B-174320, DEC 2, 1971

B-174320, DEC 2, 1971

MILITARY PERSONNEL - MISSING IN ACTION - ALLOTMENT TO DEPENDENT WIFE - ANNULMENT OF INTERVENING MARRIAGE DECISION REGARDING THE MARITAL STATUS OF SANDRA LEE CHRISTENSEN WITH RESPECT TO HER ENTITLEMENT, AS THE DEPENDENT WIFE OF LIEUTENANT WILLIAM MURREY CHRISTENSEN, USNR, TO RESTORATION OF THE ALLOTMENT OF 80 PERCENT OF UNPAID PAY AND ALLOWANCES UNDER THE MISSING PERSONS ACT OF MARCH 7, 1942, 37 U.S.C. 551-558, AND TO OTHER BENEFITS INCIDENT TO HER STATUS AS HIS DEPENDENT WIFE. SINCE CLAIMANT HAS OBTAINED AN ANNULMENT OF HER MARRIAGE TO ROBERT ALEXANDER MAYS, IT SEEMS CLEAR THAT UNDER CALIFORNIA LAW SHE IS THE LAWFUL WIFE OF LT. CHRISTENSEN IF HE IS ALIVE. THEREFORE, ALLOTMENT PAYMENTS TO HER MAY BE REINSTATED EFFECTIVE FROM THE TIME THE ANNULMENT OF HER MARRIAGE TO MR. MAYS WAS GRANTED, AND OTHER BENEFITS MAY BE RESTORED.

TO MR. SECRETARY:

LETTER DATED OCTOBER 9, 1971, FROM THE ACTING SECRETARY OF THE NAVY, WITH ENCLOSURES, REQUESTS A DECISION CONCERNING THE MARITAL STATUS OF SANDRA LEE CHRISTENSEN WITH RESPECT TO HER ENTITLEMENT AS THE DEPENDENT WIFE OF LIEUTENANT WILLIAM MURREY CHRISTENSEN, USNR, TO RESTORATION OF THE ALLOTMENT OF 80 PERCENT OF UNPAID PAY AND ALLOWANCES UNDER THE MISSING PERSONS ACT OF MARCH 7, 1942, CH. 166, 56 STAT. 143, AS AMENDED, NOW CODIFIED IN 37 U.S.C. 551-558, AND TO ALL OTHER BENEFITS INCIDENT TO HER STATUS AS HIS DEPENDENT WIFE.

THE FACTS IN THIS CASE AS RELATED BY THE ASSISTANT SECRETARY IN HIS LETTER, ARE AS FOLLOWS:

"A. ON 6 JULY 1965 LIEUTENANT WILLIAM MURREY CHRISTENSEN, USNR, (THEN LIEUTENANT JUNIOR GRADE) EXECUTED A RECORD OF EMERGENCY DATA, NAMING HIS WIFE, SANDRA LEE CHRISTENSEN, AS HIS BENEFICIARY FOR UNPAID PAY AND ALLOWANCES AND TO RECEIVE AN ALLOTMENT OF 80% OF HIS PAY IF HE SHOULD BECOME MISSING OR UNABLE TO TRANSMIT FUNDS.

"B. ON 1 MARCH 1966, LIEUTENANT CHRISTENSEN WAS DECLARED MISSING IN ACTION IN NORTH VIETNAM. THAT STATUS REMAINS UNCHANGED TO DATE.

"C. ON 4 DECEMBER 1969 SANDRA LEE CHRISTENSEN MARRIED ROBERT ALEXANDER MAYS IN CALIFORNIA. THE NAVY HAS NO EVIDENCE OF ANY COURT ACTION WITH REGARD TO THE STATUS OF LIEUTENANT CHRISTENSEN PRIOR TO THE SECOND MARRIAGE. ONE CHILD WAS BORN OF THE SECOND MARRIAGE.

"D. ON 19 JULY 1971 SANDRA LEE MAYS (CHRISTENSEN) FILED A PETITION SEEKING ANNULMENT OF HER MARRIAGE TO ROBERT ALEXANDER MAYS UNDER THE PROVISIONS OF SECTIONS 4401 AND 4425(B) OF THE CALIFORNIA CIVIL CODE. 11 AUGUST 1971, A FINAL JUDGMENT OF NULLITY WAS ENTERED PURSUANT TO SECTIONS 4401 AND 4425(B) OF THE CALIFORNIA CIVIL CODE."

COPIES OF THE "RECORD OF EMERGENCY DATA," PETITION FOR NULLITY OF MARRIAGE, AND FINAL JUDGMENT OF NULLITY OF THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO, DATED AUGUST 11, 1971, ACCOMPANIED THE LETTER.

