B-61671, JANUARY 22, 1947, 26 COMP. GEN. 514

B-61671: Jan 22, 1947

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AN OFFICER CLAIMING INCREASED RENTAL AND SUBSISTENCE ALLOWANCES ON ACCOUNT OF A DEPENDENT (LAWFUL WIFE) IS RELIEVED FROM SHOWING DEPENDENCY IN FACT. WHERE A NAVY OFFICER WAS NOT REQUIRED TO PROVIDE ANY PART OF HIS WIFE'S FUTURE SUPPORT UNDER AN INTERLOCUTORY DIVORCE JUDGMENT OBTAINED BY HER IN CALIFORNIA. HE IS NOT ENTITLED TO INCREASED ALLOWANCES ON HER ACCOUNT AFTER THE DATE OF THE JUDGMENT. AMONG THE PAPERS SUBMITTED WITH YOUR REQUEST FOR DECISION ARE: 1. IN WHICH IT IS STATED THAT THE OFFICER "STILL RETAINS THIS ADDRESS 2358 - 44 AVE. FROM THE OFFICER IN WHICH IT IS STATED THAT HIS ADDRESS IS 2571 SAN BRUNO AVENUE. THAT THE RECORDS WILL SHOW THAT BERTHA F. THAT HE IS STILL CARRYING INSURANCE FOR HER BENEFIT.

B-61671, JANUARY 22, 1947, 26 COMP. GEN. 514

RENTAL AND SUBSISTENCE ALLOWANCES - DEPENDENT (LAWFUL WIFE) - REQUIREMENT FOR SUPPORT CONTRIBUTIONS AFTER INTERLOCUTORY JUDGMENT OF DIVORCE EVEN THOUGH, GENERALLY, AN OFFICER CLAIMING INCREASED RENTAL AND SUBSISTENCE ALLOWANCES ON ACCOUNT OF A DEPENDENT (LAWFUL WIFE) IS RELIEVED FROM SHOWING DEPENDENCY IN FACT, NEVERTHELESS, WHERE A NAVY OFFICER WAS NOT REQUIRED TO PROVIDE ANY PART OF HIS WIFE'S FUTURE SUPPORT UNDER AN INTERLOCUTORY DIVORCE JUDGMENT OBTAINED BY HER IN CALIFORNIA, WHICH JUDGMENT DOES NOT SEVER THE MARITAL STATUS BUT CONTINUES THE PARTIES AS HUSBAND AND WIFE, AND THE EVIDENCE PRESENTED SHOWS NO ACTUAL CONTRIBUTION TO THE WIFE'S SUPPORT FOLLOWING SUCH JUDGMENT, HE IS NOT ENTITLED TO INCREASED ALLOWANCES ON HER ACCOUNT AFTER THE DATE OF THE JUDGMENT.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JANUARY 22, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF NOVEMBER 2, 1946, WITH WHICH YOU TRANSMITTED A LETTER DATED JULY 3, 1946, FROM THE CHIEF, BUREAU OF SUPPLIES AND ACCOUNTS, WITH ENCLOSURES, REQUESTING DECISION AS TO THE RIGHT OF LIEUTENANT VERNON E. COLBERT, 178353, USN, TO PAYMENT OF INCREASED RENTAL AND SUBSISTENCE ALLOWANCES AS FOR AN OFFICER WITH DEPENDENTS (LAWFUL WIFE) FROM OCTOBER 18, 1945, UNDER THE CIRCUMSTANCES SET FORTH IN THE ENCLOSURES.

AMONG THE PAPERS SUBMITTED WITH YOUR REQUEST FOR DECISION ARE:

1. A CERTIFIED TYPEWRITTEN COPY OF A " PROPERTY SETTLEMENT AGREEMENT" DATED OCTOBER 6, 1945, EXECUTED BY VERNON E. COLBERT AND BERTHA F. COLBERT, BOTH OF THE CITY AND COUNTY OF SAN FRANCISCO, STATE OF CALIFORNIA.

