B-151278, MAY 17, 1963, 42 COMP. GEN. 642

B-151278, MAY 17, 1963, 42 COMP. GEN. 642

QUARTERS ALLOWANCE - DEPENDENTS - CHILDREN - CUSTODY BY FATHER - MOTHER CONTINUES CONTROL AN OFFICER OF THE UNIFORMED SERVICES WHO IS GIVEN CUSTODY OF HIS MINOR CHILD AT THE TIME OF DIVORCE FROM HIS WIFE AND ABSOLVED OF THE RESPONSIBILITY TO SUPPORT HER IS NOT ENTITLED TO INCREASED BASIC ALLOWANCE FOR QUARTERS UNDER 37 U.S.C. 403 ON ACCOUNT OF THE CHILD UNTIL HE GAINS CONTROL OF THE CHILD OR CONTRIBUTES TO THE CHILD SUPPORT, THE PURPOSE OF SECTION 403, PROVIDING THAT MEMBERS OF THE UNIFORMED SERVICES ENTITLED TO BASIC PAY SHALL RECEIVE AN INCREASED BASIC ALLOWANCE FOR DEPENDENTS WHEN NOT ASSIGNED APPROPRIATE GOVERNMENT QUARTERS, IS TO PARTIALLY REIMBURSE THE MEMBERS FOR THE EXPENSE OF MAINTAINING PRIVATE QUARTERS FOR THEIR DEPENDENTS AND NOT TO GRANT THE HIGHER ALLOWANCE AS A BONUS MERELY FOR THE TECHNICAL STATUS OF BEING MARRIED OR A PARENT; THEREFORE, THE MOTHER NOT HAVING RELINQUISHED CUSTODY OF THE CHILD, THE EXCESS ALLOWANCE PAID TO THE OFFICER SHOULD BE RECOVERED, HOWEVER, THIS DOES NOT PRECLUDE THE OFFICER FROM RECEIVING THE HIGHER ALLOWANCE UPON GAINING CUSTODY OF THE CHILD, OR UNDERTAKING THE CHILD'S SUPPORT.

TO LIEUTENANT COMMANDER E. M. HARRIS, DEPARTMENT OF THE NAVY, MAY 17, 1963:

BY FIRST INDORSEMENT DATED APRIL 10, 1963, THE COMPTROLLER OF THE NAVY FORWARDED YOUR LETTER OF FEBRUARY 1, 1963, WITH ENCLOSURES, REQUESTING DECISION AS TO THE ENTITLEMENT OF COMMANDER ROBERT G. OAKES, 226679, USN, TO INCREASED BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF HIS MINOR CHILD UNDER THE CIRCUMSTANCES STATED. YOUR REQUEST WAS ASSIGNED SUBMISSION NUMBER DO-N-700 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT APPEARS FROM THE RECORD (AS DISCLOSED IN COMMANDER OAKES' LETTER OF APRIL 3, 1962, TO THE CHIEF OF NAVAL PERSONNEL) THAT ON SEPTEMBER 14, 1961, COMMANDER OAKES' WIFE FILED SUIT FOR SEPARATE MAINTENANCE AND CHILD SUPPORT IN THE SUPERIOR COURT OF COOK COUNTY, STATE OF ILLINOIS, AND BY ORDER OF THE COURT ENTERED OCTOBER 25, 1961, COMMANDER OAKES WAS REQUIRED TO PAY $60 A WEEK TO MRS. OAKES AS TEMPORARY ALIMONY AND FOR THE SUPPORT OF HIS CHILD. IT IS STATED FURTHER THAT ON NOVEMBER 15, 1961, MRS. OAKES ABANDONED HER SUIT AND MOVED WITH THE CHILD INTO THE STATE OF COLORADO, WHERE THEY CONTINUE TO RESIDE. BY ORDER OF THE SUPERIOR COURT OF COOK COUNTY, STATE OF ILLINOIS, ENTERED NOVEMBER 17, 1961, COMMANDER OAKES WAS RELIEVED OF MAKING THE PAYMENTS FOR TEMPORARY ALIMONY AND CHILD SUPPORT UNTIL FURTHER ORDERED BY THAT COURT. AS THE RESULT OF A COUNTERSUIT FILED BY COMMANDER OAKES, A DECREE FOR DIVORCE WAS ENTERED IN THE SUPERIOR COURT OF COOK COUNTY ON NOVEMBER 2, 1962, WHICH DISSOLVED THE BONDS OF MATRIMONY THERETOFORE EXISTING BETWEEN COMMANDER OAKES AND HIS WIFE AND AWARDED THE SOLE CARE, CUSTODY, EDUCATION AND CONTROL OF THEIR CHILD, THEN ABOUT THE AGE OF 7 1/2 YEARS, TO THE FATHER. THE DECREE SPECIFICALLY PROVIDED ,* * * THAT DOLORES M. OAKES BE AND IS HEREBY BARRED FROM ALL CLAIMS AGAINST ROBERT GIBSON OAKES INCLUDING ALIMONY, DOWER, * * *.'

