B-58091, NOVEMBER 15, 1946, 26 COMP. GEN. 327

B-58091, NOVEMBER 15, 1946, 26 COMP. GEN. 327

SIX MONTHS' DEATH GRATUITY PAY - ENTITLEMENT AS WIDOW AS AFFECTED BY SETTING ASIDE OF DIVORCE DECREE WHERE THE DECREE OF DIVORCE OF AN ARMY OFFICER FROM HIS FIRST WIFE WAS SET ASIDE SUBSEQUENT TO THE OFFICER'S DEATH BY A COURT OF COMPETENT JURISDICTION BECAUSE OF FRAUD, THE PERSON WHOM THE OFFICER MARRIED AFTER SUCH DECREE WAS OBTAINED MAY NOT BE REGARDED AS HAVING BEEN THE WIFE, OR THE WIDOW, OF SUCH OFFICER TO WHOM PAYMENT OF THE SIX MONTHS' DEATH GRATUITY PAY AUTHORIZED BY THE ACT OF DECEMBER 17, 1919, AS AMENDED, MAY BE MADE; RATHER, THE FIRST WIFE, WHO REMAINED THE OFFICER'S WIFE AND WHO, UPON HIS DEATH, BECAME HIS WIDOW, IS ENTITLED TO SUCH GRATUITY.

ASSISTANT COMPTROLLER GENERAL YATES TO LT. COL. S. H. SMITH, U.S. ARMY, NOVEMBER 15, 1946:

BY FIRST INDORSEMENT OF MAY 20, 1946, OF THE CHIEF OF FINANCE, THERE WAS FORWARDED TO THIS OFFICE YOUR LETTER OF FEBRUARY 26, 1946, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON EITHER OF TWO VOUCHERS SUBMITTED THEREWITH, ONE IN FAVOR OF MRS. MARGUERITE GILLEN MORAN, AND THE OTHER IN FAVOR OF MRS. BEATRICE D. GILLEN, EACH CLAIMING THE SIX MONTHS' DEATH GRATUITY PAY PROVIDED BY THE ACT OF DECEMBER 17, 1919, 41 STAT. 367, AS AMENDED, AS WIDOW OF THE LATE FIRST LIEUTENANT ROBERT EDWARD GILLEN, O-733873, WHO DIED DECEMBER 20, 1943.

THE ACT OF DECEMBER 17, 1919, AS AMENDED, 10 U.S.C.A. (1945 POCKET PART) 903, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

IMMEDIATELY UPON OFFICIAL NOTIFICATION OF THE DEATH FROM WOUNDS OR DISEASE, NOT THE RESULT OF HIS OWN MISCONDUCT, OF ANY OFFICER OR ENLISTED MAN ON THE ACTIVE LIST OF THE REGULAR ARMY OR ON THE RETIRED LIST WHEN ON ACTIVE DUTY, THE CHIEF OF FINANCE OF THE ARMY SHALL CAUSE TO BE PAID TO THE WIDOW, AND IF THERE BE NO WIDOW TO THE CHILD OR CHILDREN, AND IF THERE BE NO WIDOW OR CHILD TO ANY OTHER DEPENDENT RELATIVE OF SUCH OFFICER OR ENLISTED MAN PREVIOUSLY DESIGNATED BY HIM, AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE RECEIVED BY SUCH OFFICER OR ENLISTED MAN AT THE DATE OF HIS DEATH. * * *

THE PROVISIONS OF SAID ACT WERE EXTENDED TO OTHER FORCES OF THE ARMY BY THE ACT OF DECEMBER 10, 1941, 55 STAT. 796 ( PUBLIC LAW 329, CHAPTER 562), RETROACTIVE TO AUGUST 27, 1940.

