B-42679, SEPTEMBER 20, 1944, 24 COMP. GEN. 233

B-42679: Sep 20, 1944

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WHILE THE GENERAL RULE THAT THIS OFFICE WILL NOT QUESTION. PAYMENTS TO A DIVORCED OFFICER OF INCREASED SUBSISTENCE AND RENTAL ALLOWANCES UNDER THE PAY READJUSTMENT ACT OF 1942 ON ACCOUNT OF DEPENDENTS (MINOR CHILDREN) DOES NOT APPLY WHERE IT SHOWN THAT THE CHILDREN HAVE BEEN EMANCIPATED (23 COMP. THERE NEED BE NO AFFIRMATIVE SHOWING ON EACH CLAIM THAT THE CHILDREN HAVE NOT BEEN EMANCIPATED. 1944: REFERENCE IS MADE TO YOUR LETTER OF JUNE 12. BEING AS FOLLOWS: (A) MUST DISBURSING OFFICERS REQUIRE EVIDENCE OF THE FACTUAL SITUATION IN EVERY CASE WHERE A VOUCHER IS PRESENTED UPON WHICH AN OFFICER CLAIMS INCREASED ALLOWANCES ON ACCOUNT OF A LEGITIMATE UNMARRIED CHILD UNDER 21 YEARS OF AGE SO AS TO MEET THE REQUIREMENTS OF YOUR DECISIONS CITED SUPRA.

B-42679, SEPTEMBER 20, 1944, 24 COMP. GEN. 233

RENTAL AND SUBSISTENCE ALLOWANCES - DEPENDENTS - CHILDREN OF DIVORCED OFFICER - PROOF OF DEPENDENCY IN ORDER THAT THERE MAY BE AVAILABLE IN MAKING PAYMENTS AND IN AUDITING ACCOUNTS SUFFICIENT INFORMATION TO APPLY THE RULES STATED IN DECISIONS OF THIS OFFICE WITH RESPECT TO THE RIGHT OF DIVORCED OFFICERS TO INCREASED SUBSISTENCE AND RENTAL ALLOWANCES UNDER THE PAY READJUSTMENT ACT OF 1942 ON ACCOUNT OF DEPENDENTS (MINOR CHILDREN), ALL VOUCHERS PRESENTED, UPON WHICH DIVORCED OFFICERS CLAIM THE ALLOWANCES ON ACCOUNT OF MINOR CHILDREN, SHOULD BE SUPPORTED BY A CERTIFICATE OF FACTS (SHOWING THE CUSTODY OF THE CHILDREN, ETC.) SUBSTANTIALLY IN THE FORM SET FORTH IN THIS DECISION. COMP. GEN. 71, ID. 454, ID. 625, AMPLIFIED. WHILE THE GENERAL RULE THAT THIS OFFICE WILL NOT QUESTION, FOR PROOF OF DEPENDENCY, PAYMENTS TO A DIVORCED OFFICER OF INCREASED SUBSISTENCE AND RENTAL ALLOWANCES UNDER THE PAY READJUSTMENT ACT OF 1942 ON ACCOUNT OF DEPENDENTS (MINOR CHILDREN) DOES NOT APPLY WHERE IT SHOWN THAT THE CHILDREN HAVE BEEN EMANCIPATED (23 COMP. GEN. 71), THERE NEED BE NO AFFIRMATIVE SHOWING ON EACH CLAIM THAT THE CHILDREN HAVE NOT BEEN EMANCIPATED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF WAR, SEPTEMBER 20, 1944:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 12, 1944, WHEREIN YOU REFER TO DECISIONS B-28900, DATED JULY 30, 1943, 23 COMP. GEN. 71; B-33199, DATED DECEMBER 22, 1943, 23 ID. 454; AND B-38614, DATED FEBRUARY 26, 1944, 23 ID. 625, ALL OF WHICH DECISIONS PERTAIN TO THE ENTITLEMENT UNDER SECTION 4 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 361, OF DIVORCED OFFICERS TO INCREASED RENTAL AND SUBSISTENCE ALLOWANCES ON ACCOUNT OF THEIR LEGITIMATE UNMARRIED CHILDREN UNDER 21 YEARS OF AGE. YOUR LETTER REQUESTS DECISION AS TO THE MANNER OF APPLICATION OF THE DECISION IN 23 COMP. GEN. 71, AS AMPLIFIED BY THE OTHER DECISIONS REFERRED TO ABOVE, THE SPECIFIC QUESTIONS IN THAT REGARD AND THE CONCLUDING PARAGRAPH OF YOUR LETTER, BEING AS FOLLOWS:

