B-163335, MAR. 4, 1968

B-163335: Mar 4, 1968

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IN ABSENCE OF DETERMINATION BY A COURT OF COMPETENT JURISDICTION THAT THE SECOND MARRIAGE OF AN OFFICER IN PENNSYLVANIA FOLLOWING A MEXICAN DIVORCE OBTAINED BY THE OFFICER FROM HIS FIRST WIFE IS VALID PAYMENT OF QUARTERS ALLOWANCE ON ACCOUNT OF THE SECOND WIFE IS TOO DOUBTFUL TO BE ALLOWED. FACT THAT BOTH PARTIES OF FIRST MARRIAGE HAVE REMARRIED AFFORDS NO BASIS FOR HOLDING SECOND MARRIAGE VALID. WASS: FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 19. BOND WERE MARRIED IN AUGUSTA. "IS HEREBY DECLARED DISSOLVED.'. WAS APPROVED AND INCORPORATED IN THE DECREE. IN THE MEMORANDUM IT IS STATED THAT MAJOR BOND AND HIS FIRST WIFE MARGARET SEPARATED IN OR ABOUT SEPTEMBER 1966 AT WHICH TIME SHE CONTINUED TO MAINTAIN HER RESIDENCE IN THE STATE OF CONNECTICUT WHILE THE OFFICER BECAME A RESIDENT OF PENNSYLVANIA.

B-163335, MAR. 4, 1968

QUARTER ALLOWANCES - MILITARY PERSONNEL - MEXICAN DIVORCE EFFECT DECISION CONCERNING ENTITLEMENT OF ARMY OFFICER TO QUARTERS ALLOWANCE ON ACCOUNT OF DEPENDENT SECOND WIFE WHOM HE MARRIED FOLLOWING A MEXICAN DIVORCE OBTAINED BY THE MEMBER. IN ABSENCE OF DETERMINATION BY A COURT OF COMPETENT JURISDICTION THAT THE SECOND MARRIAGE OF AN OFFICER IN PENNSYLVANIA FOLLOWING A MEXICAN DIVORCE OBTAINED BY THE OFFICER FROM HIS FIRST WIFE IS VALID PAYMENT OF QUARTERS ALLOWANCE ON ACCOUNT OF THE SECOND WIFE IS TOO DOUBTFUL TO BE ALLOWED. FACT THAT BOTH PARTIES OF FIRST MARRIAGE HAVE REMARRIED AFFORDS NO BASIS FOR HOLDING SECOND MARRIAGE VALID.

TO MR. CARL G. WASS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 19, 1967, WITH ENCLOSURES, CONCERNING THE ENTITLEMENT OF YOUR CLIENT, MAJOR VERNON L. BOND, JR., U.S. ARMY, TO BASIC ALLOWANCE FOR QUARTERS FOR A DEPENDENT WIFE.

IT APPEARS THAT MAJOR BOND AND MARGARET Y. BOND WERE MARRIED IN AUGUSTA, MAINE, IN 1951, AND THAT IN 1967 THE OFFICER OBTAINED A MEXICAN DIVORCE FROM HER. AN ENGLISH TRANSLATION OF THE DIVORCE DECREE ENTERED ON MARCH 20, 1967, BY THE SECOND CIVIL COURT OF BRAVOS DISTRICT, STATE OF CHIHUAHUA, REPUBLIC OF MEXICO, SHOWS THAT VERNON LEE BOND, JR., INSTITUTED AN ACTION FOR ABSOLUTE DIVORCE AGAINST HIS WIFE, MARGARET PATRICIA YOUNG BOND; THAT HE PERSONALLY APPEARED BEFORE THE COURT ACCOMPANIED BY COUNSEL AND EXPRESSLY SUBMITTED HIMSELF TO THE JURISDICTION OF THE COURT; AND THAT HIS WIFE APPEARED BY COUNSEL AND SUBMITTED TO THE JURISDICTION OF THE COURT, ADMITTING THE ALLEGATIONS CONTAINED IN THE PETITION.

