B-179976, NOV 7, 1974

B-179976, NOV 7, 1974

WHERE CALIFORNIA JUDGMENT OF DISSOLUTION OF MARRIAGE AWARDED NAVY MEMBER AND FORMER WIFE "JOINT CUSTODY" OF THEIR MINOR CHILD, GIVING MEMBER UNDIVIDED EQUAL RIGHT TO CUSTODY SIMILAR TO CUSTODY RIGHT WHILE MARRIED, CHILD MAY BE CONSIDERED TO BE IN LEGAL CUSTODY OF THE MEMBER, WHO, THEREFORE, IS REGARDED AS A "MEMBER WITH DEPENDENTS" FOR ENTITLEMENT TO FAMILY SEPARATION ALLOWANCE, TYPES I AND II.

FAMILY SEPARATION ALLOWANCE, TYPES I AND II - CAPTAIN GEORGE S. GROVE, USN:

THIS ACTION IS IN RESPONSE TO LETTER DATED OCTOBER 5, 1973, (FILE REFERENCE NAVACTSUK:A152:AD 1210), FROM C. M. HANCOCK, DISBURSING OFFICER, U.S. NAVAL ACTIVITIES, UNITED KINGDOM, BOX 96, FLEET POST OFFICE, NEW YORK 09510, REQUESTING AN ADVANCE DECISION AS TO THE ENTITLEMENT OF CAPTAIN GEORGE S. GROVE, USN, TO RECEIVE FAMILY SEPARATION ALLOWANCE (FSA), TYPES I AND II, BASED ON THE JOINT CUSTODY OF HIS MINOR CHILD. THE REQUEST WAS FORWARDED TO THIS OFFICE BY ENDORSEMENT OF THE DEPARTMENT OF THE NAVY, OFFICE OF THE COMPTROLLER, DATED OCTOBER 29, 1973 (FILE REFERENCE NCF-411 7220/2-4) AND HAS BEEN ASSIGNED DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE SUBMISSION NUMBER DO-N-1209.

AN INTERLOCUTORY JUDGMENT OF DISSOLUTION OF MARRIAGE BETWEEN GEORGE S. GROVE AND MARILISSE D. GROVE ENTERED JANUARY 4, 1973, IN THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO (THE FINAL JUDGMENT WAS ENTERED ON APRIL 19, 1973) PROVIDED AS FOLLOWS:

"IT IS FURTHER ORDERED THAT PETITIONER AND RESPONDENT ARE GRANTED JOINT CUSTODY OF LORING S. GROVE, BORN DECEMBER 17, 1956. THE RESPONDENT IS ORDERED TO PAY CHILD SUPPORT AS FOLLOWS: RESPONDENT SHALL BE RESPONSIBLE FOR THE PAYMENT OF THE AIR TRANSPORTATION COSTS FOR SAID CHILD TO MAKE THREE ROUND TRIPS EACH SCHOOL YEAR FROM HER SCHOOL OR PLACE OF ABODE TO THE PETITIONER'S PLACE OF ABODE, NOT TO EXCEED THE AIR FARE AT THE STUDENT STANDBY RATE, AND DURING SUCH TIME AS THE SAID LORING S. GROVE IS ACTUALLY RESIDING WITH THE PETITIONER DURING ANY PERIODS OF VISITATION, THE RESPONDENT SHALL PAY TO THE PETITIONER, TOWARD THE SUPPORT AND MAINTENANCE OF SAID MINOR CHILD, THE SUM OF $5.00 PER DAY FOR EACH DAY OF SUCH VISIT. THE RESPONDENT'S OBLIGATION TO PAY FOR SAID CHILD'S AIR TRANSPORTATION AND TO CONTRIBUTE TOWARD HER SUPPORT DURING SUCH TIMES AS SHE IS STAYING WITH THE PETITIONER SHALL NOT EXTEND BYEOND THE CHILD'S MAJORITY.

"IT IS FURTHER ORDERED THAT NEITHER PARENT IS TO TAKE LORING S. GROVE OUT OF THE CONTINENTAL LIMITS OF THE UNITED STATES WITHOUT THE AGREEMENT OF THE OTHER PARENT OR PRIOR ORDER OF THE COURT."

