B-57229, MAY 29, 1946, 25 COMP. GEN. 821

B-57229, MAY 29, 1946, 25 COMP. GEN. 821

VALIDITY OF DECREE OF FOREIGN DIVORCE OF RESIDENTS OF U.S. IN THE ABSENCE OF A DECISION BY A COURT OF COMPETENT JURISDICTION IN THE UNITED STATES RECOGNIZING THE VALIDITY OF A FOREIGN ( MEXICAN) DECREE OF DIVORCE OF A NAVY OFFICER AND HIS WIFE DOMICILED IN THE UNITED STATES, THE OFFICER'S SUBSEQUENT MARRIAGE WILL NOT BE RECOGNIZED BY THIS OFFICE AS ENTITLING HIM TO INCREASED RENTAL AND SUBSISTENCE ALLOWANCES ON ACCOUNT OF A "LAWFUL E," WITHIN THE MEANING OF SECTION 4 OF THE PAY READJUSTMENT ACT OF 1942. EVEN IF DOUBTS WITH RESPECT TO THE VALIDITY OF AN OFFICER'S MEXICAN DIVORCE DECREE ARE REMOVED BY A FINDING OF A COURT OF COMPETENT JURISDICTION IN THE UNITED STATES THAT THE DECREE IS INVALID, THE OFFICER, HAVING REPUDIATED HIS OBLIGATION TO PROVIDE FOR HIS FIRST WIFE UPON HIS PURPORTED MARRIAGE WITH ANOTHER WOMAN AFTER SUCH DIVORCE DECREE, WOULD NOT BE ENTITLED, ON ACCOUNT OF HIS FIRST WIFE, TO INCREASED RENTAL AND SUBSISTENCE ALLOWANCES AS FOR AN OFFICER WITH A "LAWFUL WIFE" WITHIN THE MEANING OF SECTION 4 OF THE PAY READJUSTMENT ACT OF 1942.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, MAY 29, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF APRIL 9, 1946, AS FOLLOWS:

THERE IS FORWARDED HEREWITH A LETTER FROM THE DISBURSING OFFICER, U.S.S. BEAVER, C/O FLEET POST OFFICE, SAN FRANCISCO, CALIFORNIA, DATED MAY 26, 1945, WITH ACCOMPANYING CORRESPONDENCE, RELATIVE TO THE RIGHT OF LIEUTENANT (JG) N., U.S. NAVY, TO INCREASED RENTAL AND SUBSISTENCE ALLOWANCES FOR HIS LAWFUL WIFE.

YOUR DECISION IS REQUESTED AS TO WHETHER LIEUTENANT (JG) N. IS ENTITLED TO BE CREDITED WITH INCREASED RENTAL AND SUBSISTENCE ALLOWANCES ON BEHALF OF A LAWFUL WIFE (M. E.) FOR THE PERIOD FOLLOWING THE DATE ON WHICH A DECREE OF DIVORCE WAS GRANTED TO HIM BY THE FIRST CIVIL COURT OF THE DISTRICT OF MORELOS, STATE OF CHIHUAHUA, REPUBLIC OF MEXICO, NOTWITHSTANDING THE ABSENCE OF EVIDENCE TO SHOW THAT LIEUTENANT (JG) N. IS ENTITLED TO PAYMENT OF INCREASED RENTAL AND SUBSISTENCE ALLOWANCES ON BEHALF OF HIS ALLEGED LAWFUL WIFE (V. R.) FOR THE PERIOD SUBSEQUENT TO JUNE 18, 1945, UNDER THE CONDITIONS SET FORTH IN THE ENCLOSED CORRESPONDENCE.

