B-34840, AUGUST 17, 1943, 23 COMP. GEN. 107

B-34840: Aug 17, 1943

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A NAVAL OFFICER WHO SECURED AN ANNULMENT OF HIS MARRIAGE UNDER THE LAWS OF THAT STATE IS NOT REQUIRED TO REFUND THE AMOUNTS PAID TO HIM FOR THE PERIOD PRIOR TO THE ANNULMENT DECREE AS INCREASED RENTAL AND SUBSISTENCE ALLOWANCES ON ACCOUNT OF A LAWFUL WIFE. 22 COMP. WAS GRANTED A DECREE OF ANNULMENT OF HIS MARRIAGE TO ONE JEAN G. IT IS STATED IN LETTER OF JAMES M. THAT THE DECREE WAS GRANTED UNDER THE PROVISIONS OF SECTION 82. THE COURT'S DECREE IN THIS CASE IS "THAT THE SAID MARRIAGE EXISTING BETWEEN THE ABOVE NAMED PLAINTIFF AND THE ABOVE NAMED DEFENDANT. IS HEREBY ANNULLED. THAT THE SAID PARTIES ARE HEREBY RESTORED TO THE STATUS OF SINGLE PERSONS.'. IS TO BE REGARDED AS VALID PENDING FINAL DETERMINATION OF THE ACTION FOR ITS ANNULMENT.

B-34840, AUGUST 17, 1943, 23 COMP. GEN. 107

MARRIAGE - ANNULMENT - EFFECT UPON PRIOR RENTAL AND SUBSISTENCE ALLOWANCE PAYMENTS IN VIEW OF THE PROVISIONS OF THE LAWS OF CALIFORNIA THAT WHERE A HUSBAND BRINGS SUIT AGAINST HIS WIFE FOR ANNULMENT OF THE MARRIAGE UPON GROUNDS OF FRAUD THE MARRIAGE, THOUGH VOIDABLE, SHALL BE REGARDED AS VALID PENDING FINAL DETERMINATION OF THE MATTER AND THE WIFE SHALL BE ENTITLED TO SUPPORT UNTIL THE ISSUANCE OF THE DECREE OF ANNULMENT, A NAVAL OFFICER WHO SECURED AN ANNULMENT OF HIS MARRIAGE UNDER THE LAWS OF THAT STATE IS NOT REQUIRED TO REFUND THE AMOUNTS PAID TO HIM FOR THE PERIOD PRIOR TO THE ANNULMENT DECREE AS INCREASED RENTAL AND SUBSISTENCE ALLOWANCES ON ACCOUNT OF A LAWFUL WIFE. 22 COMP. GEN. 316, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, AUGUST 17, 1943:

THERE HAD BEEN CONSIDERED YOUR LETTER OF MAY 29, 1943, REQUESTING AN EXPRESSION OF MY VIEWS OF THE MATTER PRESENTED BY R. E. PRENTICE, ASSISTANT FOR DISBURSING, TWELFTH NAVAL DISTRICT, SAN FRANCISCO, CALIFORNIA, RELATIVE TO THE RIGHT OF LEONARD P. HOSKINS, ENSIGN, D-V (S), USNR, TO RETAIN AMOUNTS PAID TO HIM AS INCREASED RENTAL AND SUBSISTENCE ALLOWANCES FOR DEPENDENTS (LAWFUL WIFE) FOR THE PERIOD APRIL 15, 1942, TO APRIL 27, 1943.

A PHOTOSTATIC COPY OF DECREE OF ANNULMENT OF MARRIAGE ENCLOSED WITH YOUR LETTER SHOWS THAT LEONARD P. HOSKINS ON APRIL 28, 1943, WAS GRANTED A DECREE OF ANNULMENT OF HIS MARRIAGE TO ONE JEAN G. HOSKINS, THE DECREE HAVING BEEN GRANTED BY THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO. THE DECREE DOES NOT SPECIFY THE GROUNDS FOR ANNULMENT, BUT IT IS STATED IN LETTER OF JAMES M. THOMAS, ATTORNEY FOR THE OFFICER, DATED MAY 3, 1943, THAT THE DECREE WAS GRANTED UNDER THE PROVISIONS OF SECTION 82, SUBDIVISIONS 4 AND 6 OF THE CIVIL CODE.

THE COURT'S DECREE IN THIS CASE IS "THAT THE SAID MARRIAGE EXISTING BETWEEN THE ABOVE NAMED PLAINTIFF AND THE ABOVE NAMED DEFENDANT, BE, AND THE SAME, IS HEREBY ANNULLED, AND THAT THE SAID PARTIES ARE HEREBY RESTORED TO THE STATUS OF SINGLE PERSONS.'

UNDER THE LAWS OF THE STATE OF CALIFORNIA IT APPEARS THAT WHERE A HUSBAND BRINGS SUIT AGAINST HIS WIFE FOR ANNULMENT OF A MARRIAGE UPON THE GROUNDS OF FRAUD (INCAPACITY) UNDER THE PROVISIONS OF SECTION 82, SUBDIVISIONS 4 AND 6 OF THE CIVIL CODE, THE MARRIAGE, THOUGH VOIDABLE, IS TO BE REGARDED AS VALID PENDING FINAL DETERMINATION OF THE ACTION FOR ITS ANNULMENT, AND THAT THE WIFE IS ENTITLED TO ALIMONY PENDENTE LITE OR MONEY FOR HER MAINTENANCE AND COUNSEL FEES EVEN THOUGH THE MARRIAGE SUBSEQUENTLY IS ANNULLED. DUNPHY V. DUNPHY, 161 CAL. 87, 118 PAC. 445; MILLAR V. MILLAR, 175 CAL. 797, 167 PAC. 394; RE ESTATE OF MARY J. GREGORSON, 160 CAL. 21, 116 PAC. 60; MILLAR V. MILLAR, 51 CAL. APP. 718, 197 PAC. 811; CF. EX PARTE COOK, 42 CAL. APP. (2D) 19, 108 PAC. 2D 47; PARMANN V. PARMANN,--- CAL. APP. (2D/---, 132 PAC. 2D 851; TAYIAN V. TAYIAN, 64 CAL. APP. 632, 222 PAC. 377.

ACCORDINGLY, SINCE IT APPEARS THAT A VALID MARRIAGE EXISTED BETWEEN ENSIGN HOSKINS AND HIS WIFE UNTIL THE ANNULMENT DECREE WAS RENDERED, AND THE HE WAS LEGALLY OBLIGATED TO SUPPORT HIS WIFE UNTIL SUCH DECREE WAS RENDERED, THERE APPEARS NO PROPER BASIS FOR REQUIRING HIM TO REFUND THE AMOUNTS PAID TO HIM AS INCREASED RENTAL AND SUBSISTENCE ALLOWANCES ON ACCOUNT OF A LAWFUL WIFE FOR THE PERIOD PRIOR TO APRIL 28, 1942.

THE DECISION OF OCTOBER 6, 1942, 22 COMP. GEN. 316, IS NOT TO BE VIEWED AS APPLICABLE IN CASES INVOLVING ANNULMENT OF A MARRIAGE WHICH, UNDER THE LAWS OF THE PARTICULAR STATE, IS NOT VOID BUT MERELY VOIDABLE AND AS SUCH IS TO BE REGARDED AS VALID PENDING FINAL DETERMINATION OF THE ACTION FOR ITS ANNULMENT.