B-39081, AUGUST 9, 1944, 24 COMP. GEN. 88

B-39081, AUGUST 9, 1944, 24 COMP. GEN. 88

RENTAL AND SUBSISTENCE ALLOWANCES - DEPENDENTS (LAWFUL WIFE) - EFFECT OF DECREE OF DIVORCE A MENSA ET THORO THERE BEING NO SEVERANCE OF THE BONDS OF MATRIMONY BY A DECREE OF DIVORCE A MENSA ET THORO UNDER THE LAW OF VIRGINIA, A NAVY OFFICER WHO HAS BEEN AWARDED SUCH A DECREE IN VIRGINIA WHICH REQUIRES HIM TO CONTRIBUTE TO THE SUPPORT OF HIS WIFE IS AN OFFICER WITH DEPENDENTS (LAWFUL WIFE) WITHIN THE MEANING OF SECTION 4 OF THE PAY READJUSTMENT ACT OF 1942, SO AS TO BE ENTITLED TO INCREASED SUBSISTENCE AND RENTAL ALLOWANCES UNDER SECTION 5 AND 6 OF SAID ACT.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, AUGUST 9, 1944:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF DECEMBER 23, 1943, FORWARDING A LETTER DATED NOVEMBER 12, 1943, FROM T. B. PURVIS, DISBURSING OFFICER, UNITED STATES NAVAL AIR STATION, NORFOLK, VIRGINIA, REQUESTING A DECISION ON THE QUESTION OF THE RIGHT OF LIEUTENANT WALTER J. NELSON D-V (S), USNR, TO INCREASED ALLOWANCES AS FOR AN OFFICER WITH DEPENDENTS (LAWFUL WIFE) UNDER THE CONDITIONS SET FORTH IN THE ENCLOSURE.

THERE WAS SUBMITTED BY THE DISBURSING OFFICER AN EXECUTED S. AND A. FORM 201 WHEREBY LIEUTENANT NELSON CLAIMS INCREASED ALLOWANCES AS FOR AN OFFICER WITH DEPENDENTS (LAWFUL WIFE) FROM SEPTEMBER 7 TO 30, 1943, TOGETHER WITH CERTIFIED COPIES OF A DECREE ENTERED IN THE CIRCUIT COURT OF THE CITY OF NORFOLK, VIRGINIA, SEPTEMBER 7, 1943, IN THE CAUSE OF WALTER JOHN NELSON, COMPLAINANT V. MARIE VICTORIA NELSON, DEFENDANT, AND AN AMENDMENT OF THE DECREE MADE BY THE COURT SEPTEMBER 9, 1943. THE DECREE OF SEPTEMBER 7, 1943, IS IN PERTINENT PART AS FOLLOWS:

IN CONSIDERATION WHEREOF, IT APPEARING INDEPENDENTLY OF ANY ADMISSION OF EITHER PARTY THAT * * * YOUR COMPLAINANT HAS RESIDED IN AND HAS BEEN DOMICILED AND HAS BEEN AN ACTUAL BONA FIDE RESIDENT OF THIS STATE FOR AT LEAST ONE YEAR PRECEDING THE COMMENCEMENT OF THIS SUIT, AND WAS DOMICILED HERE AT THE TIME OF THE FILING OF THIS SUIT; THAT THE COMPLAINANT AND THE DEFENDANT LAST COHABITED TOGETHER AT NORFOLK, VIRGINIA; THAT THE DEFENDANT DID ON THE 12TH DAY OF AUGUST, 1942, WILLFULLY DESERT AND ABANDON YOUR COMPLAINANT AND THE DESERTION HAS CONTINUED UNINTERRUPTEDLY UNTIL THE PRESENT TIME.

THE COURT DOTH ORDER, ADJUDGE AND DECREE THAT THE SAID WALTER JOHN NELSON AND MARIE VICTORIA NELSON BE DIVORCED A MENSA ET THORO.

IT IS FURTHER ORDERED THAT THIS CAUSE REMAIN ON THE DOCKET FOR SUCH FURTHER ORDERS AS THE COURT MAY DECREE IN THE SAID MATTER.

