B-51263, NOVEMBER 2, 1945, 25 COMP. GEN. 369

B-51263: Nov 2, 1945

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SUCH A MARRIAGE WILL NOT BE RECOGNIZED BY THIS OFFICE AS ENTITLED AN OFFICER TO INCREASED RENTAL AND SUBSISTENCE ALLOWANCES ON ACCOUNT OF A "LAWFUL WIFE.' 24 COMP. THERE WAS RECEIVED YOUR LETTER OF JUNE 10. THE OFFICER'S CLAIM FOR THE ALLOWANCES INVOLVED IS BASED ON HIS MARRIAGE BY PROXY IN THE CITY OF JUAREZ. " INSOFAR AS THE QUESTION HERE INVOLVED IS CONCERNED. THERE WERE SUBMITTED WITH YOUR LETTER AN UNSIGNED TYPEWRITTEN COPY OF A MARRIAGE CERTIFICATE (WITH AN UNCERTIFIED ENGLISH TRANSLATION THEREOF) PURPORTING TO SHOW THAT MYRON HARVEY KOLL AND CHARLOTTE RHODA WERE MARRIED ON SEPTEMBER 18. CERTIFYING THAT MYRON HARVEY KOLL AND CHARLOTTE RHODA WERE UNITED IN MARRIAGE IN THAT PLACE ON SEPTEMBER 18.

B-51263, NOVEMBER 2, 1945, 25 COMP. GEN. 369

VALIDITY OF PROXY MARRIAGES OF RESIDENTS OF U.S. PERFORMED IN FOREIGN COUNTRIES IN THE ABSENCE OF DECISIONS BY FEDERAL OR STATE COURTS OF THE UNITED STATES RECOGNIZING THE VALIDITY OF A MARRIAGE BY PROXY IN A FOREIGN COUNTRY ( MEXICO) BY TWO PERSONS DOMICILED IN THE UNITED STATES, SUCH A MARRIAGE WILL NOT BE RECOGNIZED BY THIS OFFICE AS ENTITLED AN OFFICER TO INCREASED RENTAL AND SUBSISTENCE ALLOWANCES ON ACCOUNT OF A "LAWFUL WIFE.' 24 COMP. GEN. 595, AMPLIFIED.

ASSISTANT COMPTROLLER GENERAL YATES TO LT. COL. ROBERT BOOTH, U.S. ARMY, NOVEMBER 2, 1945:

BY ENDORSEMENT OF JULY 25, 1945, FROM THE ACTING FISCAL DIRECTOR, ARMY SERVICE FORCES, THERE WAS RECEIVED YOUR LETTER OF JUNE 10, 1945, REQUESTING DECISION AS TO THE PROPRIETY OF PAYMENT ON A VOUCHER, TRANSMITTED THEREWITH, STATED IN FAVOR OF SECOND LIEUTENANT MYRON H. KOLL, 10-1116678, CE. AUS. COVERING INCREASED RENTAL AND SUBSISTENCE ALLOWANCES AS FOR AN OFFICER WITH DEPENDENTS (LAWFUL WIFE), FOR THE PERIOD SEPTEMBER 18, 1944, TO JANUARY 31, 1945. THE OFFICER'S CLAIM FOR THE ALLOWANCES INVOLVED IS BASED ON HIS MARRIAGE BY PROXY IN THE CITY OF JUAREZ, STATE OF CHIHUAHUA, UNITED STATES OF MEXICO.

SECTION 4 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 361, DEFINES THE TERM "DEPENDENT," INSOFAR AS THE QUESTION HERE INVOLVED IS CONCERNED, 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 * * * .