2. A PHOTOSTATIC COPY OF AN INTERLOCUTORY JUDGMENT OF DIVORCE DATED OCTOBER 18, 1945, ENTERED IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO, IN THE CASE OF BERTHA F. COLBERT, PLAINTIFF V. VERNON E. COLBERT, DEFENDANT, AWARDING THE PLAINTIFF A LIMITED DIVORCE FROM THE DEFENDANT ON THE GROUND OF THE DEFENDANT'S EXTREME CRUELTY, AND MAKING NO PROVISION THEREIN FOR THE PLAINTIFF'S CONTINUED SUPPORT BY THE DEFENDANT.

3. A LETTER DATED JANUARY 28, 1946, FROM BERTHA F. COLBERT, 2358 44TH AVENUE, SAN FRANCISCO 16, CALIFORNIA, IN WHICH IT IS STATED THAT THE OFFICER "STILL RETAINS THIS ADDRESS 2358 - 44 AVE. AS HIS ADDRESS AND DRAWS HOUSING ALLOWANCE FOR SAME. HE IN NO WAY HELPS TO MAINTAIN THE HOME OR PAYS ME ANY ALIMONY WHATSOEVER AND HAS NOT LIVED HERE SINCE OCTOBER.'

4. A LETTER DATED APRIL 1, 1946, FROM THE OFFICER IN WHICH IT IS STATED THAT HIS ADDRESS IS 2571 SAN BRUNO AVENUE, SAN FRANCISCO, CALIFORNIA, AND NOT 2358 - 44TH AVENUE, SAN FRANCISCO, CALIFORNIA; THAT THE RECORDS WILL SHOW THAT BERTHA F. COLBERT RECEIVED AN ALLOTMENT OF $150 IN NOVEMBER, 1945; THAT HE IS STILL CARRYING INSURANCE FOR HER BENEFIT; AND THAT HE SIGNED A QUITCLAIM DEED TO THEIR FORMER HOUSE AND FURNITURE,"VALUED OVER $5,000.00" TO HER IN LIEU OF ALIMONY OR ALLOTMENT, IN ACCORDANCE WITH THE PROPERTY SETTLEMENT AGREEMENT OF OCTOBER 6, 1945.

IN THE LETTER OF THE CHIEF, BUREAU OF SUPPLIES AND ACCOUNTS, WITH RESPECT TO THE OFFICER'S CLAIM, IT IS STATED THAT THE OFFICER HAS NOT MAINTAINED AN ALLOTMENT IN FAVOR OF BERTHA F. COLBERT SINCE OCTOBER 18, 1945, THE DATE OF THE INTERLOCUTORY JUDGMENT OF DIVORCE.

THE PROPERTY SETTLEMENT AGREEMENT READS, IN PERTINENT PART---

THIS AGREEMENT, MADE AND ENTERED INTO IN DUPLICATE THIS 6TH DAY OF OCTOBER 1945, BY AND BETWEEN VERNON E. COLBERT, OF THE CITY AND COUNTY OF SAN FRANCISCO, STATE OF CALIFORNIA, FIRST PARTY, AND BERTHA F. COLBERT, OF THE SAME PLACE, SECOND PARTY,

