B-38614, FEBRUARY 26, 1944, 23 COMP. GEN. 625

B-38614: Feb 26, 1944

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RENTAL AND SUBSISTENCE ALLOWANCES - CHILDREN - PROOF OF DEPENDENCY THE FACT THAT A DIVORCE DECREE OR OTHER COURT ORDER GIVING CUSTODY OF A NAVAL OFFICER'S MINOR CHILDREN TO THE MOTHER DOES NOT PROVIDE SPECIFICALLY THAT THE OFFICER IS REQUIRED TO SUPPORT HIS CHILDREN DOES NOT. REGARDLESS OF THE JURISDICTION IN WHICH THE DECREE WAS ISSUED. OR IN WHICH THE CHILDREN ARE DOMICILED. IF IT BE SHOWN THAT THE OFFICER IS IN FACT CONTRIBUTING TO THEIR SUPPORT. 23 COMP. 1944: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 26. IT IS STATED IN THE BUREAU'S LETTER. THAT THE COURTS OF MASSACHUSETTS HAVE HELD THAT WHEN THE FATHER IS DEPRIVED OF HIS CHILDREN BY ORDER OF THE COURT HIS COMMON LAW DUTY TO SUPPORT THEM CEASES AND THAT.

B-38614, FEBRUARY 26, 1944, 23 COMP. GEN. 625

RENTAL AND SUBSISTENCE ALLOWANCES - CHILDREN - PROOF OF DEPENDENCY THE FACT THAT A DIVORCE DECREE OR OTHER COURT ORDER GIVING CUSTODY OF A NAVAL OFFICER'S MINOR CHILDREN TO THE MOTHER DOES NOT PROVIDE SPECIFICALLY THAT THE OFFICER IS REQUIRED TO SUPPORT HIS CHILDREN DOES NOT, OF ITSELF, OPERATE TO DEPRIVE THE DIVORCED OFFICER OF INCREASED RENTAL AND SUBSISTENCE ALLOWANCES AS FOR AN OFFICER WITH DEPENDENTS (MINOR CHILDREN), REGARDLESS OF THE JURISDICTION IN WHICH THE DECREE WAS ISSUED, OR IN WHICH THE CHILDREN ARE DOMICILED, IF IT BE SHOWN THAT THE OFFICER IS IN FACT CONTRIBUTING TO THEIR SUPPORT. 23 COMP. GEN. 71, AMPLIFIED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, FEBRUARY 26, 1944:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 26, 1943, FORWARDING A LETTER FROM THE BUREAU OF SUPPLIES AND ACCOUNTS DATED OCTOBER 15, WITH ENCLOSURES AND INDORSEMENTS, AND REQUESTING DECISION AS TO THE RIGHT OF ACTING PAY CLERK PHILIP J. ROY, USN, TO INCREASED RENTAL AND SUBSISTENCE ALLOWANCES AS FOR AN OFFICER WITH DEPENDENTS (MINOR CHILD NOT IN HIS CUSTODY) FOR THE PERIOD JULY 16 TO SEPTEMBER 28, 1943, UNDER THE CONDITIONS SET FORTH IN SAID ENCLOSURES AND INDORSEMENTS. SAID LETTER OF THE BUREAU OF SUPPLIES AND ACCOUNTS STATES, AMONG OTHER MATTERS, THAT THE CERTIFICATE OF THE CLAIMING OFFICER CONTAINS THE STATEMENT THAT THE DECREE OF DIVORCE GRANTED ON NOVEMBER 13 (15), 1934, BY THE SUPERIOR COURT OF LOS ANGELES COUNTY, CALIFORNIA, DID NOT REQUIRE PAYMENT OF ALIMONY FOR THE SUPPORT OF THE OFFICER'S MINOR CHILD, BUT THAT UNDER THE LAWS OF THE STATE OF MASSACHUSETTS HIS PARENTAL RESPONSIBILITY FOR THE CARE, MAINTENANCE, AND SUPPORT OF SUCH CHILD HAS NOT BEEN MODIFIED OR AFFECTED BY THE DECREE AND, IN THIS REGARD, IT IS STATED IN THE BUREAU'S LETTER--- MAKING REFERENCE TO DECISION OF THIS OFFICE OF MARCH 22, 1932, A-41163, 11 COMP. GEN. 361-- THAT THE COURTS OF MASSACHUSETTS HAVE HELD THAT WHEN THE FATHER IS DEPRIVED OF HIS CHILDREN BY ORDER OF THE COURT HIS COMMON LAW DUTY TO SUPPORT THEM CEASES AND THAT, APART FROM STATUTE, HIS OBLIGATION FOR THIS RESPONSIBILITY IS DETERMINED BY JUDICIAL DECREE.