THERE WERE SUBMITTED WITH YOUR LETTER AN UNSIGNED TYPEWRITTEN COPY OF A MARRIAGE CERTIFICATE (WITH AN UNCERTIFIED ENGLISH TRANSLATION THEREOF) PURPORTING TO SHOW THAT MYRON HARVEY KOLL AND CHARLOTTE RHODA WERE MARRIED ON SEPTEMBER 18, 1944, BY A JUDGE OF THE CIVIL REGISTRY OF THE CITY OF JUAREZ, STATE OF CHIHUAHUA, MEXICO, BY MEANS OF POWERS OF ATTORNEY EXECUTED BY THE PARTIES AUTHORIZING OTHER PERSONS TO CONTRACT A MARRIAGE IN THEIR PLACE AND STEAD, AND A CERTIFICATE (WITH A CERTIFIED ENGLISH TRANSLATION THEREOF) ISSUED BY A JUDGE OF THE CIVIL REGISTRY OF THE CITY OF JUAREZ, CHIHUAHUA, MEXICO, CERTIFYING THAT MYRON HARVEY KOLL AND CHARLOTTE RHODA WERE UNITED IN MARRIAGE IN THAT PLACE ON SEPTEMBER 18, 1944, AS SHOWN BY THE RECORDS OF THAT OFFICE. ALSO PRESENTED WITH YOUR LETTER WAS AN AFFIDAVIT BY A TEXAS ATTORNEY--- WHO ACTED AS THE OFFICER'S PROXY AT THE MARRIAGE CEREMONY--- IN WHICH HE AVERS THAT THE CIVIL CODE OF THE STATE OF CHIHUAHUA, MEXICO, PROVIDES AS FOLLOWS:

TITLE FOUR OF THE CIVIL REGISTER

CHAPTER I.--- GENERAL DISPOSITIONS

ART. 45. WHEN THE INTERESTED PARTIES CANNOT BE PRESENT, THEY CAN BE REPRESENTED BY A PROXY FOR THE ACT, WHOSE AUTHORITY MUST BE SIGNED BEFORE TWO WITNESSES. IN MATRIMONIAL CASES, IT IS NECESSARY THAT THE POWER BE GIVEN IN A PUBLIC INSTRUMENT, OR ORDER GIVEN IN PRIVATE WRITING, OR DOCUMENT, SIGNED BY THE GRANTER AND TWO WITNESSES, OR SIGNED BEFORE A NOTARY PUBLIC, FIRST CIVIL JUDGE, MINOR OR PEACE ( JUDGE).

AN ESSENTIAL ELEMENT OF A VALID MARRIAGE--- CEREMONIAL OR OTHERWISE- - IS THAT THE PARTIES MUST BE CAPABLE IN LAW OF MAKING SUCH A CONTRACT; THAT IS, IT MUST APPEAR THAT NEITHER OF THE PARTIES THERETOFORE HAD ENTERED INTO A MARRIAGE STATUS WHICH HAD NOT BEEN LEGALLY DISSOLVED, AND IT IS WELL ESTABLISHED THAT A PURPORTED MARRIAGE BY ONE WHO IS ALREADY MARRIED IS A MERE NULLITY. ALSO, THE GENERAL RULE IS THAT THE VALIDITY OF A MARRIAGE IS DETERMINED BY THE LAW OF THE PLACE WHERE IT IS CONTRACTED AND, IF VALID THERE, IT WILL BE HELD VALID EVERYWHERE, IF NOT IN CONTRAVENTION OF POSITIVE LAW OR CONSIDERATIONS OF PUBLIC POLICY. CONVERSELY, A MARRIAGE INVALID BY THE LEX LOCI CONTRACTUS WILL BE HELD INVALID WHEREVER ITS VALIDITY IS QUESTIONED IN A PROPER COURT. RESTATEMENT, CONFLICT OF LAW, SECTION 121, ET SEQ.; 38 C.J. 1276, 1277, AND NOTES.

