B-169533, MAY 14, 1970

B-169533: May 14, 1970

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FOREIGN WHERE MARRIAGE WAS ENTERED INTO IN MEXICO AFTER MEMBER'S MEXICAN DIVORCE FROM 1ST WIFE. NEITHER PARTY WAS ACTUALLY DOMICILED THERE AND WIFE DID NOT APPEAR IN PROCEEDING. VALIDITY OF 2ND MARRIAGE IS TOO DOUBTFUL TO WARRANT APPROVAL OF QUARTERS ALLOWANCE FOR 2ND WIFE UNDER COMITY RULE REQUIRING BONA FIDE RESIDENCE OF AT LEAST 1 PARTY TO FOREIGN DIVORCE PROCEEDING TO CONFER JURISDICTION ON FOREIGN COURT EVER SUBJECT MATTER OF DIVORCE. L. JUNKINS: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 11. THE MARRIAGE CERTIFICATE INDICATES HIS DOMICILE WAS WALDIVICK. HERS WAS BRONX. HE ALLEGED THAT AS HE "WAS A RESIDENT OF THE STATE OF NEW YORK AT THE TIME OF DIVORCE (140-35 BEECH AVENUE.

B-169533, MAY 14, 1970

HUSBAND AND WIFE--DIVORCE--VALIDITY--FOREIGN WHERE MARRIAGE WAS ENTERED INTO IN MEXICO AFTER MEMBER'S MEXICAN DIVORCE FROM 1ST WIFE, BUT NEITHER PARTY WAS ACTUALLY DOMICILED THERE AND WIFE DID NOT APPEAR IN PROCEEDING, AND ABSENT RECOGNITION OF SAID DIVORCE BY ANY COURT IN U.S; VALIDITY OF 2ND MARRIAGE IS TOO DOUBTFUL TO WARRANT APPROVAL OF QUARTERS ALLOWANCE FOR 2ND WIFE UNDER COMITY RULE REQUIRING BONA FIDE RESIDENCE OF AT LEAST 1 PARTY TO FOREIGN DIVORCE PROCEEDING TO CONFER JURISDICTION ON FOREIGN COURT EVER SUBJECT MATTER OF DIVORCE, IRRESPECTIVE OF WHETHER OR NOT FOREIGN LAW CONCERNED IMPOSES ANY SUCH CONDITION. SEE COMP. GEN. DECS. CITED.

TO CAPTAIN A. L. JUNKINS:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 11, 1970, FORWARDED HERE BY LETTER DATED APRIL 7, 1970, OF THE OFFICE OF THE COMPTROLLER OF THE ARMY, REQUESTING AN ADVANCE DECISION AS TO THE VALIDITY OF A MARRIAGE IN THE CASE OF JOHN B. ALLNATT, W3 350 280, FOR THE PURPOSE OF BASIC ALLOWANCE FOR QUARTERS ON BEHALF OF JEANNE A. ALLNATT. YOUR REQUEST HAS BEEN ASSIGNED SUBMISSION NO. DO-A-1076 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE RECORD INDICATES THAT MR. ALLNATT OBTAINED A DIVORCE FROM BARBARA J. ALLNATT IN JUAREZ, CHIHUAHUA, MEXICO, ON SEPTEMBER 27, 1960, IN WHICH ACTION HE APPEARED IN PERSON BEFORE THE COURT BUT BARBARA, ALTHOUGH NOTIFIED OF THE SUIT, MADE NO ANSWER AND DID NOT APPEAR. ON SEPTEMBER 29, 1960, MR. ALLNATT MARRIED JEANNE ANNE CUSACK IN JUAREZ. THE MARRIAGE CERTIFICATE INDICATES HIS DOMICILE WAS WALDIVICK, NEW JERSEY, AND HERS WAS BRONX, NEW YORK, AT THE TIME OF MARRIAGE.

ON FEBRUARY 11, 1970, MR. ALLNATT SIGNED AN APPLICATION FOR BASIC ALLOWANCE FOR QUARTERS ON BEHALF OF JEANNE, EFFECTIVE DECEMBER 14, 1968. IN HIS LETTER DATED AUGUST 13, 1969, HE ALLEGED THAT AS HE "WAS A RESIDENT OF THE STATE OF NEW YORK AT THE TIME OF DIVORCE (140-35 BEECH AVENUE, FLUSHING, NY) NOTWITHSTANDING THE INCORRECT ADDRESS SHOWN ON THE DIVORCE PAPERS, IT IS A REASONABLE ASSUMPTION THAT THE COURTS OF THE STATE OF NEW YORK WOULD RECOGNIZE SAID DIVORCE BASED ON THE ROSENSTIEL VS ROSENSTIEL (16 NEW YORK 2D 64, 209 N.E. 2D 709 (1965)) DECISION."

