B-154387, JUL. 16, 1964

B-154387: Jul 16, 1964

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DEPARTMENT OF THE ARMY: REFERENCE IS MADE TO YOUR LETTER OF MAY 12. COLONEL CONDON ELECTED TO PARTICIPATE IN THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN TO PROVIDE AN ANNUITY FOR HIS WIFE WITH AN OPTION PROVIDING FOR TERMINATING RETIRED PAY DEDUCTIONS WHEN THERE IS NO BENEFICIARY WHO WOULD BE ELIGIBLE FOR THE ANNUITY IF HE SHOULD DIE. THAT ELECTION WAS MADE ON BEHALF OF RACHEL JANE CONDON. WHO WAS HIS WIFE AT THE TIME HE MADE THE ELECTION AND AT THE TIME OF HIS RETIREMENT. AN INTERLOCUTORY JUDGMENT OF DIVORCE WAS ENTERED ON MARCH 5. WHICH PROVIDED THAT THE WIFE WAS ENTITLED TO A DIVORCE AT THE EXPIRATION OF 1 YEAR AND THAT A FINAL JUDGMENT MAY BE ENTERED GRANTING THE DIVORCE AND RESTORING THE PARTIES TO THE STATUS OF SINGLE PERSONS.

B-154387, JUL. 16, 1964

TO COLONEL J. L. CLANCY, FC, FINANCE AND ACCOUNTING OFFICER, DEPARTMENT OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER OF MAY 12, 1964, REQUESTING A DECISION WHETHER AMOUNTS DEDUCTED FROM THE RETIRED PAY OF COLONEL DEAN L. CONDON, 0 314 838, AUS, RETIRED, FOR THE PERIOD SEPTEMBER 1, 1963, THROUGH MARCH 31, 1964, AS THE COST OF AN ANNUITY FOR HIS WIFE UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN MAY BE REFUNDED TO HIM ON ACCOUNT OF HIS DIVORCE FROM SUCH BENEFICIARY. THE REQUEST FOR DECISION HAS BEEN ASSIGNED NO. DO-A-772 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

COLONEL CONDON ELECTED TO PARTICIPATE IN THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN TO PROVIDE AN ANNUITY FOR HIS WIFE WITH AN OPTION PROVIDING FOR TERMINATING RETIRED PAY DEDUCTIONS WHEN THERE IS NO BENEFICIARY WHO WOULD BE ELIGIBLE FOR THE ANNUITY IF HE SHOULD DIE. THAT ELECTION WAS MADE ON BEHALF OF RACHEL JANE CONDON, WHO WAS HIS WIFE AT THE TIME HE MADE THE ELECTION AND AT THE TIME OF HIS RETIREMENT.

AN INTERLOCUTORY JUDGMENT OF DIVORCE WAS ENTERED ON MARCH 5, 1963, IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO, WHICH PROVIDED THAT THE WIFE WAS ENTITLED TO A DIVORCE AT THE EXPIRATION OF 1 YEAR AND THAT A FINAL JUDGMENT MAY BE ENTERED GRANTING THE DIVORCE AND RESTORING THE PARTIES TO THE STATUS OF SINGLE PERSONS. FINAL JUDGMENT OF DIVORCE WAS ENTERED ON MARCH 5, 1964.