(A) MUST DISBURSING OFFICERS REQUIRE EVIDENCE OF THE FACTUAL SITUATION IN EVERY CASE WHERE A VOUCHER IS PRESENTED UPON WHICH AN OFFICER CLAIMS INCREASED ALLOWANCES ON ACCOUNT OF A LEGITIMATE UNMARRIED CHILD UNDER 21 YEARS OF AGE SO AS TO MEET THE REQUIREMENTS OF YOUR DECISIONS CITED SUPRA, OR

(B) MAY SUCH VOUCHERS BE SAFELY PAID IN THE ABSENCE OF AFFIRMATIVE EVIDENCE IN OR WITH SUCH VOUCHERS OF A FACTUAL SITUATION WHICH WOULD MAKE SUCH VOUCHERS NOT PAYABLE UNDER THE RULE SET FORTH IN 23 COMP. GEN. 71?

IN THE EVENT YOUR DECISION IS TO THE EFFECT THAT THE EXISTENCE OF FACTS PRECLUDING PAYMENT OF SUCH VOUCHERS AS DISCUSSED HEREIN MUST BE NEGATIVED, ADVICE IS REQUESTED AS TO THE PROPER PROCEDURE WHICH MAY BE PRESCRIBED FOR THE GUIDANCE OF DISBURSING OFFICERS IN THE PAYMENT OF SUCH VOUCHERS.

IN SAID DECISION--- 23 COMP. GEN. 71--- IT WAS HELD:

* * * 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.

YOU STATE THAT SUBSEQUENT TO SAID DECISION, ARMY DISBURSING OFFICERS WERE ADVISED THAT THEY COULD SAFELY PAY VOUCHERS PRESENTED BY OFFICERS CLAIMING INCREASED RENTAL AND SUBSISTENCE ALLOWANCES ON ACCOUNT OF LEGITIMATE UNMARRIED CHILDREN UNDER 21 YEARS OF AGE UNLESS THEY HAD KNOWLEDGE THAT, OR UNLESS IT APPEARED UPON THE FACE OF THE PAPERS PRESENTED TO THEM THAT, THE OFFICER HAD BEEN ABSOLVED FROM THE RESPONSIBILITY OF SUPPORTING THE CHILDREN; SUCH CHILDREN HAD BEEN EMANCIPATED; THE OFFICER HAD REFUSED TO SUPPORT SUCH CHILDREN; OR THAT THE CHILDREN WERE LIVING IN GOVERNMENT QUARTERS.

THE PARTICULAR FACTS GIVING RISE TO THE DECISION IN 23 COMP. GEN. 71 WERE AS FOLLOWS: THE DIVORCE DECREE HAD AWARDED THE CUSTODY OF THE CHILDREN TO THE MOTHER BUT REQUIRED THE OFFICER TO CONTRIBUTE A STATED AMOUNT PER MONTH FOR THEIR SUPPORT, WHICH HE DID. THE MOTHER MARRIED ANOTHER OFFICER AND THE CHILDREN LIVED WITH THEIR MOTHER AND STEPFATHER BUT NOT IN GOVERNMENT QUARTERS. AND IN ARRIVING AT THE CONCLUSION THERE STATED IT WAS SAID---

