B-155792, FEB. 16, 1965, 44 COMP. GEN. 480

B-155792: Feb 16, 1965

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WAS IN THE NATURE OF AN "EX-PARTE" DIVORCE THAT IS NOT RECOGNIZED BY THE STATE. A STOPPAGE OF RETAINER PAY DEDUCTIONS IS NOT REQUIRED AFTER THE YOUNGEST CHILD OF THE MEMBER REACHES 18 YEARS OF AGE AND BECOMES INELIGIBLE UNDER THE PLAN. 1965: FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 12. YOUR REQUEST FOR AN ADVANCE DECISION WAS ASSIGNED SUBMISSION NO. IT IS STATED THAT IN NOVEMBER 1958 THE MEMBER MADE A TIMELY AND VALID ELECTION UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN OF OPTIONS 3 AND 4 AT ONE-HALF REDUCED PAY FOR THE PURPOSE OF PROVIDING ANNUITY BENEFITS FOR HIS WIFE AND TWO CHILDREN. HE WAS TRANSFERRED TO THE FLEET RESERVE IN JUNE 1960 AND YOU STATE THAT IN ACCORDANCE WITH HIS ELECTION DEDUCTIONS UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN WERE THEREUPON ESTABLISHED IN HIS RETAINER PAY ACCOUNT IN THE AMOUNT OF $13.23 A MONTH.

B-155792, FEB. 16, 1965, 44 COMP. GEN. 480

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - MARITAL STATUS TO MEXICAN DIVORCE OBTAINED BY A MEMBER OF THE FLEET RESERVE, A RESIDENT OF NEW YORK STATE, WHO HAD ELECTED REDUCED RETAINER PAY TO PROVIDE ANNUITY BENEFITS FOR WIFE AND CHILDREN UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN (10 U.S.C. CH. 73), WAS IN THE NATURE OF AN "EX-PARTE" DIVORCE THAT IS NOT RECOGNIZED BY THE STATE, THE WIFE OF THE MEMBER, ALSO A RESIDENT OF NEW YORK STATE, NOT HAVING MADE AN APPEARANCE IN THE DIVORCE ACTION, OR CONSENTED TO THE DIVORCE, AND THE MEXICAN DIVORCE GRANTED THE MEMBER NOT HAVING EFFECTED A LEGAL AND VALID TERMINATION OF THE MARTIAL STATUS, EVEN THOUGH THE PUBLIC POLICY OF THE STATE RECOGNIZES DIVORCE DECREES OF FOREIGN COUNTRIES WHEN THE PARTIES TO THE DIVORCE MAKE AN APPEARANCE, A STOPPAGE OF RETAINER PAY DEDUCTIONS IS NOT REQUIRED AFTER THE YOUNGEST CHILD OF THE MEMBER REACHES 18 YEARS OF AGE AND BECOMES INELIGIBLE UNDER THE PLAN, BUT THE WIFE'S FUTURE ENTITLEMENT TO ANNUITY PAYMENTS SHOULD SHE SURVIVE THE MEMBER, A HYPOTHETICAL QUESTION, MAY NOT BE CONSIDERED AT THIS TIME.

TO COMMANDER M. L. CONNER, DEPARTMENT OF THE NAVY, FEBRUARY 16, 1965:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 12, 1964, AND ENCLOSURES, REQUESTING DECISION AS TO THE PROPRIETY, IN THE CIRCUMSTANCES HEREUNDER STATED, OF DISCONTINUING DEDUCTIONS UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN (CH. 73, TITLE 10, U.S. CODE) FROM THE RETAINER PAY OF A MEMBER OF THE FLEET RESERVE, UNITED STATES NAVY. YOUR REQUEST FOR AN ADVANCE DECISION WAS ASSIGNED SUBMISSION NO. DO-N-821 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS STATED THAT IN NOVEMBER 1958 THE MEMBER MADE A TIMELY AND VALID ELECTION UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN OF OPTIONS 3 AND 4 AT ONE-HALF REDUCED PAY FOR THE PURPOSE OF PROVIDING ANNUITY BENEFITS FOR HIS WIFE AND TWO CHILDREN. HE WAS TRANSFERRED TO THE FLEET RESERVE IN JUNE 1960 AND YOU STATE THAT IN ACCORDANCE WITH HIS ELECTION DEDUCTIONS UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN WERE THEREUPON ESTABLISHED IN HIS RETAINER PAY ACCOUNT IN THE AMOUNT OF $13.23 A MONTH.