ACCORDING TO THE SUBMISSION, THE MEMBER'S DAUGHTER IS ATTENDING A PRIVATE BOARDING SCHOOL IN THE CONTENTAL UNITED STATES; HOWEVER, BEFORE HIS PRESENT DUTY ASSIGNMENT, WHILE THE MEMBER WAS ASSIGNED TO SEA DUTY HE MAINTAINED SEPARATE RESIDENCES FOR BOTH HIS WIFE AND DAUGHTER, BOTH PRIOR TO HIS DAUGHTER'S ENTERING BOARDING SCHOOL AND AFTER THE ISSUANCE OF THE INTERLOCUTORY DECREE. THE MEMBER NOW MAINTAINS A RESIDENCE IN ENGLAND WHICH THE DEPENDENT DAUGHTER WILL USE WHEN NOT IN SCHOOL.

SINCE THE CALIFORNIA JUDGMENT GRANTED THE MEMBER AND HIS SPOUSE "JOINT CUSTODY" OF THE DEPENDENT DAUGHTER, THE DISBURSING OFFICER EXPRESSES DOUBT AS TO THE ENTITLEMENT OF THE MEMBER TO RECEIVE AN OTHERWISE PROPER PAYMENT OF FSA, TYPES I AND II, FOR A PORTION OF THE MEMBER'S SEA TOUR, APRIL 19 TO JULY 2, 1973, AND FROM THE COMMENCEMENT OF HIS FOREIGN SHORE DUTY ON AUGUST 27, 1973, UNTIL THE ENTITLEMENT TO FSA, TYPES I AND II, OTHERWISE TERMINATES.

SECTION 427 OF TITLE 37, U.S.C. PROVIDES:

"(A) IN ADDITION TO ANY ALLOWANCE OR PER DIEM TO WHICH HE OTHERWISE MAY BE ENTITLED UNDER THIS TITLE, A MEMBER OF A UNIFORMED SERVICE WITH DEPENDENTS WHO IS ON PERMANENT DUTY OUTSIDE OF THE UNITED STATES, OR IN ALASKA, IS ENTITLED TO A MONTHLY ALLOWANCE EQUAL TO THE BASIC ALLOWANCE FOR QUARTERS PAYABLE TO A MEMBER WITHOUT DEPENDENTS IN THE SAME PAY GRADE IF -

"(1) THE MOVEMENT OF HIS DEPENDENTS TO HIS PERMANENT STATION OR A PLACE NEAR THAT STATION IS NOT AUTHORIZED AT THE EXPENSE OF THE UNITED STATES UNDER SECTION 406 OF THIS TITLE AND HIS DEPENDENTS DO NOT RESIDE AT OR HEAR THAT STATION; AND

"(2) QUARTERS OF THE UNITED STATES OR A HOUSING FACILITY UNDER THE JURISDICTION OF A UNIFORMED SERVICE ARE NOT AVAILABLE FOR ASSIGNMENT TO HIM.

"(B) EXCEPT IN TIME OF WAR OR OF NATIONAL EMERGENCY HEREAFTER DECLARED BY CONGRESS, AND IN ADDITION TO ANY ALLOWANCE OR PER DIEM TO WHICH HE OTHERWISE MAY BE ENTITLED UNDER THIS TITLE, INCLUDING SUBSECTION (A) OF THIS SECTION, A MEMBER OF A UNIFORMED SERVICE WITH DEPENDENTS (OTHER THAN A MEMBER IN PAY GRADE E-1, E-2, E-3, OR E-4 (4 YEARS' OR LESS SERVICE)) IS ENTITLED TO A MONTHLY ALLOWNACE EQUAL TO $30 IF -

"(1) THE MOVEMENT OF HIS DEPENDENTS TO HIS PERMANENT STATION OR A PLACE NEAR THAT STATION IS NOT AUTHORIZED AT THE EXPENSE OF THE UNITED STATES UNDER SECTION 406 OF THIS TITLE AND HIS DEPENDENTS DO NOT RESIDE AT OR NEAR THAT STATION;

"(2) HE IS ON DUTY ON BOARD A SHIP AWAY FROM THE HOME PORT OF THE SHIP FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS; OR

"(3) HE IS ON TEMPORARY DUTY AWAY FROM HIS PERMANENT STATION FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS AND HIS DEPENDENTS DO NOT RESIDE AT OR NEAR HIS TEMPORARY DUTY STATION.