IT APPEARS THAT IN A PROCEEDING IN A PROBATE COURT HELD AT SALEM, IN THE COUNTY OF ESSEX, COMMONWEALTH OF MASSACHUSETTS, THERE WAS ISSUED OCTOBER 28, 1933, ON THE PETITION OF THE WIFE OF SAID PHILIP J. ROY, AN ORDER RECITING THAT SAID PETITIONER, FOR JUSTIFIABLE CAUSE, WAS LIVING APART FROM HER SAID HUSBAND, AND ORDERING THAT THE PETITIONER HAVE THE CARE AND CUSTODY OF THE MINOR CHILD OF THE PARTIES. NO PROVISION APPEARS THEREIN REGARDING THE MAINTENANCE AND SUPPORT OF SAID CHILD, AND WHETHER THIS ORDER WAS ISSUED UNDER THE LAWS OF MASSACHUSETTS AUTHORIZING THE MAKING OF DECREES RELATIVE TO THE CARE, CUSTODY, ETC., OF MINOR CHILDREN OF PARENTS WHO ARE LIVING APART FROM EACH OTHER BUT NOT DIVORCED, OR WHETHER IT WAS ISSUED UNDER THE LAWS OF THAT STATE REGARDING THE FILING OF LIBELS FOR DIVORCE AND PROCEEDINGS THEREUNDER, CANNOT BE DETERMINED FROM THE PRESENT RECORD, BUT IT IS NOTED THAT THE EVIDENCE BEFORE THIS OFFICE DOES NOT DISCLOSE THAT ANY LIBEL FOR DIVORCE WAS FILED OR ANY PROCEEDINGS THEREUNDER WERE PENDING IN MASSACHUSETTS AT THE TIME THE ORDER WAS ENTERED.

ALSO, IT APPEARS THAT, SUBSEQUENT TO SAID ORDER, BY INTERLOCUTORY JUDGMENT OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF LOS ANGELES, RENDERED NOVEMBER 9, 1934, IN THE CASE OF PHILIP J. ROY V. QUERIDA ROY, THE PLAINTIFF HUSBAND WAS HELD TO BE ENTITLED TO A DIVORCE FROM THE DEFENDANT WIFE AND IT WAS DECREED THAT WHEN ONE YEAR SHALL HAVE EXPIRED AFTER THE ENTRY OF THE INTERLOCUTORY DECREE A FINAL JUDGMENT DISSOLVING THE MARRIAGE BETWEEN THE PARTIES SHOULD BE ENTERED, AND THAT AT SUCH TIME THE COURT SHOULD GRANT SUCH OTHER AND FURTHER RELIEF AS MIGHT BE NECESSARY TO A COMPLETE DISPOSITION OF THE ACTION. THEREAFTER, ON NOVEMBER 15, 1934, THE SAID COURT GRANTED THE PLAINTIFF HUSBAND A FINAL JUDGMENT OF DIVORCE FROM THE DEFENDANT AND ORDERED THAT WHEREIN THE SAID INTERLOCUTORY DECREE MADE ANY PROVISIONS FOR ALIMONY OR THE CUSTODY AND SUPPORT OF CHILDREN, OR RELATED TO THE PROPERTY OF THE PARTIES, SUCH PROVISIONS WERE TO BE MADE BINDING ON THE PARTIES AFFECTED THEREBY. THUS, IT WILL BE NOTED THAT NEITHER THE INTERLOCUTORY DECREE NOR THE FINAL JUDGMENT OF DIVORCE MADE ANY PROVISIONS FOR ALIMONY OR FOR THE CUSTODY AND SUPPORT OF THE MINOR CHILD OF THE PARTIES.