YOU STATE THAT COMMANDER OAKES WAS PAID BASIC ALLOWANCE FOR QUARTERS AS A MEMBER WITH DEPENDENTS THROUGH FEBRUARY 15, 1963, AND THAT COMMENCING FEBRUARY 16, 1963, HE IS BEING CREDITED WITH THE ALLOWANCE AS AN OFFICER WITHOUT DEPENDENTS. SINCE THE OFFICER DID NOT CONTRIBUTE TO THE SUPPORT OF HIS WIFE OR CHILD AFTER DECEMBER 25, 1961, BUT HE IS WILLING TO DO SO UPON THE RETURN OF THE CHILD TO HIS CUSTODY, YOU ASK WHETHER UNDER THESE CIRCUMSTANCES THE OFFICER MAY BE CREDITED WITH THE INCREASED ALLOWANCES ON BEHALF OF HIS LEGITIMATE SON.

INFORMATION IN THE FILE INDICATES THAT CUSTODY IS TO BE OBTAINED THROUGH EXTRADITION PROCEEDINGS NOW BEING PROCESSED.

IN TRANSMITTING THE MATTER HERE, THE COMPTROLLER OF THE NAVY REFERS TO 34 COMP. GEN. 101, INVOLVING THE CUSTODY OF AN OFFICER'S MINOR CHILDREN, AND STATES "IN CDR OAKES, CASE, THE FORMER WIFE LEFT THE STATE OF ILLINOIS WITH THE CHILDREN AND APPARENTLY INITIATED PROCEEDINGS TO OBTAIN A DECREE FOR CUSTODY IN THE STATE OF COLORADO. DOUBT IN THIS CASE ARISES BECAUSE OF THE POSSIBLE EFFECT OF THE PROCEEDINGS IN COLORADO UPON THE FINALITY OF THE DECREE FOR CUSTODY IN ILLINOIS.'

PURSUANT TO THE PERTINENT PROVISIONS OF SECTION 403 OF TITLE 37, U.S. CODE, A MEMBER OF THE UNIFORMED SERVICE WHO IS ENTITLED TO BASIC PAY IS ENTITLED TO AN INCREASED BASIC ALLOWANCE FOR QUARTERS FOR HIS DEPENDENTS WHEN NOT ASSIGNED TO APPROPRIATE GOVERNMENT QUARTERS. SUBSTANTIALLY SIMILAR PROVISIONS HAVE BEEN CONTAINED IN THE MILITARY PAY AND ALLOWANCE LAWS SINCE 1922, THEIR BASIC PURPOSE BEING TO AT LEAST PARTIALLY REIMBURSE THE MEMBERS CONCERNED FOR THE EXPENSE OF PROVIDING PRIVATE QUARTERS FOR THEIR DEPENDENTS, WHERE GOVERNMENT QUARTERS ARE NOT AVAILABLE, AND NOT TO GRANT THE HIGHER ALLOWANCE AS A BONUS MERELY FOR THE TECHNICAL STATUS OF BEING MARRIED OR A PARENT.

