B-167934, OCT. 22, 1969

B-167934: Oct 22, 1969

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FOREIGN GENERAL RULE WITH RESPECT TO RECOGNITION OF DIVORCE DECREES SECURED IN FOREIGN COUNTRIES IS THAT UNLESS FOREIGN COURT GRANTING DIVORCE HAD JURISDICTION OVER SUBJECT MATTER BY REASON OF BONA FIDE RESIDENCE OR DOMICILE OF AT LEAST ONE OF PARTIES DECREE WILL NOT. FC: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 27. WHICH WAS FORWARDED HERE BY LETTER DATED SEPTEMBER 12. YOU SAY THAT DEPENDENCY WAS ESTABLISHED FOR THE WIFE OF THE SERGEANT. SHE WAS AWARDED TEMPORARY ALIMONY IN THE AMOUNT OF $110.10 PER MONTH AND THERE IS NO INDICATION THAT A FINAL DECREE OF DIVORCE WAS EVER ENTERED. HIS WIFE WAS SUBPOENAED TO APPEAR IN THE COURT. SHE HAD PREVIOUSLY BEEN MARRIED TO A KOREAN FROM WHOM SHE WAS DIVORCED ON JULY 20.

B-167934, OCT. 22, 1969

HUSBAND AND WIFE--DIVORCE--VALIDITY--FOREIGN GENERAL RULE WITH RESPECT TO RECOGNITION OF DIVORCE DECREES SECURED IN FOREIGN COUNTRIES IS THAT UNLESS FOREIGN COURT GRANTING DIVORCE HAD JURISDICTION OVER SUBJECT MATTER BY REASON OF BONA FIDE RESIDENCE OR DOMICILE OF AT LEAST ONE OF PARTIES DECREE WILL NOT, UNDER RULES OF INTERNATIONAL COMITY, BE RECOGNIZED BY UNITED STATES COURTS, EVEN THOUGH LAWS OF FOREIGN COUNTRY DO NOT MAKE RESIDENCE OR DOMICILE CONDITION TO JURISDICTION AND IN ORDER TO ACQUIRE FOREIGN DOMICILE THERE MUST BE ACTUAL RESIDENCE ON FOREIGN SOIL AND INTENT TO REMAIN THERE. MILITARY PERSONNEL CAN ACQUIRE NEW DOMICILE WHILE STATIONED AT MILITARY INSTALLATION FOR INITIATING DIVORCE SUIT, EVIDENCE OF INTENT IN THIS REGARD BEING GIVEN GREAT WEIGHT.

TO MAJOR R. W. TUDOR, FC:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 27, 1969, WHICH WAS FORWARDED HERE BY LETTER DATED SEPTEMBER 12, 1969, FROM THE OFFICE OF THE COMPTROLLER OF THE ARMY REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF A VOUCHER FOR $660.60 IN FAVOR OF A STAFF SERGEANT, RETIRED, REPRESENTING BASIC ALLOWANCE FOR QUARTERS AT $110.10 PER MONTH FOR THE PERIOD FROM DECEMBER 1, 1968, TO MAY 31, 1969. YOUR REQUEST HAS BEEN ASSIGNED D.O. NO. A-1048 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU SAY THAT DEPENDENCY WAS ESTABLISHED FOR THE WIFE OF THE SERGEANT, ON APRIL 2, 1951, THE DATE HE ENTERED ON ACTIVE DUTY, THE DATE OF THEIR MARRIAGE BEING SHOWN AS APRIL 2, 1931 (1933), IN THE STATE OF WEST VIRGINIA.

ON JANUARY 9, 1964, THE WIFE FILED SUIT FOR DIVORCE IN TEXAS. SHE WAS AWARDED TEMPORARY ALIMONY IN THE AMOUNT OF $110.10 PER MONTH AND THERE IS NO INDICATION THAT A FINAL DECREE OF DIVORCE WAS EVER ENTERED.

THE SERGEANT FILED SUIT FOR DIVORCE IN KOREA IN 1966. HIS WIFE WAS SUBPOENAED TO APPEAR IN THE COURT. SHE MADE A SPECIAL APPEARANCE IN WHICH SHE CONTESTED THE JURISDICTION OF THE COURT BECAUSE OF THE PENDENCY OF SUIT IN THE TEXAS COURT. HOWEVER, THE KOREAN COURT VIEWED HIS LONG RESIDENCE IN KOREA -- FROM 1962 TO 1964 AND FROM AN UNDISCLOSED LATER DATE TO THE TIME HE FILED HIS DIVORCE ACTION -- AS ESTABLISHING IT'S JURISDICTION IN THE MATTER AND GRANTED A DIVORCE ON APRIL 25, 1967. APPARENTLY, THE COURT FOUND SOME ADDITIONAL EVIDENCE OF INTENT ON THE SERGEANT'S PART TO MAKE KOREA HIS HOME SINCE THE DIVORCE DECREE RECITES THAT UPON HIS RETURN TO AMERICA IN 1964 HE ASKED HIS WIFE TO RETURN TO KOREA WITH HIM BUT SHE REFUSED.

