B-171355, JAN 13, 1971

B-171355: Jan 13, 1971

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

UNDER THE ABOVE MENTIONED LAW ANNUITY PAYMENTS TO THE WIDOW OF A DECEASED MEMBER STOP WHEN SHE REMARRIES BUT IF THE MARRIAGE WAS ENTERED INTO THROUGH FRAUD OF ONE OF THE PARTIES THE MARRIAGE IS VOIDABLE AND BECOMES VOID AB INITIO WHEN A COURT OF COMPETENT AUTHORITY ENTERS A DECREE OF ANNULMENT. THE DECREE MAY BE ACCEPTED AS ESTABLISHING THAT CLAIMANT REMAINS AN UNMARRIED WIDOW AND IS ENTITLED TO HAVE HER ANNUITY REESTABLISHED AS OF DECEMBER 1. W. TUDOR: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 15. COLONEL MCBRIDE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON APRIL 18. AT HIS REQUEST HIS NAME WAS REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST AND HE WAS RETIRED UNDER THE PROVISIONS OF 10 U.S.C. 3911 EFFECTIVE JUNE 1.

B-171355, JAN 13, 1971

MILITARY PAY - ANNUITY - MARRIAGE & ANNULMENT DECISION GRANTING THE CLAIM FOR RESTORATION OF AN ANNUITY PAYABLE UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431 1446, OF THE WIDOW OF A MEMBER OF A UNIFORMED SERVICE FOR THE PERIOD FROM NOVEMBER 30, 1967, THE DATE OF HER REMARRIAGE TO JUNE 30, 1970, THE DATE OF THE ANNULMENT OF THAT MARRIAGE. UNDER THE ABOVE MENTIONED LAW ANNUITY PAYMENTS TO THE WIDOW OF A DECEASED MEMBER STOP WHEN SHE REMARRIES BUT IF THE MARRIAGE WAS ENTERED INTO THROUGH FRAUD OF ONE OF THE PARTIES THE MARRIAGE IS VOIDABLE AND BECOMES VOID AB INITIO WHEN A COURT OF COMPETENT AUTHORITY ENTERS A DECREE OF ANNULMENT; THEREFORE, THE DECREE MAY BE ACCEPTED AS ESTABLISHING THAT CLAIMANT REMAINS AN UNMARRIED WIDOW AND IS ENTITLED TO HAVE HER ANNUITY REESTABLISHED AS OF DECEMBER 1, 1967.

TO MAJOR R. W. TUDOR:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 15, 1970 (FORWARDED TO THIS OFFICE BY THE OFFICE OF THE COMPTROLLER OF THE ARMY BY LETTER DATED NOVEMBER 20, 1970), REQUESTING A DECISION AS TO THE PROPRIETY OF PAYMENT OF A VOUCHER FOR $6,713.64 REPRESENTING THE RESTORATION OF AN ANNUITY PAYABLE UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431-1446, FOR THE PERIOD DECEMBER 1, 1967, THROUGH SEPTEMBER 30, 1970, IN THE CASE OF MRS. MARY C. MCBRIDE, THE WIDOW OF LIEUTENANT COLONEL A. C. MCBRIDE, DECEASED, WHO SUBSEQUENT TO HER HUSBAND'S DEATH REMARRIED AND LATER HAD SUCH REMARRIAGE ANNULLED. THE REQUEST HAS BEEN ASSIGNED DO NUMBER A-1104 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

COLONEL MCBRIDE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON APRIL 18, 1959, UNDER THE PROVISIONS OF 10 U.S.C. 1202. AT HIS REQUEST HIS NAME WAS REMOVED FROM THE TEMPORARY DISABILITY RETIRED LIST AND HE WAS RETIRED UNDER THE PROVISIONS OF 10 U.S.C. 3911 EFFECTIVE JUNE 1, 1963, IN THE GRADE OF LIEUTENANT COLONEL (USAR) RETIRED RESERVE.

