B-155165, OCTOBER 1, 1964, 44 COMP. GEN. 185

B-155165: Oct 1, 1964

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PAYMENT OF WHICH WAS DEFERRED 12 MONTHS. DOES NOT ENTITLE THE OFFICER WHOSE GOVERNMENT QUARTERS WERE TERMINATED ON THE DATE HE WAS DIVORCED TO A BASIC ALLOWANCE FOR QUARTERS FOR A DEPENDENT WIFE PREDICATED ON THE PROPERTY SETTLEMENT PURSUANT TO PARAGRAPH 5-65A (3) OF ARMY REGULATIONS 37-104. RELATING TO INTERLOCUTORY DIVORCES OR DECREES WHICH ARE NOT EFFECTIVE UNTIL THE EXPIRATION OF 1 YEAR FROM THE DATE OF THE DECREE. THE INCORPORATION BY REFERENCE OF THE SEPARATION AGREEMENT IN THE DIVORCE DECREE IS OF NO CONSEQUENCE. 1964: FURTHER REFERENCE IS MADE TO YOUR REQUEST FOR ADVANCE DECISION AS TO THE ENTITLEMENT OF AN OFFICER TO BASIC ALLOWANCE FOR QUARTERS FOR HIS DIVORCED WIFE FROM APRIL 27.

B-155165, OCTOBER 1, 1964, 44 COMP. GEN. 185

QUARTERS ALLOWANCE - DEPENDENTS - PROOF OF DEPENDENCY - SETTLEMENT AGREEMENT THE INCORPORATION BY REFERENCE IN THE DIVORCE DECREE OBTAINED BY AN OFFICER OF THE UNIFORMED SERVICES FROM A MEXICAN COURT OF A SEPARATION AGREEMENT DIRECTING HIM TO PAY HIS DIVORCED WIFE THE LUMP-SUM OF $1,500 AND $125 PER MONTH FOR 12 MONTHS, PAYMENT OF WHICH WAS DEFERRED 12 MONTHS, DOES NOT ENTITLE THE OFFICER WHOSE GOVERNMENT QUARTERS WERE TERMINATED ON THE DATE HE WAS DIVORCED TO A BASIC ALLOWANCE FOR QUARTERS FOR A DEPENDENT WIFE PREDICATED ON THE PROPERTY SETTLEMENT PURSUANT TO PARAGRAPH 5-65A (3) OF ARMY REGULATIONS 37-104, RELATING TO INTERLOCUTORY DIVORCES OR DECREES WHICH ARE NOT EFFECTIVE UNTIL THE EXPIRATION OF 1 YEAR FROM THE DATE OF THE DECREE, THE OFFICER HAVING OBTAINED A FINAL DECREE OF DIVORCE FROM HIS WIFE HAS NO DEPENDENT TO PERMIT THE PAYMENT OF AN ALLOWANCE BASED ON THE EXISTENCE OF A LAWFUL WIFE, AND, THEREFORE, THE INCORPORATION BY REFERENCE OF THE SEPARATION AGREEMENT IN THE DIVORCE DECREE IS OF NO CONSEQUENCE.

TO CAPTAIN W. KESSELMAN, DEPARTMENT OF THE ARMY, OCTOBER 1, 1964:

FURTHER REFERENCE IS MADE TO YOUR REQUEST FOR ADVANCE DECISION AS TO THE ENTITLEMENT OF AN OFFICER TO BASIC ALLOWANCE FOR QUARTERS FOR HIS DIVORCED WIFE FROM APRIL 27, 1964, DATE OF TERMINATION OF ASSIGNMENT OF GOVERNMENT QUARTERS. YOUR REQUEST WAS FORWARDED HERE BY SECOND INDORSEMENT DATED SEPTEMBER 9, 1964, UNDER D.O. NUMBER A800, ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU ENCLOSED COPIES OF A DIVORCE DECREE AND TRANSLATION THEREOF, WHICH RESULTED FROM A SUIT INSTITUTED BY THE OFFICER, SHOWING THAT THE FIRST CIVIL COURT OF BRAVOS DISTRICT, STATE OF CHIHUAHUA, REPUBLIC OF MEXICO, PRONOUNCED JUDGMENT APRIL 21, 1964, DISSOLVING THE MARRIAGE OF THE OFFICER AND HIS WIFE. THERE WAS INCORPORATED IN THE DECREE, BY REFERENCE, A SEPARATION AGREEMENT MADE APRIL 7, 1964, WHICH PROVIDED, AMONG OTHER THINGS, THAT THE HUSBAND SHOULD PAY TO THE WIFE $1,500 UPON EXECUTION OF THE AGREEMENT AND $125 PER MONTH FOR 12 MONTHS, PAYMENT TO BE DEFERRED FOR 12 MONTHS AND THE TOTAL PAYMENT OF $1,500 MADE TO THE WIFE 12 MONTHS FROM THE DATE OF THE AGREEMENT.