A MEMBER WHO BECOMES ENTITLED TO AN ALLOWANCE UNDER THIS SUBSECTION BY VIRTUE OF DUTY DESCRIBED IN CLAUSE (2) OR (3) FOR A CONTINUOUS PERIOD OF MORE THAN 30 DAYS IS ENTITLED TO THE ALLOWANCE EFFECTIVE AS OF THE FIRST DAY OF THAT PERIOD. AN ALLOWANCE IS PAYABLE UNDER THIS SUBSECTION EVEN THOUGH THE MEMBER DOES NOT MAINTAIN FOR HIS PRIMARY DEPENDENTS WHO WOULD OTHERWISE NORMALLY RESIDE WITH HIM, A RESIDENCE OR HOUSEHOLD, SUBJECT TO HIS MANAGEMENT AND CONTROL, WHICH HE IS LIKELY TO SHARE WITH THEM AS A COMMON HOUSEHOLD WHEN HIS DUTY ASSIGNMENT PERMITS."

IN ACCORDANCE WITH THE FOREGOING STATUTE, PARAGRAPH 30311 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCES ENTITLEMENTS MANUAL (DODPM) PROVDES THAT UNLESS THE RECORDS SHOW OTHERWISE A MEMBER IS NOT CONSIDERED "A MEMBER WITH DEPENDENTS" FOR FSA, TYPE II, ENTITLEMENT (37 U.S.C. 427(B)) WHEN THE SOLE DEPENDENT IS A CHILD IN THE LEGAL CUSTODY OF ANOTHER PERSON (SUBPARAGRAPH B). PARAGRAPH 30303D, DODPM, PROVIDES THAT FSA, TYPE 1, CASES (37 U.S.C. 427(A)) INVOLVING A DIVORCED MEMBER WITH A CHILD IN THE LEGAL CUSTODY OF A FORMER SPOUSE OR ANOTHER PERSON SHALL BE TREATED THE SAME AS FSA, TYPE II, CASES UNDER PARAGRAPH 30311B.

IN 52 COMP. GEN. 878 (1973) WE CONSIDERED THE PAYMENT OF A SEPARATE MAINTENANCE ALLOWANCE (SMA) AS AUTHORIZED IN 5 U.S.C. 5924 TO A DIVORCED CIVILIAN EMPLOYEE. THIS ALLOWANCE IS AUTHORIZED WHEN A CIVILIAN EMPLOYEE IS ASSIGNED TO A POST IN A FOREIGN AREA THAT IS DANGEROUS, UNHEALTHFUL, OR WHERE LIVING CONDITIONS ARE ADVERSE, FOR THE PURPOSE OF ENABLING THE EMPLOYEE TO MEET THE ADDITIONAL EXPENSE OF MAINTAINING HIS WIFE AND/OR DEPENDENTS ELSEWHERE. IN THAT DECISION IT WAS HELD THAT SMA MAY BE PAID TO AN EMPLOYEE WHOSE MINOR CHILDREN INCIDENT TO A DIVORCE DECREE HAVE BEEN PLACED JOINTLY IN THE CARE OF THE EMPLOYEE AND THE FORMER SPOUSE PROVIDED THAT IT CAN BE REASONABLY ESTABLISHED THAT THE CHILDREN WOULD HAVE RESIDED WITH THE EMPLOYEE BUT FOR HIS ASSIGNMENT TO THE POST IN QUESTION.