A REQUEST FOR DETERMINATION OF THE VALIDITY OF THE MEXICAN DIVORCE AND REMARRIAGE WAS DISAPPROVED BY THE FINANCE CENTER, U. S. ARMY, INDIANAPOLIS, INDIANA, ON AUGUST 4, 1969. IN VIEW OF MR. ALLNATT'S REQUEST THAT THE MATTER BE RECONSIDERED YOU HAVE REQUESTED A DECISION AS TO THE VALIDITY OF THE SECOND MARRIAGE FOR THE PURPOSE OF HIS ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS AS A MEMBER WITH DEPENDENTS.

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 JURISDICTION. 36 COMP. GEN. 121 (1956). 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 ALLOWANCE ON ACCOUNT OF SUCH MARITAL RELATIONSHIP. COMPARE 45 COMP. GEN. 155 (1965) AND 47 COMP. GEN. 286 (1967).

AN EXCEPTION TO THE ABOVE RULE WAS RECOGNIZED IN THE CASE OF LIEUTENANT JAMES C. NABORS, USN, B-160591, FEBRUARY 17, 1967, BASED ON THE ROSENSTIEL CASE TO WHICH MR. ALLNATT REFERS. IN OUR DECISION IN 47 COMP. GEN. 286 (1967) WE EXPLAINED OUR POSITION IN THE NABORS CASE AS FOLLOWS:

"* * * SINCE THE APPLICABLE STATE LAW AND THE FACTS IN THE NABORS' CASE WERE IDENTICAL WITH THOSE CONSIDERED BY THE COURT IN THE ROSENSTIEL CASE, IT WAS OUR VIEW THAT THE DECISION IN THE ROSENSTIEL CASE COULD BE REGARDED AS BEING TANTAMOUNT TO A JUDICIAL DETERMINATION OF THE VALIDITY OF THE MEXICAN DIVORCE IN THE NABORS' CASE." WE ALSO SAID THAT IN THE CASE OF A REMARRIAGE IN A STATE OTHER THAN NEW YORK, THE ROSENSTIEL DECISION HAS NO APPLICATION REGARDLESS OF THE DOMICILE IN NEW YORK OF THE SECOND WIFE.

MR. ALLNATT'S CASE DIFFERS FROM THE ROSENSTIEL CASE IN THAT BARBARA J. ALLNATT, UNLIKE MRS. ROSENSTIEL, DID NOT ANSWER OR APPEAR IN PERSON OR OTHERWISE SUBMIT TO THE JURISDICTION OF THE MEXICAN COURT AND THE SECOND MARRIAGE DID NOT TAKE PLACE IN NEW YORK. IN SUCH CIRCUMSTANCES, THE ROSENSTIEL CASE IS WITHOUT RELEVANCE IN DETERMINING MR. ALLNATT'S RIGHTS.

THE FACTS IN THE CASE OF MR. ALLNATT SEEM TO BE SIMILAR TO THOSE CONSIDERED IN THE CASE OF SHOR V. SHOR, 194 N.Y.S. 2D 782 (1959), IN WHICH THE COURT SAID:

"* * * NEITHER THE PLAINTIFF NOR DEFENDANT WAS EVER OTHER THAN A RESIDENT OF NEW YORK. THEIR FEW HOURS IN JUAREZ, MEXICO, CANNOT BE REGARDED AS OTHER THAN A PREARRANGED FRAUD ON NEW YORK LAW. THE SO CALLED MEXICAN DIVORCE * * * AND THE PURPORTED CIVIL CEREMONY * * * ARE WHOLLY VOID AND WITHOUT EFFECT IN THIS STATE AND WILL NOT BE RECOGNIZED BY THIS COURT. * *." THUS THE FACT THAT THE SECOND MARRIAGE MAY BE CONSIDERED VALID UNDER THE LAWS OF MEXICO IS OF NO SIGNIFICANCE.

IN THE ABSENCE OF A JUDICIAL DETERMINATION OF THE VALIDITY OF MR. ALLNATT'S SECOND MARRIAGE BY A COURT IN THE UNITED STATES, THERE IS NO BASIS FOR A CONCLUSION THAT INCREASED BASIC ALLOWANCE FOR QUARTERS ON BEHALF OF JEANNE A. ALLNATT IS AUTHORIZED. ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, PAYMENT OF ADDITIONAL QUARTERS ALLOWANCE MAY NOT BE ALLOWED AND THE VOUCHER FORWARDED WITH YOUR LETTER WILL BE RETAINED HERE.