THE COPY OF THE " OFFICIAL REPORT OF DEATH" ACCOMPANYING YOUR SUBMISSION IS DATED DECEMBER 21, 1943, AND SHOWS THAT LIEUTENANT GILLEN DIED DECEMBER 20, 1943, AT " AAB, KEARNEY, NEBRASKA," AS A RESULT OF " INJURIES RECEIVED IN PLANE CRASH; " THAT HIS DEATH WAS IN LINE OF DUTY AND WAS NOT THE RESULT OF HIS OWN MISCONDUCT; AND THAT HE NAMED AS HIS BENEFICIARY UNDER THE ACT OF DECEMBER 17, 1919," MRS. BEATRICE D. GILLEN, WIFE.'

IT APPEARS FROM THE PAPERS SUBMITTED WITH YOUR LETTER THAT THE OFFICER WAS MARRIED THREE TIMES; THAT THE FIRST MARRIAGE WAS TO ONE AGNES GILLEN AND WAS DISSOLVED BY DIVORCE IN LEAVENWORTH COUNTY, KANSAS, ON MAY 22, 1937; THAT ON JUNE 17, 1938, AT HARRISONVILLE, MISSOURI, THE OFFICER MARRIED MARGUERITE MAY HACKNEY; THAT ON MARCH 23, 1943, IN THE STATE OF MONTANA, ROBERT GILLEN, AS PLAINTIFF, FILED AN ACTION FOR DIVORCE AGAINST MARGUERITE GILLEN, AS DEFENDANT, ALLEGING DESERTION; THAT THE COMPLAINT ALLEGES RESIDENCE OF THE PLAINTIFF IN MONTANA FOR MORE THAN ONE YEAR IMMEDIATELY PRECEDING THE COMMENCEMENT OF THE ACTION; THAT NO SERVICE OF SUMMONS WAS HAD; THAT A GENERAL DEMURRER TO THE COMPLAINT WAS FILED ON BEHALF OF THE DEFENDANT BY ONE E. B. PARSONS, AN ATTORNEY, ON APRIL 8, 1943, THAT THE DEMURRER WAS OVERRULED AND DEFAULT OF THE DEFENDANT ENTERED; AND THAT THE DECREE OF DIVORCE WAS GRANTED AND ENTERED ON APRIL 29, 1943.

FURTHER, IT APPEARS THAT ON MAY 5, 1943, THE OFFICER MARRIED BEATRICE MCLEOD ( BERNICE MCLEOD) AT GREAT FALLS, MONTANA, AND ONE CHILD WAS BORN OF THIS THIRD MARRIAGE; THAT ON JANUARY 19, 1944, AFTER THE DEATH OF THE OFFICER, MARGUERITE BROUGHT A PROCEEDING IN THE DISTRICT COURT TO VACATE AND SET ASIDE THE DECREE OF DIVORCE BETWEEN THE OFFICER AND HERSELF ON THE GROUNDS THAT FRAUD HAD BEEN COMMITTED UPON HER AND THE COURT IN THE GRANTING OF THE DECREE OF DIVORCE, IN THAT NO SERVICE OF PROCESS IN THE ACTION OR NOTICE OF ANY KIND OF ITS PENDENCY WAS MADE OR GIVEN HER; THAT AT NO TIME DID THE DEFENDANT ( MARGUERITE) AUTHORIZE OR RETAIN E. B. PARSONS OR ANYONE ELSE TO REPRESENT AND APPEAR FOR HER IN THE ACTION; THAT THE PURPORTED APPEARANCE BY SAID PARSONS WAS WHOLLY UNAUTHORIZED, UNFOUNDED, AND LACKING IN AUTHORITY; THAT A PETITION FOR LEAVE TO INTERVENE IN THE PROCEEDING AND TO OPPOSE THE MOTION OF MARGUERITE WAS FILED BY BEATRICE MCLEOD GILLEN ON FEBRUARY 14, 1944; THAT ON JUNE 9, 1944, THE DISTRICT COURT MADE ITS ORDER THAT "THE PURPORTED DECREE OF DIVORCE BE SET ASIDE, VACATED AND HELD FOR NAUGHT, AND THAT SAME BE EXPUNGED FROM THE RECORDS AND PROCEEDINGS; " AND THAT SUCH ORDER WAS BASED ON THE FOLLOWING FINDINGS AND CONCLUSIONS (SEE GILLEN V. GILLEN, 159 1.2D 511, AT 512):

