B-153092, MAY 26, 1964

B-153092: May 26, 1964

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HIBBARD: REFERENCE IS MADE TO LETTER OF NOVEMBER 23. WAS VOID BECAUSE YOU DIVORCED YOUR WIFE. THE COURT SHALL DECREE THAT NEITHER PARTY SHALL AGAIN MARRY EXCEPT TO EACH OTHER UNTIL 60 DAYS AFTER THE DECREE IS RENDERED. THAT IF AN APPEAL IS TAKEN WITHIN 60 DAYS. WHILE THE COURTS OF ALABAMA HAVE CONSIDERED A MARRIAGE ENTERED INTO BY ONE PARTY TO A DIVORCE ACTION WITH A THIRD PARTY WITHIN 60 DAYS OF THE DECREE AS VOID (BRAND V. VRADENBURG TO HAVE YOU FURNISH IN SUPPORT OF YOUR CLAIM A SWORN STATEMENT AS TO THE PERIOD AND PLACES THAT YOU AND VIVIAN O. WHETHER A DIVORCE WAS OBTAINED BY EITHER PARTY TERMINATING THE MARRIAGE. IN THE ABSENCE OF THE EVIDENCE REQUESTED WE MAY NOT CONCLUDE THAT VIVIAN JOHNSON WAS YOUR LAWFUL WIFE AND THAT THE PAYMENTS WHICH YOU RECEIVED WERE AUTHORIZED.

B-153092, MAY 26, 1964

TO SERGEANT WILLIAM E. HIBBARD:

REFERENCE IS MADE TO LETTER OF NOVEMBER 23, 1963, FROM YOUR ATTORNEY, MR. BRADY J. VRADENBURG, APPEALING THE ACTION TAKEN IN OUR LETTER OF NOVEMBER 18, 1963, WHICH DENIED YOUR CLAIM FOR REFUND OF AMOUNTS COLLECTED FROM YOU FOR PAYMENTS FOR DEPENDENT TRAVEL, TRAILER AND DISLOCATION ALLOWANCES INCIDENT TO TRAVEL OF VIVIAN JOHNSON HIBBARD DURING THE PERIOD JUNE 1957 TO OCTOBER 1959.

OUR OFFICE TOOK EXCEPTIONS TO THESE PAYMENTS ON THE BASIS OF INFORMATION ON FILE IN ALLOTMENT OPERATION, UNITED STATES ARMY FINANCE CENTER, INDIANAPOLIS, INDIANA, SHOWING DENIAL OF CLASS Q ALLOTMENT IN FAVOR OF VIVIAN JOHNSON HIBBARD FOR THE REASON THAT YOUR MARRIAGE TO HER IN ALABAMA ON SEPTEMBER 29, 1956, WAS VOID BECAUSE YOU DIVORCED YOUR WIFE, RUTH, IN THE CIRCUIT COURT, COFFEE COUNTY, ALABAMA, ON SEPTEMBER 27, 1956, AND THE DIVORCE DECREE SPECIFIED THAT NEITHER PARTY TO THE SUIT SHOULD AGAIN MARRY EXCEPT TO EACH OTHER UNTIL 60 DAYS AFTER THE RENDITION OF THE DECREE.

SECTION 38, TITLE 34 OF THE CODE OF ALABAMA, PROVIDES THAT WHEN A DECREE HAS BEEN RENDERED GRANTING A DIVORCE IN THAT STATE, THE COURT SHALL DECREE THAT NEITHER PARTY SHALL AGAIN MARRY EXCEPT TO EACH OTHER UNTIL 60 DAYS AFTER THE DECREE IS RENDERED, AND THAT IF AN APPEAL IS TAKEN WITHIN 60 DAYS, NEITHER PARTY SHALL AGAIN MARRY EXCEPT TO EACH OTHER DURING THE PENDENCY OF SUCH APPEAL. WHILE THE COURTS OF ALABAMA HAVE CONSIDERED A MARRIAGE ENTERED INTO BY ONE PARTY TO A DIVORCE ACTION WITH A THIRD PARTY WITHIN 60 DAYS OF THE DECREE AS VOID (BRAND V. STATE, 6FSO.2D 446), IT HAS BEEN RECOGNIZED THAT IF PARTIES IN GOOD FAITH MARRY WHEN A LEGAL IMPEDIMENT TO SUCH MARRIAGE EXISTS AND THEY CONTINUE TO COHABIT AS MAN AND WIFE AFTER THE REMOVAL OF THE IMPEDIMENT THE LAW PRESUMES A VALID COMMON LAW MARRIAGE. BARNETT V. BARNETT, 80 SO.2D 626; SMITH V. SMITH, 23 SO.2D 605.

ON FEBRUARY 12, 1964, WE REQUESTED MR. VRADENBURG TO HAVE YOU FURNISH IN SUPPORT OF YOUR CLAIM A SWORN STATEMENT AS TO THE PERIOD AND PLACES THAT YOU AND VIVIAN O. HIBBARD LIVED TOGETHER AS HUSBAND AND WIFE, THE APPROXIMATE DATE YOU DISCONTINUED SUCH RELATIONSHIP, AND WHETHER A DIVORCE WAS OBTAINED BY EITHER PARTY TERMINATING THE MARRIAGE. THE RECORD DOES NOT SHOW THAT YOU FURNISHED THIS STATEMENT. THEREFORE, IN THE ABSENCE OF THE EVIDENCE REQUESTED WE MAY NOT CONCLUDE THAT VIVIAN JOHNSON WAS YOUR LAWFUL WIFE AND THAT THE PAYMENTS WHICH YOU RECEIVED WERE AUTHORIZED.

ACCORDINGLY, ON THE PRESENT RECORD THE DENIAL OF YOUR CLAIM BY LETTER OF NOVEMBER 18, 1963, WAS CORRECT AND IS SUSTAINED.