IT APPEARS FROM SUCH RECORD THAT LIEUTENANT CHRISTENSEN NAMED HIS WIFE, SANDRA LEE, AS THE PERSON TO RECEIVE UP TO 80 PERCENT OF HIS PAY IF HE SHOULD BECOME MISSING OR UNABLE TO TRANSMIT FUNDS AND AS BENEFICIARY TO RECEIVE 100 PERCENT OF HIS UNPAID COMPENSATION UNDER 10 U.S.C. 2771 IN THE EVENT OF HIS DEATH.

THE RECORD OF THE ANNULMENT ACTION SUBMITTED WITH THE REQUEST FOR DECISION SHOWS THAT HIS WIFE'S MARRIAGE TO ROBERT ALEXANDER MAYS WAS ANNULLED UNDER THE SO-CALLED CALIFORNIA "ENOCH ARDEN" STATUTE AUTHORIZING ANNULMENT OF A MARRIAGE ENTERED INTO DURING THE LIFETIME OF THE SPOUSE OF ONE OF THE PARTIES IF "BELIEVED BY SUCH PERSON TO BE DEAD AT THE TIME SUCH SUBSEQUENT MARRIAGE WAS CONTRACTED," AND WHICH THE SAID STATUTE DECLARES "IS VALID UNTIL ITS NULLITY IS ADJUDGED."

THE SECRETARY'S LETTER POINTS OUT THAT A RECENT CALIFORNIA DECISION, IN RE ESTATE OF LEMONT, 86 CAL RPTR 810 (1970), CONTAINS DICTUM WHICH, APPLIED TO THIS CASE, WOULD INDICATE THAT, DURING HER MARRIAGE TO MR. MAYS, MRS. CHRISTENSEN'S FIRST MARRIAGE WAS MERELY SUSPENDED AND UPON ANNULMENT OF THAT MARRIAGE HER STATUS AS THE WIFE OF LIEUTENANT CHRISTENSEN WAS RESTORED.

THAT DECISION STATES THAT THE EFFECT OF THE ENOCH ARDEN STATUTE IS TO MAKE AN EXPRESS STATUTORY EXCEPTION TO THE GENERAL RULE THAT AN ANNULMENT OF MARRIAGE IS RETROACTIVE. IT ALSO INDICATES THAT UNDER CALIFORNIA PRECEDENTS THE EFFECT OF THE ENOCH ARDEN STATUTE IS TO DEPRIVE THE REMARRIED WIFE OF THE STATUS OF WIDOW UNDER CALIFORNIA LAW IF HER SECOND MARRIAGE IS NOT ANNULLED BEFORE THE DEATH OF HER PRIOR HUSBAND.

HOWEVER THAT MAY BE, WE UNDERSTAND THAT LIEUTENANT CHRISTENSEN IS CURRENTLY BEING CARRIED IN A MISSING STATUS UNDER THE FEDERAL MISSING PERSONS ACT. HENCE UNDER THE PROVISIONS OF THAT ACT HIS PAY ACCOUNT IS BEING CREDITED WITH HIS APPROPRIATE MILITARY COMPENSATION AND PAYMENT OF ALLOTMENTS IS AUTHORIZED AS IF HE WERE ALIVE UNTIL SUCH TIME AS EVIDENCE OF HIS DEATH IS RECEIVED IN THE NAVY DEPARTMENT, HE IS OFFICIALLY DECLARED DEAD, OR HE IS FOUND TO BE ALIVE AND IS RETURNED TO THE JURISDICTION OF THE NAVY DEPARTMENT.

SINCE SANDRA LEE CHRISTENSEN HAS OBTAINED AN ANNULMENT OF HER MARRIAGE TO MR. MAYS, IT SEEMS CLEAR THAT UNDER CALIFORNIA LAW SHE IS THE LAWFUL WIFE OF LIEUTENANT CHRISTENSEN IF HE IS ALIVE. IN OUR OPINION ALLOTMENT PAYMENTS TO HER MAY BE REINSTATED EFFECTIVE FROM THE TIME THE ANNULMENT OF HER MARRIAGE TO MR. MAYS WAS GRANTED, AND OTHER BENEFITS INCIDENT TO HER STATUS AS THE WIFE OF LIEUTENANT CHRISTENSEN MAY BE RESTORED.

IF EVIDENCE SHOULD BE RECEIVED THAT LIEUTENANT CHRISTENSEN DIED AFTER THE DATE OF HER MARRIAGE TO MR. MAYS AND PRIOR TO THE DATE SUCH MARRIAGE WAS ANNULLED, CLAIMS FOR THE ARREARS OF PAY AND DEATH GRATUITY SHOULD BE SUBMITTED HERE FOR CONSIDERATION.