ON MARCH 14, 1968, THE SERGEANT MARRIED IN KOREA. SHE HAD PREVIOUSLY BEEN MARRIED TO A KOREAN FROM WHOM SHE WAS DIVORCED ON JULY 20, 1965. SHE IS THE MOTHER OF A SON, BORN MARCH 13, 1964, AND A DAUGHTER, BORN DECEMBER 15, 1967. THE SERGEANT IS THE PUTATIVE FATHER OF THOSE CHILDREN.

ON APRIL 1, 1967, THE SERGEANT SUBMITTED AN ANNUAL APPLICATION FOR BASIC ALLOWANCE FOR QUARTERS, DD FORM 137, ON ACCOUNT OF HIS FIRST WIFE. HOWEVER, ON JUNE 6, 1967, HE SUBMITTED ANOTHER APPLICATION ON WHICH IT WAS INDICATED THAT ENTITLEMENT NO LONGER EXISTED BECAUSE OF THE DIVORCE DATED APRIL 25, 1967. YOU SAY HE ALSO STOPPED A CLASS E ALLOTMENT IN THE AMOUNT OF $110 TO THE FIRST WIFE, EFFECTIVE WITH THE JULY 1967 PAYMENT.

ON FEBRUARY 8, 1968, HE SUBMITTED AN APPLICATION FOR BASIC ALLOWANCE FOR QUARTERS ON WHICH IT WAS INDICATED THAT ENTITLEMENT ON ACCOUNT OF THE FIRST WIFE EXISTED FROM APRIL 25, 1967, AND THAT BAQ HAD BEEN ERRONEOUSLY TERMINATED ON THAT DATE. ALSO, ON FEBRUARY 8, 1968, HE FURNISHED A STATEMENT TO SUBSTANTIATE PAYMENT OF FAMILY SEPARATION ALLOWANCE, DD FORM 1561, AND SUCH ALLOWANCE WAS REINSTATED EFFECTIVE APRIL 25, 1967. ADDITION, YOU SAY THAT HE ALSO REESTABLISHED A CLASS E ALLOTMENT OF $110 PER MONTH TO HIS FIRST WIFE RETROACTIVE TO AUGUST 1967.

ON MARCH 28, 1968, THE MEMBER WAS AUTHORIZED TO RATION SEPARATELY EFFECTIVE ON THAT DATE. ON APRIL 1, 1968, HE SUBMITTED AN ANNUAL APPLICATION FOR BASIC ALLOWANCE FOR QUARTERS INDICATING ENTITLEMENT CONTINUED TO EXIST ON ACCOUNT OF THE FIRST WIFE. YOU SAY THAT ON MAY 31, 1968, HE AGAIN TERMINATED THE CLASS E ALLOTMENT TO HER WITH THE LAST DEDUCTION TO BE MADE IN JUNE 1968; THAT HE ESTABLISHED A CLASS E ALLOTMENT OF $110 TO HIS KOREAN WIFE; AND THAT NO CHANGE WAS SUBMITTED REGARDING BASIC ALLOWANCE FOR QUARTERS AT THAT TIME.

ON JULY 20, 1968, HE SUBMITTED AN APPLICATION FOR BASIC ALLOWANCE FOR QUARTERS ON WHICH HE INDICATED ENTITLEMENT ON ACCOUNT OF HIS SECOND WIFE, FROM MARCH 14, 1968, BASED ON HIS FINAL DECREE OF DIVORCE DATED APRIL 25, 1967, AND HIS REMARRIAGE ON MARCH 14, 1968. YOU SAY A BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF THE SECOND WIFE WAS TERMINATED EFFECTIVE DECEMBER 1, 1968, PENDING DECISION BY OUR OFFICE.

THE SERGEANT REQUESTED PERMISSION TO REMAIN IN KOREA AFTER RETIREMENT ON JUNE 1, 1969, WHICH PERMISSION WAS GRANTED, AND HE APPARENTLY STILL RESIDES IN THAT COUNTRY.

