B-153183, FEBRUARY 14, 1964, 43 COMP. GEN. 567

B-153183: Feb 14, 1964

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WAS IN QUESTION. DID NOT HAVE A PROPER BENEFICIARY AT THE TIME HE BECAME ENTITLED TO RETAINER PAY. THE MEMBER DID NOT HAVE A SPOUSE ON AUGUST 18. AUGUSTINE DODD IS A PROPER BENEFICIARY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN. THE REQUEST FOR DECISION WAS ASSIGNED SUBMISSION NO. THE FOLLOWING IS A BRIEF STATEMENT OF THE PERTINENT FACTS OF THE CASE. AT THE TIME HE EXECUTED THE ELECTION FORM DODD WAS INFORMED THAT. WAS VALID. DODD WAS TRANSFERRED TO THE FLEET RESERVE AND. ALTHOUGH THERE WAS NO EVIDENCE THAT HIS MARRIAGE HAD BEEN VALIDATED. MONTHLY DEDUCTIONS FOR THE ANNUITY ELECTED WERE ESTABLISHED ON A TENTATIVE BASIS PENDING DETERMINATION AS TO THE VALIDITY OF THE MARRIAGE.

B-153183, FEBRUARY 14, 1964, 43 COMP. GEN. 567

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - MARITAL STATUS A MEMBER OF THE UNIFORMED SERVICES WHOSE MARITAL STATUS ON NOVEMBER 25, 1957, THE DATE HE ELECTED TO RECEIVE REDUCED RETIRED PAY TO PROVIDE AN ANNUITY FOR HIS WIFE UNDER 10 U.S.C. 1431-1446, WAS IN QUESTION, HIS WIFE HAVING SECURED A MEXICAN DIVORCE AND A COURT OF COMPETENT JURISDICTION HAVING REFUSED TO DECLARE THE MEMBER'S MARRIAGE ON AUGUST 12, 1944 VALID, DID NOT HAVE A PROPER BENEFICIARY AT THE TIME HE BECAME ENTITLED TO RETAINER PAY, AND THE SUBSEQUENT CALIFORNIA DIVORCE AND REMARRIAGE OF THE PARTIES IN 1963 NOT HAVING VALIDATED THE 1944 MARRIAGE, THE MEMBER DID NOT HAVE A SPOUSE ON AUGUST 18, 1959 WHEN HE BECAME ENTITLED TO RETAINER PAY, AND DEDUCTIONS FOR THE ANNUITY ELECTED NEED NOT BE CONTINUED ON THE BASIS OF POSSIBLE FUTURE VALIDATION OF THE 1944 MARRIAGE AND REFUND SHOULD BE MADE OF THE DEDUCTIONS WITHHELD FROM THE RETAINER PAY OF THE MEMBER.

TO COMMANDER M. L. CONNER, DEPARTMENT OF THE NAVY, FEBRUARY 14, 1964:

BY SECOND ENDORSEMENT DATED DECEMBER 31, 1963, THE COMPTROLLER OF THE NAVY FORWARDED YOUR LETTER OF DECEMBER 2, 1963, REQUESTING A DECISION WHETHER, UNDER THE CIRCUMSTANCES IN THE CASE OF JOHN ARTHUR DODD, 311 37 49, SDC, USNFC, AUGUSTINE DODD IS A PROPER BENEFICIARY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN. THE REQUEST FOR DECISION WAS ASSIGNED SUBMISSION NO. DO-N-741 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE FOLLOWING IS A BRIEF STATEMENT OF THE PERTINENT FACTS OF THE CASE. ON NOVEMBER 25, 1957, JOHN A. DODD MADE AN ELECTION TO RECEIVE A REDUCED AMOUNT OF RETIRED PAY TO PROVIDE AN ANNUITY FOR A WIFE, AUGUSTINE, AND ADOPTED DAUGHTER, GWENDOLYN HILL, UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 (NOW RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN) 10 U.S.C. 1431-1446. HE CERTIFIED THAT HE HAD MARRIED AUGUSTINE ON AUGUST 12, 1944, FOLLOWING HER MEXICAN DIVORCE ON JULY 4, 1944. AT THE TIME HE EXECUTED THE ELECTION FORM DODD WAS INFORMED THAT, BECAUSE OF HER MEXICAN DIVORCE, AUGUSTINE WOULD NOT BE RECOGNIZED AS HIS LAWFUL WIFE AND AN ELIGIBLE BENEFICIARY UNDER HIS ELECTION UNLESS HE OBTAINED A JUDGMENT FROM A COURT OF COMPETENT JURISDICTION DECLARING HIS MARRIAGE TO HER ON AUGUST 12, 1944, WAS VALID.

