B-158411, MAR. 10, 1966

B-158411, MAR. 10, 1966

TO DISBURSING OFFICER, RETIRED PAY DEPARTMENT THROUGH THE COMPTROLLER OF THE NAVY DEPARTMENT OF THE NAVY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 28, 1965, REQUESTING AN ADVANCE DECISION AS TO WHETHER JENNIFER ELLIS HEATH, DAUGHTER OF REAR ADMIRAL GEORGE L. HEATH, USN, RETIRED, 61417, PRESENTLY QUALIFIES AS AN ELIGIBLE CONTINGENT BENEFICIARY UNDER 10 U.S.C. 1435/2), BY THE ELECTION MADE BY THE MEMBER UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, CH. 393, 67 STAT. 502. YOUR REQUEST WAS FORWARDED TO OUR OFFICE BY SECOND ENDORSEMENT OF THE COMPTROLLER OF THE NAVY, DATED JANUARY 21, 1966, HAVING BEEN ASSIGNED SUBMISSION NUMBER DO-N-891 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE RECORD BEFORE US SHOWS THAT THE MEMBER RETIRED ON MARCH 1, 1957, HAVING VALIDLY ELECTED OPTIONS 3 AND 4 UNDER THE CONTINGENCY OPTION ACT, THEREBY PROVIDING ANNUITY BENEFITS FOR HIS SURVIVING SPOUSE AND ON HER DEATH OR REMARRIAGE, TO OR ON BEHALF OF HIS SURVIVING CHILDREN. THERE WERE TWO CHILDREN OF THE MARRIAGE, THE YOUNGER OF WHOM WAS ADMINISTRATIVELY DETERMINED AT THE TIME OF RETIREMENT TO BE THE ONLY CHILD ELIGIBLE UNDER THE PROGRAM. EVIDENCE SUBSEQUENTLY SUBMITTED, HOWEVER, INDICATES THAT THE OLDER CHILD, JENNIFER, HAD BEEN SUFFERING FROM A LONG- TERM MENTAL DEFICIENCY ANTEDATING HER 18TH BIRTHDAY, MARCH 21, 1957, WHICH RENDERED HER INCAPABLE OF SELF SUPPORT. IT APPEARS THAT AT THE PRESENT TIME, SHE IS TOTALLY DEPENDENT ON THE RETIRED MEMBER FOR HER CARE AND SUPPORT AND WAS SO DEPENDENT ON THE DATE OF HIS RETIREMENT, THUS ESTABLISHING THAT SHE INITIALLY QUALIFIED AS AN ELIGIBLE CONTINGENT BENEFICIARY UNDER THE PROGRAM. SEE GENERALLY 44 COMP. GEN. 280.

THE RECORD ALSO DISCLOSES THAT ON MAY 13, 1961, JENNIFER, BEING THEN 22 YEARS OLD, MARRIED IN THE STATE OF CALIFORNIA. ON DECEMBER 11, 1961, IN AN ACTION INSTITUTED BY HER HUSBAND, THE MARRIAGE WAS ANNULLED ON THE GROUND OF FRAUD BY THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THE COUNTY OF SAN DIEGO,"FROM THE DATE OF THIS JUDGMENT.' THIS ANNULMENT DECREE WAS SUBSEQUENTLY AMENDED NUNC PRO TUNC ON NOVEMBER 17, 1965, BY THE JUDGE WHO SAT IN THE ORIGINAL PROCEEDING, THE AMENDATORY DECREE PROVIDING THAT THE MARRIAGE "BE WHOLLY NULL AND VOID FROM THE DATE OF ITS INCEPTION.'

THE ISSUE THEN, IS WHETHER THE MARRIAGE CEREMONY UNDERTAKEN BY JENNIFER IN 1961 AND ITS SUBSEQUENT ANNULMENT IS OF SUCH A CHARACTER AS TO DISQUALIFY HER AS AN ELIGIBLE CONTINGENT BENEFICIARY UNDER THE PROGRAM. THE LEGAL EFFECT OF THE JUDICIAL PROCEEDINGS IN THIS CASE MUST BE DETERMINED UNDER THE LAWS OF THE STATE OF CALIFORNIA AS INTERPRETED BY THE COURTS OF THAT STATE. SEE 37 COMP. GEN. 188.