ON MARCH 6, 1957, UNDER THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, PUBLIC LAW 239, 83RD CONGRESS, NOW ENTITLED THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431- 1446, HE MADE A TIMELY AND VALID ELECTION OF OPTION I WITH OPTION IV AT ONE-HALF REDUCED RETIRED PAY TO PROVIDE AN ANNUITY TO OR ON BEHALF OF HIS WIDOW, SO LONG AS SHE REMAINED UNMARRIED.

ON MARCH 28, 1966, COLONEL MCBRIDE DIED AND A MONTHLY ANNUITY IN THE AMOUNT OF $197.46 WAS ESTABLISHED EFFECTIVE MARCH 1, 1966, PAYABLE TO MRS. MARY C. MCBRIDE, AS THE UNREMARRIED WIDOW OF THE DECEASED RETIREE. THE ANNUITY WAS CONTINUED THROUGH NOVEMBER 30, 1967, WHEN IT WAS DISCONTINUED BECAUSE OF HER REMARRIAGE IN FORT WAYNE, INDIANA, ON DECEMBER 19, 1967, TO DR. NORMAN K. OLSON. ON JUNE 30, 1970, EVIDENCE WAS RECEIVED AT THE FINANCE CENTER INDICATING THAT SHE HAD OBTAINED AN ANNULMENT ON FEBRUARY 10, 1970, IN WASHOE COUNTY, NEVADA, OF HER MARRIAGE TO DR. OLSON "UPON THE GROUND OF FRAUD."

BASICALLY YOUR QUESTIONS ARE WHETHER THE ANNUITY MAY BE RESTORED AND IF SO, THE DATE OF RESTORATION.

UNDER THE LAWS OF THE STATE OF INDIANA WHERE THE MARRIAGE WAS CONTRACTED, A MARRIAGE MAY, WHEN SUCH MARRIAGE IS PROCURED THROUGH FRAUD OF ONE OF THE PARTIES, ON APPLICATION OF THE INNOCENT PARTY, BE DECLARED VOID BY ANY COURT HAVING JURISDICTION TO DECREE DIVORCES. SECTION 44-106, BURNS ANNOTATED INDIANA STATUTES, 1965 REPLACEMENT VOLUME. UNDER THE LAWS OF THE STATE OF NEVADA WHERE THE PETITION OF ANNULMENT WAS FILED, A COURT OF COMPETENT AUTHORITY MAY DECLARE A MARRIAGE CONSENT OF EITHER PARTY OBTAINED BY FRAUD, VOID FROM THE TIME ITS NULLITY SHALL BE DECLARED. TITLE 11, SECTION 125.340, NEVADA REVISED STATUTES.

ALTHOUGH 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 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, 245 F. 2D 562 (1957), THAT THE PLAINTIFF WAS ENTITLED TO REINSTATEMENT OF THE 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 RIBICOFF, 219 F. SUPP 274 (1962), INVOLVING THE SOCIAL SECURITY LAWS.

AS IN THE CASE OF THE NEVADA STATUTE AN ANNULMENT DECREE OBTAINED UNDER INDIANA LAW HAS BEEN APPLIED AS RELATING BACK TO DATE OF THE MARRIAGE SO AS TO RENDER THE MARRIAGE VOID FROM ITS INCEPTION. HENNEGER V LOMAS, 44 N.E. 462 (1896). THEREFORE, THE ANNULMENT DECREE MAY BE ACCEPTED AS ESTABLISHING THAT MRS. MCBRIDE REMAINS THE UNMARRIED WIDOW OF LIEUTENANT COLONEL MCBRIDE. ACCORDINGLY, SHE IS ENTITLED TO HAVE HER ANNUITY REESTABLISHED AND PAID BEGINNING WITH THE MONTH OF DECEMBER 1967. SEE B- 167960, OCTOBER 23, 1969.

THE VOUCHER AND SUPPORTING PAPERS ARE RETURNED HEREWITH AND IF THE VOUCHER IS CORRECTED TO SHOW THE PERIOD BEGINNING DECEMBER 1, 1967, RATHER THAN "1 DECEMBER 1969", PAYMENT IS AUTHORIZED ..END :