AND THE COURT BEING DULY ADVISED IN THE PREMISES AND IT HAVING BEEN CONCLUSIVELY SHOWN THAT THE DEFENDANT, MARGUERITE GILLEN, WAS AT NO TIME OR AT ANY PLACE SERVED WITH PROCESS HEREIN OR WITH THE SUMMONS AND COMPLAINT AND WAS NOT NOTIFIED OF THE WITHIN ENTITLED ACTION OR HAD KNOWLEDGE THEREOF UNTIL AFTER THE DECEASE OF THE SAID PLAINTIFF, ROBERT E. GILLEN, WHICH WAS ON OR ABOUT DECEMBER 22ND, 1943, AND AFTER THE RENDITION OF THE PURPORTED DECREE OF DIVORCE;

THAT THE SAID DEFENDANT NEVER AT ANY TIME RETAINED OR AUTHORIZED THE SAID E. B. PARSONS, ESQ., AS COUNSEL TO REPRESENT HER IS SAID CAUSE, AND SAID UNDATED LETTER PURPORTEDLY FROM THE DEFENDANT TO THE SAID PARSONS AND UPON WHICH HE BASED HIS AUTHORITY TO REPRESENT THE DEFENDANT IN THE WITHIN ENTITLED PROCEEDINGS, IS A PALPABLE FORGERY; AND THE EVIDENCE CONCLUSIVELY PROVING THAT FRAUD WAS COMMITTED UPON THE DEFENDANT HEREIN AND THIS COURT IN THE PROCEEDINGS WHICH RESULTED IN THE GRANTING OF THE SAID DIVORCE DECREE, PURPORTING TO BE GIVEN, MADE AND ENTERED BY THIS COURT, ON APRIL 29TH, 1943, AND DOCKETED IN VOLUME 13, PAGE 220 OF MISCELLANEOUS JUDGMENTS IN THE OFFICIAL FILES OF THE CLERK OF THE ABOVE ENTITLED DISTRICT COURT.

THEREAFTER BEATRICE MCLEOD GILLEN APPEALED FROM THE ORDER VACATING THE DECREE OF DIVORCE, AND THE SUPREME COURT OF MONTANA, IN AFFIRMING THE ORDER OF THE DISTRICT COURT, ON JUNE 8, 1945, AND AFTER QUOTING FROM THE DECISION OF THAT COURT THE MATTER NEXT HEREINBEFORE QUOTED, WENT ON TO SAY (SEE GILLEN V. GILLEN, 159 P.2D 511, AT PAGE 512, ET SEQ./---

* * * WE WILL NOT DISCUSS THE CONTENTS OF THE AFFIDAVITS AND OTHER PAPERS FILED IN SUPPORT OF THE MOTION TO VACATE THE DECREE, EXCEPT THAT THEY ESTABLISH THE FOLLOWING FACTS: (1) THAT SUMMONS IN THE DIVORCE ACTION WAS NOT SERVED UPON THE DEFENDANT; EITHER PERSONALLY OR BY PUBLICATION; (2) THAT NEITHER E. B. PARSONS, WHO FILED THE DEMURRER IN IN THE DEFENDANT'S BEHALF, NOR ANYONE ELSE, WAS AUTHORIZED BY THE DEFENDANT TO APPEAR FOR HER IN THE ACTION; (3) THAT THE LETTER PURPORTEDLY AUTHORIZING MR. PARSONS TO APPEAR FOR THE DEFENDANT WAS NOT SIGNED BY THE DEFENDANT, AND IS A FORGERY; (4) THAT THE DEFENDANT DID NOT LEARN OF THE PENDENCY OF THE DIVORCE ACTION, OR OF THE DECREE THEREIN, UNTIL AFTER THE DEATH OF ROBERT E. GILLEN, SEVERAL MONTHS AFTER THE DECREE WAS ENTERED; (5) THAT THE PLAINTIFF, ROBERT E. GILLEN, WAS NOT A RESIDENT OF MONTANA FOR THE PERIOD OF ONE YEAR PRIOR TO THE COMMENCEMENT OF THE DIVORCE ACTION, OR FOR MORE THAN FOUR MONTHS PRIOR THERETO.

