B-165627, JAN. 16, 1969

B-165627, JAN. 16, 1969

TO LIEUTENANT COLONEL M. T. BRADLEY:

REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 23, 1968, REQUESTING A DECISION AS TO WHETHER MRS. CAROLYN B. HAYDEN IS ENTITLED TO ANNUITY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN FOLLOWING ANNULMENT OF HER MARRIAGE TO MR. HARRIS MARKEIM.

CAPTAIN RAYMOND K. HAYDEN, 01 174 884, DIED MAY 21, 1966, AND HIS WIDOW CAROLYN WAS PAID A MONTHLY ANNUITY UNDER OPTION 3 OF THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431-1446, THROUGH JANUARY 31, 1968, WHEN PAYMENT WAS DISCONTINUED DUE TO HER MARRIAGE ON DECEMBER 21, 1966, TO MR. MARKEIM. ON JUNE 26, 1967, THE CIRCUIT COURT FOR PRINCE GEORGE'S COUNTY, MARYLAND, AWARDED CAROLYN B. HAYDEN MARKEIM A DECREE ANNULLING AND HOLDING FOR NAUGHT THE CEREMONIAL MARRIAGE ENTERED INTO BETWEEN HER AND HARRIS MARKEIM ON DECEMBER 21, 1966; RESTORING THE PARTIES TO THEIR UNMARRIED STATUS EXISTING PRIOR TO THAT DATE AND ALLOWING THE PLAINTIFF TO RESUME HER FORMER NAME OF CAROLYN B. HAYDEN. FOLLOWING THAT DECREE A CLAIM WAS MADE FOR REINSTATEMENT OF THE ANNUITY IN FAVOR OF CAROLYN. HOWEVER, IT WAS DETERMINED THAT THE ANNULMENT DID NOT RESTORE HER ENTITLEMENT TO AN ANNUITY UNDER THE FAMILY PROTECTION PLAN SINCE IT APPEARED THAT THE MARRIAGE WAS NOT FOUND TO BE VOID BUT ONLY VOIDABLE.

UPON BEING ADVISED OF THE DETERMINATION THAT THE DECREE OF ANNULMENT OF JUNE 26, 1967, COULD NOT BE USED AS A BASIS TO RESTORE HER ENTITLEMENT TO AN ANNUITY UNDER THE PLAN, CAROLYN FILED A PETITION TO AMEND THE DECREE OF ANNULMENT. ON SEPTEMBER 6, 1968, THE COURT AWARDED HER A DECREE ANNULLING AND DECLARING VOID FROM ITS INCEPTION THE MARRIAGE ENTERED INTO BETWEEN THE PARTIES ON DECEMBER 21, 1966.

ON THE BASIS OF THE AMENDED DECREE CAROLYN HAS REQUESTED REINSTATEMENT OF HER ANNUITY EFFECTIVE DECEMBER 1, 1966. IN VIEW OF THE DOUBT AS TO WHETHER SHE IS ENTITLED TO THE ANNUITY CLAIMED, YOU HAVE REFERRED THE MATTER HERE FOR DECISION IN ACCORDANCE WITH INSTRUCTION CONTAINED IN OUR DECISION B-152506 OF JANUARY 30, 1964, 43 COMP. GEN. 531. IN THE EVENT IT IS DECIDED HER ANNUITY SHOULD BE REINSTATED YOU ASK WHETHER THE STARTING DATE SHOULD BE JANUARY 1, 1967, JULY 1, 1967, OR OCTOBER 1, 1968.

IN YOUR DISCUSSION OF THE MATTER YOU STATE THAT MRS. HAYDEN MUST PROVE VARIOUS THINGS IN ORDER TO ESTABLISH HER RIGHT TO AN ANNUITY. WITH REGARD TO THE VALIDITY OF THE MARRIAGE OF CAROLYN B. AND RAYMOND K. HAYDEN, WHO WERE BOTH MARRIED PREVIOUSLY, THAT IS A FACTUAL MATTER TO BE RESOLVED IN ACCORDANCE WITH THE USUAL RULES OF PROCEDURE ESTABLISHED FOR THE IMPLEMENTATION OF THE PLAN. THE QUESTION REGARDING CAROLYN'S RESPONSIBILITY IN CONNECTION WITH THE DEATH OF RAYMOND IS EXTRANEOUS TO THE ISSUE IN THIS CASE SINCE NO CHARGE WAS MADE AGAINST HER IN CONNECTION WITH HIS WRONGFUL DEATH. THUS THE ONLY QUESTION PROPERLY BEFORE US IS THE EFFECT OF THE ANNULMENT PROCEEDINGS.