AMONG THE PAPERS SUBMITTED WITH YOUR REQUEST WERE (1) A CERTIFIED AND AUTHENTICATED COPY OF A FINAL DECREE OF DIVORCE DATED APRIL 7, 1945 (WITH A CERTIFIED COPY OF AN ENGLISH TRANSLATION THEREOF), ENTERED IN THE FIRST CIVIL COURT, MORELOS DISTRICT, CHIHUAHUA, MEXICO, PURPORTING TO DISSOLVE THE MARRIAGE OF LIEUTENANT N. AND M. E.; (2) A CERTIFIED ABSTRACT OF MARRIAGE LICENSE PURPORTING TO SHOW THE MARRIAGE OF THE OFFICER AND V. R. AT LAGUNA BEACH, CALIFORNIA, ON APRIL 2, 1945; AND (3) A CERTIFIED COPY OF A MARRIAGE LICENSE AND MARRIAGE CERTIFICATE SHOWING THAT THE OFFICER AND V. R. WERE MARRIED AT YUMA, ARIZONA, ON JUNE 18, 1945. * * *

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.'

LIEUTENANT N.'S RIGHT TO PAYMENT OF INCREASED ALLOWANCES AS FOR AN OFFICER WITH DEPENDENTS, ON THE BASIS THAT V. R. IS HIS LAWFUL WIFE, DEPENDS UPON THE VALIDITY OF THE ALLEGED DIVORCE DECREE OBTAINED BY HIM IN MEXICO.

IT IS WELL ESTABLISHED THAT UNLESS A FOREIGN COURT GRANTING A DIVORCE HAD JURISDICTION OVER THE SUBJECT MATTER OF THE DIVORCE BY REASON OF BONA FIDE RESIDENCE OR DOMICILE THERE OF AT LEAST ONE OF THE PARTIES, ITS DECREE OF DIVORCE WILL NOT, UNDER THE RULES OF INTERNATIONAL COMITY, BE RECOGNIZED IN ONE OF THE STATES OF THE UNITED STATES, EVEN THOUGH THE LAWS OF SUCH FOREIGN COUNTRY DO NOT MAKE RESIDENCE OR DOMICILE A CONDITION TO ITS COURT'S TAKING JURISDICTION. ANNOTATION, 143 A.L.R. 1312, AND CASES CITED.

IT APPEARS FROM THE REPORTED CASES THAT THE COURTS OF THE UNITED STATES, GENERALLY, HAVE REFUSED TO RECOGNIZE THE VALIDITY OF CERTAIN TYPES OF MEXICAN DIVORCES, WHEN SUCH DIVORCES ARE ATTACKED IN COLLATERAL PROCEEDINGS, ANONYMOUS V. ANONYMOUS, 174 MISC. 906, 22 N.Y.S. 2D 598, AND CASES CITED THEREIN AT PAGE 606. THE RECORD IN THE PRESENT CASE INDICATES THAT NEITHER THE OFFICER NOR M. E. WAS DOMICILED IN THE STATE OF CHIHUAHUA, MEXICO, PRIOR TO OR DURING THE PROCEEDINGS WHICH RESULTED IN THE ALLEGED DIVORCE DECREE, SO AS TO CONFER JURISDICTION UPON THE COURT OF THAT STATE TO RENDER A VALID DIVORCE DECREE, AND NO EVIDENCE HAS BEEN ADDUCED TO SHOW THAT THE FOREIGN DIVORCE DECREE HERE INVOLVED HAS BEEN DECLARED VALID OR INVALID BY A COURT IN THE UNITED STATES.