WHILE, UNDER THE NORMAL RELATIONSHIP OF HUSBAND AND FATHER, PROOF OF DEPENDENCY IS NOT GENERALLY REQUIRED TO ESTABLISH A RIGHT TO THE HIGHER BASIC QUARTERS ALLOWANCE ON ACCOUNT OF A MEMBER'S WIFE OR CHILD, THAT GENERAL RULE, HOWEVER, IS NOT FREE FROM EXCEPTIONS AND HAS NOT BEEN VIEWED AS APPLICABLE IN CERTAIN CASES. IN THE LIGHT OF THE BASIC PURPOSE OF THE STATUTE, WE HAVE CONSISTENTLY HELD THAT IN THE ABSENCE OF A SHOWING OF CONTRIBUTIONS BY THE OFFICER TO THE SUPPORT OF HIS WIFE OR CHILDREN, ENTITLEMENT TO INCREASED QUARTERS ALLOWANCE AS FOR AN OFFICER WITH DEPENDENTS IS NOT AUTHORIZED WHERE THE MEMBER IS SEPARATED FROM HIS WIFE AND HAS BEEN ABSOLVED OF RESPONSIBILITY TO SUPPORT HER. SEE 26 COMP. GEN. 514; 33 ID. 308. COMPARE 24 COMP. GEN. 88, AND ROBEY V. UNITED STATES, 71 CT.CL. 561. A SIMILAR EXCEPTION EXISTS IN THE CASE OF A CHILD IN LIKE CIRCUMSTANCES. 23 COMP. GEN. 71; 38 ID. 89; B-49908, JUNE 19, 1945; B- 118470, AUGUST 19, 1954. COMPARE 34 COMP. GEN. 378.

SINCE IN THE PRESENT CASE THE OFFICER DID NOT CONTRIBUTE TO THE SUPPORT OF EITHER HIS WIFE OR CHILD AFTER DECEMBER 25, 1961, HE HAVING BEEN RELIEVED OF THE LEGAL RESPONSIBILITY OF PROVIDING SUPPORT FOR THEM BY ORDER OF THE COURT DATED NOVEMBER 17, 1961, IT FOLLOWS THAT THE PRESENT RECORD AFFORDS NO BASIS FOR CONCLUDING THAT COMMANDER OAKES IS ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS AS FOR A MEMBER WITH DEPENDENTS SUBSEQUENT TO DECEMBER 25, 1961, WHEN HE CEASED TO CONTRIBUTE TO HIS DEPENDENTS' SUPPORT. APPROPRIATE ACTION SHOULD BE INITIATED TO RECOVER THE EXCESS ALLOWANCE STATED TO HAVE BEEN PAID THE MEMBER AS AN OFFICER WITH DEPENDENTS FROM DECEMBER 26, 1961, THROUGH FEBRUARY 15, 1963. THIS DECISION SHOULD NOT BE CONSIDERED, HOWEVER, AS PRECLUDING PAYMENT TO COMMANDER OAKES OF THE HIGHER ALLOWANCE SHOULD HE BE SUCCESSFUL IN HIS EFFORTS TO REGAIN ACTUAL CUSTODY OF HIS CHILD OR OTHERWISE UNDERTAKES TO SUPPORT THE CHILD. COMPARE 23 COMP. GEN. 625.

THE FACTS IN THIS CASE MAY BE DISTINGUISHED FROM THOSE CONSIDERED IN 34 COMP. GEN. 101, SINCE THE MEMBER THERE WAS MAKING THE CONTRIBUTIONS PRESCRIBED BY THE COURT FOR THE SUPPORT OF HIS CHILDREN FOR THE PERIOD CUSTODY WAS GRANTED TO THEIR MOTHER, AND THE RECORD DID NOT SHOW THAT THE CHILDREN WOULD NOT BE RETURNED TO THE FATHER'S CUSTODY AT THE APPROPRIATE TIME.

WITH RESPECT TO THE DOUBT RAISED BY THE COMPTROLLER OF THE NAVY BECAUSE OF THE POSSIBLE EFFECT OF THE PROCEEDINGS IN COLORADO UPON THE FINALITY OF THE DECREE FOR CUSTODY IN ILLINOIS, THOSE PROCEEDINGS HAVE NOT BEEN COMPLETED AND THERE IS FOR NOTING THAT THE OFFICER IN HIS LETTER OF MARCH 8, 1963, STATES THAT HIS ATTORNEY IN COLORADO ADVISED HIM THAT MRS. OAKES INTENDS TO DROP HER ACTION THERE. CONSEQUENTLY, PRESENT CONSIDERATION OF THIS QUESTION WOULD BE PREMATURE. IF THE OUTCOME OF SUCH PROCEEDINGS STILL GIVES RISE TO DOUBT IN THE MATTER, THE CASE MAY AGAIN BE SUBMITTED TO US FOR FURTHER CONSIDERATION.