARTMENT OF HEALTH, STATE OF HAWAII, ADVISING THAT A CERTIFIED COPY OF A DECREE OF DIVORCE ENTERED BY A MEXICAN COURT AND CERTIFIED TRANSLATION THEREOF IS ACCEPTABLE IN CONNECTION WITH THE ISSUANCE OF A MARRIAGE LICENSE.

IT IS CLEAR THAT, AT THE TIME THE MEXICAN DIVORCE WAS OBTAINED, THE OFFICER WAS IN FACT RESIDING IN HAWAII AND THAT SERVICE UPON HIS WIFE WAS ATTEMPTED SOLELY BY MEANS OF PUBLICATION IN THE OFFICIAL STATE PERIODICAL (CHIHUAHUA). HENCE, IT APPEARS THAT THE OFFICER APPLIED FOR AND SUCCESSFULLY OBTAINED A MEXICAN "MAIL ORDER" DIVORCE. OUR DECISIONS HAVE RECOGNIZED THAT THE COURTS OF THE UNITED STATES GENERALLY HAVE REFUSED TO ACCEPT AS VALID CERTAIN TYPES OF MEXICAN DIVORCES WHEN SUCH DIVORCES ARE CONTESTED OR COLLATERALLY ATTACKED BY INTERESTED PARTIES ON THE PREMISE THAT IN INDIVIDUAL CASES THE FOREIGN COURT GRANTING THE DIVORCE DID NOT HAVE JURISDICTION OVER THE SUBJECT MATTER OF THE DIVORCE BY REASON OF LACK OF BONA FIDE RESIDENCE OR DOMICILE OF AT LEAST ONE OF THE PARTIES. SEE 25 COMP. GEN. 821; 36 COMP. GEN. 121; B-141895, DATED MARCH 24, 1960; AND B- 135953, DATED JUNE 26, 1958. WITH RESPECT TO THE ENTITLEMENT OF THE OFFICER TO INCREASED ALLOWANCES ON ACCOUNT OF HIS MARRIAGE TO AUDREY SHELBY FOWLER ON MAY 29, 1959, AFTER HE OBTAINED HIS MEXICAN DIVORCE, UNLESS AND UNTIL A COURT OF COMPETENT JURISDICTION IN THE UNITED STATES DETERMINES SUCH DIVORCE IS VALID, NO PAYMENT OF SUCH ALLOWANCES IS IN ORDER.

WE DO NOT CONSIDER THE ACCEPTANCE BY THE DEPARTMENT OF HEALTH, STATE OF HAWAII, OF THE CERTIFIED TRANSLATION AND CERTIFIED COPY OF THE DIVORCE DECREE AS A JUDICIAL DETERMINATION THAT THE MEXICAN DIVORCE IS VALID. THOSE DOCUMENTS WERE SUBMITTED IN COMPLIANCE WITH SECTION 323 8, TITLE 33, REVISED LAWS HAWAII, 1955. THAT STATUTE PROVIDES THAT THE AGENT AUTHORIZED TO GRANT MARRIAGE LICENSES SHALL REQUIRE APPLICANTS TO PRODUCE ORIGINAL CERTIFICATES OR DECREES OF DIVORCE OR DULY CERTIFIED COPY THEREOF, BUT CONFERS NO JURISDICTION UPON SUCH AGENT TO DETERMINE PERSONALLY OR BY JUDICIAL PROCESS THE VALIDITY OR LEGALITY OF THE APPLICANT'S DIVORCE.

THERE APPEARS TO BE NO QUESTION REGARDING THE JURISDICTION OF THE INDIANA COURT TO GRANT THE LIMITED SEPARATION TO THE OFFICER'S WIFE. IT IS WELL ESTABLISHED THAT THE COURTS OF THE STATE IN WHICH EITHER OF THE PARTIES TO A MARRIAGE IS DOMICILED HAVE JURISDICTION TO DISSOLVE A MARRIAGE OR TO GRANT A LEGAL SEPARATION, SINCE THE DOMICILE OF ONE PARTY CREATES A RELATIONSHIP WITH THE STATE ADEQUATE TO JUSTIFY ITS EXERCISE OF POWER OVER THE MARITAL RELATIONSHIP WITHOUT REGARD TO WHERE THE MARRIAGE WAS CONTRACTED. SEE WILLIAMS V. STATE OF NORTH CAROLINA, 317 U.S. 287; 325 U.S. 226, AND COMPARE ULREY V. ULREY (INDIANA) 106 N.E.2D 793, AND VAN WINKLE V. VAN WINKLE (INDIANA), 118 N.E.2D 389.

IN INDIANA PROCEEDINGS FOR SEPARATION FROM BED AND BOARD ARE GOVERNED BY THE SAME STATUTORY REQUIREMENTS AS TO RESIDENCE AND PROOF THEREOF AS IN ABSOLUTE DIVORCE PROCEEDINGS. SECTION 3-1231, BURNS INDIANA STATUTES ANNOTATED; SACHS V. SACHS (INDIANA), 185 N.E. 291. THERE IS NOTHING OF RECORD TO SHOW THAT MARCELLA REDMOND WAS NOT A RESIDENT OF INDIANA FOR LESS THAN ONE YEAR PREVIOUS TO THE FILING OF HER PETITION AND A BONA FIDE RESIDENT OF ALLEN COUNTY, INDIANA, FOR LESS THAN SIX MONTHS IMMEDIATELY PRECEDING THE FILING OF SUCH PETITION. SEE SECTION 3-1203, BURNS INDIANA STATUTES ANNOTATED. ALSO, UNDER THE INDIANA STATUTES A SEPARATION FROM BED AND BOARD DOES NOT SEVER THE MARITAL RELATIONSHIP AND IT IS NOT A BAR TO THE ENTERING BY EITHER PARTY OF A SUIT FOR ABSOLUTE DIVORCE. (SECTION 3-1233, BURNS INDIANA STATUTES ANNOTATED).

