B-60581, MARCH 3, 1947, 26 COMP. GEN. 645

B-60581: Mar 3, 1947

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THE GENERAL ACCOUNTING OFFICE WILL NOT QUESTION CREDITS OF INCREASED RENTAL AND SUBSISTENCE ALLOWANCES UNDER THE PAY READJUSTMENT ACT OF 1942 ON ACCOUNT OF UNMARRIED MINOR CHILDREN OF MARRIAGES NULL IN LAW AND MARRIAGES ANNULLED AS VOID OR VOIDABLE. ARE FOUND BY A COURT TO BE ILLEGITIMATE. SUCH CREDITS MUST BE SUPPORTED BY A SHOWING OF SUPPORT BY THE OFFICER CONCERNED SUCH AS IS REQUIRED BY THE DECISION IN 24 COMP. 1947: THERE WAS FORWARDED TO THIS OFFICE BY FIRST INDORSEMENT DATED SEPTEMBER 11. REQUESTING A DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER. THAT THE TERM "CHILDREN" SHALL BE HELD TO INCLUDE STEPCHILDREN AND ADOPTED CHILDREN WHEN SUCH STEPCHILDREN OR ADOPTED CHILDREN ARE IN FACT DEPENDENT UPON THE PERSON CLAIMING DEPENDENCY ALLOWANCE.

B-60581, MARCH 3, 1947, 26 COMP. GEN. 645

RENTAL AND SUBSISTENCE ALLOWANCES - DEPENDENTS - UNMARRIED MINOR CHILDREN OF VOID AND VOIDABLE MARRIAGES HEREAFTER, THE GENERAL ACCOUNTING OFFICE WILL NOT QUESTION CREDITS OF INCREASED RENTAL AND SUBSISTENCE ALLOWANCES UNDER THE PAY READJUSTMENT ACT OF 1942 ON ACCOUNT OF UNMARRIED MINOR CHILDREN OF MARRIAGES NULL IN LAW AND MARRIAGES ANNULLED AS VOID OR VOIDABLE, UNLESS AND UNTIL SUCH CHILDREN, IN A PARTICULAR CASE, ARE FOUND BY A COURT TO BE ILLEGITIMATE; HOWEVER, SUCH CREDITS MUST BE SUPPORTED BY A SHOWING OF SUPPORT BY THE OFFICER CONCERNED SUCH AS IS REQUIRED BY THE DECISION IN 24 COMP. GEN. 233 IN THE CASE OF DIVORCED OFFICERS, THE INFORMATION IN THE CERTIFICATE THERE REQUIRED TO BE ADJUSTED AS MAY BE NECESSARY UNDER THE CIRCUMSTANCES OF EACH CASE.

ASSISTANT COMPTROLLER GENERAL YEATES TO MAJ. W. SAM BUNKER, ARMY OF THE UNITED STATES, MARCH 3, 1947:

THERE WAS FORWARDED TO THIS OFFICE BY FIRST INDORSEMENT DATED SEPTEMBER 11, 1946, OF THE CHIEF OF FINANCE, YOUR LETTER DATED MAY 24, 1946, WITH ENCLOSURES, REQUESTING A DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER, TRANSMITTED THEREWITH, IN FAVOR OF G.F.K., FIRST LIEUTENANT, AC, COVERING ALLOWANCES AS FOR AN OFFICER WITH DEPENDENTS (UNMARRIED MINOR CHILD), THE ISSUE OF AN ANNULLED MARRIAGE, FOR THE PERIOD MAY 1 TO 31, 1946.

SECTION 4 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 361, DEFINES THE TERM "DEPENDENT" INSOFAR AS HEREIN MATERIAL, AS FOLLOWS:

THE TERM "DEPENDENT" AS USED IN THE SUCCEEDING SECTIONS OF THIS ACT SHALL INCLUDE AT ALL TIMES AND IN ALL PLACES * * * UNMARRIED CHILDREN UNDER TWENTY-ONE YEARS OF AGE. * * * PROVIDED, THAT THE TERM "CHILDREN" SHALL BE HELD TO INCLUDE STEPCHILDREN AND ADOPTED CHILDREN WHEN SUCH STEPCHILDREN OR ADOPTED CHILDREN ARE IN FACT DEPENDENT UPON THE PERSON CLAIMING DEPENDENCY ALLOWANCE.

AND IT HAS BEEN HELD THAT THE TERM "CHILDREN," AS USED IN SAID SECTION 4, DOES NOT INCLUDE ILLEGITIMATE CHILDREN. 23 COMP. GEN. 516.

AT COMMON LAW THE CHILDREN OF ANNULLED MARRIAGES, WHETHER VOID OR MERELY VOIDABLE, WERE ILLEGITIMATE. SCHOULER ON DOMESTIC RELATIONS, VOLUME 1, PAGE 19; VERNIER, AMERICAN FAMILY LAWS (1931), SECTION 48. HOWEVER, THE COMMON LAW HAS BEEN SUBSTANTIALLY ALTERED BY MODERN LEGISLATION. AS EARLY AS 1931, 41 AMERICAN JURISDICTIONS HAD MODIFIED THE COMMON LAW RULE IN VARYING DEGREES, OVER HALF OF THESE 41 JURISDICTIONS HAVING ADOPTED THE LIBERAL PRINCIPLE THAT THE CHILDREN OF ALL MARRIAGES NULL IN LAW SHALL BE LEGITIMATE. VERNIER, AMERICAN FAMILY LAWS (1931), SECTION 48. AND BY 1938, AS EVIDENCED BY SECTION 48 OF THE SUPPLEMENT TO THE SAID TREATISE, THE RULE OF THE COMMON LAW HAD BEEN MODIFIED IN TWO ADDITIONAL AMERICAN JURISDICTIONS AND THE SCOPE OF THE LEGITIMATIZING LAWS OF FIVE OTHER SUCH JURISDICTIONS HAD BEEN SUBSTANTIALLY BROADENED, SOME SPECIFICALLY DECLARING THAT THE ISSUE OF ALL MARRIAGES "SHALL BE DEEMED LEGITIMATE ALTHOUGH THE MARRIAGE MAY BE VOIDABLE OR VOID FOR SOME REASON IN LAW.' STILL AT LEAST ONE OTHER JURISDICTION THE LEGITIMACY OF CHILDREN OF AN ANNULLED BIGAMOUS MARRIAGE IS SAVED BY LOCAL DIVORCE LAWS (SEE GENERAL STATUTES OF NORTH CAROLINA, VOL. 2, CH. 50, SEC. 11, AND ANNOTATION TO SECTION 4 OF THAT CHAPTER).