BY LETTER OF JUNE 5, 1964 (ENCLOSURE (3) RECEIVED WITH YOUR LETTER), YOUR OFFICE WAS NOTIFIED BY THE MEMBER'S WIFE THAT HE HAD OBTAINED A MEXICAN DIVORCE. IN HER LETTER SHE STATES THAT SHE DID NOT SIGN ANY PAPERS NOR CONSENT TO SUCH A DIVORCE, THAT SHE BELIEVES HER HUSBAND ALSO IS A RESIDENT OF THAT STATE. SHE ALLEGES THAT THE MEXICAN DIVORCE OBTAINED BY THE MEMBER "IS NOT LEGAL NOR RECOGNIZED IN THE STATE OF NEW YORK" AND THAT SHE THEREFORE CONSIDERS HERSELF "STILL HIS LEGAL SPOUSE" AND ENTITLED TO THE ANNUITY BENEFITS ELECTED BY HIM "WHEREBY I WOULD RECEIVE ONE-HALF OF HIS RETIREMENT CHECK SHOULD HE DIE.'

THE YOUNGEST OF THE TWO CHILDREN COVERED BY THE MEMBER'S ELECTION UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN REACHED THE AGE OF 18 ON DECEMBER 3, 1964. THEREFORE, IF HIS MARRIAGE WAS LEGALLY DISSOLVED BY THE MEXICAN DECREE OF DIVORCE, HE NO LONGER HAS AN ELIGIBLE BENEFICIARY AND NO FURTHER DEDUCTIONS FROM HIS RETAINER PAY AFTER THE MONTH OF DECEMBER 1964 WOULD BE PROPER UNDER THE PROVISIONS OF THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN.

AMONG THE ENCLOSURES RECEIVED WITH YOUR LETTER OF NOVEMBER 12, 1964, IS AN ENGLISH TRANSLATION OF A DECREE OF DIVORCE ENTERED APRIL 10, 1964, IN THE FIRST CIVIL COURT OF THE DISTRICT OF BRAVOS, STATE OF CHIHUAHUA, REPUBLIC OF MEXICO. THIS DECREE GRANTS A DIVORCE TO THE MEMBER (PLAINTIFF) FROM HIS WIFE (DEFENDANT) AND DISCLOSES THAT THE MEMBER FILED HIS WRITTEN PETITION FOR A DIVORCE ON FEBRUARY 22, 1964, SUBMITTING HIMSELF IN PERSON AS A RESIDENT OF THE STATE OF JUAREZ, CHIHUAHUA, MEXICO, TO THE JURISDICTION OF THE COURT; THAT THE DEFENDANT WAS DULY SERVED WITH SUMMONS (IN HER LETTER OF JUNE 23, 1964, TO YOUR OFFICE, ENCLOSURE (4), SHE ADMITS THAT CERTAIN MEXICAN DIVORCE PAPERS WERE SERVED ON HER ON MARCH 4, 1964, BY A MESSENGER; THAT SHE DID NOT ENTER ANY ANSWER TO THE SUIT; AND THAT CERTAIN "CONFESSIONAL EVIDENCE" OFFERED BY THE PLAINTIFF AND TO WHICH "THE DEFENDANT DID NOT APPEAR (IN COURT) TO ANSWER SAME" WAS DEEMED TO CONSTITUTE A TACIT CONFESSION OF THE FACTS RELATED IN THE MEMBER'S PETITION. THE COURT THEREUPON ENTERED THE DECREE OF DIVORCE PROVIDING THAT THE MARRIAGE BETWEEN THE PLAINTIFF AND DEFENDANT "IS HEREBY DECLARED DISSOLVED WITH ALL THE LEGAL CONSEQUENCES, LEAVING BOTH PARTIES LEGALLY FREE TO CONTRACT A NEW MARRIAGE.'

