B-174988, FEB 28, 1972

B-174988: Feb 28, 1972

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SINCE THERE IS NO EVIDENCE OF DIVORCE BETWEEN HER AND MR. IS NOT AT LIBERTY TO REGARD THE INTENT OF THE DECEASED. IS GOVERNED BY THE DISTINCT STATUTORY AUTHORITY OF 5 U.S.C. 8705. BURCH: REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 9. WHICH WILL BE VIEWED AS CONSTITUTING AN APPEAL FROM THE ACTION OF OUR CLAIMS DIVISION IN DISALLOWING THE CLAIM OF MRS. ROSSER WAS MARRIED TO MRS. VERLENA ROSSER WAS GRANTED A MOTION TO DISMISS THE BILL OF DIVORCE WHICH SHE HAD CAUSED TO HAVE BEEN FILED AGAINST WILLIE ROSSER. THAT WILLIE ROSSER AND VERLENA ROSSER WERE SEPARATED AND THAT THEREAFTER WILLIE ROSSER AND VERGIE ROSSER LIVED TOGETHER AS MAN AND WIFE. NO SUCH DESIGNATION OF BENEFICIARIES WAS MADE.

B-174988, FEB 28, 1972

CIVILIAN EMPLOYEE - UNPAID COMPENSATION - DISTRIBUTION TO SURVIVORS DECISION AFFIRMING PRIOR DENIAL OF A CLAIM OF VERGIE B. ROSSER FOR UNPAID COMPENSATION DUE WILLIE ROSSER, DECEASED FORMER EMPLOYEE OF THE NAVAL AIR STATION, MEMPHIS, MILLINGTON, TENN. THE PROVISIONS OF 5 U.S.C. 5582 AUTHORIZE PAYMENT OF UNPAID COMPENSATION TO THE EMPLOYEE'S WIDOW IN THE ABSENCE OF A DESIGNATED BENEFICIARY. ONLY VERLENA ROSSER QUALIFIES AS THE EMPLOYEE'S LAWFUL SPOUSE, SINCE THERE IS NO EVIDENCE OF DIVORCE BETWEEN HER AND MR. ROSSER AND SINCE TENNESSEE DOES NOT RECOGNIZE COMMON LAW MARRIAGES CONTRACTED WITHIN ITS JURISDICTION. THE COMP. GEN. IS NOT AT LIBERTY TO REGARD THE INTENT OF THE DECEASED, AND SINCE PAYMENT TO VERGIE ROSSER, AS THE DESIGNATED BENEFICIARY OF VARIOUS INSURANCE PROCEEDS, IS GOVERNED BY THE DISTINCT STATUTORY AUTHORITY OF 5 U.S.C. 8705, IT IN NO WAY AFFECTS THE DISTRIBUTION OF UNPAID COMPENSATION. FURTHER, VERLENA ROSSER'S PRIOR DISCLAIMER HAS NO BEARING ON FUNDS WHICH MUST BE PAID IN ACCORDANCE WITH THE PROVISIONS OF A SPECIFIC STATUTE. B-147358, JANUARY 8, 1962. IN VIEW OF THE FOREGOING, THE PRIOR DENIAL OF VERGIE ROSSER'S CLAIM AND THE AUTHORIZED PAYMENT TO VERLENA ROSSER MUST BE AFFIRMED.

TO MR. CHARLES C. BURCH:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 9, 1971, WITH ENCLOSURE, WHICH WILL BE VIEWED AS CONSTITUTING AN APPEAL FROM THE ACTION OF OUR CLAIMS DIVISION IN DISALLOWING THE CLAIM OF MRS. VERGIE B. ROSSER FOR THE UNPAID COMPENSATION DUE MR. WILLIE ROSSER, DECEASED FORMER EMPLOYEE OF THE NAVAL AIR STATION MEMPHIS, MILLINGTON, TENNESSEE.

THE RECORD SHOWS THAT MR. ROSSER WAS MARRIED TO MRS. VERLENA A. ROSSER ON MARCH 14, 1935. SUBSEQUENT THERETO ON APRIL 26, 1955, MR. AND MRS. ROSSER ENTERED INTO A PROPERTY SETTLEMENT WHEREIN VERLENA ROSSER WAIVED CERTAIN RIGHTS AS FOLLOWS:

" *** SUPPORT AND MAINTENANCE, ATTORNEY FEES, ALIMONY, DOWER, HOMESTEAD, RIGHTS OF INHERITANCE, AND FINANCIAL CLAIMS OF EVERY KIND AND CHARACTER AND ANY AND ALL CLAIMS ARISING OUT OF THEIR MARITAL RELATIONSHIP."