WITNESSETH

WHEREAS, THE PARTIES HERETO FOR A NUMBER OF YEARS LAST PAST HAVE BEEN AND NOW ARE HUSBAND AND WIFE; AND

WHEREAS, SAID PARTIES HAVE SEPARATED AND INTEND TO LIVE HENCEFORTH SEPARATE AND APART; AND,

WHEREAS, IT IS THE DESIRE AND INTENTION OF THE PARTIES HERETO TO FINALLY ADJUST, SETTLE AND FOREVER DETERMINE ALL THEIR RESPECTIVE PROPERTY RIGHTS, AND ALL RIGHTS ARISING OUT OF SAID MARRIAGE, AND ALL QUESTIONS AND RIGHTS RELATING TO THE SEPARATE PROPERTY OF THE PARTIES, RESPECTIVELY, AND ANY AND ALL CLAIMS AND DEMANDS OF EVERY KIND, CHARACTER, NATURE OR DESCRIPTION WHATSOEVER, INCLUDING THE RIGHT OF EITHER PARTY TO SUPPORT AND MAINTENANCE FROM THE OTHER PARTY, SO THAT NEITHER OF THE PARTIES HERETO SHALL HEREAFTER HAVE ANY CLAIM OR DEMAND OF ANY KIND OR CHARACTER WHATSOEVER AGAINST THE OTHER, SAVE AND EXCEPT AS IN THIS AGREEMENT SET FORTH;

THEREFORE, THE PARTIES HERETO, IN CONSIDERATION OF THE PREMISES AND OF THEIR MUTUAL PROMISES, AGREEMENTS AND COVENANTS HEREIN CONTAINED, DO HEREBY MUTUALLY PROMISE, AGREE AND COVENANT AS FOLLOWS:

FIRST PARTY HEREBY CONVEYS, ASSIGNS, TRANSFERS AND SETS OVER TO SECOND PARTY AS AND FOR HER SOLE AND SEPARATE PROPERTY ALL HIS RIGHT, TITLE AND INTEREST IN THE FORMER HOME OF THE PARTIES, BEING THAT CERTAIN REAL PROPERTY GENERALLY KNOWN AND DESIGNATED AS NO. 2358 - 44TH AVENUE, SAN FRANCISCO, CALIFORNIA, AND THE PERSONAL PROPERTY CONSISTING OF THE FURNITURE AND FURNISHINGS THEREOF.

THIS AGREEMENT IS MADE AND ENTERED INTO AS AND FOR A FINAL SETTLEMENT OF ALL THE RESPECTIVE PROPERTY RIGHTS OF THE PARTIES AND RIGHTS ARISING OUT OF THE MARRIAGE RELATION, IT BEING THE INTENTION OF THE PARTIES HERETO TO FINALLY AND FOREVER DETERMINE THEIR RESPECTIVE RIGHTS, INCLUDING ALL RIGHTS TO ALIMONY AND SUPPORT AND MAINTENANCE OF EITHER PARTY BY OR FROM THE OTHER.

NEITHER THE EXECUTION NOR DELIVERY OF THIS AGREEMENT SHALL IN ANY MANNER OR TO ANY EXTENT CONSTITUTE OR BE CONSTRUED AS CONSTITUTING A WAIVER OF ANY GROUND FOR DIVORCE THAT EITHER OF THE PARTIES HERETO NOW HAS AGAINST THE OTHER PARTY.

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 * * *.

IN DETERMINING WHETHER AN OFFICER HAS A "LAWFUL WIFE" WITHIN THE MEANING OF THE STATUTORY PROVISIONS AUTHORIZING INCREASED RENTAL AND SUBSISTENCE ALLOWANCES, THIS OFFICE HAS PROCEEDED ON THE THEORY THAT THE LANGUAGE EMPLOYED IN SUCH STATUTES GENERALLY RELIEVES AN OFFICER CLAIMING INCREASED ALLOWANCES ON ACCOUNT OF A LAWFUL WIFE FROM SHOWING THAT SHE IS IN FACT DEPENDENT ON HIM FOR HER SUPPORT OR THAT HE ACTUALLY DOES SUPPORT HER. THAT VIEW IS CONSISTENT WITH THE DECISIONS OF THE COURT OF CLAIMS OF THE UNITED STATES IN THE CASES OF STRAUSS V. UNITED STATES, 73 C.1CLS. 690, AND RAWLINS V. UNITED STATES, 93 C.1CLS. 231. HOWEVER, THE GENERAL RULE IS NOT FREE FROM SOME EXCEPTIONS. FOR EXAMPLE, IN THE CASE OF ROBEY V. UNITED STATES, 71 C.1CLS. 561, THE COURT HELD (QUOTING FROM THE SYLLABUS):

* * * AN OFFICER OF THE NAVY WHO IS SEPARATED FROM HIS WIFE AND DOES NOT SUPPORT HER IS NOT ENTITLED UNDER THE STATUTE, SEC. 4, ACT OF JUNE 10, 1922, TO RENTAL AND SUBSISTENCE ALLOWANCES IN RIGHT OF HIS WIFE.