IN VIEW OF THE FOREGOING RECITATION OF THE FACTS IN THE CASE, YOU HAVE ASKED DECISION ON THE FOLLOWING:

"A. IF KOREAN DIVORCE IS UPHELD WOULD MEMBER BE ENTITLED TO CREDIT OF BASIC ALLOWANCE FOR QUARTERS ON BEHALF OF THE SECOND WIFE AS HIS LEGAL DEPENDENT FROM 1 APRIL 1968?

"B. IF KOREAN DIVORCE IS UPHELD WOULD CREDIT FOR BASIC ALLOWANCE FOR QUARTERS PAID FOR THE PERIOD 25 APRIL 1967 (DATE OF KOREAN DIVORCE) THROUGH 13 MARCH 1968 (DAY PRIOR TO SECOND MARRIAGE) BE SUBJECT TO RECOUPMENT OR ALLOWED TO BE RETAINED ON THE BASIS OF ENTITLEMENT FOR DEPENDENT CHILD BORN OUT OF WEDLOCK ON 13 MARCH 1964?

"C. IF KOREAN DIVORCE IS NOT CONSIDERED VALID, MAY THE MEMBER BE CREDITED WITH BASIC ALLOWANCE FOR QUARTERS ON AND AFTER 1 JULY 1968 ON BEHALF OF THE FIRST WIFE AS HIS LEGAL WIFE, IN VIEW OF THE DISCONTINUANCE OF CLASS E ALLOTMENT OF $110.00 FOR THE PURPOSE OF SUPPORT WHICH WAS DISCONTINUED 30 JUNE 1968?

"D. IF KOREAN DIVORCE IS UPHELD WOULD MEMBER BE ENTITLED TO CREDIT OF FAMILY SEPARATION ALLOWANCE TYPE II, WHICH HE RECEIVED FROM 25 APRIL 1967 THROUGH 13 (12) MARCH 1968 BASED ON HIS MARRIAGE TO FIRST WIFE?

THE GENERAL RULE WITH RESPECT TO RECOGNITION OF DIVORCE DECREES SECURED IN FOREIGN COUNTRIES IS STATED IN 36 COMP. GEN. 121, 122, AS FOLLOWS:

"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 FOREIGN COUNTRY DO NOT MAKE RESIDENCE OR DOMICILE A CONDITION TO ITS COURT'S TAKING JURISDICTION. ANNOTATION 143 A.L.R. 1312, AND CASES CITED.' TO ACQUIRE A FOREIGN DOMICILE THERE MUST BE AN ACTUAL RESIDENCE ON FOREIGN SOIL AND AN INTENT TO REMAIN THERE.

WHILE IT IS GENERALLY REGARDED THAT A SOLDIER OR SAILOR, IF HE IS ORDERED TO A STATION TO WHICH HE MUST GO AND LIVE IN QUARTERS ASSIGNED TO HIM, CANNOT ACQUIRE A DOMICILE SINCE HE MUST OBEY ORDERS AND CANNOT CHOOSE TO GO ELSEWHERE, IT HAS BEEN RECOGNIZED THAT MILITARY PERSONNEL CAN ACQUIRE A NEW DOMICILE WHILE STATIONED AT A MILITARY INSTALLATION FOR INITIATING A SUIT FOR DIVORCE. EVIDENCE OF HIS INTENT IN THIS REGARD IS GIVEN GREAT WEIGHT. SEE WALLACE V WALLACE, 89 A.2D 769 (1952) AND THOMAS V THOMAS, 363 P.2D 107 (1961).

IT SEEMS REASONABLY CLEAR THAT THE SERGEANT'S LONG RESIDENCE IN KOREA FURNISHED A SUBSTANTIAL BASIS FOR THE KOREAN COURT'S CONCLUSION THAT IT HAD JURISDICTION OVER HIM AND WHILE THE FIRST WIFE DISPUTED THE COURT'S JURISDICTION, SHE APPARENTLY HAS TAKEN NO ACTION TO CHALLENGE THE EFFECT OF THE COURT'S DECREE. WHILE SUBSEQUENT EVENTS DO NOT ESTABLISH A PRIOR INTENT, THEY MAY CONFIRM IT. HIS RELATIONSHIP WITH THE KOREAN WOMAN HE LATER MARRIED AND HIS REQUEST FOR PERMISSION TO ESTABLISH RESIDENCY IN KOREA UPON HIS RETIREMENT IN MAY 1969, LEND SUPPORT TO THE VIEW THAT HE INTENDED TO MAKE HIS HOME IN THAT COUNTRY WHEN HE FILED SUIT FOR DIVORCE. IN VIEW OF ALL THE CIRCUMSTANCES AND IN THE ABSENCE OF EVIDENCE THAT THE DIVORCE DECREE HAS BEEN DECLARED A NULLITY BY A COURT IN THE UNITED STATES OR THAT IT WAS NOT VALID ACCORDING TO THE LAWS OF KOREA, IT IS OUR VIEW THAT THE KOREAN DIVORCE SHOULD BE RECOGNIZED AS EFFECTIVELY DISSOLVING HIS MARRIAGE TO FIRST WIFE. COMPARE B-136190, AUGUST 4, 1958, 38 COMP. GEN. 97, AND B 157707, SEPTEMBER 16, 1966, 46 COMP. GEN. 219. ACCORDINGLY, QUESTION C REQUIRES NO ANSWER.