THE RECOGNITION BY A STATE OF THE UNITED STATES OF A JUDGMENT OF DIVORCE RENDERED IN A FOREIGN COUNTRY ARISES SOLELY UNDER THE RULE OF COMITY. THE STATE OF NEW YORK APPEARS TO BE THE DOMICILE OF THE WIFE AND FROM THE EVIDENCE IN FILE IT WOULD ALSO APPEAR TO BE THE DOMICILE OF THE MEMBER. SPECIFIC REFERENCE IS MADE IN YOUR LETTER OF NOVEMBER 12, 1964, TO THE DECISION RENDERED JULY 19, 1954, BY THE UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK, IN DREW V. HOBBY, 123 F.SUPP. 245, COUPLED WITH YOUR REQUEST FOR AN ADVANCE DECISION WHETHER, UNDER THE RULE OF THE DREW CASE, THE MEXICAN DIVORCE GRANTED TO THE MEMBER IN APRIL 1964 MAY BE RECOGNIZED AS A LEGAL AND VALID TERMINATION OF THE BONDS OF MATRIMONY.

THE DREW CASE WAS AN ACTION BROUGHT BY MRS. DREW UNDER THE PROVISIONS OF THE SOCIAL SECURITY ACT, 42 U.S.C. 405 (G) (1952 ED.), TO OBTAIN JUDICIAL REVIEW OF THE DENIAL OF HER CLAIM FOR WIFE'S INSURANCE BENEFITS, 42 U.S.C. 402 (B) (1952 ED.). THE SOLE ISSUE BEFORE THE COURT WAS WHETHER SHE WAS TO BE CONSIDERED AS LEGALLY MARRIED TO MR. DREW AND THE ANSWER TO THAT DEPENDED UPON RECOGNITION OF A MEXICAN DECREE OF DIVORCE WHICH HAD BEEN GRANTED IN 1927 TO HER PRIOR HUSBAND, MR. WALKER. BEFORE HER MARRIAGE TO MR. DREW, MRS. DREW HAD MARRIED MR. WALKER IN NEW YORK STATE WHERE BOTH WERE DOMICILED. IN 1927 MR. WALKER WENT TO MEXICO AND FILED SUIT FOR DIVORCE, THE SOLE PURPOSE OF HIS TRIP. MRS. DREW (THEN MR. WALKER) DID NOT PERSONALLY TRAVEL TO MEXICO, BUT SHE APPEARED IN THE PROCEEDINGS BY DULY AUTHORIZED COUNSEL. IN MARCH 1927 THE MEXICAN COURT RENDERED ITS DECREE OF DIVORCE RECITING THAT THE PLAINTIFF (MR. WALKER) IN THAT ACTION WAS A RESIDENT OF HERMOSILLO, SONORA, MEXICO, AND THAT THE DEFENDANT THEREIN (WHO LATER BECAME MRS. DREW) WAS A RESIDENT OF THE STATE OF NEW YORK. THE DECREE WAS SERVED ON THE PARTIES AND IN APRIL 1927 IT WAS MADE FINAL BY ORDER OF THE MEXICAN COURT.