THE AMENDED DECREE SHOWS THAT ON SEPTEMBER 9, 1943, THE COMPLAINANT MOVED THE COURT TO AMEND THE DECREE ENTERED SEPTEMBER 7 BY A PROVISION FOR THE PAYMENT TO SAID MARIE VICTORIA NELSON OF THE SUM OF $40 PER MONTH AS ALIMONY UNTIL A FINAL DECREE SHOULD BE ENTERED IN THE CAUSE. THE AMENDED DECREE IS IN PART AS FOLLOWS:

AND THE COURT IS OF THE OPINION THAT THE SAID AMENDMENT IS PROPER.

IN CONSIDERATION WHEREOF, THE COURT DOTH ORDER, ADJUDGE AND DECREE THAT THE SAID WALTER JOHN NELSON SHALL PAY UNTO THE SAID MARIE VICTORIA NELSON THE SUM OF FORTY ($40.00) DOLLARS PER MONTH, AND TO CONTINUE THE PAYMENT OF THE SAID SUM UNTIL A FINAL DECREE HAS BEEN ENTERED IN THIS CAUSE.

INCREASED SUBSISTENCE AND RENTAL ALLOWANCES ARE PRESCRIBED IN SECTIONS 5 AND 6 OF THE PAY READJUSTMENT ACT OF JUNE 16, 1942, 56 STAT. 361, TO BE PAID OFFICERS WITH DEPENDENTS. FOR THE PURPOSE OF SECTIONS 5 AND 6 THE TERM "DEPENDENT" IS DEFINED IN SECTION 4 OF THE ACT TO "INCLUDE AT ALL TIMES AND IN ALL PLACES A LAWFUL WIFE AND UNMARRIED CHILDREN UNDER TWENTY- ONE YEARS OF AGE" AND, FURTHER, THAT "IT SHALL ALSO INCLUDE THE FATHER OR MOTHER OF THE PERSON CONCERNED PROVIDED HE OR SHE IS IN FACT DEPENDENT ON SUCH PERSON FOR HIS OR HER CHIEF SUPPORT.'

CONSTRUING IDENTICAL LANGUAGE CONTAINED IN SECTION 4 OF THE JOINT SERVICE PAY ACT OF JUNE 10, 1922, 42 STAT. 627, DEFINING A LAWFUL WIFE AND UNMARRIED MINOR CHILDREN AS DEPENDENTS AT ALL TIMES AND IN ALL PLACES, THE OPINION OF THE COURT OF CLAIMS OF THE UNITED STATES IN THE CASE OF RAWLINS V. UNITED STATES, 93 C.1CLS. 231, IS, IN PART, AS FOLLOWS:

THIS LANGUAGE OF THE STATUTE SEEMS TO SAY THAT A LAWFUL WIFE OR AN UNMARRIED MINOR CHILD SHALL BE A STATUTORY DEPENDENT, WITH NO QUESTIONS ASKED AS TO THE FACT OF DEPENDENCY, JUST AS PLAINLY AS IT SAYS THAT A MOTHER SHALL BE REGARDED AS A DEPENDENT ONLY IF IN FACT SHE IS CHIEFLY SUPPORTED BY THE OFFICER. THERE IS NOTHING ELSE IN THE STATUTE WHICH INDICATES THAT THIS APPARENT MEANING WAS NOT THE LEGISLATIVE MEANING.

THE EQUITIES OF PLAINTIFF'S POSITION ARE IN ACCORD WITH THE PLAIN MEANING OF THE STATUTE. PLAINTIFF HAD A LAWFUL WIFE, AND THE RECORD SHOWS NO MARITAL FAULT ON HIS PART. SHE REJECTED HIS PROFFERED SUPPORT BUT AS A CONSEQUENCE OF HER CONDUCT PUT HIM TO GREAT EXPENSE.

ROBEY V. UNITED STATES, 71 C.1CLS. 561, IS CLAIMED BY THE GOVERNMENT TO BE AN OBSTACLE TO PLAINTIFF'S CLAIM. THE COURT DID NOT INTEND BY THE LANGUAGE THERE USED TO MAKE DEPENDENCE IN FACT THE TEST OF AN OFFICER'S RIGHT TO AN ALLOWANCE FOR "DEPENDENTS.' TO DO SO WOULD REQUIRE A PERPETUAL AND UNIVERSAL INQUISITION INTO THE FAMILY AFFAIRS OF OFFICERS SUCH AS, FOR EXAMPLE, THOSE WHOSE WIVES HAVE MEANS OF THEIR OWN AND ARE NOT AT ALL OR ONLY PARTLY SUPPORTED BY THEIR HUSBANDS.