APPLICATION FOR BASIC ALLOWANCE FOR QUARTERS FOR A MEMBER WITH DEPENDENTS EXECUTED BY THE OFFICER, BASED ON THE DEPENDENCY OF HIS DIVORCED WIFE, IS PREDICATED ON THE PROPERTY SETTLEMENT OF $1,500 PLUS $125 PER MONTH FOR 12 MONTHS, CITING PARAGRAPH 5-65A (3) OF ARMY REGULATIONS 37-104, RELATING TO INTERLOCUTORY DIVORCES OR DECREES WHICH ARE NOT EFFECTIVE UNTIL THE EXPIRATION OF 1 YEAR FROM THE DATE OF THE DECREE. YOU HAVE REQUESTED AN ADVANCE DECISION PURSUANT TO PARAGRAPH 5 35C (4) OF THE REGULATIONS WHICH PROVIDES THAT DETERMINATION OF DEPENDENCY WILL BE MADE BY THE COMPTROLLER GENERAL OF THE UNITED STATES WHEN AN OFFICER CLAIMS BASIC ALLOWANCE FOR QUARTERS FOR A WIFE IN ANY CASE WHICH INVOLVES A DIVORCE GRANTED BY A FOREIGN COUNTRY OR ANY OTHER PERSON WHOSE DEPENDENCY OR RELATIONSHIP IS DOUBTFUL.

WHILE NOT A GENERAL RULE, THERE IS AUTHORITY FOR THE PROPOSITION THAT MEXICAN DECREES OF DIVORCE WILL BE UPHELD WHERE, AS IN THIS CASE, THERE HAS BEEN AN APPEARANCE BY ONE OF THE PARTIES IN MEXICO AND AN APPEARANCE BY A DULY AUTHORIZED ATTORNEY IN BEHALF OF THE OTHER PARTY. SEE 27B C.J.S. 813, NOTE 56. IN ANY EVENT, WHERE ONE SPOUSE OBTAINS A FINAL DECREE OF DIVORCE IN MEXICO OF UNCERTAIN VALIDITY, THE DOUBT RAISED BY SUCH ACTION AS TO THE CONTINUATION OF THE MARRIAGE WOULD PREVENT OUR OFFICE FROM AUTHORIZING PAYMENT OF BASIC ALLOWANCE FOR QUARTERS TO THE HUSBAND OF SUCH MARRIAGE ON ACCOUNT OF A LAWFUL WIFE, IN THE ABSENCE OF A DECREE OF A COURT OF COMPETENT JURISDICTION IN THE UNITED STATES THAT SUCH DECREE IS A NULLITY. SEE 38 COMP. GEN. 97. ALTHOUGH THE COURT INCORPORATED THE SEPARATION AGREEMENT IN ITS DECREE BY REFERENCE, THAT IS A MATTER OF NO CONSEQUENCE EVEN IF THE DECREE IS REGARDED AS PROVIDING FOR THE PAYMENT OF ALIMONY, SINCE THE PAYMENT OF ALIMONY AFTER A MARRIAGE HAS CEASED TO EXIST DOES NOT PERMIT THE PAYMENT OF AN ALLOWANCE WHICH IS BASED ON THE EXISTENCE OF A LAWFUL WIFE. A MAN DOES NOT HAVE A WIFE AFTER HE OBTAINS A FINAL DECREE OF DIVORCE FROM HER. SEE IN THIS CONNECTION PARAGRAPHS 5-65A (4) AND B (5) OF THE CITED REGULATIONS.

THERE BEING NO BASIS FOR THE PAYMENT OF BASIC ALLOWANCE FOR QUARTERS FOR THE OFFICER'S EX-WIFE, THE VOUCHER FORWARDED WITH YOUR REQUEST WILL BE RETAINED HERE.