B-159846, SEP. 16, 1966

B-159846, SEP. 16, 1966

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

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 12, 1966 (XO:HWM:AL 7220/62034 (, REQUESTING AN ADVANCE DECISION AS TO WHETHER DEDUCTIONS ESTABLISHED IN THE RETIRED PAY ACCOUNT OF REAR ADMIRAL EDWIN B. DEXTER, USN, RETIRED, 62034, PURSUANT TO HIS ELECTION UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 (NOW THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN), MAY BE STOPPED AND REFUNDED FROM APRIL 1, 1966, BASED ON A MEXICAN DIVORCE SECURED BY HIS WIFE, JEANETTE KOSTEVA DEXTER, ON MARCH 9, 1966. YOUR LETTER WAS FORWARDED TO THIS OFFICE BY THE COMPTROLLER OF THE NAVY HAVING BEEN ASSIGNED SUBMISSION NUMBER DO-N-918 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE RECORD INDICATES THAT ON APRIL 30, 1954, ADMIRAL DEXTER EXECUTED AN ELECTION UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, CH. 393, 67 STAT. 501, CHOOSING OPTIONS 1 AND 4, FOR THE PURPOSE OF PROVIDING A SURVIVORSHIP ANNUITY FOR HIS WIFE, JEANETTE KOSTEVA DEXTER, AND THAT ON OR ABOUT MARCH 7, 1966, MRS. DEXTER INSTITUTED DIVORCE PROCEEDINGS AGAINST THE MEMBER IN THE SECOND CIVIL COURT, BRAVOS DISTRICT, STATE OF CHIHUAHUA, REPUBLIC OF MEXICO.

AMONG THE ENCLOSURES RECEIVED WITH YOUR LETTER, IS AN ENGLISH TRANSLATION OF THE DIVORCE DECREE, ENTERED ON MARCH 9, 1966. THIS DECREE EVIDENCES THAT MRS. DEXTER ESTABLISHED HER DOMICILE AND RESIDENCE IN CIUDAD JUAREZ, STATE OF CHIHUAHUA, AS REQUIRED BY MEXICAN LAW--- BY REGISTRATION IN THE OFFICE OF THE MUNICIPAL REGISTRY OF THAT CITY--- THAT SHE APPEARED PERSONALLY IN COURT AND EXPRESSLY SUBMITTED HERSELF TO THE JURISDICTION OF THE COURT; AND THAT EDWIN BOARDMAN DEXTER APPEARED IN COURT BY COUNSEL, WHO POSSESSED A POWER OF ATTORNEY SIGNED BY THE MEMBER, AND EXPRESSLY SUBMITTED TO THE JURISDICTION OF THE COURT, ADMITTING THE ALLEGATIONS CONTAINED IN THE PETITION. THE COURT THEREUPON ENTERED JUDGMENT DECREEING THAT THE MARRIAGE BETWEEN THE PARTIES ,IS DECLARED DISSOLVED WITH ALL LEGAL CONSEQUENCES, BOTH PARTIES BECOMING FREE TO REMARRY.'

THE QUESTION TO BE RESOLVED IS WHETHER THE PRESENT RECORD MAY BE ACCEPTED AS ESTABLISHING THAT THE MEMBER NO LONGER HAS A LEGAL SPOUSE FOR THE PURPOSE OF 10 U.S.C. 1434 (C), WITHOUT REQUIRING A DETERMINATION WHICH WOULD BE CONTROLLING IN THIS MATTER BY A COURT OF COMPETENT JURISDICTION IN THE UNITED STATES. SEE 36 COMP. GEN. 121 AND 38 ID. 97 AS TO SUCH REQUIREMENT.

YOU HAVE INDICATED DOUBT AS TO THE NECESSITY OF REQUIRING JUDICIAL RECOGNITION IN THE UNITED STATES OF THE VALIDITY OF THE MEXICAN DECREE OF DIVORCE IN THIS CASE. YOU POINT OUT THAT FROM 1953 TO THE PRESENT TIME, THE MEMBER MAINTAINED A NEW YORK MAILING ADDRESS, AND YOU SUGGEST THAT SUCH INFORMATION CONSTITUTES SUFFICIENT EVIDENCE OF HIS NEW YORK DOMICILE AND THUS THAT THE NEW YORK COURTS WOULD HAVE JURISDICTION TO DETERMINE THE VALIDITY OF THIS DIVORCE.

IN SUPPORT OF YOUR POSITION THAT THE DECREE WOULD BE RECOGNIZED BY THE STATE OF NEW YORK, YOU HAVE CITED THE RECENT CASE OF ROSENSTIEL V. ROSENSTIEL (1965), 262 N.Y.S. 2D 86, 209 N.E. 2D 709, WHICH HELD THAT WHERE THE PLAINTIFF PERSONALLY APPEARED BEFORE A MEXICAN COURT AND THE DEFENDANT APPEARED BY COUNSEL, SUCH COURT ACQUIRED JURISDICTION "OVER THE MARRIAGE AS A LEGAL ENTITY" AND SUCH BILATERAL DIVORCE DECREE SHOULD BE GRANTED RECOGNITION AS IT "OFFENDS NO PUBLIC POLICY OF THIS STATE.'

YOUR ATTENTION IS INVITED TO THE FACT THAT IN THE ROSENSTIEL CASE, THE PARTIES TO THE DIVORCE PROCEEDINGS WERE ACTUALLY NEW YORK DOMICILIARIES AT THE TIME THE MEXICAN DIVORCE DECREE WAS OBTAINED. THE EVIDENCE PRESENTED IN THE PRESENT CASE DOES NOT ESTABLISH THAT EITHER THE MEMBER OR HIS WIFE WERE DOMICILED IN NEW YORK WHEN THE MEXICAN DIVORCE ACTION WAS COMMENCED. NO INFORMATION HAS BEEN FURNISHED RELATING TO THE WIFE'S DOMICILE AND THE MERE FACT THAT THE MEMBER MAINTAINED A NEW YORK MAILING ADDRESS FOR THE PAST 13 YEARS, IS NOT IN ITSELF CONCLUSIVE AS TO THE MATTER OF A NEW YORK DOMICILE.

IN THE CIRCUMSTANCES DISCLOSED, IT CANNOT BE CONCLUDED THAT THE DECISION IN THE ROSENSTIEL CASE FURNISHES A BASIS FOR DETERMINING THE VALIDITY OF MRS. DEXTER'S FOREIGN DIVORCE DECREE; NOR CAN WE CONCLUDE THAT ADMIRAL DEXTER NO LONGER HAS A LEGAL SPOUSE FOR THE PURPOSE OF 10 U.S.C. 1434 (C) IN THE ABSENCE OF A FINDING BY A COURT OF COMPETENT JURISDICTION IN THE UNITED STATES THAT THE MEXICAN DIVORCE DECREE EFFECTIVELY TERMINATED THEIR MARRIAGE.

SHOULD YOU WISH TO SUBMIT ADDITIONAL INFORMATION RELATING TO THE ACTUAL DOMICILE OF THE PARTIES IN MARCH 1966, THE MATTER WILL BE CONSIDERED FURTHER AT THAT TIME. ON THE PRESENT RECORD, YOUR QUESTION IS ANSWERED IN THE NEGATIVE. COMPARE 44 COMP. GEN. 480 AND 45 ID. 155.