B-167960, OCT. 23, 1969

B-167960, OCT. 23, 1969

PAY--RETIRED--ANNUITY ELECTIONS FOR DEPENDENTS--ANNULMENT OF WIDOW'S REMARRIAGE OFFICER'S WIDOW WHO RECEIVED ANNUITY PAYMENTS UNDER RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431-1446, THROUGH MAR. 31, 1965 WHEN ANNUITY CEASED BECAUSE OF HER MARRIAGE ON APR. 17, 1965, IS ENTITLED TO HAVE ANNUITY REESTABLISHED FROM TIME OF DISCONTINUANCE FOR, WHILE VALIDITY OF MARRIAGE IS DETERMINED BY LAW OF PLACE WHERE IT WAS CONTRACTED, UNDER NEVADA LAW MARRIAGE MAY BE ANNULLED ON GROUNDS OF FRAUD AND IF FRAUD IS PROVEN SHALL BE VOID FROM TIME COURT OF COMPETENT AUTHORITY DECLARES MARRIAGE A NULLITY AND SINCE KANSAS ANNULMENT ON GROUNDS OF FRAUDULENT CONTRACT SET ASIDE AND DECLARED VOID MARRIAGE ENTERED INTO IN NEVADA, MARRIAGE IS VOID AB INITIO, CLAIMANT REMAINING UNREMARRIED WIDOW ENTITLED TO ANNUITY PAYMENTS.

TO MAJOR R. W. TUDOR:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 6, 1969, WHICH WAS FORWARDED HERE BY LETTER DATED SEPTEMBER 22, 1969, OF THE OFFICE OF THE COMPTROLLER OF THE ARMY, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT ON A VOUCHER FOR $1,835.73 IN FAVOR OF ANNABELLE B. MCFADDEN, AS UNREMARRIED WIDOW OF LIEUTENANT COLONEL CHARLES A. MCFADDEN, 060175, RETIRED, DECEASED, COVERING PAYMENT OF AN ANNUITY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN FOR THE PERIOD FROM APRIL 1, 1967, THROUGH JUNE 30, 1969. YOUR REQUEST HAS BEEN ASSIGNED DO-A NO. 1050 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

ON JUNE 4, 1959, COLONEL MCFADDEN MADE A VALID ELECTION OF OPTION 1, COMBINED WITH OPTION 4, AT ONE-EIGHTH OF HIS REDUCED RETIRED PAY TO PROVIDE AN ANNUITY FOR HIS WIDOW, AFTER HIS DEATH IN A RETIRED STATUS, UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, NOW RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431-1446. HE WAS RETIRED BY REASON OF PERMANENT DISABILITY ON MARCH 15, 1962, AND DIED ON MARCH 19, 1962.

AN ANNUITY IN THE AMOUNT OF $67.99 PER MONTH WAS ESTABLISHED IN FAVOR OF MRS. MCFADDEN EFFECTIVE MARCH 1, 1962, AND PAYMENTS WERE MADE TO HER THROUGH MARCH 31, 1965. HER ENTITLEMENT TO THE ANNUITY CEASED AS OF THAT DATE UNDER 10 U.S.C. 1434 (A) (1) BECAUSE OF HER MARRIAGE TO WALTER P. MAUS AT LAS VEGAS, NEVADA, ON APRIL 17, 1965.

A PETITION FOR ANNULMENT ON THE GROUNDS OF FRAUDULENT CONTRACT AND DURESS WAS FILED BY MRS. ANNABELLE B. MAUS ON MARCH 10, 1967, IN THE DISTRICT COURT OF LEAVENWORTH COUNTY, KANSAS. MR. MAUS APPEARED PERSONALLY IN THAT ACTION. ON JULY 22, 1968, THE COURT DECREED THAT MARRIAGE "ENTERED INTO ON APRIL 17, 1965 AT LAS VEGAS, NEVADA, BE AND THE SAME IS HEREBY ANNULLED, SET ASIDE, DECLARED VOID, AND HELD FOR NAUGHT, AND THE PLAINTIFF BE AND IS HEREBY RESTORED TO HER FORMER NAME, ANNABELLE BROOKS MCFADDEN.'

ON THE BASIS OF THE DECREE OF ANNULMENT MRS. MCFADDEN REQUESTED REINSTATEMENT OF HER ANNUITY AS UNREMARRIED WIDOW OF COLONEL MCFADDEN. SINCE YOU STATE THAT UNDER THE LAWS OF THE STATE OF NEVADA THE GROUNDS FOR WHICH ANNULMENT WAS GRANTED BY THE KANSAS COURT WOULD ONLY HAVE RENDERED THE MARRIAGE VOIDABLE, YOU HAVE EXPRESSED DOUBT AS TO WHETHER THE DECREE OF THE KANSAS COURT IS SUFFICIENT TO RENDER THE MARRIAGE VOID AND, IF SO, YOU ASK THE DATE ON WHICH THE ANNUITY PAYMENTS SHOULD BE ESTABLISHED.