EFFECTIVE AUGUST 17, 1959, DODD WAS TRANSFERRED TO THE FLEET RESERVE AND, ALTHOUGH THERE WAS NO EVIDENCE THAT HIS MARRIAGE HAD BEEN VALIDATED, MONTHLY DEDUCTIONS FOR THE ANNUITY ELECTED WERE ESTABLISHED ON A TENTATIVE BASIS PENDING DETERMINATION AS TO THE VALIDITY OF THE MARRIAGE. ON AUGUST 25, 1960, THE MEMBER CERTIFIED THAT GWENDOLYN HILL WAS NO LONGER IN THEIR CARE AND CUSTODY AND THAT HER ADOPTION WOULD NOT BE ACCOMPLISHED.

BY LETTER DATED AUGUST 1, 1962, THE CHIEF OF NAVAL PERSONNEL WAS ADVISED BY DODD'S ATTORNEY THAT BECAUSE OF DEFECTIVE PUBLICATION OF SUMMONS AND FAILURE TO MAIL A COPY OF THE SUMMONS AND COMPLAINT TO THE FORMER HUSBAND, IT WAS IMPOSSIBLE FOR HIM TO "DOMESTICATE" AUGUSTINE'S MEXICAN DIVORCE AND THAT THE COMPLAINT SEEKING SUCH ACTION HAD BEEN TAKEN "OFF CALENDAR.' SHE PROCEEDED TO OBTAIN A DECREE OF DIVORCE FROM HER FIRST HUSBAND IN CALIFORNIA, WHICH BECAME FINAL MAY 18, 1962. SUBSEQUENTLY, IN AN ACTION FOR ANNULMENT BROUGHT BY DODD AGAINST MRS. DODD, THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE CITY OF LOS ANGELES, IN AN ORDER DATED JUNE 24, 1963, FOUND, AMONG OTHER THINGS, THAT:

THE COURT FINDS FOR THE PURPOSES OF THIS HEARING, THAT THE PARTIES ARE VALIDLY MARRIED, THAT BY REASON OF HIS PARTICIPATION IN HELPING DEFENDANT OBTAIN A MEXICAN DIVORCE JULY 4, 1944 AND MARRYING IN RELIANCE THEREON, PLAINTIFF IS ESTOPPED TO ASSERT THAT THE PARTIES ARE NOT VALIDLY MARRIED.

THE PARTIES WERE REFERRED TO THE COURT OF CONCILIATION, BECAME RECONCILED AND WENT THROUGH ANOTHER MARRIAGE CEREMONY ON SEPTEMBER 6, 1963.

ON THIS STATE OF THE RECORD YOU REQUEST DECISIONS ON THE FOLLOWING QUESTIONS:

A. IN VIEW OF THE FINDING IN ENCLOSURE (4) (COURT ORDER DATED JUNE 24, 1963, QUOTED IN PERTINENT PART ABOVE), AS IT CONSIDERED, FOR PURPOSES OF THE RSFPP, THAT AUGUSTINE DODD WAS THE MEMBER'S LAWFUL WIFE ON 18 AUGUST 1959?

B. IF THE ANSWER TO THE ABOVE QUESTION IS NEGATIVE, MAY DEDUCTIONS FOR ENCLOSURE (1) (ELECTION OF OPTIONS) BE STOPPED AND REFUNDED FROM 18 AUGUST 1959, ON THE BASIS THAT AUGUSTINE DODD WAS NOT AN ELIGIBLE BENEFICIARY ON THAT DATE AND THAT SUCH DETERMINATION WILL NOT BE AFFECTED BY ANY FUTURE ACTION TO VALIDATE THE MARRIAGE OF 12 AUGUST 1944?

C. IF THE ANSWERS TO BOTH OF THE ABOVE QUESTIONS ARE NEGATIVE, IT IS REQUIRED THAT DEDUCTIONS BE CONTINUED UNTIL THE MEMBER'S DEATH, OR THE TERMINATION OF HIS MARRIAGE TO AUGUSTINE BY HER DEATH, OR BY DIVORCE, WHICHEVER IS EARLIER, ON THE BASIS THAT EITHER PARTY MIGHT, AT ANY FUTURE DATE, OBTAIN A COURT ORDER VALIDATING THE MARRIAGE OF 12 AUGUST 1944? IS CONCEIVABLE THAT MRS. DODD COULD HAVE THE MARRIAGE VALIDATED EVEN AFTER THE MEMBER'S DEATH.