ON AUGUST 19, 1963, COLONEL CONDON INSTITUTED SUIT FOR DIVORCE AGAINST HIS WIFE IN THE THIRD CIVIL COURT, BRAVOS DISTRICT, STATE OF CHIHUAHUA, REPUBLIC OF MEXICO. THE DEFENDANT WIFE ANSWERED BY MEANS OF A WRIT DATED AUGUST 19, 1963, THROUGH HER LEGAL AGENT, AND ACKNOWLEDGED THE COMPLAINT BROUGHT AGAINST HER IN ALL ITS PARTS, STATING THAT SHE SUBMITTED TO THE JURISDICTION AND COMPETENCY OF THE COURT AND ASKED FOR JUDGMENT. THEIR MARRIAGE WAS DECLARED DISSOLVED WITH ALL ITS LEGAL CONSEQUENCES, BOTH PARTIES REMAINING FREE TO CONTRACT A NEW MARRIAGE. IT IS STATED THAT IT WAS ESTABLISHED THAT NEITHER OF THE PARTIES APPEARED PERSONALLY BEFORE THE COURT, NEITHER HAD TEMPORARY OR PERMANENT DOMICILE OR RESIDENCE IN THE REPUBLIC OF MEXICO, AND NEITHER OF THEM HAS QUESTIONED THE VALIDITY OF THE MEXICAN DIVORCE. COLONEL CONDON ASSERTS THAT THE MEXICAN DIVORCE DECREE TERMINATED THE MARRIAGE ABSOLUTELY ON AUGUST 19, 1963, AND HE CLAIMS THAT HE IS ENTITLED TO REFUND OF THE ANNUITY DEDUCTIONS MADE FROM HIS PAY SINCE THAT DATE.

YOU SAY THAT REFUND WAS DENIED BASED ON THE PREMISE THAT UNLESS A FOREIGN COURT GRANTING A DIVORCE HAD JURISDICTION OVER THE SUBJECT MATTER OF THE DIVORCE BY REASON OF "BONA FIDE" RESIDENCE OR DOMICILE THERE OF AT LEAST ONE OF THE PARTIES, ITS DECREE OF DIVORCE WILL NOT, UNDER THE RULES OF INTERNATIONAL COMITY, BE RECOGNIZED IN ONE OF THE STATES OF THE UNITED STATES, EVEN THOUGH THE LAWS OF SUCH FOREIGN COUNTRY DO NOT MAKE RESIDENCE OR DOMICILE A CONDITION TO ITS COURTS TAKING JURISDICTION. CITED IN SUPPORT OF THAT POSITION ARE 25 COMP. GEN. 821, 36 COMP. GEN. 121, 38 COMP. GEN. 97, AND B-135306, MARCH 13, 1958, AND CASES CITED IN THOSE DECISIONS.

YOU THEN STATE THAT THERE APPEARS TO BE ANOTHER PRINCIPLE EXPRESSED IN THE CITED DECISIONS OF THE ACCOUNTING OFFICERS WHICH MAY BE OF FIRST IMPORTANCE IN THIS AND SIMILAR CASES, NAMELY, THAT WHEN ONE OF THE PARTIES TO A SUBSISTING VALID MARRIAGE OBTAINS A FINAL DECREE OF DIVORCE OF DOUBTFUL VALIDITY, SUCH DECREE CREATES SUBSTANTIAL DOUBT AS TO THE MARITAL STATUS OF THE PARTIES SO THAT THE MATTER IS CONSIDERED TOO DOUBTFUL TO AUTHORIZE PAYMENT OF A BENEFIT THAT IS CONTINGENT UPON THE VALIDITY OF THE MARRIAGE IN THE ABSENCE OF A FINDING OF A COURT OF COMPETENT JURISDICTION IN THE UNITED STATES THAT THE DIVORCE IS VALID OR INVALID IN THE UNITED STATES. IF THAT PRINCIPLE IS FOR APPLICATION UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN SO AS TO PRECLUDE PAYMENT OF THE ANNUITY IN THE EVENT OF THE RETIRED SERVICEMAN'S DEATH BECAUSE THE RELATIONSHIP WOULD BE TOO DOUBTFUL TO WARRANT PAYMENT, IT IS SUGGESTED THAT THE MARITAL RELATIONSHIP LIKEWISE WOULD BE TOO DOUBTFUL TO WARRANT THE REDUCTION IN THE MEMBER'S RETIRED PAY TO PURCHASE THE ANNUITY DURING HIS LIFETIME AND THEREFORE THE REDUCTION IN RETIRED PAY IS NOT REQUIRED.