UNDER THE LAW OF THE STATE OF NEVADA, WHERE THE ALLEGED MARRIAGE TOOK PLACE, A MARRIAGE MAY BE ANNULLED ON THE GROUNDS OF FRAUD AND IF THE CONSENT OF EITHER PARTY WAS OBTAINED BY FRAUD, AND FRAUD HAS BEEN PROVED, THE MARRIAGE SHALL BE VOID FROM THE TIME ITS NULLITY SHALL BE DECLARED BY A COURT OF COMPETENT AUTHORITY. SECTIONS 125.300 AND 125.340, NEVADA REVISED STATUTES. IN THE STATE OF KANSAS, WHERE THE PETITION FOR ANNULMENT WAS FILED, THE DISTRICT COURT MAY GRANT A DECREE OF ANNULMENT OF ANY MARRIAGE FOR FRAUDULENT CONTRACT OR WHERE THE MARRIAGE IS VOID FOR ANY REASON. SECTION 60-1602, KANSAS STATUTES ANNOTATED. UNDER KANSAS LAW A COURT MAY ENTER AN ANNULMENT DECREE THAT RELATES BACK TO DATE OF MARRIAGE SO AS TO RENDER A VOIDABLE MARRIAGE VOID FROM ITS INCEPTION. JOHNSON COUNTY NATIONAL BANK AND TRUST COMPANY, V BACH, 369 P.2D 231 (1962) AND BURNETT V BURNETT, 387 P.2D 195 (1963).

IT IS THE GENERAL RULE THAT THE VALIDITY OF A MARRIAGE IS DETERMINED BY THE LAW OF THE PLACE WHERE IT IS CONTRACTED. SEE 37 COMP. GEN. 188 (1957), AND CASES THERE CITED. IT IS ALSO THE GENERAL RULE THAT AN ANNULMENT DECREE RENDERS THE SUPPOSED MARRIAGE VOID FROM THE BEGINNING. SEE 55 C.J.S. 951, NOTE 54. SEE ALSO MCDONALD V MCDONALD, 58 P.2D 163 (1936); FOLSOM V PEARSALL, 245 F.2D 562 (1952), AND STARACE V CELEBREZE, 233 F.SUPP. 452 (1964). HOWEVER, IN CERTAIN INSTANCES, THE STATUTES TEND TO RECOGNIZE THAT AN ANNULLED MARRIAGE HAS SUFFICIENT STATUS TO SUPPORT CERTAIN RIGHTS FLOWING FROM THE "MARRIAGE.' SEE HAHN V GRAY, 203 F.2D 625 (1953); NOTT V FOLSOM, 161 F.SUPP. 905 (1958); GLOSS V RAILROAD RETIREMENT BOARD, 313 F.2D 568 (1962), AND SADOWITZ V CELEBREZE, 226 F.SUPP. 430 (1964).

WHILE IT DOES NOT APPEAR THAT THE NEVADA COURTS HAVE EVER INTERPRETED SECTION 125.340, NEVADA REVISED STATUTES, THE UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF CALIFORNIA, SOUTHERN DIVISION, SAID, IN THE CASE OF SANTUELLI V FOLSOM, 165 F.SUPP. 224 (1958), THAT SINCE A VOID MARRIAGE IS A NULLITY UNDER NEVADA LAW FROM ITS INCEPTION, A VOIDABLE MARRIAGE BECOMES VOID AB INITIO WHEN "A COURT OF COMPETENT AUTHORITY" ENTERS ITS DECREE OF ANNULMENT. IN THE CASE OF THURBER V UNITED STATES, CIVIL ACTION NO. 5729, UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON, NORTHERN DIVISION (1963), INVOLVING THE ANNULMENT IN NEVADA ON THE GROUND OF FRAUD OF A MARRIAGE CELEBRATED IN HAWAII, THE COURT HELD, CITING FOLSOM V PEARSALL, SUPRA, THAT THE PLAINTIFF WAS ENTITLED TO REINSTATEMENT OF ANNUITY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, FROM THE TIME IT WAS DISCONTINUED, THUS CONCLUDING, IN EFFECT, THAT SHE HAD NOT REMARRIED WITHIN THE MEANING OF 10 U.S.C. 1434 (A) (1). A SIMILAR CONCLUSION WAS REACHED IN HOLLAND V RIBICOFF, 219 F.SUPP. 274 (1962), INVOLVING THE SOCIAL SECURITY LAWS.

UNDER THE CIRCUMSTANCES, AND SINCE THE KANSAS COURT "ANNULLED, SET ASIDE, DECLARED VOID, AND HELD FOR NAUGHT" THE MARRIAGE ENTERED INTO ON APRIL 17, 1965, THE DECREE MAY BE ACCEPTED AS ESTABLISHING THAT MRS. MCFADDEN REMAINS THE UNREMARRIED WIDOW OF COLONEL MCFADDEN. ACCORDINGLY, SHE IS ENTITLED TO HAVE HER ANNUITY REESTABLISHED AND PAID BEGINNING WITH THE MONTH OF APRIL 1965.

THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE PAID UPON AMENDMENT TO INCLUDE ANNUITY AT THE RATE OF $67.99 PER MONTH FROM APRIL 1, 1965, TO MARCH 31, 1967, OR AN ADDITIONAL AMOUNT OF $1,631.76.