AN EXAMINATION OF THE PAY ACCOUNT OF THE SERGEANT DISCLOSES THAT HE WAS CREDITED WITH BASIC ALLOWANCE FOR QUARTERS AT THE RATE OF $110.10 PER MONTH FOR THE PERIOD FROM APRIL 1, 1967, THROUGH JUNE 30, 1968, ON ACCOUNT OF HIS FORMER WIFE. CLASS E ALLOTMENT DEDUCTIONS IN THE AMOUNT OF $110.10 PER MONTH WERE MADE FROM APRIL 1, 1967, THROUGH APRIL 30, 1968, AND AT THE RATE OF $110 PER MONTH FOR MAY AND JUNE 1968. HE ALSO WAS CREDITED WITH FAMILY SEPARATION ALLOWANCE AT THE RATE OF $30 PER MONTH FOR THE PERIOD FROM APRIL 1, 1967, THROUGH MARCH 12, 1968.

THE RECORD ALSO SHOWS THAT HE WAS CREDITED WITH BASIC ALLOWANCE FOR QUARTERS AT THE RATE OF $110.10 PER MONTH FROM JULY 1, 1968, THROUGH NOVEMBER 30, 1968, ON ACCOUNT OF HIS SECOND WIFE.

SUBSEQUENT TO THE KOREAN DIVORCE ON APRIL 25, 1967, THE SERGEANT CEASED TO HAVE A DEPENDENT WIFE AND THEREAFTER HE WAS NOT ENTITLED TO CREDIT FOR BASIC ALLOWANCE FOR QUARTERS UNTIL HE MARRIED HIS SECOND WIFE, ON MARCH 14, 1968, AND HE CEASED TO BE ENTITLED TO FAMILY SEPARATION ALLOWANCE AS OF APRIL 25, 1967.

ACCORDINGLY, QUESTION A IS ANSWERED IN THE AFFIRMATIVE AND QUESTION D IN THE NEGATIVE.

HE WAS ENTITLED TO CREDIT FOR BASIC ALLOWANCE FOR QUARTERS ONLY FOR SUCH PERIODS AS HE HAD A DEPENDENT OR DEPENDENTS ON WHOSE ACCOUNT THE ALLOWANCE WAS CLAIMED. SINCE THE SON WAS BORN OUT OF WEDLOCK, HE WAS NOT THE SERGEANT'S "UNMARRIED LEGITIMATE CHILD" AND THUS WAS NOT A "DEPENDENT" WITHIN THE MEANING OF THAT TERM AS DEFINED IN 37 U.S.C. 401 (A). HENCE, THE AMOUNT CREDITED AS BASIC ALLOWANCE FOR QUARTERS FOR THE PERIOD APRIL 25, 1967, THROUGH MARCH 13, 1968, SHOULD BE RECOUPED. QUESTION B IS ANSWERED ACCORDINGLY.

WHILE THE SERGEANT IS ENTITLED TO BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF HIS WIFE, FOR THE PERIOD FROM MARCH 14, 1968, THROUGH MAY 31, 1969, PAYMENT ON THE VOUCHER MAY NOT BE MADE BECAUSE OF THE OVERPAYMENT TO HIM OF $1,563.42 AS BASIC ALLOWANCE FOR QUARTERS AND $318 AS FAMILY SEPARATION ALLOWANCE, OR A TOTAL OF $1,881.42, WHICH AFTER SETOFF OF THE AMOUNT OF $660.60 PLUS $392.69 COVERING THE PERIOD MARCH 14 TO JUNE 30, 1968, A TOTAL OF $1,053.29, LEAVES A BALANCE OF $828.13 DUE THE UNITED STATES. APPROPRIATE ACTION SHOULD BE TAKEN TO COLLECT THE LATTER AMOUNT FROM HIM IN ACCORDANCE WITH 5 U.S.C. 5514.

THE VOUCHER FORWARDED WITH YOUR LETTER OF AUGUST 27, 1969, NOT BEING PAYABLE, WILL BE RETAINED HERE.