THE RULE APPEARS TO BE WELL ESTABLISHED IN THE STATE OF CALIFORNIA THAT, IN THE ABSENCE OF TRANSACTIONS WHICH HAVE BEEN CONCLUDED OR THINGS WHICH HAVE BEEN DONE DURING THE SUPPOSED MARRIAGE WHICH OUGHT NOT TO BE UNDONE OR REOPENED (AS TO WHICH SEE LANGLEY V. SCHUMACKER, 283 P.2D 343 (1955) AND SEFTON V. SEFTON, 291 P.2D 439 (1955) (, IF A VOIDABLE MARRIAGE IS ANNULLED ON GROUNDS INCLUDING THAT OF FRAUD, THE MARRIAGE IS VIEWED AS BEING VOID FROM ITS INCEPTION. SEE EICHHOFF V. EICHHOFF, 36 P. 11 (1894), COATS V. COATS, 118 P. 441, 443 (1911), MILLAR V. MILLAR, 167 P. 394 (1917), AND MCDONALD V. MCDONALD, 58 P.2D 163, 165 (1936). SEE, ALSO, FOLSOM V. PEARSALL, 245 F.2D 562 (1952).

IN THE PRESENT CASE, THE COURT'S ORIGINAL DECREE OF ANNULMENT WAS AMENDED IN A MANNER WHICH CONFORMED TO THE GENERAL RULE IN CALIFORNIA IN SUCH CASES. A SIMILAR QUESTION WAS INVOLVED IN THE CASE OF THURBER V. UNITED STATES, COMPLAINT NO. 5729, UNITED STATES DISTRICT COURT, WESTERN DISTRICT OF WASHINGTON, NORTHERN DIVISION (1963). IN THAT CASE THE PLAINTIFF'S FIRST HUSBAND HAD ELECTED AN ANNUITY IN HER FAVOR UNDER THE CONTINGENCY OPTION ACT WHICH WAS PAYABLE UNDER 10 U.S.C. 1434/A) (1) UNTIL SHE "REMARRIES.' THE ANNUITY WAS DISCONTINUED FOLLOWING HER REMARRIAGE ON MARCH 4, 1959, AND A DECREE OF ANNULMENT ON THE GROUND OF FRAUD WAS ENTERED BY A NEVADA COURT ON NOVEMBER 19, 1959. THE DECREE WAS AMENDED ON MARCH 19, 1962, TO PROVIDE THAT THE MARRIAGE WAS ,NULL AND VOID AND OF NO FORCE AND EFFECT, AB INITIO.' CITING THE CASE OF FOLSOM V. PEARSALL, SUPRA, THE FEDERAL DISTRICT COURT HELD THAT THE PLAINTIFF WAS ENTITLED TO AN ANNUITY BEGINNING APRIL 1, 1959, THUS CONCLUDING, IN EFFECT, THAT SHE HAD NOT REMARRIED WITHIN THE MEANING OF THE APPLICABLE PROVISIONS OF LAW. A SIMILAR CONCLUSION WAS REACHED IN YEAGER V. FLEMMING, 282 F.2D 779 (1960), A CASE INVOLVING THE SOCIAL SECURITY LAWS.

IN THE CIRCUMSTANCES, THE ACTION TAKEN BY THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THE COUNTY OF SAN DIEGO, IN THIS CASE, MAY BE ACCEPTED AS ESTABLISHING THAT ADMIRAL HEATH'S DAUGHTER, JENNIFER, IS "UNMARRIED" WITHIN THE MEANING OF THAT TERM AS USED IN 10 U.S.C. 1435/2) (A) AND YOUR QUESTION IS ANSWERED IN THE AFFIRMATIVE.

THIS DECISION IS NOT TO BE UNDERSTOOD AS AUTHORIZING PAYMENT AT ANY FUTURE TIME OF AN ANNUITY TO THE MEMBER'S DAUGHTER. HER RIGHT TO RECEIVE SUCH AN ANNUITY MUST BE DETERMINED ON THE BASIS OF THE FACTS APPEARING AT THE TIME PAYMENT IS DUE. SEE 10 U.S.C. 1434.