IN THE ABSENCE OF A PRECEDENT DECISION BY THIS OFFICE IN POINT WITH RESPECT TO THE CALIFORNIA AND MEXICAN DIVORCES, DECISION IS REQUESTED (A) WHETHER THERE WAS A BENEFICIARY WHO WOULD HAVE BEEN ELIGIBLE FOR THE ANNUITY IF THE RETIRED SERVICEMAN HAD DIED DURING THE INTERLOCUTORY PERIOD UNDER CALIFORNIA STATUTES (WITHOUT REGARD TO THE MEXICAN DECREE OF DIVORCE) OR (B) WHETHER THERE WAS A BENEFICIARY WHO WOULD HAVE BEEN ELIGIBLE FOR THE ANNUITY IF THE RETIRED SERVICEMAN HAD DIED AFTER THE MEXICAN DECREE OF DIVORCE WAS RENDERED ON AUGUST 19, 1963 (WITHOUT REGARD TO THE CALIFORNIA INTERLOCUTORY DECREE OF DIVORCE).

UNDER CALIFORNIA LAW AN INTERLOCUTORY JUDGMENT OF DIVORCE DOES NOT DISSOLVE MARRIAGE, BUT THE LAW PROVIDES THAT WHERE 1 YEAR HAS EXPIRED AFTER THE ENTRY OF THE INTERLOCUTORY JUDGMENT AND NO APPEAL IS TAKEN OR MOTION MADE FOR A NEW TRIAL, THE COURT ON ITS OWN MOTION OR ON THE MOTION OF EITHER PARTY MAY ENTER FINAL JUDGMENT. SEE SECTIONS 131-133 OF THE CIVIL CODE OF CALIFORNIA. BETWEEN THE PERIOD FROM THE ENTRY OF THE INTERLOCUTORY DECREE AND FINAL DECREE OF DIVORCE IN CALIFORNIA, THE MAN HAS A LAWFUL WIFE AND IF HE DIES DURING THAT PERIOD SHE IS HIS LEGAL WIDOW. SEE 22 COMP. GEN. 1145. WE KNOW OF NO CALIFORNIA STATUTE PROVIDING OTHERWISE. QUESTION (A) IS ANSWERED IN THE AFFIRMATIVE.

WITH RESPECT TO THE VALIDITY OF THE MEXICAN DIVORCE, CALIFORNIA, WHICH APPARENTLY WAS THE DOMICILE OF BOTH PARTIES DURING THE PERIOD HERE INVOLVED, HAS ADOPTED (SECTION 150.1 OF THE CIVIL CODE) PROVISIONS SIMILAR TO SECTION 1 OF THE UNIFORM DIVORCE RECOGNITION ACT AS FOLLOWS:

"A DIVORCE OBTAINED IN ANOTHER JURISDICTION SHALL BE OF NO FORCE OR EFFECT IN THIS STATE, IF BOTH PARTIES TO THE MARRIAGE WERE DOMICILED IN THIS STATE AT THE TIME THE PROCEEDING FOR THE DIVORCE WAS COMMENCED.'

THIS PROVISION CONSTITUTES A STATUTORY DECLARATION OF WHAT WAS THERETOFORE A RULE OF DECISION. UNION BANK AND TRUST CO. V. GORDON, 116 C.A.2D 681, 254 P.2D 644 (1953). HENCE A MEXICAN DIVORCE DECREE ISSUED BY A COURT WHICH HAD NEITHER JURISDICTION OF PARTIES NOR OF THE SUBJECT MATTER IS ENTITLED TO NO RECOGNITION IN CALIFORNIA. IN RE HENSGEN ESTATE, 80 C.A.2D 78, 181 P.2D 69 (1947). IN THE CIRCUMSTANCES, IT MAY NOT BE CONCLUDED THAT, IF THE RETIRED OFFICER HAD DIED DURING THE PERIOD AUGUST 19, 1963, TO MARCH 5, 1964, HIS DESIGNATED BENEFICIARY WOULD NOT BE ABLE TO ESTABLISH ENTITLEMENT TO AN ANNUITY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN. QUESTION (B) IS ANSWERED ACCORDINGLY. THE DEDUCTIONS FROM THE OFFICER'S RETIRED PAY MADE DURING THAT PERIOD MAY NOT BE REFUNDED TO HIM.