WHEN ONE OF THE PARTIES TO A SUBSISTING VALID MARRIAGE OBTAINS A DECREE OF DIVORCE, FINAL IN CHARACTER, THAT ACTION--- EVEN THOUGH THE VALIDITY OF SUCH DECREE MAY BE DOUBTFUL--- CREATES SUBSTANTIAL DOUBT AS TO THE MARITAL STATUS OF THE PARTIES CONCERNED, AND IN THE ABSENCE OF A FINDING OF A COURT OF COMPETENT JURISDICTION IN THE UNITED STATES THAT SUCH A DIVORCE DECREE IS VALID OR INVALID IN THE UNITED STATES, THE MATTER ADMITS OF TOO MUCH DOUBT FOR THIS OFFICE TO AUTHORIZE PAYMENT OF INCREASED ALLOWANCES TO THE HUSBAND OF SUCH A MARRIAGE ON ACCOUNT OF A "LAWFUL WIFE.' B-54947, APRIL 1, 1946. MOREOVER, IN VIEW OF THE UNCERTAINTY WITH RESPECT TO THE MARITAL STATUS INVOLVED IN SUCH A DIVORCE PROCEEDING, IT IS OBVIOUS THAT ANY PURPORTED MARRIAGE CONTRACT SUBSEQUENTLY ENTERED INTO BY A PARTY OBTAINING SUCH A DIVORCE WOULD NOT CREATE A MARITAL STATUS FREE FROM DOUBT UNLESS THE VALIDITY OF THE SAID DIVORCE WAS ESTABLISHED IN A PROPER COURT.

WHILE UNDER SUCH CIRCUMSTANCES IT COULD BE ARGUED THAT IF THE MEXICAN DIVORCE WAS NOT VALID THE OFFICER'S FIRST WIFE CONTINUED TO BE HIS WIFE AND THAT IF THE DIVORCE WAS VALID THE SECOND MARRIAGE CONTRACT CREATED A VALID MARITAL RELATIONSHIP, THE FACT THAT AN OFFICER IS ABLE TO ESTABLISH THAT HE TECHNICALLY HAS A WIFE HAS NOT BEEN, IN ALL CASES, SUFFICIENT TO ESTABLISH HIS RIGHT TO INCREASED ALLOWANCES ON ACCOUNT OF A "LAWFUL WIFE" AS THAT TERM IS USED IN THE STATUTES AUTHORIZING SUCH ALLOWANCES. FOR EXAMPLE, SUCH INCREASED ALLOWANCES WERE DENIED AN OFFICER IN THE CASE OF ROBEY V. UNITED STATES, 71 C.1CLS. 561, NOTWITHSTANDING PROOF THAT HIS MARITAL RELATIONSHIP HAD NOT TERMINATED, THE COURT STATING THAT "WHILE THE PLAINTIFF HAD A LAWFUL WIFE DURING THE PERIOD OF HIS CLAIM, HE REPUDIATED HIS MORAL AND LEGAL OBLIGATIONS TO PROVIDE FOR HER AND IS IN NO DIFFERENT POSITION THAN THAT OF AN UNMARRIED FELLOW OFFICER.' THE PRESENT CASE IS SIMILAR TO THE ROBEY CASE IN THAT THE OFFICER APPEARS TO HAVE REPUDIATED HIS OBLIGATION TO PROVIDE FOR HIS FIRST WIFE, HE HAVING ENTERED INTO A CONTRACT OF MARRIAGE WITH ANOTHER WOMAN AFTER OBTAINING A DECREE OF DIVORCE WHICH ON ITS FACT PURPORTS TO TERMINATE THE PRIOR MARRIAGE RELATIONSHIP. HENCE, EVEN IF THE DOUBTS WITH RESPECT TO THE VALIDITY OF THE MEXICAN DIVORCE DECREE ARE REMOVED BY A FINDING BY A COURT OF COMPETENT JURISDICTION THAT THE DECREE IS INVALID, IT WOULD NOT APPEAR TO FOLLOW THAT THE ALLOWANCES CLAIMED WOULD BE PAYABLE ON ACCOUNT OF THE OFFICER'S FIRST WIFE. ACCORDINGLY, BASED ON THE PRESENT RECORD, IT MUST BE CONCLUDED THAT IT IS NOT ESTABLISHED THAT THE OFFICER HAS A "LAWFUL WIFE" WITHIN THE MEANING OF THE APPLICABLE STATUTORY PROVISIONS AND, THEREFORE, BOTH OF YOUR QUESTIONS ARE ANSWERED IN THE NEGATIVE. CF. DECISION OF NOVEMBER 2, 1945, B-51390, TO YOU.