IN THE CONSTRUCTION OF SECTION 4 OF THE PAY READJUSTMENT ACT OF 1942 THERE IS FOR CONSIDERATION THE FACT THAT THE CONGRESS BY THE ACT OF JUNE 10, 1922, SUPRA, (42 STAT. 627) PROVIDED THAT THE TERM "DEPENDENT" SHOULD INCLUDE AT ALL TIMES AND IN ALL PLACES A LAWFUL WIFE AND UNMARRIED CHILDREN UNDER 21 YEARS OF AGE; THAT BY THE ACT OF FEBRUARY 21, 1929, 45 STAT. 1254,"LEGITIMATE CHILDREN, STEPCHILDREN, AND ADOPTED CHILDREN" WERE DEFINED AS DEPENDENT ONLY WHEN SUCH LEGITIMATE CHILDREN, STEPCHILDREN, OR ADOPTED CHILDREN WERE "IN FACT DEPENDENT UPON THE PERSON CLAIMING DEPENDENCY ALLOWANCE: " AND THAT BY ITS LATEST ENACTMENT ON THE SUBJECT THE CONGRESS SPECIFIED A DEGREE OF DEPENDENCY ONLY IN THE CASE OF ADOPTED CHILDREN AND STEPCHILDREN. * * *

HOWEVER, PARTICULAR REFERENCE WAS MADE IN THE DECISION TO THE CASE OF ROBEY V. UNITED STATES, 71 C.1CLS. 561, CONSTRUING SECTION 4 OF THE ACT OF JUNE 10, 1922, 42 STAT. 627, WHICH DEFINED THE TERM "DEPENDENT" AS INCLUDING "AT ALL TIMES AND IN ALL PLACES A LAWFUL WIFE AND UNMARRIED CHILDREN UNDER TWENTY-ONE YEARS OF AGE; " AND THERE WAS QUOTED FROM SAID COURT DECISION--- AS BEING APPLICABLE, ALSO, TO DIVORCED OFFICERS CLAIMING ALLOWANCES ON ACCOUNT OF THEIR UNMARRIED CHILDREN UNDER 21 YEARS OF AGE--- THE FOLLOWING:

* * * WHILE THE LANGUAGE OF SECTION 4 MAKES A "LAWFUL WIFE" A "DEPENDENT" "AT ALL TIMES AND IN ALL PLACES," AND RELIEVES THE PLAINTIFF FROM THE NECESSITY OF MAKING PROOF OF SUCH DEPENDENCY, HE, HAVING FAILED AND REFUSED TO CONTRIBUTE TO HIS WIFE'S SUPPORT, DOES NOT COME WITHIN THE INTENT AND MEANING OF THE STATUTE AND SHOULD NOT RECOVER.

ALSO, IT IS SIGNIFICANT TO NOTE THAT UNDER SAID SECTION 4 OF THE ACT OF JUNE 10, 1922, PRIOR TO ITS AMENDMENT BY THE ACT OF FEBRUARY 21, 1929, 45 STAT. 1254, THIS OFFICE HAD HELD AS EARLY AS NOVEMBER 29, 1926, IN DECISION A-14722, 6 COMP. GEN. 369, THAT WHERE AN OFFICER OF THE ARMY HAS BEEN DIVORCED AND THE CUSTODY OF THE CHILD OF THE MARRIAGE IS GIVEN TO THE FORMER WIFE WITHOUT ALIMONY OR MAINTENANCE FOR THE CHILD, THE OFFICER IS NOT ENTITLED TO RENTAL OR SUBSISTENCE ALLOWANCE AS AN OFFICER WITH DEPENDENTS BECAUSE OF SAID CHILD. IN ARRIVING AT THAT CONCLUSION IT WAS STATED THAT " OBVIOUSLY, THE STATUTE CONTEMPLATES A SITUATION IN WHICH THE PARENTAL AUTHORITY AND OBLIGATION MAINTAIN," AND THAT---

SECTION 4 WAS DRAWN WITH RESPECT TO THE NORMAL SITUATION OF A HUSBAND AND FATHER AS THE HEAD OF A FAMILY CHARGED WITH THE LEGAL DUTY OF SUPPORT OF WIFE AND CHILD OR CHILDREN AND ITS LANGUAGE WAS NOT DESIGNED TO AUTHORIZE INCREASED ALLOWANCES FOR AN OFFICER, ALTHOUGH A FATHER, WHO BY DECREE OF DIVORCE HAS BEEN DIVESTED OF ALL OF HIS PARENTAL AUTHORITY AND DUTIES * * * WITH RESPECT TO THE CHILD OR CHILDREN. * * *