THE PLAINTIFF IN THE ROBEY CASE HAD DESERTED AND REFUSED TO LIVE WITH HIS WIFE. HE WAS NOT MORALLY ENTITLED TO ANYTHING BECAUSE OF HER, AND THE COURT CONCLUDED THAT HE WAS NOT WITHIN THE ,SPIRIT" OF THE STATUTE AND SHOULD NOT RECOVER. PLAINTIFF HERE IS FULLY WITHIN BOTH THE LANGUAGE AND THE SPIRIT OF THE STATUTE.

FOLLOWING THE DECISIONS OF THE COURT OF CLAIMS OF THE UNITED STATES IN THE CASE OF JOSEPH STRAUSS V. UNITED STATES, 73 C.1CLS. 690, AND IN THE SAID RAWLINS CASE, THIS OFFICE HAS PROCEEDED ON THE VIEW THAT THE LANGUAGE EMPLOYED IN SECTION 4 OF THE ACT OF JUNE 10, 1922, SUPRA, AND SECTION 4 OF THE PAY READJUSTMENT ACT OF JUNE 16, 1942, SUPRA, GENERALLY RELIEVES AN OFFICER CLAIMING INCREASED SUBSISTENCE AND RENTAL ALLOWANCES ON ACCOUNT OF A LAWFUL WIFE FROM SHOWING THAT SHE IS IN FACT DEPENDENT ON HIM FOR HER SUPPORT OR THAT HE ACTUALLY DOES SUPPORT HER, ALTHOUGH AS IN ROBEY V. UNITED STATES, 71 C.1CLS. 561, REFERRED TO BY THE COURT IN THE RAWLINS CASE, SUPRA, THERE MAY BE EXCEPTIONS.

THE DIFFERENCE BETWEEN A DIVORCE A MENSA ET THORO AND A DIVORCE A VINCULO IN VIRGINIA IS DISCUSSED IN THE CASE OF GLOTH V. GLOTH, 154 VA. 511, 153, S.E. 879, 71 A.L.R. 700, AS FOLLOWS:

IN THE CASE OF A DIVORCE A VINCULO THE MARRIAGE BOND IS COMPLETELY SEVERED, AND THERE IS NO CONTINUANCE OF THE MARITAL STATUS. BUT WHEN A DIVORCE A MENSA ET THORO IS DECREED THERE IS NO SEVERANCE OF THE MARRIAGE BOND. THE MARITAL STATUS IS NOT AFFECTED THEREBY; AND THE PARTIES REMAIN HUSBAND AND WIFE, THOUGH AUTHORIZED BY DECREE TO LIVE IN SEPARATION. UNDER THE VIRGINIA STATUTES RELATING TO DIVORCE A MENSA ET THORO, AS AT COMMON LAW, THE DOOR OF RECONCILIATION IS HELD OPEN IN THE HOPE THAT THE PARTIES MAY, WITHOUT A SEVERANCE OF THE MARRIAGE BOND EVER HAVING TAKEN PLACE, BECOME RECONCILED TO EACH OTHER AND RESUME THEIR NORMAL MARITAL RELATIONS.

DURING THE CONTINUATION OF THE MARITAL RELATION THERE IS THE CONTINUING DUTY ON THE PART OF THE HUSBAND TO PROVIDE HIS WIFE WITH A REASONABLY SUFFICIENT SUPPORT CONSIDERING HIS CIRCUMSTANCES AND HER NEEDS. WHAT IS A PROPER PERFORMANCE OF THIS DUTY WILL VARY FROM TIME TO TIME ACCORDING TO HIS CIRCUMSTANCES AND HER NEEDS; AND THE WIFE MAY BY HER MISCONDUCT FORFEIT HER RIGHT TO SUCH SUPPORT. * * * * * * * *

* * * BUT AFTER THE INSTITUTION OF THE SUIT THE AMOUNT WHICH HE WILL CONTRIBUTE TO HER SUPPORT, OR WHICH SHE MAY DEMAND THAT HE CONTRIBUTE TO HER SUPPORT, IS NO LONGER ONE FOR THE DETERMINATION OF THE PARTIES BUT OF THE COURT, WHOSE JURISDICTION TO REGULATE THIS SUBJECT HAVING ATTACHED OUSTS THE JUDGMENT AND DISCRETION OF THE PARTIES.