UNDER THE SOCIAL SECURITY ACT, DETERMINATION OF MRS. DREW'S MARITAL STATUS WAS GOVERNED BY THE NEW YORK LAW OF INTESTATE PERSONAL PROPERTY SUCCESSION (42 U.S.C. 416 (H) (1) (1952 ED.) ). MRS. DREW'S CLAIM FOR WIFE'S INSURANCE BENEFITS UNDER THE SOCIAL SECURITY ACT HAD BEEN ADMINISTRATIVELY DENIED ON THE GROUND THAT SHE DID NOT GO TO MEXICO AT THE TIME OF THE DIVORCE; THAT MR. WALKER WENT TO MEXICO SOLELY FOR THE PURPOSE OF OBTAINING A DIVORCE AND NOT TO RESIDE THERE AND HENCE THAT, SINCE NEITHER PARTY WAS A BONA FIDE RESIDENT OF MEXICO, THE COURTS OF NEW YORK STATE WOULD NOT RECOGNIZE THE DIVORCE. THE UNITED STATES DISTRICT COURT, CITING TWO NEW YORK CASES (GOULD V. GOULD, 128 N.E. 490, AND GLASER V. GLASER, 12 N.E. 2D 305), HELD THAT THE ADMINISTRATIVE FINDING OF THE LACK OF DOMICILE "IS NOT IN ITSELF A SUFFICIENT BASIS, OR ANY BASIS AT ALL, FOR A DETERMINATION THAT THE MEXICAN DIVORCE WILL NOT BE RECOGNIZED BY THE NEW YORK RTS.' IN THAT CONNECTION THE COURT ADDED THAT "SUCH A FINDING WOULD BE AN ADEQUATE BASIS FOR THAT DETERMINATION IF THE DIVORCE DECREE INVOLVED WERE OF THE "MAIL-ORDER" VARIETY" AND THAT "THE DIVORCE DECREE HERE INVOLVED WAS NEITHER A "MAIL-ORDER" NOR AN EX-PARTE DIVORCE" POINTING OUT THAT "IT IS CONCEDED THAT THE HUSBAND (MR. WALKER) ACTUALLY WENT TO THE STATE OF SONORA IN MEXICO TO INSTITUTE HIS ACTION AND THAT HIS WIFE * * * APPEARED IN THAT ACTION THROUGH AUTHORIZED NSEL.'

STATING THAT NEW YORK COURTS WILL RECOGNIZE DECREES OF DIVORCE OF FOREIGN COUNTRIES WHERE TO DO SO WILL NOT OFFEND THE PUBLIC POLICY OF THE STATE, THE COURT OBSERVED THAT "IT IS NOT OFFENSIVE TO THE PUBLIC POLICY OF NEW YORK TO RECOGNIZE, DESPITE THE ABSENCE OF THE "JURISDICTIONAL FACT" OF DOMICILE, A FOREIGN DIVORCE OBTAINED BY PARTIES TO A MARRIAGE WHO HAVE TAKEN THE MARITAL RES OUT OF THE STATE FOR THE PURPOSE OF INVOKING A DIVORCE JURISDICTION, BY THE ACTUAL APPEARANCE OF ONE OF THE PARTIES COUPLED WITH THE VOLUNTARY APPEARANCE OF THE OTHER THROUGH AUTHORIZED COUNSEL.' IN SUPPORT OF THAT CONCLUSION THE COURT CITED SEVERAL NEW YORK STATE COURT DECISIONS, INCLUDING LEVITON V. LEVITON, 6 N.Y.S. 2D 535. HENCE THE COURT HELD THAT THE MEXICAN DIVORCE BETWEEN MR. AND MRS. WALKER WOULD BE RECOGNIZED IN NEW YORK STATE. CONSEQUENTLY, IT WAS CONCLUDED THAT MR. DREW (THE FORMER MRS. WALKER) WAS ENTITLED TO RECEIVE BENEFITS UNDER THE SOCIAL SECURITY ACT AS THE WIFE OF THE PERSON HE HAD MARRIED AFTER THE EFFECTIVE DATE OF THE MEXICAN DIVORCE.