THE DECREE PROVIDES THAT THE MARRIAGE EXISTING BETWEEN THE PARTIES CONTRACTED ON APRIL 21, 1951, AT AUGUSTA, MAINE,"IS HEREBY DECLARED DISSOLVED.' THE JUDGMENT ALSO STATED THAT THE SEPARATION AGREEMENT ENTERED INTO BY THE PARTIES ON MARCH 9, 1967, WAS APPROVED AND INCORPORATED IN THE DECREE.

WITH YOUR LETTER YOU SUBMITTED A MEMORANDUM OF LAW IN SUPPORT OF MAJOR BOND'S APPLICATION FOR BASIC ALLOWANCE FOR QUARTERS WHICH APPLICATION HAS BEEN DENIED ADMINISTRATIVELY. IN THE MEMORANDUM IT IS STATED THAT MAJOR BOND AND HIS FIRST WIFE MARGARET SEPARATED IN OR ABOUT SEPTEMBER 1966 AT WHICH TIME SHE CONTINUED TO MAINTAIN HER RESIDENCE IN THE STATE OF CONNECTICUT WHILE THE OFFICER BECAME A RESIDENT OF PENNSYLVANIA, HIS CURRENT RESIDENCE. IT IS STATED THAT, AFTER THE MEXICAN DIVORCE WAS GRANTED, HE RETURNED TO PENNSYLVANIA WHERE, ON APRIL 8, 1967, HE ENTERED INTO MARRIAGE WITH HIS SECOND WIFE, MARY. IT IS FURTHER STATED THAT SUBSEQUENT TO THE DIVORCE THE OFFICER'S FIRST WIFE ENTERED INTO MARRIAGE WITH WILLIAM K. CARROL ON JUNE 14, 1967, IN NEW HAVEN, CONNECTICUT.

IN YOUR MEMORANDUM OF LAW YOU EXPRESS THE VIEW THAT THE FACTUAL SITUATION IN MAJOR BOND'S CASE IS DIFFERENT FROM THOSE DISCUSSED IN OUR DECISIONS INVOLVING MEXICAN DIVORCES AND YOU SAY THAT THE INSTANT CASE IS VERY MUCH LIKE THE CASE OF ROSENSTIEL V ROSENSTIEL, 262 N.Y.S. 2D. 86 (1965). YOU POINT OUT THAT A MATTER OF PARTICULAR SIGNIFICANCE IN MAJOR BOND'S CASE IS THE FACT THAT BOTH THE OFFICER AND HIS FIRST WIFE HAVE REMARRIED AND IN THAT LIGHT YOU SAY THAT UNDER PENNSYLVANIA LAW THE DOCTRINE OF ESTOPPEL WOULD PREVENT EITHER PARTY FROM ATTACKING THE VALIDITY OF THE MEXICAN DIVORCE DECREE, CITING AS AUTHORITY COMMONWEALTH V DOUGHTY, 144 A.2D. 521, 187 PA. SUPER. CT. 499 (1958).

WITH RESPECT TO THE APPLICATION OF THE DOCTRINE OF ESTOPPEL TO CASES IN WHICH MILITARY PERSONNEL CLAIM ALLOWANCES ON ACCOUNT OF A DEPENDENT WIFE WHERE THE VALIDITY OF THE CLAIMED MARITAL STATUS DEPENDS ON THE VALIDITY OF A DIVORCE OBTAINED BY ONE OF THE PARTIES IN MEXICO, OUR OFFICE HAS TAKEN THE VIEW THAT THE GOVERNMENT IS NOT ESTOPPED FROM CHALLENGING THE VALIDITY OF SUCH DIVORCE. 36 COMP. GEN. 121. IRRESPECTIVE OF THE AUTHORITY WHICH MAY EXIST IN A PARTICULAR JURISDICTION FOR THE PROPOSITION THAT A PARTY WHO MARRIES FOLLOWING A DIVORCE HE OBTAINED IS ESTOPPED TO DENY THE VALIDITY OF THE DIVORCE, SUCH ESTOPPEL WOULD NOT EXTEND TO THE FEDERAL GOVERNMENT WHEN ITS INTERESTS MIGHT BE ADVERSELY AFFECTED. SEE PETITION OF TAFFEL, 49 F.SUPP. 109.