IN ADDITION, SUCH SETTLEMENT STATED:

"4. THIS AGREEMENT MAY BE EMBODIED IN ANY DECREE OF DIVORCE THAT MAY BE OBTAINED BY EITHER PARTY HERETO AND MAY BE ENFORCED BY ANY COURT AWARDING SUCH DECREE, OR BY ANY OTHER COURT OF COMPETENT JURISDICTION.

"5. THIS AGREEMENT SHALL BE FULLY BINDING AND EFFECTIVE UPON THE PARTIES HERETO, THEIR HEIRS, ASSIGNS, AND PERSONAL REPRESENTATIVES, AND REGARDLESS OF WHETHER THE PARTIES SHALL OBTAIN A DIVORCE OR NOT *** "

THE RECORD ALSO SHOWS THAT ON MAY 2, 1955, VERLENA ROSSER WAS GRANTED A MOTION TO DISMISS THE BILL OF DIVORCE WHICH SHE HAD CAUSED TO HAVE BEEN FILED AGAINST WILLIE ROSSER; ALSO, THAT WILLIE ROSSER AND VERLENA ROSSER WERE SEPARATED AND THAT THEREAFTER WILLIE ROSSER AND VERGIE ROSSER LIVED TOGETHER AS MAN AND WIFE. INCIDENT TO SUCH LATTER RELATIONSHIP, VERGIE ROSSER HAD THREE CHILDREN.

PURSUANT TO HIS EMPLOYMENT WITH THE FEDERAL GOVERNMENT, WILLIE ROSSER SUBSCRIBED TO A GROUP LIFE INSURANCE PLAN AND ON NOVEMBER 24, 1961, HE DESIGNATED VERGIE ROSSER AS PRIMARY BENEFICIARY TO THOSE INSURANCE PROCEEDS PAYABLE AT HIS DEATH. NO SUCH DESIGNATION OF BENEFICIARIES WAS MADE, HOWEVER, WITH REGARD TO THE DISTRIBUTION OF ANY UNPAID COMPENSATION WHICH WOULD HAVE BEEN PAYABLE TO HIM AT THE TIME OF HIS DECEASE. UNDER DATE OF OCTOBER 22, 1971, OUR CLAIMS DIVISION AUTHORIZED PAYMENT OF SUCH COMPENSATION TO VERLENA ROSSER AS WIDOW OF WILLIE ROSSER, DECEASED.

YOU HAVE NOW SUBMITTED FOR THE RECORD A COPY OF THE MEMORANDUM OF LAW WHICH WAS FILED PURSUANT TO AN ACTION INVOLVING VERGIE ROSSER WHEREIN SHE CLAIMED RIGHTFUL OWNERSHIP OF THOSE INSURANCE PROCEEDS PAYABLE UNDER THE FEDERAL LIFE INSURANCE PLAN OF WHICH WILLIE ROSSER WAS A POLICYHOLDER AT THE TIME OF HIS DEATH. THE THRUST OF THE CASES CITED THEREIN, AND OF THOSE CITED IN YOUR LETTER, IS TO THE EFFECT THAT THE DISTRIBUTION OF LIFE INSURANCE PROCEEDS UNDER A FEDERAL LIFE INSURANCE PROGRAM IS TO BE ACCOMPLISHED PRIMARILY IN ACCORDANCE WITH THE INTENT OF THE INSURED AND THAT SUCH INTENT CAN BE ASCERTAINED FROM THE SURROUNDING CIRCUMSTANCES. IT IS APPARENTLY YOUR POSITION THAT THE LACK OF FORMAL DESIGNATION OF VERGIE ROSSER AS THE BENEFICIARY OF ANY UNPAID COMPENSATION DUE WILLIE ROSSER AT THE TIME OF HIS DEATH SHOULD HAVE NO ADVERSE BEARING UPON THE PAYMENT OF THOSE PROCEEDS TO VERGIE ROSSER IN VIEW OF THE FACT THAT BEFORE HIS DEATH WILLIE ROSSER LIVED WITH HER FOR A NUMBER OF YEARS AS HER HUSBAND, WAS THE FATHER TO HER CHILDREN, AND DESIGNATED HER THE BENEFICIARY OF HIS FEDERAL LIFE INSURANCE PROCEEDS.