THE RECORD SHOWS THAT AT THE TIME OF THEIR PURPORTED MARRIAGE BY PROXY IN MEXICO THE PARTIES HERE INVOLVED WERE DOMICILED IN THE STATE OF CALIFORNIA, AND THAT CHARLOTTE RHODA WAS A DIVORCED PERSON. NO EVIDENCE HAS BEEN PRESENTED TO SHOW WHEN AND WHERE SHE WAS DIVORCED, AND IN THE ABSENCE OF SUCH FACTS IT IS NOT POSSIBLE TO DETERMINE WHETHER SHE WAS LEGALLY COMPETENT TO ENTER INTO A SUBSEQUENT VALID MARRIAGE RELATIONSHIP WITH THE OFFICER. IN THAT CONNECTION IT MAY BE STATED THAT SINCE MATTERS BEFORE THIS OFFICE ARE DETERMINED ON AN EX PARTE PRESENTATION, PERSONS ASSERTING CLAIMS AGAINST THE GOVERNMENT MUST ESTABLISH THOSE CLAIMS BY APPROPRIATE EVIDENCE. HOWEVER, IRRESPECTIVE OF THE LACK OF SUFFICIENT EVIDENCE IN THAT RESPECT, YOUR SUBMISSION RAISES THE QUESTION WHETHER, IN ANY EVENT, THE OFFICER'S MARRIAGE BY PROXY COULD BE CONSIDERED A PROPER BASIS FOR PAYMENT OF ALLOWANCES ON ACCOUNT OF A "LAWFUL WIFE.'

IT DOES NOT APPEAR THAT THE VALIDITY OF A MARRIAGE BY PROXY IN A FOREIGN COUNTRY OF TWO PERSONS DOMICILED IN THE UNITED STATES HAS BEEN DETERMINED BY THE FEDERAL OR STATE COURTS OF THE UNITED STATES, ALTHOUGH THERE ARE A FEW REPORTED DECISIONS INVOLVING IMMIGRATION CASES IN WHICH THE FEDERAL COURTS HAVE RECOGNIZED MARRIAGES BY PROXY WHERE ONE OF THE PARTIES WAS A RESIDENT OF THE UNITED STATES AND THE OTHER A RESIDENT OF A FOREIGN COUNTRY IN WHICH THE CEREMONY WAS PERFORMED AND IN WHICH SUCH MARRIAGES WERE EXPRESSLY DECLARED VALID. COSULICH, ETC. V. ELTING, COLLECTOR OF CUSTOMS, 66 F. 2D 534; SILVA V. TILLINGHAST, COMMISSIONER, 36 F. 2D 801; KANE V. JOHNSON, COMMISSIONER OF IMMIGRATION, 13 F. 2D 432; UNITED STATES, ETC. V. TUTTLE, IMMIGRATION COMMISSIONER, 12 F. 2D 927; UNITED STATES, ETC. V. COMMISSIONER, ETC., 298 F. 103; AND EX PARTE SUZANNA, 295 F. 713. HOWEVER, MARRIAGE BY PROXY MAY NO LONGER BE RECOGNIZED AS ESTABLISHING A MARRIAGE STATUS FOR IMMIGRATION PURPOSES. SEE SECTION 28 (N) OF THE ACT OF MAY 26, 1924, 43 STAT. 168, 169, 8 U.S.C., 1940 USED., SECTION 224 (M), WHICH STATES THAT THE TERMS "WIFE" AND "HUSBAND," AS USED IN THE ACT, DO NOT INCLUDE A WIFE OR HUSBAND BY REASON OF A PROXY MARRIAGE. LIKE IMMIGRATION MATTERS, THE PAYMENT TO MEMBERS OF THE ARMED FORCES OF INCREASED ALLOWANCES ON ACCOUNT OF DEPENDENTS IS GOVERNED BY FEDERAL STATUTE; AND THE ACTION OF THE CONGRESS IN PROHIBITING THE RECOGNITION OF THE STATUS OF WIFE OR HUSBAND BY REASON OF A MARRIAGE BY PROXY FOR IMMIGRATION PURPOSES WOULD INDICATE, IN THE ABSENCE OF SOME INDICATION TO THE CONTRARY, THAT, INSOFAR AS FEDERAL LAWS ARE CONCERNED, A STATUS RESULTING FROM A MARRIAGE BY PROXY PERFORMED IN A FOREIGN COUNTRY MAY NOT BE RECOGNIZED AS ESTABLISHING A RIGHT TO BENEFITS CONFERRED BY SUCH LAWS.