YOU ALSO POINT OUT THAT SINCE THE DECISION IN THE ROSENSTIEL CASE WAS RENDERED BY A SISTER STATE, IT SHOULD BE ENTITLED TO A GREAT DEGREE OF WEIGHT IN THE ABSENCE OF ANY CASE IN POINT IN THE COMMONWEALTH OF PENNSYLVANIA. YOU SAY THAT PENNSYLVANIA CASE LAW IS SILENT WITH REGARD TO ITS RECOGNITION OR NONRECOGNITION OF THE MEXICAN "PARTICIPATING" OR "BILATERAL" DECREE AND THAT THE ONLY CASES INVOLVING THE VALIDITY OF A MEXICAN DECREE WHICH HAVE BEEN CONSIDERED BY THE COURTS OF PENNSYLVANIA INVOLVE A COLLATERAL ISSUE.

IN THE ROSENSTIEL CASE THE NEW YORK COURT OF APPEALS HELD THAT A DIVORCE GRANTED BY A MEXICAN COURT WHICH CONFORMS TO MEXICAN LAW SHOULD BE RECOGNIZED IN NEW YORK AFTER THE MEXICAN COURT ACQUIRED JURISDICTION OF THE PARTIES BY THE PLAINTIFF'S SIGNING A MUNICIPAL REGISTER OF RESIDENCE AND PHYSICALLY APPEARING BEFORE THE COURT AND BY THE DEFENDANT'S APPEARANCE BY A DULY AUTHORIZED ATTORNEY WHO FILED AN ANSWER SUBMITTING TO THE COURT'S JURISDICTION, EVEN THOUGH THE DIVORCE WAS GRANTED ON GROUNDS NOT ACCEPTED IN NEW YORK AND THE PLAINTIFF WAS PHYSICALLY PRESENT IN MEXICO FOR A BRIEF PERIOD ONLY. THE COURT CONCLUDED THAT A BALANCED PUBLIC POLICY NOW REQUIRES THAT RECOGNITION BE GIVEN TO A BILATERAL MEXICAN DIVORCE IN THE CIRCUMSTANCES THERE INVOLVED.

AS A GENERAL RULE, HOWEVER, THE STATE COURTS OF THE UNITED STATES HAVE NOT RECOGNIZED THE VALIDITY OF MEXICAN DIVORCES. CONSEQUENTLY, IN CASES WHERE THE PRIOR MARRIAGE OF THE HUSBAND OR WIFE HAS BEEN THE SUBJECT OF A MEXICAN DIVORCE, WE HAVE, WITH ONE EXCEPTION, CONSISTENTLY REQUIRED A JUDICIAL DETERMINATION OF THE VALIDITY OF THE MARRIAGE BEFORE APPROVING CREDIT TO THE HUSBAND OF BASIC ALLOWANCE FOR QUARTERS FOR DEPENDENTS ON ACCOUNT OF HIS WIFE. SEE B-160591, NOVEMBER 22, 1967, AND THE DECISIONS THERE CITED (COPIES OF WHICH WERE PREVIOUSLY FURNISHED YOU). THE DECISION B-160591, FEBRUARY 17, 1967, IN WHICH WE AUTHORIZED PAYMENT OF BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF THE SECOND WIFE FELL SQUARELY WITHIN RULE OF THE ROSENSTIEL CASE. IN THAT CASE THE RECORD SHOWED THAT BOTH PARTIES WERE DOMICILED IN NEW YORK AT THE TIME OF THE DIVORCE; THAT THE PLAINTIFF PERSONALLY APPEARED BEFORE THE MEXICAN COURT; THAT THE DEFENDANT APPEARED BY AN ATTORNEY AND SUBMITTED TO THE COURT'S JURISDICTION, AND THAT THE SECOND MARRIAGE OCCURRED IN NEW YORK BETWEEN NEW YORK DOMICILIARIES.