UNPAID COMPENSATION DUE AN EMPLOYEE AT THE TIME OF HIS DEATH IS PAYABLE UNDER 5 U.S.C. 5582 WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

"(B) IN ORDER TO FACILITATE THE SETTLEMENT OF THE ACCOUNTS OF DECEASED EMPLOYEES, MONEY DUE AN EMPLOYEE AT THE TIME OF HIS DEATH SHALL BE PAID TO THE PERSON OR PERSONS SURVIVING AT THE DATE OF DEATH, IN THE FOLLOWING ORDER OF PRECEDENCE, AND THE PAYMENT BARS RECOVERY BY ANOTHER PERSON OF AMOUNTS SO PAID:

"FIRST, TO THE BENEFICIARY OR BENEFICIARIES DESIGNATED BY THE EMPLOYEE IN A WRITING RECEIVED IN THE EMPLOYING AGENCY BEFORE HIS DEATH.

"SECOND, IF THERE IS NO DESIGNATED BENEFICIARY, TO THE WIDOW OR WIDOWER OF THE EMPLOYEE.

"THIRD, IF NONE OF THE ABOVE, TO THE CHILD OR CHILDREN OF THE EMPLOYEE AND DESCENDANTS OF DECEASED CHILDREN BY REPRESENTATION.

"FOURTH, IF NONE OF THE ABOVE, TO THE PARENTS OF THE EMPLOYEE OR THE SURVIVOR OF THEM.

"FIFTH, IF NONE OF THE ABOVE, TO THE DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE OF THE EMPLOYEE.

"SIXTH, IF NONE OF THE ABOVE, TO THE PERSON OR PERSONS ENTITLED UNDER THE LAWS OF THE DOMICILE OF THE EMPLOYEE AT THE TIME OF HIS DEATH."

WE NOTE THAT UNDER THE ABOVE STATUTE FOR VERGIE ROSSER TO PROPERLY BE DEEMED A DISTRIBUTEE OF THE PROCEEDS HERE INVOLVED, SHE WOULD OF NECESSITY HAVE TO QUALIFY AS A "SPOUSE" WITHIN THE SECOND CLASS OF DISTRIBUTEES.

IN VIEW OF THE FACT THAT THERE IS NO RECORD OF ANY DIVORCE HAVING BEEN DECREED BETWEEN VERLENA ROSSER AND WILLIE ROSSER, AS WELL AS THE FACT THAT THE STATE OF TENNESSEE DOES NOT RECOGNIZE AS VALID THOSE COMMON-LAW MARRIAGES CONTRACTED WITHIN ITS JURISDICTION (SEE LIGHTSEY V LIGHTSEY, 56 TENN. APP. 394, 407 S.W. 2D 684 (1966)), IT IS OUR POSITION THAT ONLY VERLENA ROSSER QUALIFIES AS THE LAWFUL SPOUSE OF WILLIE ROSSER FOR THE PURPOSES OF DISTRIBUTION OF THOSE PROCEEDS COVERED UNDER 5 U.S.C. 5582.

FINALLY, WE NOTE THAT THE STATUTE WHICH PRESCRIBES THE ORDER OF PRECEDENCE FOR THE PAYMENT OF INSURANCE PROCEEDS, 5 U.S.C. 8705, IS SEPARATE AND DISTINCT FROM THAT WHICH STATES THE SCHEME OF DISTRIBUTION FOR UNPAID COMPENSATION, 5 U.S.C. 5582. WE DO NOT VIEW THE CASES CITED BY YOU INVOLVING THE PROVISION OF 5 U.S.C. 8705 AS NECESSARILY CONTROLLING THE DISPOSITION OF UNPAID COMPENSATION UNDER 5 U.S.C. 5582. UNDER THE PROVISIONS OF 5 U.S.C. 5583, OUR OFFICE IS AUTHORIZED TO SETTLE CLAIMS IN ACCORDANCE WITH 5 U.S.C. 5582. THE CLAIM OF VERLENA ROSSER WAS ALLOWED ON THAT BASIS AFTER A DETERMINATION THAT SHE WAS THE LEGAL WIDOW OF THE DECEDENT.

WITH RESPECT TO MRS. VERLENA ROSSER'S PRIOR WAIVER OF ANY FINANCIAL RIGHTS ACCRUING TO HER BY VIRTUE OF HER MARRIAGE TO WILLIE ROSSER, WE HAVE RULED THAT SUCH DISCLAIMER HAS NO BEARING UPON THOSE FUNDS TO BE DISTRIBUTED IN ACCORDANCE WITH THE FEDERAL STATUTE HERE INVOLVED. SEE B- 147358, JANUARY 8, 1962, COPY ENCLOSED.

ACCORDINGLY, THE ACTION OF OUR CLAIMS DIVISION IN DENYING VERGIE ROSSER'S CLAIM TO THE UNPAID COMPENSATION AND AUTHORIZING PAYMENT THEREOF TO VERLENA ROSSER IS AFFIRMED.