B-164737, AUG. 1, 1968

B-164737: Aug 1, 1968

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PIERCE: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 10. WAS AWARDED TO HER MOTHER. THE OFFICER MARRIED MADGE STANCILL WHOSE ADDRESS IS SHOWN AS 4842 SAHLER STREET. IT IS NOT SHOWN WHERE THIS MARRIAGE WAS PERFORMED. YOU REQUEST THAT A DETERMINATION BE MADE AS TO WHETHER THAT MARRIAGE IS LEGAL AND WHETHER THE OFFICER MAY RETAIN THE BASIC ALLOWANCE FOR QUARTERS RECEIVED ON BEHALF OF MADGE GALLO FROM MARCH 4. IT IS WELL ESTABLISHED THAT UNLESS A FOREIGN COURT GRANTING A DIVORCE HAD JURISDICTION OVER THE SUBJECT MATTER OF THE DIVORCE BY REASON OF BONA FIDE RESIDENCE OR DOMICILE THERE. ITS DECREE OF DIVORCE WILL NOT. WE HAVE HELD THAT. WHERE THE VALIDITY OF A SECOND MARRIAGE IS DEPENDENT UPON DISSOLUTION OF THE FIRST MARRIAGE BY A DIVORCE DECREE OF A MEXICAN COURT AND SUCH DIVORCE HAS NOT BEEN RECOGNIZED BY A COURT OF COMPETENT JURISDICTION IN THE UNITED STATES.

B-164737, AUG. 1, 1968

TO MR. R. C. PIERCE:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 10, 1968, FORWARDED HERE BY FIRST ENDORSEMENT DATED JUNE 20, 1968, OF THE COMPTROLLER OF THE NAVY, REQUESTING A DETERMINATION AS TO THE RECOGNITION WHICH MAY BE ACCORDED THE SECOND MARRIAGE OF LIEUTENANT COMMANDER MICHAEL J. GALLO, 305344, FOR THE PURPOSE OF ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS. YOUR REQUEST HAS BEEN ASSIGNED SUBMISSION NUMBER DO-N-1003 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE RECORD SHOWS THAT COMMANDER GALLO OBTAINED A DIVORCE FROM VILMA GALLO IN CALPULALPAN, TLAXCALA, MEXICO, ON JANUARY 24, 1966, IN WHICH ACTION NEITHER PARTY APPEARED PERSONALLY BEFORE THE COURT, AND THAT CUSTODY OF HIS DAUGHTER, DINA LISA GALLO, WAS AWARDED TO HER MOTHER. ON MARCH 4, 1967, THE OFFICER MARRIED MADGE STANCILL WHOSE ADDRESS IS SHOWN AS 4842 SAHLER STREET, OMAHA, NEBRASKA. HOWEVER, IT IS NOT SHOWN WHERE THIS MARRIAGE WAS PERFORMED.

COPIES OF DEPENDENCY CERTIFICATES (NAVCOMPT FORM 2040) FORWARDED WITH YOUR LETTER SHOW THAT COMMANDER GALLO CLAIMED VILMA GALLO AND HIS DAUGHTER, DINA LISA, AS DEPENDENTS FROM OCTOBER 1, 1965, TO JANUARY 23, 1966; THAT FROM JANUARY 24, 1966, TO MARCH 3, 1967, HE CLAIMED HIS DAUGHTER AS DEPENDENT BY REASON OF HIS CONTRIBUTION OF $100 A MONTH FOR HER SUPPORT; THAT FROM MARCH 4, 1967, TO MARCH 15, 1968, HE CLAIMED MADGE GALLO HIS DEPENDENT AS HIS LAWFUL WIFE; AND THAT HE CLAIMED HIS DAUGHTER, DINA LISA, AS HIS DEPENDENT SUBSEQUENT TO MARCH 16, 1968. HOWEVER, HE DID NOT STATE THE AMOUNT OF HIS MONTHLY CONTRIBUTION FOR HER SUPPORT.

SINCE COMMANDER GALLO MARRIED MADGE STANCILL GALLO SUBSEQUENT TO A MEXICAN DIVORCE, YOU REQUEST THAT A DETERMINATION BE MADE AS TO WHETHER THAT MARRIAGE IS LEGAL AND WHETHER THE OFFICER MAY RETAIN THE BASIC ALLOWANCE FOR QUARTERS RECEIVED ON BEHALF OF MADGE GALLO FROM MARCH 4, 1967, THROUGH MARCH 15, 1968.

IT IS WELL ESTABLISHED THAT UNLESS A FOREIGN COURT GRANTING A DIVORCE HAD JURISDICTION OVER THE SUBJECT MATTER OF THE DIVORCE BY REASON OF BONA FIDE RESIDENCE OR DOMICILE THERE, OF AT LEAST ONE OF THE PARTIES, ITS DECREE OF DIVORCE WILL NOT, UNDER THE RULES OF INTERNATIONAL COMITY, BE RECOGNIZED IN ONE OF THE STATES OF THE UNITED STATES, EVEN THOUGH THE LAWS OF SUCH COUNTRY DO NOT MAKE RESIDENCE OR DOMICILE A CONDITION TO ITS COURTS' TAKING JURSIDICTION. 36 COMP. GEN. 121. THUS, AS A GENERAL RULE, WE HAVE HELD THAT, WHERE THE VALIDITY OF A SECOND MARRIAGE IS DEPENDENT UPON DISSOLUTION OF THE FIRST MARRIAGE BY A DIVORCE DECREE OF A MEXICAN COURT AND SUCH DIVORCE HAS NOT BEEN RECOGNIZED BY A COURT OF COMPETENT JURISDICTION IN THE UNITED STATES, THE MARITAL STATUS OF THE PARTIES IS OF TOO DOUBTFUL LEGALITY FOR US TO APPROVE INCREASED ALLOWANCES ON ACCOUNT OF SUCH MARITAL RELATIONSHIP. COMPARE 45 COMP. GEN. 155 AND 47 COMP. GEN. 286.

IN THE ABSENCE OF A JUDICIAL DETERMINATION OF THE VALIDITY OF COMMANDER GALLO'S SECOND MARRIAGE, THERE IS NO BASIS FOR A CONCLUSION BY US THAT THE INCREASED BASIC ALLOWANCE FOR QUARTERS ON BEHALF OF MADGE GALLO WAS PROPER AND THEREFORE APPROPRIATE ACTION SHOULD BE TAKEN TO RECOVER THE AMOUNT OVERPAID. IF HE CAN ESTABLISH THAT DURING THE PERIOD FROM MARCH 4, 1967, TO MARCH 15, 1968, HE PROVIDED FOR THE SUPPORT OF HIS DAUGHTER, HE MAY RETAIN THE AMOUNT PAID TO HIM FOR BASIC ALLOWANCE FOR QUARTERS AS A MEMBER WITH DEPENDENTS.