THUS, AND BECAUSE THE REMARRIAGE OF THE FORMER WIFE MAY CAUSE THE FATHER (THE DIVORCED OFFICER) TO BECOME LAX IN HIS PAYMENTS OR TO CEASE MAKING THEM ALTOGETHER, IT WAS HELD IN 23 COMP. GEN. 454, UNDER THE SEVERAL SETS OF FACTUAL CIRCUMSTANCES THERE SET FORTH--- THE CIRCUMSTANCES OF ONE SUCH SET BEING THE SAME AS THOSE EXISTING IN 23 COMP. GEN. 71--- THAT THERE MUST BE A SHOWING OF CONTRIBUTIONS BY THE OFFICER TO THE SUPPORT OF SAID CHILDREN. THE CONCLUDING PARAGRAPH OF SAID DECISION READS AS FOLLOWS:

THE REQUIREMENT HEREIN THAT A DIVORCED OFFICER CLAIMING THE INCREASED ALLOWANCES ON ACCOUNT OF HIS MINOR CHILDREN MUST SHOW THAT HE CONTRIBUTED TO THEIR SUPPORT WHEN SUCH CHILDREN HAVE BECOME THE STEPCHILDREN OF ANOTHER OFFICER IS TO BE REGARDED AS A QUALIFICATION OR AMPLIFICATION OF THE THIRD EXCEPTION STATED IN THE CONCLUDING PARAGRAPH OF THE DECISION OF JULY 20, 1943, B-28900, 23 COMP. GEN. 71.

ALSO, THE DECISION IN 23 COMP. GEN. 71, WAS FURTHER AMPLIFIED BY THE DECISION IN 23 COMP. GEN. 625, BY WHICH THERE WAS REQUIRED A SHOWING OF CONTRIBUTIONS WHERE A DIVORCE DECREE OR OTHER COURT ORDER GIVING CUSTODY OF MINOR CHILDREN TO THE MOTHER DOES NOT PROVIDE SPECIFICALLY THAT THE FATHER IS REQUIRED TO SUPPORT HIS CHILDREN.

IF THE DECREE OR OTHER COURT ORDER IN EXPRESS TERMS ABSOLVES THE OFFICER FROM RESPONSIBILITY FOR THE SUPPORT OF HIS CHILDREN, HE WILL COME WITHIN THE FIRST EXCEPTION STATED IN 23 COMP. GEN. 71, AND WILL NOT BE ENTITLED TO THE ALLOWANCES ON ACCOUNT OF SAID CHILDREN. IF THE DECREE AWARDS CUSTODY OF THE CHILDREN TO THE FATHER, OR IF THE CUSTODY OF THE CHILDREN IS GIVEN TO THE MOTHER AND THE DECREE PROVIDES FOR THEIR SUPPORT BY THEIR FATHER, THE RULE OF 23 COMP. GEN. 71 WOULD APPLY AND NO FURTHER INQUIRY NEED BE MADE AS TO WHETHER OR NOT THE FATHER IS SUPPORTING HIS CHILDREN, EXCEPT THAT UNDER 23 COMP. GEN. 454, IN THOSE CASES WHERE THE DECREE AWARDS CUSTODY OF THE CHILDREN TO THE WIFE AND PROVIDES FOR THEIR SUPPORT BY THEIR FATHER, AND THE MOTHER LATER REMARRIES, THE FATHER WILL BE REQUIRED TO SHOW THAT HE IS CONTRIBUTING TO THE SUPPORT OF HIS CHILDREN. OF COURSE, IF THE STEPFATHER BE AN OFFICER AND THE CHILDREN LIVE IN PUBLIC QUARTERS ASSIGNED TO HIM, THEIR NATURAL FATHER WOULD NOT BE ENTITLED TO RENTAL ALLOWANCE ON ACCOUNT OF SUCH CHILDREN, AND THE CERTIFICATE OF THE NATURAL FATHER SET FORTH IN LINE (10) OF THE VOUCHER ON WHICH THE ALLOWANCES ARE CLAIMED--- , PAY AND ALLOWANCES ACCOUNT, WAR DEPARTMENT, FORM 336"--- WOULD SHOW THE STATUS OF THE CHILDREN WITH REGARD TO THE OCCUPATION OF PUBLIC QUARTERS. IF CUSTODY OF THE CHILDREN IS GIVEN TO THE MOTHER AND THE DECREE IS SILENT ON THE QUESTION OF SUPPORT MONEY FOR THE CHILDREN, THE FATHER WILL BE REQUIRED, UNDER 23 COMP. GEN. 625, TO SHOW THAT HE IS CONTRIBUTING TO THE SUPPORT OF HIS CHILDREN.