IN EXERCISING ITS JURISDICTION IN A SUIT FOR DIVORCE A MENSA ET THORO, THE COURT IS NOT EXERCISING A JURISDICTION TO DISSOLVE A MARRIAGE, BUT A JURISDICTION TO REGULATE DURING THE CONTINUATION OF THE MARITAL STATUS THE RIGHTS AND DUTIES OF THE PARTIES ARISING FROM THE MARITAL STATUS. * * * SEE, ALSO, CASILEAR V. CASILEAR ( VA.), 190 S.E. 314.

SINCE IT THUS APPEARS THAT UNDER THE LAW OF VIRGINIA THE DECREE A MENSA ET THORO DID NOT SEVER THE BONDS OF MATRIMONY EXISTING BETWEEN LIEUTENANT NELSON AND HIS WIFE BUT THAT THEY LEGALLY ,REMAIN HUSBAND AND WIFE" AND AS IT DOES NOT APPEAR THAT THE OFFICER HAS DESERTED HIS WIFE AND REFUSED TO SUPPORT HER BUT, ON THE CONTRARY, THE AMENDED DECREE REQUIRES HIM TO CONTRIBUTE TO HER SUPPORT, CREDIT WILL BE ALLOWED FOR PAYMENTS OF INCREASED ALLOWANCES TO HIM AS AN OFFICER WITH DEPENDENTS (LAWFUL WIFE), IF OTHERWISE CORRECT, WHILE HIS STATUS IN THAT RESPECT REMAINS UNCHANGED.

IN THE CASE OF CAPTAIN CATLIN E. TYLER, CONSIDERED IN DECISION OF FEBRUARY 18, 1942, B-22155, THE VIRGINIA DECREE OF DIVORCE A MENSA ET THORO FROM HIS WIFE, UNLIKE THE DECREE IN THE PRESENT CASE, EXPRESSLY PROVIDED THAT THE PARTIES "HEREBY ARE PERPETUALLY SEPARATED AND PROTECTED EACH FROM THE OTHER IN THEIR PERSONS AND PROPERTY" AND MADE NO PROVISION WHATEVER FOR HER CONTINUED SUPPORT BY HIM. WHILE THE STATEMENT IN THAT DECISION TO THE EFFECT THAT FOLLOWING SUCH A DECREE THE PARTIES ARE NOT HUSBAND AND WIFE IN SIGHT OF THE LAW DOES NOT ACCORD WITH THE VIEWS STATED IN GLOTH V. GLOTH, SUPRA, AND THE SAID TYLER CASE WILL NO LONGER BE FOLLOWED BY THIS OFFICE IN THAT RESPECT, THE QUESTION OF WHETHER A WIFE PERMANENTLY SEPARATED FROM HER HUSBAND BY A JUDICIAL DECREE NOT REQUIRING HIM TO PROVIDE ANY PART OF HER FUTURE SUPPORT MAY THEREAFTER BE VIEWED AS HIS DEPENDENT WITHIN THE MEANING AND SPIRIT OF THE DEPENDENCY ALLOWANCE STATUTES WOULD APPEAR TOO DOUBTFUL FOR THIS OFFICE TO APPROVE THE PAYMENT OF INCREASED ALLOWANCES ON HER ACCOUNT IN THE ABSENCE OF A JUDICIAL DETERMINATION OF AN OFFICER'S RIGHT TO THE INCREASED ALLOWANCES IN SUCH CASES. CF. ROBEY V. UNITED STATES, SUPRA.

THE S. AND A. FORM 201 IS RETURNED HEREWITH. THE OTHER PAPERS SUBMITTED WILL BE RETAINED ON THIS OFFICE.