IN WEBER V. WEBER, 238 N.Y.S. 333, DECIDED AUGUST 2, 1929, A CASE WHERE THE HUSBAND SUED IN NEW YORK COURTS FOR AN ABSOLUTE DIVORCE FROM HIS WIFE, THE SUPREME COURT OF NEW YORK (SPECIAL TERM, KINGS COUNTY), HELD (QUOTING THE SYLLABUS) THAT THE PLAINTIFF (HUSBAND) "HAVING PREVIOUSLY APPEARED IN WIFE'S ACTION FOR DIVORCE IN MEXICO, AND SUBSEQUENTLY HAVING ACCEPTED BENEFITS UNDER DECREE GRANTED THEREIN, COULD NOT THEREAFTER COME INTO A COURT OF EQUITY AND ATTACK MEXICAN DECREE ON GROUND THAT CONDUCT OF BOTH PARTIES CONSTITUTED A FRAUD ON PEOPLE OF THE STATE OF NEW YORK AND ON ITS LAWS, BECAUSE NEITHER OF PARTIES HAD LEFT STATE TO OBTAIN MEXICAN DECREE, IN APPLICATION OF COMMON-LAW MAXIM THAT NO ONE SHALL BE PERMITTED TO PROFIT BY HIS OWN FRAUD OR WRONG.' IT WAS STATED IN THAT DECISION THAT "THE PARTIES, HAVING INVOKED THE JURISDICTION OF THE MEXICAN COURT, CANNOT NOW BE HEARD TO ATTACK THE DECREE OF THAT COURT.'

ABOUT THREE WEEKS AFTER RECEIVING HER MEXICAN DIVORCE, MRS. WEBER, IN JANUARY 1929, MARRIED A MR. DWYER IN THE CITY OF CHICAGO. MR. DWYER DIED IN 1953, AT WHICH TIME BOTH HE AND MRS. WEBER WERE DOMICILED IN THE STATE OF NEW YORK. IN DWYER V. FOLSOM (AN ACTION INSTITUTED BY MRS. WEBER TO ESTABLISH HER STATUS AS THE LEGAL WIDOW OR MR. DWYER, A DECEASED WAGE EARNER, TO RECEIVE BENEFITS UNDER THE SOCIAL SECURITY ACT), 139 F.SUPP. 571, DECIDED MARCH 29, 1956, THE QUESTION OF HER MARITAL STATUS (WITH MR. DWYER) AND THE VALIDITY OF HER PRIOR MEXICAN DIVORCE FROM MR. WEBER WAS HELD TO BE FOR DETERMINATION UNDER THE LAWS OF NEW YORK STATE (42 U.S.C. 416 (H) (1) (1952 ED.) ).THE COURT, COMMENTING GENERALLY, THAT THE COURTS OF NEW YORK STATE "ABHOR COLLUSIVE MEXICAN "MAIL ORDER" DIVORCES AND REFUSE TO RECOGNIZE THEM AS HAVING VALIDITY WITHIN THEIR JURISDICTION" POINTED OUT SPECIFICALLY THAT THE COLLUSIVENESS OF THE MEXICAN DIVORCE FROM MR. WEBER WAS AMPLY DEMONSTRATED IN THE 1929 DECISION OF THE SUPREME COURT OF NEW YORK (WEBER V. WEBER, 238 N.Y.S. 333, ABOVE REFERRED TO). THE COURT THEREUPON DENIED THE PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS OR FOR SUMMARY JUDGMENT DECLARING THAT "THE PLAINTIFF, CLAIMANT, SOUGHT A DIVORCE BY A METHOD WHICH THE COURTS OF NEW YORK HAVE DECLARED A LEGAL NULLITY.'