MOREOVER, THERE IS MUCH CONFLICT OF OPINION IN THE DECISIONS OF THE COURTS, AND IN LEGAL TREATISES, AS TO THE PARTICULAR JURISDICTION THE LAW OF WHICH SHALL GOVERN IN DETERMINING THE LEGITIMACY STATUS OF SUCH CHILDREN. IN THE ANNOTATION IN 162 A.L.R., AT PAGE 627 (1946), THIS CONFLICT OF OPINION IS REFERRED TO AS GIVING RISE TO THE SITUATION THAT ANY ONE OF THE FOLLOWING CONCEIVABLY MAY FURNISH THE PERSONAL LAW OF THE CHILD BY WHICH HIS LEGITIMACY IS TO BE DETERMINED---

(1) THE STATE WHERE THE MARRIAGE WAS CELEBRATED.

(2) THE STATE WHERE THE PARENTS WERE DOMICILED AT THE TIME OF

CELEBRATION.

(3) THE STATE WHERE THE CHILD WAS BORN. MORE SPECIFICALLY, SOME AUTHORITIES HAVE CONCEDED THE GENERAL RULE TO BE THAT THE LAW OF THE PLACE OF THE MARRIAGES IS CONTROLLING. WITHROW V. EDWARDS ( VIRGINIA, 1943), 25 S.E. 2D 343; LEONARD V. BRASWELL ( KENTUCKY, 1896), 36 S.W. 684; ANNOTATION, 73 A.L.R. 951; 11 AM. JUR., CONFLICT OF LAWS, SEC. 18. OTHER AUTHORITIES HAVE RELIED ON THE LAW OF THE DOMICILE. MOORE V. SAXTON ( CONNECTICUT, 1916), 90 A. 960; GREEN V. KELLEY ( MASSACHUSETTS, 1918), 118 N.E. 235; 15 C.J.S., CONFLICT OF LAWS, SEC. 14H; RESTATEMENT, CONFLICT OF LAWS, SECS. 137 AND 138. AND, AS TO THE GENERAL TENDENCY OF THE COURTS TO EFFECT A STATUS OF LEGITIMACY RATHER THAN ILLEGITIMACY EVEN TO THE APPLYING OF THE LAW OF WHICHEVER JURISDICTION WOULD HAVE THE EFFECT OF SUSTAINING LEGITIMACY, ALTHOUGH, UNDER THE STRICT THEORY OF CONFLICT OF LAWS, SUCH LAW CLEARLY WOULD BE INAPPLICABLE, SEE IN RE LUND'S ESTATE ( CALIFORNIA, 1945), 159 P.2D. 643; 162 A.L.R. 606, AND ANNOTATION THERETO AT PAGE 628.

UNDER THESE CIRCUMSTANCES, AND THE PRACTICAL ASPECT OF THE MATTER, THERE APPEARS NO COMPELLING REASON WHY, FOR RENTAL AND SUBSISTENCE ALLOWANCE PURPOSES, THIS OFFICE SHOULD UNDERTAKE, IN EACH SUCH CASE, TO DETERMINE THE PARTICULAR LAW APPLICABLE, AND CREDITS OF SUCH ALLOWANCES ON ACCOUNT OF UNMARRIED MINOR CHILDREN OF MARRIAGES NULL IN LAW, AND MARRIAGES ANNULLED AS VOID OR VOIDABLE, WILL NOT HEREAFTER BE QUESTIONED IN THE ACCOUNTS, IF SUCH CREDITS ARE OTHERWISE CORRECT AND PROPER, UNLESS AND UNTIL SUCH CHILDREN, IN A PARTICULAR CASE, ARE FOUND BY A COURT TO BE ILLEGITIMATE. BUT, OF COURSE, SUCH CREDITS MUST BE SUPPORTED BY A SHOWING OF SUPPORT BY THE OFFICER CONCERNED SUCH AS IS REQUIRED IN THE CASE OF DIVORCED OFFICERS (SEE 24 COMP. GEN. 233), THE INFORMATION IN THE CERTIFICATE OF SUPPORT THERE REQUIRED TO BE ADJUSTED AS MAY BE NECESSARY UNDER THE CIRCUMSTANCES OF EACH CASE.

ACCORDINGLY, AND SINCE THE OFFICER IN THE PRESENT CASE HAS FURNISHED SUCH A CERTIFICATE OF SUPPORT AND NO FINDING HAS BEEN MADE BY A COURT THAT THE CHILD INVOLVED IS ILLEGITIMATE, YOU ARE AUTHORIZED TO MAKE PAYMENT ON THE VOUCHER, WHICH IS RETURNED HEREWITH, IF THE VOUCHER IS OTHERWISE PROPER AND CORRECT.