IN ORDER THAT THERE MAY BE AVAILABLE IN MAKING PAYMENTS AND IN AUDITING THE ACCOUNTS IN THIS OFFICE SUFFICIENT INFORMATION TO APPLY THE RULES AS ABOVE SET FORTH, IT IS SUGGESTED THAT ALL VOUCHERS PRESENTED, UPON WHICH A DIVORCED OFFICER CLAIMS SUCH INCREASED ALLOWANCES ON ACCOUNT OF A LEGITIMATE UNMARRIED CHILD UNDER 21 YEARS OF AGE, BE SUPPORTED BY A CERTIFICATE OF FACTS, IN FORM SUBSTANTIALLY AS FOLLOWS, SIGNED BY THE FATHER:

I, ------------------------------- CERTIFY THAT ------- (IS) (ARE) MY LEGITIMATE (CHILD) (CHILDREN); THAT (IT IS) (THEY ARE) NOW IN THE LEGAL CUSTODY, CARE, AND CONTROL OF ----------------------, ---------- -----

(NAME) (ADDRESS) THE -------------------------- OF THE (CHILD) (CHILDREN); THAT I

(RELATIONSHIP) WAS DIVORCED BY A (FINAL) (INTERLOCUTORY) DECREE OF ------ ------ COURT, STATE OF ----------------- ON -----------------, THE DECREE BECOMING

(DATE) FINAL ON ------------; THAT I (AM) (AM NOT) REQUIRED BY SAID DECREE

(DATE) TO PAY ALIMONY FOR THE SUPPORT OF SAID (CHILD) (CHILDREN); AND THAT MY FORMER WIFE (HAS) (HAS NOT) REMARRIED TO ------ ----------- AND NOW RESIDES AT --------------------------.

(SIGNATURE) -------------------------------------------------------- ---- ------ I FURTHER CERTIFY THAT I HAVE PAID THE ALIMONY REQUIRED BY THE DECREE; (OR WHERE NO ALIMONY IS REQUIRED BY THE DECREE) THAT I ACTUALLY CONTRIBUTED MONTHLY THE AMOUNT OF $----------, FROM MY OWN PERSONAL FUNDS, FOR THE CARE, MAINTENANCE, SUPPORT AND EDUCATION OF SAID (CHILD) (CHILDREN).

(SIGNATURE)

THAT PORTION OF THE CERTIFICATE APPEARING ABOVE THE DOUBLE LINE SHOULD BE USED IN SUPPORT OF EVERY SUCH VOUCHER SUBMITTED; WHILE THAT PART APPEARING BELOW THE DOUBLE LINE NEED BE FILLED OUT AND SIGNED BY THE OFFICER--- INSOFAR AS PRESENT CONSIDERATIONS ARE CONCERNED--- ONLY IN THOSE CASES WHERE THE DECREE OF DIVORCE AWARDS CUSTODY OF THE CHILDREN TO THEIR MOTHER AND SAYS NOTHING AS TO SUPPORT MONEY FOR THE CHILDREN, AND THOSE CASES WHERE THE WIFE HAS REMARRIED FOLLOWING A DIVORCE IN WHICH THE DECREE GIVES CUSTODY OF THE CHILDREN TO HER AND REQUIRES THAT THE FATHER CONTRIBUTE TO THEIR SUPPORT.

ALSO, IN FURTHER ANSWER TO YOUR QUESTIONS, YOU ARE ADVISED THAT THERE NEED BE NO AFFIRMATIVE SHOWING AS TO THE SECOND EXCEPTION TO THE RULE STATED IN 23 COMP. GEN. 71, THAT IS, AS TO THE EXCEPTION REGARDING EMANCIPATION OF THE CHILDREN OF A DIVORCED OFFICER.