* * * THE RIGHT OF A COURT OF GENERAL JURISDICTION TO GIVE RELIEF AGAINST A JUDGMENT OBTAINED BY EXTRINSIC FRAUD IS INHERENT, AND IS NOT DERIVED FROM THE PROVISIONS OF SECTION 9187 OR ANY OTHER STATUTE (31 AM. JUR. 279 ET SEQ.; CLARK V. CLARK, 64 MONT. 386, 210 P. 93; STATE EX REL, SPARRENBERGER V. DISTRICT COURT, 66 MONT. 496, 214 P. 85; MOORE V. CAPITAL GAS CORPORATION, MONT., 158 P.2D 302; BULLARD V. ZIMMERMAN, 82 MONT. 434, 268 P. 512), AND MAY BE GRANTED EITHER ON MOTION IN THE ORIGINAL CAUSE ( MOORE V. CAPITAL GAS CORPORATION, SUPRA; CLARK V. CLARK, SUPRA) OR UPON A SEPARATE EQUITY SUIT. MOSER V. FULLER, 107 MONT. 424, 86 P.2D 1. MCGUINNESS V. SUPERIOR COURT, 196 CAL. 222, 237 P.42, 46, 40 A.L.R. 1110, INVOLVED CIRCUMSTANCES SIMILAR TO THOSE IN THIS CASE. * * *

HERE THE MOTION TO VACATE WAS FILED WITHIN ONE YEAR AFTER RENDITION OF THE DECREE. THE RECITALS IN THE AFFIDAVITS SHOW DUE DILIGENCE BY THE DEFENDANT IN APPLYING FOR RELIEF. THE TRIAL COURT WAS JUSTIFIED IN HOLDING, IN EFFECT, THAT THE PETITION WAS FILED WITHIN A REASONABLE TIME. THE DECREE WAS VOID BECAUSE OF LACK OF JURISDICTION OF THE TRIAL COURT OVER THE PERSON OF THE DEFENDANT, AND NO QUESTION OF POSSIBLE ESTOPPEL IS PRESENT, EVEN IF SUCH COULD UNDER ANY CIRCUMSTANCES BE RAISED.

APPELLANT FURTHER ARGUES THAT THE DEATH OF THE PLAINTIFF PRIOR TO THE FILING OF THE MOTION, DIVESTED THE TRIAL COURT OF FURTHER JURISDICTION. SUCH ARGUMENT IS WITHOUT MERIT. DEATH OF ONE OF THE PARTIES TO A DIVORCE ACTION, AFTER DECREE THEREIN, DOES NOT DEPRIVE THE TRIAL COURT OF ITS POWER TO PURGE ITS RECORDS OF A VOID OR VOIDABLE DECREE PROCURED BY FRAUD PRACTICED UPON IT. AS IS SAID IN MCGUINNESS V. SUPERIOR COURT, SUPRA:

"TO SUCH A PURPOSE THE DEATH OF THE DEFENDANT IN SAID ACTION IS MERELY INCIDENTAL, AND IS IN NO WISE CONTROLLING UPON THE POWER OF THE COURT TO PURGE ITS RECORDS OF ORDERS AND DECREES WHICH THE COURT HAS BEEN WRONGFULLY MISLED INTO MAKING THROUGH THE FRAUDULENT IMPOSITION OF A PARTY TO AN ACTION PENDING, AT THE TIME OF SUCH IMPOSITION BEFORE IT. TO HOLD THAT THE PARTY HAVING ACCOMPLISHED SUCH IMPOSITION COULD BY DYING DEPRIVE THE COURT OF THE RIGHT WHEN PROPERLY ADVISED TO SO PURGE ITS OWN RECORDS WOULD BE TO ABRIDGE TO THE POINT OF DENIAL ONE OF THE MOST SALUTARY OF THE INHERENT POWERS OF THE COURT.' COHN V. STANFORD, 131 CAL. APP. 463, 21 P.2D 464; BRITTON V. BRYSON, 216 CAL. 362, 14 P.2D 502; CITIZENS' NAT. TRUST AND SAVINGS BANK V. TOMB, 120 CAL. APP. 438, 7 P.2D 1104.

WE ARE NOT UNAWARE OF THE DISTRESS AND INJUSTICE TO PEOPLE INNOCENTLY INVOLVED IN THIS REGRETTABLE SITUATION, RESULTING FROM THE DECEPTION BY THE PLAINTIFF AND HIS LACK OF RESPONSIBILITY TOWARD HIS UNBORN CHILD. BUT OUR SYMPATHY FOR THEM, NO MATTER HOW GENUINE, CANNOT FORM THE BASIS OF PERMISSION OF LITIGANTS TO FLOUT THE INTEGRITY OF OUR COURTS, OR, BY THE PRACTICE OF FRAUD AND DECEPTION, TO CONSTITUTE THEM INSTRUMENTS OF INJUSTICE. THE CIRCUMSTANCES OF THIS UNFORTUNATE SITUATION WILL DIRECT THE ATTENTION OF THE ATTORNEYS OF THIS STATE TO THE DUTY OF THOROUGH INVESTIGATION OF THEIR AUTHORITY OBTAINED IN SUCH MANNER AS HERE EMPLOYED, FOR THEIR OWN PROTECTION AND TO PREVENT THE MISCARRIAGE OF JUSTICE.

THE DECREE OF DIVORCE ENTERED APRIL 29, 1943, HAVING BEEN DECLARED VOID, IT FOLLOWS THAT MARGUERITE GILLEN REMAINED THE WIFE OF ROBERT E. GILLEN AND THAT, UPON HIS DEATH ON DECEMBER 20, 1943, SHE BECAME HIS WIDOW. INASMUCH AS ROBERT E. GILLEN WAS NOT LEGALLY DIVORCED FROM MARGUERITE GILLEN, HE WAS NOT LEGALLY FREE TO MARRY BEATRICE MCLEOD ( BERNICE MCLEOD) AND, ACCORDINGLY, SHE NEVER BECAME HIS WIFE AND, HENCE, COULD NOT BE HIS WIDOW. SEE 19 C.J. 173, SEC. 433, AND 17 AM. JUR. 380, SEC. 463, AND CASES THERE CITED.

THEREFORE, SINCE THE SIX MONTHS' DEATH GRATUITY PAY PROVIDED UNDER THE ACT OF DECEMBER 17, 1919, AS AMENDED, IS PAYABLE TO THE WIDOW OF THE OFFICER, YOU ARE NOT AUTHORIZED TO MAKE PAYMENT ON THE VOUCHER IN FAVOR OF BEATRICE D. GILLEN WHICH IS RETAINED IN THIS OFFICE. ON THE OTHER HAND, SINCE ON THE DATE OF THE OFFICER'S DEATH, DECEMBER 20, 1943, MARGUERITE GILLEN, WHO MARRIED JAMES 1. MORGAN ON MARCH 31, 1944, WAS THE OFFICER'S WIDOW, PAYMENT MAY BE MADE ON THE VOUCHER SUBMITTED BY HER. SAID VOUCHER AND SUPPORTING PAPERS ARE RETURNED HEREWITH.