REGARDING THE CONCEPT OF "JOINT CUSTODY" IT WAS STATED IN THE DECISION AS FOLLOWS:

"IN RECENT YEARS A NEW AND INNOVATIVE CONCEPT HAS EMERGED IN AWARDING CUSTODY OF A CHILD UPON SEPARATION OR DIVORCE OF THE PARENTS. THE ESSENCE OF THE CONCEPT IS JOINT LEGAL CUSTODY OF THE CHILD AND JOINT RESOLUTION OF ALL CUSTODIAL ISSUES. THIS CONCEPT, BASED AS IT IS ON THE AGREEMENT OF THE PARENTS, IS ENTIRELY DIFFERENT FROM CONVENTIONAL EXCLUSIVE AND DIVIDED OR PARTIAL CUSTODY. UNDER THE JOINT CUSTODY ARRANGEMENT, UPON SEPARATION OR DIVORCE, THE PARENTS AGREE THAT NEITHER OF THEM SHALL HAVE AN EXCLUSIVE RIGHT TO CUSTODY AND THAT THE BEST INTEREST OF THE CHILD IS PARAMOUNT. THEY ACCEPT THE RESPONSIBILITY TO MUTUALLY AGREE ON ALL FACETS OF THE CHILD'S UPBRINGING SUCH AS WHERE THE CHILD IS TO LIVE, WITH WHOM AND FOR WHAT DURATION.

SHOULD AN IMPASSE DEVELOP THE PARENTS AGREE TO ARBITRATE THE QUESTION. THIS FLEXIBLE APPROACH CONCERNING THE DIFFICULT QUESTION OF CHILD CUSTODY HAS FOUND ACCEPTANCE IN MANY COURTS WHICH HAVE INCREASINGLY BEGUN TO AWARD JOINT CUSTODY. KUBIE, PROVISIONS FOR THE CARE OF CHILDREN OF DIVORCED PARENTS: A NEW LEGAL INSTRUMENT, 73 YALE L. J. 1197 (1964)."

IT WAS STATED FURTHER AS FOLLOWS:

"THE IMPLEMENTING REGULATIONS FOR THIS STATUTE ARE IN SUBCHAPTER 260 OF THE STANDARDIZED REGULATIONS (GOVERNMENT CIVILIANS, FOREIGN AREAS). SECTION 262.3 OUTLINES THE CONDITIONS NOT WARRANTING A SEPARATE MAINTENANCE ALLOWANCE WHICH INCLUDES THE SITUATION WHERE THE CHILD'S LEGAL CUSTODY IS VESTED WHOLLY, OR IN PART, IN A PERSON OTHER THAN THE EMPLOYEE. WE DO NOT THINK THE TERMS OF THIS PROVISION COVERS JOINT CUSTODY INASMUCH AS JOINT CUSTODY IS AN UNDIVIDED EQUAL RIGHT TO CUSTODY IN BOTH PARENTS WHICH IS THE SAME RIGHT THE PARENTS ENJOYED BEFORE THE DIVORCE, AS DISTINGUISHED FROM A DIVIDED OR A PARTIAL RIGHT TO CUSTODY IN A PARTICULAR PARENT. SEE 92 A. L. R. 2D 695 (1963) AND 98 A. L. R. 2D 926 (1964)."

THE RATIONALE OF THAT DECISION IS FOR APPLICATION IN THIS CASE. SINCE THE JUDGMENT OF DISSOLUTION OF THE MARRIAGE BETWEEN CAPTAIN GROVE AND MRS. GROVE PROVIDES FOR THE "JOINT CUSTODY" OF THEIR MINOR CHILD, AND, THEREFORE, GIVES TO EACH OF THEM AN UNDIVIDED EQUAL RIGHT TO HER CUSTODY SIMILAR TO THEIR CUSTODY RIGHTS WHILE MARRIED, THE CHILD MAY BE CONSIDERED TO BE IN THE LEGAL CUSTODY OF THE MEMBER PROVIDED IT CAN BE REASONABLY ESTABLISHED THAT THE CHILD WOULD HAVE RESIDED WITH CAPTAIN GROVE BUT FOR THE CIRCUMSTANCES WARRANTING THE PAYMENT OF FSA. SINCE CAPTAIN GROVE DID MAINTAIN A SEPARATE RESIDENCE FOR HIS CHILD IT APPEARS THAT THE LATTER REQUIREMENT HAS BEEN MET.

ACCORDINGLY, CAPTAIN GROVE IS ENTITLED TO FSA, TYPES I AND II, FOR THE PERIODS SET FORTH, IF OTHERWISE PROPER.