THE FOLLOWING STATEMENT, WHICH IS QUOTED FROM THE DWYER DECISION OF MARCH 29, 1956, HAS PARTICULAR SIGNIFICANCE WHENEVER THE RULE IN DREW V. HOBBY IS SOUGHT TO BE APPLIED IN ESTABLISHING THE VALIDITY IN THE STATE OF NEW YORK OF A MEXICAN DECREE OF DIVORCE. THE COURT IN THE DWYER CASE STATED:

THE CASE OF DREW V. HOBBY, D.C.S.D.N.Y., 123 F.SUPP. 345, IS DISTINGUISHABLE IN THAT THE ORIGINAL HUSBAND PROCURED THE MEXICAN DIVORCE DECREE BY ACTUALLY VISITING MEXICO AND SATISFYING ALL OF THE JURISDICTIONAL REQUIREMENTS WHEREBY NEW YORK, BY COUNTY, WOULD GIVE IT RECOGNITION.

ALSO, IT SHOULD BE NOTED THAT IN THE DREW CASE THE COURT EMPHASIZED THE FACT THAT THE DIVORCE DECREE THERE INVOLVED "WAS NEITHER A "MAIL ORDER" NOR AN EX-PARTE DIVORCE" AND THAT, WHILE ONLY ONE OF THE PARTIES HAD ACTUALLY GONE TO MEXICO AND INSTITUTED THE DIVORCE ACTION, THE OTHER PARTY (LATER MRS. DREW) HAD VOLUNTARILY APPEARED IN THAT ACTION THROUGH AUTHORIZED COUNSEL.

WHILE THE RECORD BEFORE US IN THE INSTANT CASE CONCERNING THE MARITAL STATUS DISCLOSES THAT THE MEMBER ACTUALLY WENT TO JUAREZ, CHIHUAHUA, MEXICO, AND WAS DECLARED A RESIDENT THEREOF AND HENCE WAS WITHIN THE JURISDICTION OF THE MEXICAN COURT, WHICH ON APRIL 10, 1964, GRANTED HIM A DIVORCE, THERE IS NOTHING TO SHOW THAT HIS WIFE MADE ANY APPEARANCE IN THAT ACTION. IN HER LETTERS TO YOUR DEPARTMENT, THE WIFE'S STATEMENTS ARE UNEQUIVOCAL THAT SHE DID NOT SIGN ANY PAPERS NOR GIVE HER CONSENT TO SUCH A DIVORCE. THE RECORD WOULD INDICATE THEREFORE THAT THE DIVORCE ACTION PURSUED BY THE MEMBER WAS IN THE NATURE OF AN "EX-PARTE" DIVORCE WHICH, BY REASON OF THE EXPRESS STATEMENT MADE BY THE COURT IN THE DREW CASE, WOULD CLEARLY DISTINGUISH THIS CASE FROM THE DREW DECISION. IT DOES NOT APPEAR THAT, ON THE BASIS OF THE RECORD BEFORE HIS OFFICE, THE MEXICAN DECREE OF DIVORCE GRANTED TO THE MEMBER IN APRIL 1964 WOULD BE RECOGNIZED BY THE COURTS OF THE STATE OF NEW YORK.

ACCORDINGLY, YOUR FIRST QUESTION WHETHER THE MEXICAN DECREE OF DIVORCE GRANTED TO THE MEMBER MAY BE RECOGNIZED AS A VALID AND EFFECTIVE TERMINATION OF HIS MARITAL STATUS THEREBY REQUIRING STOPPAGE OF DEDUCTIONS IN HIS RETAINER PAY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN AFTER THE MONTH OF DECEMBER 1964 (THE MONTH IN WHICH HIS YOUNGEST CHILD BECAME INELIGIBLE BY REASON OF REACHING HER EIGHTEENTH BIRTHDAY) IS ANSWERED IN THE NEGATIVE.

YOUR SECOND QUESTION IS WHETHER THE WIFE WILL BE ENTITLED TO ANNUITY PAYMENTS AFTER THE DEATH OF THE MEMBER, SHOULD SHE SURVIVE HIM. THIS QUESTION IS HYPOTHETICAL IN NATURE AND CONSEQUENTLY MAY NOT BE CONSIDERED AT THIS TIME.