WITH RESPECT TO THE VIEW THAT THE WIFE'S DOMICILE FOLLOWS THAT OF HER HUSBAND, THE U.S. SUPREME COURT HAS INDICATED THAT INSOFAR AS THE FULL FAITH AND CREDIT CLAUSE OF THE FEDERAL CONSTITUTION IS CONCERNED, THE WIFE MAY ACQUIRE A DOMICILE SEPARATE FROM THAT OF HER HUSBAND, REGARDLESS OF FAULT, SO AS TO CONFER JURISDICTION UPON THE COURT AT THAT DOMICILE TO HEAR HER PETITION FOR DIVORCE OR OTHER ACTION AFFECTING THE MATRIMONIAL RELATIONSHIP. SEE WILLIAMS V. STATE OF NORTH CAROLINA, 317 U.S. 287, AT PAGE 300, AND THE SEPARATE OPINION OF JUSTICES BLACK, WARREN, DOUGLAS AND CLARK IN THE CASE OF ARMSTRONG V. ARMSTRONG (1956) 350 U.S. 568, 577 AND 578. SEE ALSO BOARDMAN V. BOARDMAN, 62 A.2D 521; TALBOT V. TALBOT, 181 P.2D 148; GLASSMAN V. GLASSMAN (OHIO), 60 N.E.2D 716; AND PETREY V. SAMPSON, 184 S.W.2D 898.

THE EFFECT OF THE INDIANA COURT ORDER WAS TO SET ASIDE THE MEXICAN DIVORCE DECREE AND RECOGNIZE A CONTINUED MATRIMONIAL RELATIONSHIP OF THE PARTIES WITHOUT INTERRUPTION. THE ORDER FURTHER REQUIRES THE PARTIES TO LIVE SEPARATE AND APART FOR A TWO-YEAR PERIOD AND ADJUDGES THE OFFICER AS LIABLE FOR THE SUPPORT OF HIS WIFE.

IN DETERMINING WHETHER AN OFFICER HAS A "LAWFUL WIFE" WITHIN THE MEANING OF THE STATUTORY PROVISIONS AUTHORIZING THE PAYMENT OF INCREASED ALLOWANCES, WE HAVE PROCEEDED ON THE THEORY THAT SUCH STATUTES CONTEMPLATE A PARTIAL REIMBURSEMENT OF ACTUAL EXPENSES INCURRED ON BEHALF OF A DEPENDENT AND NOT AS PAY FOR A MERE TECHNICAL STATUS OF A MARRIED MAN. COMP. GEN. 514. THAT VIEW IS CONSISTENT WITH THE DECISION IN THE CASE OF ROBEY V. UNITED STATES, 71 CT.CL. 561. HOWEVER, IT APPEARS IN THIS CASE THAT PRIOR TO THE DATE OF THE INDIANA COURT ORDER THE OFFICER REPUDIATED HIS MORAL AND LEGAL OBLIGATION TO PROVIDE SUPPORT FOR HIS WIFE BY HAVING ENTERED INTO A CONTRACT OF MARRIAGE WITH ANOTHER WOMAN AFTER HIS PURPORTED MEXICAN DIVORCE. FURTHERMORE, WHILE SUCH ORDER ADJUDGED HIM TO BE LIABLE FOR HER SUPPORT, THERE IS NO ASSURANCE THAT HE WILL ABIDE BY SUCH ORDER, ESPECIALLY SINCE HE WAS NOT A RESIDENT OF INDIANA, WAS NOT PERSONALLY SERVED WITH PROCESS AND WAS NOT PRESENT IN COURT AT THE TIME THE ORDER WAS ISSUED.

ACCORDINGLY, UNDER THE PECULIAR CIRCUMSTANCES OF THIS CASE, THE CONCLUSION IS WARRANTED THAT THE OFFICER WOULD BE ENTITLED TO RECEIVE AN OTHERWISE PROPER PAYMENT OF BASIC ALLOWANCE FOR QUARTERS FOR THE PERIOD COMMENCING MAY 29, 1959, ON ACCOUNT OF A LAWFUL DEPENDENT, MARCELLA REDMOND, ONLY AT SUCH TIME AS HE SHALL SUBMIT TO YOU AN AFFIDAVIT FROM HER AVERRING THAT SHE HAS RECEIVED ADEQUATE SUPPORT FROM HIM SINCE MAY 29, 1959, TO DATE OF EXECUTION OF THE AFFIDAVIT. THEREAFTER, THE PAYMENTS MAY BE MADE AS LONG AS THE MARITAL RELATIONSHIP BETWEEN THE PARTIES IS NOT DISSOLVED BY DEATH OR BY A FINAL DECREE OF DIVORCE AND THE OFFICER CONTINUES TO SUPPORT HIS WIFE, MARCELLA REDMOND, AS EVIDENCED BY SUPPLEMENTAL SIMILAR AFFIDAVITS TO SUPPORT NAVCOMPT FORMS 2040 "DEPENDENCY CERTIFICATE" SUBMITTED ANNUALLY ON OCTOBER 1. SEE, IN THIS CONNECTION, PARAGRAPH 044038-1B (1), NAVY COMPTROLLER MANUAL.

NAVCOMPT FORM 2040 EXECUTED BY THE OFFICER ON OCTOBER 21, 1960, IS RETURNED, BUT THE OTHER FORWARDED PAPERS AND DOCUMENTS ARE BEING RETAINED AS PART OF OUR PERMANENT FILE.