WHILE, AS STATED HEREINBEFORE, THE STATEMENT IN THE LETTER OF OCTOBER 15 OF THE BUREAU OF SUPPLIES AND ACCOUNTS WITH REGARD TO THE HOLDINGS OF THE MASSACHUSETTS COURTS WITH RESPECT TO THE PARENTAL RESPONSIBILITY OF A FATHER FOR THE SUPPORT OF HIS CHILDREN WHEN HE HAS BEEN DEPRIVED OF THEIR CUSTODY REFERS TO DECISION OF THIS OFFICE OF MARCH 22, 1932, A-41163, 11 COMP. GEN. 361, IT IS TO BE NOTED, IN ADDITION TO THE FACT THAT THE INSTANT CASE INVOLVES DIFFERENT CIRCUMSTANCES FROM THOSE THERE CONSIDERED, THAT, IN THE MEANTIME, THE THEN APPLICABLE RENTAL AND SUBSISTENCE ALLOWANCE STATUTES HAVE BEEN SUPERSEDED BY NEW LEGISLATION WITH RESPECT TO SUCH ALLOWANCES ON ACCOUNT OF DEPENDENTS. IN THE FORMER CASE, THE PARTIES WERE DIVORCED PURSUANT TO A DECREE OF A MASSACHUSETTS COURT WHICH ORDERED- -- WITHOUT ANY REQUIREMENT ON THE PART OF THE FATHER FOR SUPPORT--- THE MINOR CHILD TO BE GIVEN TO THE MOTHER, WHO THEREAFTER REMARRIED, WHEREAS IN THE INSTANT CASE THE INTERLOCUTORY AND FINAL JUDGMENTS OF DIVORCE WERE ENTERED BY A CALIFORNIA COURT SUBSEQUENT TO THE ENTRY OF THE ORDER OF THE MASSACHUSETTS COURT AWARDING THE CUSTODY OF THE CHILD--- ALSO WITHOUT ANY REQUIREMENT ON THE PART OF THE FATHER FOR SUPPORT--- TO THE MOTHER WHO, ACCORDING TO THE EVIDENCE AT HAND, HAS NOT REMARRIED.

AS TO THE CHANGE EFFECTED BY STATUTE, IT WILL BE NOTED THAT SECTION 4 OF THE ACT OF JUNE 10, 1922, 42 STAT. 627, AS AMENDED BY THE ACT OF FEBRUARY 21, 1929, 45 STAT. 1254, WHICH WAS THE LAW CONSTRUED IN THE PRIOR DECISION (11 COMP. GEN. 361), DEFINES THE TERM "DEPENDENT" TO INCLUDE ,LEGITIMATE CHILDREN * * * WHERE SUCH LEGITIMATE CHILDREN * * * ARE IN FACT DEPENDENT UPON THE PERSON CLAIMING DEPENDENCY ALLOWANCE" ( ITALICS SUPPLIED), WHEREAS SECTION 4 OF THE PAY READJUSTMENT ACT OF JUNE 16, 1942, 56 STAT. 359, 361, WHICH IS APPLICABLE TO THE INSTANT CASE, PROVIDES, IN PART, AS FOLLOWS:

THE TERM "DEPENDENT" AS USED IN THE SUCCEEDING SECTIONS OF THIS ACT SHALL INCLUDE AT ALL TIMES AND IN ALL PLACES A LAWFUL WIFE AND UNMARRIED CHILDREN UNDER TWENTY-ONE YEARS OF AGE * * *.

WITH REGARD TO SAID CHANGE IN THE LAW IT WAS STATED IN DECISION TO YOU, UNDER DATE OF JULY 30, 1943 (B-28900, 23 COMP. GEN. 71), AS FOLLOWS:

* * * THIS STATUTORY CHANGE IN THE DEFINITION OF THE TERM "DEPENDENT" MAKES INESCAPABLE THE CONCLUSION THAT IT WAS THE LEGISLATIVE INTENT GENERALLY TO RELIEVE AN OFFICER CLAIMING INCREASED SUBSISTENCE AND RENTAL ALLOWANCES ON BEHALF OF LEGITIMATE UNMARRIED CHILDREN UNDER 21 YEARS OF AGE OF ANY BURDEN OF PROOF THAT SAID CHILDREN ARE IN FACT DEPENDENT ON HIM. SEE STRAUSS V. UNITED STATES, 73 C.1CLS. 690, 693; RAWLINS V. UNITED STATES, 93 C.1CLS. 231, 236. BUT, IN ORDER TO INSURE THAT THIS BROADENING OF THE TERM "DEPENDENT" WOULD NOT EXTEND TO COVER CASES OF A TYPE WHICH, WHILE WITHIN THE LETTER OF THE LAW, WERE, UNDER DECISIONS OF THE COURTS AND OF THIS OFFICE, NOT WITHIN ITS SPIRIT, SAID DECISION CONCLUDED AS FOLLOWS:

ACCORDINGLY, YOU ARE ADVISED THAT EXCEPT WHERE IT IS SHOWN THAT A DIVORCED OFFICER HAS BEEN ABSOLVED FROM THE RESPONSIBILITY TO SUPPORT HIS CHILD OR CHILDREN, OR THAT HIS CHILD OR CHILDREN HAS (HAVE) BEEN EMANCIPATED, OR THAT THE DIVORCED OFFICER HAS REFUSED TO SUPPORT HIS CHILD OR CHILDREN, THIS OFFICE WILL NOT, IN CASES OF DIVORCED OFFICERS QUESTION OTHERWISE PROPER PAYMENTS OF INCREASED ALLOWANCES UNDER THE PAY READJUSTMENT ACT OF JUNE 16, 1942, ON ACCOUNT OF LEGITIMATE UNMARRIED CHILDREN UNDER 21 YEARS OF AGE.

THUS, IT WILL BE SEEN THAT UNDER THE LAW AS NOW EXISTING THE GENERAL RULE HAS BEEN ESTABLISHED THAT THIS OFFICE WILL NOT QUESTION OTHERWISE PROPER PAYMENTS OF SUCH ALLOWANCES TO DIVORCED OFFICERS ON ACCOUNT OF LEGITIMATE UNMARRIED CHILDREN UNDER 21 YEARS OF AGE EXCEPT UNDER THE CIRCUMSTANCES MENTIONED NEXT HEREINABOVE. THESE EXCEPTIONS TO THE GENERAL RULE, BY THEIR VERY NATURE AS EXCEPTIONS, ARE TO BE GIVEN APPLICATION ONLY TO THE EXTENT OF THE PURPOSE FOR WHICH INTENDED--- THAT IS, TO BAR CASES WITHIN THE LETTER OF THE LAW BUT WITHOUT ITS SPIRIT--- AND THE FACT THAT A DIVORCE DECREE OR OTHER COURT ORDER GIVING CUSTODY OF THE MINOR CHILDREN TO THE MOTHER DOES NOT PROVIDE SPECIFICALLY THAT THE FATHER IS REQUIRED TO SUPPORT HIS CHILDREN DOES NOT, OF ITSELF, OPERATE TO DEPRIVE AN OFFICER OF THE ALLOWANCES, REGARDLESS OF THE JURISDICTION IN WHICH THE DECREE WAS ISSUED, OR IN WHICH THE CHILDREN ARE DOMICILED, IF IT IS SHOWN THAT HE IS, IN FACT, CONTRIBUTING TO THEIR SUPPORT.

IN VIEW OF THE FOREGOING, IT APPEARS UNNECESSARY TO DETERMINE THE LEGAL LIABILITY OF THE OFFICER FOR THE SUPPORT OF HIS MINOR CHILD UNDER THE CIRCUMSTANCES OF THE PRESENT CASE; AND SINCE IT APPEARS THAT HE HAS CONTRIBUTED REGULARLY TO THE SUPPORT OF SAID CHILD PAYMENT OF ALLOWANCES TO HIM AS FOR AN OFFICER WITH DEPENDENTS (MINOR CHILD) WILL BE PASSED TO CREDIT, IF OTHERWISE CORRECT, FOR THE PERIOD JULY 16 TO SEPTEMBER 28, 1943, AND SO LONG THEREAFTER AS THERE ARISES NO OTHER GROUND FOR QUESTIONING PAYMENT OF THE ALLOWANCES CONCERNED.

THE S. AND A. FORM 201 IS RETURNED HEREWITH, THE OTHER PAPERS SUBMITTED BEING RETAINED IN THIS OFFICE.

THIS DECISION, OR A COPY THEREOF, SHOULD BE INCLUDED IN THE ACCOUNT WHEREIN CREDIT FOR PAYMENT UNDER AUTHORITY HEREOF IS CLAIMED.