UNDER THE LAWS OF THE STATE OF MARYLAND WHERE THE MARRIAGE CEREMONY WAS PERFORMED AND DECLARED VOID FROM ITS INCEPTION, JURISDICTION IS GRANTED TO THE COURTS OF EQUITY OF ALL ACTIONS FOR DIVORCE AND FOR ANNULMENT OF MARRIAGE. ARTICLE 16, SECTION 22, ANNOTATED CODE OF MARYLAND. WHILE A COURT MAY NOT ORDINARILY AMEND A DECREE AFTER IT IS ENROLLED, IT WAS HELD IN BAILEY V BAILEY, 30 A.2D 249 (1943) THAT SINCE A COURT OF EQUITY HAS INHERENT POWER TO CORRECT ERRORS IN ITS RECORDS WHEREBY THEY FAIL TO EXPRESS THE TRUTH IN REGARD TO ITS PROCEEDINGS, IT MAY AMEND A FINAL DECREE AFTER ITS ENROLLMENT BY INSERTING WORDS WHICH WERE OMITTED BY INADVERTENCE OR MISTAKE AND WHICH ARE NECESSARY TO EXPRESS THE COURT'S INTENTION AND GIVE PROPER EFFECT TO THE REMEDY INTENDED TO BE GIVEN.

THUS WHILE THE "MARRIAGE" IN THIS CASE WAS VOIDABLE ONLY, NOT ABSOLUTELY AND INTRINSICALLY VOID, THE COURT ACTING WITHIN THE SCOPE OF ITS AUTHORITY BASED ON THE EVIDENCE BEFORE IT DECLARED THE MARRIAGE VOID FROM ITS INCEPTION. SINCE THE MARRIAGE WAS NEVER CONSUMMATED AND WAS ANNULLED FROM ITS INCEPTION, CAROLYN IS ENTITLED TO REINSTATEMENT OF THE ANNUITY AS UNREMARRIED WIDOW. COMPARE B-152506, NOVEMBER 6, 1964, 44 COMP. GEN. 269.

IT APPEARS THAT ANNUITY PAYMENTS WERE ESTABLISHED IN FAVOR OF CAPTAIN HAYDEN'S CHILDREN BY A FORMER MARRIAGE, BARBARA P. AND HENDRICK HAYDEN, RETROACTIVE TO FEBRUARY 1, 1967, AND THAT WHEN HENDRICK REACHED AGE 18 ON MAY 21, 1968, PAYMENT OF THE FULL AMOUNT OF THE ANNUITY WAS ESTABLISHED IN FAVOR OF BARBARA EFFECTIVE MAY 1, 1968, WHICH PAYMENTS HAVE CONTINUED TO THE PRESENT TIME. THE PAYMENTS WHICH WERE MADE TO THE CHILDREN COVERING THE PERIOD FEBRUARY 1, 1967, THROUGH AUGUST 31, 1968, WERE LEGAL AND PROPER WHEN MADE AND NEED NOT BE FURTHER QUESTIONED. 43 COMP. GEN. 531. HOWEVER, UPON RECEIPT OF NOTICE OF THE AMENDED DECREE OF ANNULMENT IN SEPTEMBER 1968, THE GOVERNMENT WAS PLACED ON NOTICE OF CAROLYN'S RIGHTS AND THE PAYMENTS THEREAFTER MADE TO BARBARA WERE ERRONEOUS. IF OTHERWISE PROPER THE ANNUITY SHOULD BE REINSTATED IN FAVOR OF CAROLYN COMMENCING WITH THE MONTH OF SEPTEMBER 1968, AND FUTURE MONTHLY PAYMENTS MADE TO HER.