AS A GENERAL PROPOSITION, THE VALIDITY OF A MARRIAGE IS FOR DETERMINATION UNDER THE LAWS OF THE JURISDICTION WHERE THE MARRIAGE IS PERFORMED. APPEARS DOUBTFUL THAT THE ROSENSTIEL CASE WOULD BE VIEWED AS A PRECEDENT TO BE FOLLOWED BY A PENNSYLVANIA COURT IN DETERMINING THE VALIDITY OF MAJOR BOND'S REMARRIAGE IN THAT STATE. MOREOVER, UNLIKE THE FACTUAL SITUATION IN THE ROSENSTIEL CASE, MAJOR BOND'S FIRST MARRIAGE WAS PERFORMED IN MAINE WHILE HIS SECOND MARRIAGE WAS PERFORMED IN PENNSYLVANIA. FURTHER, THE FACT THAT MAJOR BOND AND HIS FIRST WIFE HAVE SINCE REMARRIED AFFORDS NO BASIS FOR CONCLUDING THAT HIS SECOND MARRIAGE OF APRIL 8, 1967, IS A VALID MARRIAGE FOR QUARTERS ALLOWANCE PURPOSES.

AS POINTED OUT IN YOUR MEMORANDUM OF LAW, APPARENTLY NO DECISION CONCERNING A SITUATION LIKE MAJOR BOND'S HAS BEEN RENDERED BY THE PENNSYLVANIA COURTS. HOWEVER, THE GENERAL TENOR OF THE PENNSYLVANIA DECISIONS SEEMS TO BE AGAINST RECOGNITION OF MEXICAN DIVORCES AS IS INDICATED BY THE DISCUSSION IN THE CITED DOUGHTY CASE (AT PAGE 525) AS FOLLOWS:

"THE FULL FAITH AND CREDIT CLAUSE BINDS ONLY THE STATES OF THE UNION AND DOES NOT APPLY TO DECREES OF THE COURTS OF FOREIGN COUNTRIES. SUCH DECREES, THEREFORE, DEPEND FOR THEIR RECOGNITION IN PENNSYLVANIA, AS IN OTHER AMERICAN STATES, UPON COMITY. THE ELEMENTS OF POLICY WHICH DETERMINE WHETHER A DECREE SHALL BE SO RECOGNIZED HAVE NOT BEEN FULLY MARKED OUT. WITHOUT THE ESTABLISHMENT OF ANY SPECIFIC PRINCIPLE OF POLICY, MEXICAN DIVORCES HAVE BEEN REFUSED RECOGNITION IN PENNSYLVANIA. * * THEY ARE VIEWED WITH SCANT REGARD FOR PRETENDED JURISDICTION BECAUSE OF PUBLIC KNOWLEDGE THAT THEY ARE CUSTOMARILY GRANTED WITHOUT BONA FIDE RESIDENCE OR DOMICILE.'

IN THE ABSENCE OF A DETERMINATION BY A COURT OF COMPETENT JURISDICTION IN THE UNITED STATES THAT THE MARRIAGE ON APRIL 8, 1967, BETWEEN MAJOR BOND AND HIS SECOND WIFE, MARY E. BOND, WAS VALID, THERE IS NO BASIS FOR AUTHORIZING BASIC ALLOWANCE FOR QUARTERS FOR A DEPENDENT WIFE. ON THE RECORD BEFORE US, THE ADMINISTRATIVE DENIAL OF MAJOR BOND'S CLAIM WAS PROPER.

YOUR ATTENTION, HOWEVER, IS INVITED TO THE JURISDICTION OF THE COURT OF CLAIMS OF THE UNITED STATES AND THE UNITED STATES DISTRICT COURTS TO CONSIDER AND DETERMINE SUITS FOR PAY AND ALLOWANCES BELIEVED TO BE DUE MEMBERS OF THE UNIFORMED SERVICES. 28 U.S.C. 1346 (2) AND 1491.