WHILE THE CALIFORNIA COURT FOUND FOR THE PURPOSES OF THE HEARING ON THE ANNULMENT OF HIS MARRIAGE OF AUGUST 12, 1944, THAT DODD WAS ESTOPPED TO ASSERT THAT HE WAS NOT VALIDLY MARRIED TO AUGUSTINE BECAUSE OF HIS HELPING HER OBTAIN A MEXICAN DIVORCE AND MARRYING HER IN RELIANCE THEREON, SUCH DETERMINATION DID NOT VALIDATE THE MARRIAGE AS AGAINST THIRD PARTIES. THE DECISION, BASED ON THE LAW OF CALIFORNIA (SECTION 1962, CODE OF CIVIL PROCEDURE, SUBDIVISION 3) AND CASES SUCH AS IN RE DAVIS ESTATE, 101 P.2D 761 (1940); HARLAN V. HARLAN, 161 P.2D 490 (1945) AND SPELLENS V. SPELLENS, 317 P.2D 613 (1957), MERELY HELD THAT DODD WAS ESTOPPED TO HAVE THE MARRIAGE DECLARED A NULLITY. THE THEORY IS THAT THE MARRIAGE IS NOT MADE VALID BY REASON OF THE ESTOPPEL BUT THAT THE ESTOPPED PERSON MAY NOT TAKE THE POSITION THAT THE DIVORCE OR LATTER MARRIAGE WAS INVALID, THE PARTIES IN A CONTEST BETWEEN THEMSELVES BEING ESTOPPED BY THEIR PRIOR CONDUCT TO CHALLENGE THE VALIDITY OF THE DIVORCE DECREE. THE FEDERAL GOVERNMENT OR A STATE, HOWEVER, WOULD NOT BE ESTOPPED FROM CHALLENGING THE VALIDITY OF SUCH FOREIGN DIVORCE DECREE WHEN THEIR INTERESTS MIGHT BE ADVERSELY AFFECTED. SEE PETITION OF TAFFEL, 49 F.SUPP. 109 (1941), AND 12 A.L.R. 2D 734. THE MEMBER'S MARITAL STATUS ON NOVEMBER 25, 1957, DATE OF ELECTION, WAS SUBJECT TO CHALLENGE AND WAS SO CHALLENGED BY THE NAVAL AUTHORITIES. THE 1944 MARRIAGE WAS NOT VALIDATED AND THE SUBSEQUENT CALIFORNIA DIVORCE AND THE REMARRIAGE OF THE PARTIES IN 1963 DO NOT HAVE THE EFFECT OF VALIDATING THE 1944 MARRIAGE. HENCE, IT IS CONCLUDED THAT ON THE DATE DODD BECAME ENTITLED TO RETAINER PAY, AUGUST 18, 1959, AUGUSTINE WAS NOT HIS "SPOUSE" WITHIN THE MEANING OF THAT TERM AS USED IN THE 1953 ACT. ACCORDINGLY, QUESTION A IS ANSWERED IN THE NEGATIVE.

SINCE THE MARRIAGE OF AUGUST 12, 1944, WAS NOT VALIDATED AND THERE IS THUS NO EVIDENCE THAT ON THE EFFECTIVE DATE OF DODD'S ENTITLEMENT TO RETAINER PAY HE HAD A SPOUSE WITHIN THE MEANING OF THE LAW, THERE IS NO BASIS FOR CONTINUING TO MAKE DEDUCTIONS FROM SUCH PAY TO PROVIDE AN ANNUITY FOR AUGUSTINE DODD AND THE AMOUNT WITHHELD FROM AUGUST 18, 1959, SHOULD BE REFUNDED. SINCE THE COURT ACTION INSTITUTED IN 1962 SEEKING A DETERMINATION THAT THE MEXICAN DIVORCE DECREE WAS VALID WAS DISMISSED ON ADVICE OF COUNSEL BECAUSE OF WHAT HE REGARDED AS A FATAL DEFECT IN THE DIVORCE PROCEEDINGS WITH RESPECT TO SERVICE OF SUMMONS, IT APPEARS UNLIKELY THAT A SECOND ATTEMPT TO SECURE SUCH DETERMINATION WILL BE MADE OR, IF MADE, THAT IT WILL BE SUCCESSFUL. QUESTIONS B AND C ARE ANSWERED ACCORDINGLY.