THIS OFFICE HERETOFORE HAS CONSIDERED THE VALIDITY OF A MARRIAGE BY PROXY IN THE DISTRICT OF COLUMBIA OF TWO PERSONS DOMICILED IN THE UNITED STATES AND IN THE DECISION DATED FEBRUARY 7, 1945, B-46242, 24 COMP. GEN. 595, REFERRED TO IN YOUR LETTER, IT WAS STATED AT PAGE 598--

* * * FOR THIS OFFICE TO RECOGNIZE A MARRIAGE BY PROXY AS ESTABLISHING A RELATIONSHIP ENTITLING AN OFFICER OF THE NAVY TO INCREASED ALLOWANCES AS AUTHORIZED FOR AN OFFICER WHO HAS A "LAWFUL E," WOULD BE A RECOGNITION OF THE VALIDITY OF MARRIAGES BY PROXY WITHOUT THE SUPPORT OF EITHER EXPRESS STATUTORY PROVISIONS OR COURT DECISIONS AND THE CORRECTNESS OF SUCH A CONCLUSION, UNDER THE CIRCUMSTANCES, WOULD BE OF SUCH DOUBTFUL CHARACTER THAT I AM CONSTRAINED TO HOLD THAT, GENERALLY, IN THE ABSENCE OF A STATUTE OR DECISION OF A PROPER COURT TO THE EFFECT THAT SUCH MARRIAGES ARE RECOGNIZED OR AUTHORIZED IN A PARTICULAR JURISDICTION, SUCH MARRIAGES WILL NOT BE RECOGNIZED BY THIS OFFICE AS ESTABLISHING AN OFFICER'S RIGHT TO INCREASED ALLOWANCES ON ACCOUNT OF "LAWFUL WIFE.'

WHILE THE GENERAL RULE STATED ABOVE WAS PROMULGATED WITH REFERENCE TO PROXY MARRIAGES PERFORMED IN THE UNITED STATES BETWEEN TWO PERSONS DOMICILED THEREIN, IT IS EQUALLY APPLICABLE TO ALLEGED MARRIAGES BETWEEN PERSONS DOMICILED IN THE UNITED STATES WHO ATTEMPT TO AVAIL THEMSELVES OF THE LAWS OF SOME FOREIGN COUNTRY IN WHICH THEY DO NOT RESIDE AND IN WHICH THEY WERE NOT PRESENT AT THE TIME OF SAID MARRIAGE. AS STATED ABOVE, IT DOES NOT APPEAR THAT THE VALIDITY OF SUCH A MARRIAGE HAS BEEN DETERMINED BY THE FEDERAL OR STATE COURTS; AND, IN THE ABSENCE OF DECISIONS BY SUCH COURTS WITH RESPECT THERETO, THE MATTER ADMITS OF TOO MUCH DOUBT FOR THIS OFFICE TO APPROVE INCREASED RENTAL AND SUBSISTENCE ALLOWANCE PAYMENTS TO AN OFFICER ON ACCOUNT OF A DEPENDENT BY REASON OF SUCH A MARRIAGE. ACCORDINGLY, YOU ARE ADVISED THAT, ON THE BASIS OF THE PRESENT RECORD, LIEUTENANT KOLL IS NOT ENTITLED TO INCREASED RENTAL AND SUBSISTENCE ALLOWANCES AS AUTHORIZED FOR AN OFFICER WITH DEPENDENTS (LAWFUL WIFE), AND YOU ARE NOT AUTHORIZED TO MAKE PAYMENT ON THE VOUCHER WHICH WILL BE RETAINED IN THIS OFFICE.

AS REQUESTED IN YOUR LETTER OF JUNE 10, 1945, THE ORIGINAL CERTIFICATE OF MARRIAGE IS RETURNED HEREWITH, THE OTHER PAPERS SUBMITTED WITH YOUR LETTER BEING RETAINED IN THIS OFFICE.

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