WHILE THE ROBEY CASE HAS BEEN DISTINGUISHED AND EXPLAINED IN OTHER CASES IN THE COURT OF CLAIMS, IT HAS NOT BEEN OVERRULED. IN THE CASE OF ABSON V. UNITED STATES, 73 C.1CLS. 442, 446, IT IS STATED:

THE ROBEY CASE DOES NOT SUSTAIN THE DEFENDANT'S CONTENTION HERE. THERE THE PLAINTIFF CLAIMED DEPENDENCY ALLOWANCE FOR A PERIOD OF 4 1/2 YEARS, DURING WHICH TIME HE AND HIS WIFE WERE SEPARATED, EACH CHARGING THE OTHER WITH DESERTION, AND THAT PLAINTIFF MADE NO CONTRIBUTION TO HIS WIFE'S SUPPORT EXCEPT FOR A PERIOD OF SIX MONTHS, AT $60 PER MONTH, TO STAY A THREAT OF BEING JAILED. THE COURT VERY RIGHTLY HELD THAT THE INTENT OF THE ACT CONTEMPLATED A PARTIAL REIMBURSEMENT OF ACTUAL EXPENSES INCURRED ON BEHALF OF A DEPENDENT AND NOT EXTRA PAY FOR A MERE TECHNICAL STATUS OF A MARRIED MAN.

AND IN THE CASE OF STRAUSS V. UNITED STATES, SUPRA, AT PAGE 692, THE COURT REFERS TO THE ROBEY CASE AND STATES:

* * * WHAT THE COURT HELD IN THAT CASE WAS THAT AN OFFICER, WHO HAS A LEGAL WIFE DURING THE PERIOD OF HIS CLAIM, WHOM HE HAD DESERTED,AND WITH WHOM HE REFUSED TO LIVE AS HUSBAND AND WIFE, TO WHOSE SUPPORT HE CONTRIBUTED NOTHING DURING THE ENTIRE PERIOD OF THE CLAIM, AND WHO DURING SUCH PERIOD HAD BEEN ARRESTED ON HIS WIFE'S COMPLAINT ON A CHARGE OF NONSUPPORT, ALTHOUGH COMING WITHIN THE LETTER OF THE LAW DID NOT COME WITHIN ITS INTENT AND SPIRIT, AND COULD NOT RECOVER THE RENTAL AND SUBSISTENCE ALLOWANCES PROVIDED BY LAW FOR AN OFFICER WITH A "LAWFUL WIFE.'

SEE, ALSO, HERITAGE V. UNITED STATES, 81 C.1CLS. 492, AND RAWLINS V. UNITED STATES, SUPRA.

IT APPEARS THAT UNDER THE LAWS AND DIVORCE PROCEDURE OF THE STATE OF CALIFORNIA AN INTERLOCUTORY JUDGMENT OF DIVORCE DOES NOT SEVER THE MARRIAGE STATUS AND THAT THE PARTIES REMAIN IN THE LEGAL RELATION OF HUSBAND AND WIFE. IN RE DARGIE'S ESTATE, 121 P. 320. AN INTERLOCUTORY JUDGMENT OF DIVORCE IS ANALOGOUS TO A DIVORCE A MENSA ET THORO, AND IN CONSIDERING THE RIGHT OF AN OFFICER TO INCREASED ALLOWANCES ON ACCOUNT OF A LAWFUL WIFE, SUBSEQUENT TO A DIVORCE A MENSA ET THORO, IT WAS HELD IN A DECISION DATED AUGUST 9, 1944, 24 COMP. GEN. 88, THAT WHERE A DIVORCED OFFICER IS REQUIRED BY SUCH A DECREE TO CONTRIBUTE TO HIS WIFE'S SUPPORT-- - IT NOT APPEARING THAT HE DESERTED HER OR REFUSED TO CONTRIBUTE TO HER SUPPORT--- HE IS ENTITLED TO PAYMENT OF INCREASED ALLOWANCES AS FOR AN OFFICER WITH DEPENDENTS (LAWFUL WIFE). HOWEVER, IN THE SAID DECISION IT WAS STATED:

* * * THE QUESTION OF WHETHER A WIFE PERMANENTLY SEPARATED FROM HER HUSBAND BY A JUDICIAL DECREE NOT REQUIRING HIM TO PROVIDE ANY PART OF HER FUTURE SUPPORT MAY THEREAFTER BE VIEWED AS HIS DEPENDENT WITHIN THE MEANING AND SPIRIT OF THE DEPENDENCY ALLOWANCE STATUTES WOULD APPEAR TOO DOUBTFUL FOR THIS OFFICE TO APPROVE THE PAYMENT OF INCREASED ALLOWANCES ON HER ACCOUNT IN THE ABSENCE OF A JUDICIAL DETERMINATION OF AN OFFICER'S RIGHT TO THE INCREASED ALLOWANCES IN SUCH CASES. CF. ROBEY V. UNITED STATES, SUPRA.

THE EVIDENCE IN THE PRESENT CASE SHOWS THAT THE OFFICER CONSTRUCTIVELY DESERTED HIS WIFE, THAT IS, THE PARTIES WERE FORCED TO SEPARATE BECAUSE OF HIS EXTREME CRUELTY; THAT HE IS NOT REQUIRED BY THE INTERLOCUTORY JUDGMENT OF DIVORCE TO PROVIDE ANY PART OF HIS WIFE'S FUTURE SUPPORT; AND THAT HE HAS NOT DIRECTLY CONTRIBUTED TO HIS WIFE, OR MAINTAINED AN ALLOTMENT IN HER FAVOR AT ANY TIME SINCE OCTOBER 18, 1945, THE DATE OF THE INTERLOCUTORY JUDGMENT OF DIVORCE. UPON SUCH FACTS, IT SEEMS REASONABLY CLEAR THAT THE OFFICER DID NOT CONTRIBUTE TO THE "SUPPORT" OF HIS WIFE FOLLOWING THE INTERLOCUTORY JUDGMENT OF DIVORCE AND, APPLYING THE LAW AS CONSTRUED IN THE ROBEY CASE, SUPRA, IT WOULD APPEAR THAT LIEUTENANT COLBERT IS NOT ENTITLED TO PAYMENT OF INCREASED ALLOWANCES ON ACCOUNT OF A DEPENDENT (LAWFUL WIFE) FROM OCTOBER 18, 1945.

ON THE OTHER HAND, THE OFFICER CONTENDS THAT THE CONVEYANCE TO HIS WIFE OF HIS INTEREST IN THE REAL AND PERSONAL PROPERTY OF THE PARTIES,"VALUED OVER $5,000.00," SHOULD BE CONSIDERED AS SUPPORT" FOR WIFE. HOWEVER, THE PROPERTY SETTLEMENT AGREEMENT HERE INVOLVED FAILS TO SHOW THE VALUE OF THE PROPERTY CONVEYED BY THE OFFICER TO HIS WIFE, OR THAT THE CONVEYANCE WAS IN LIEU OF SUPPORT, AND THE WIFE'S LETTER OF JANUARY 28, 1946, RAISES REASONABLE DOUBT WHETHER THE PROPERTY WAS SO CONVEYED. UNDER SUCH CIRCUMSTANCES THE OFFICER'S UNSUPPORTED EX PARTE STATEMENT THAT THE PROPERTY CONVEYED TO HIS WIFE WAS IN LIEU OF ALIMONY, SUPPORT, AND MAINTENANCE, AND WAS "VALUED OVER $5,000.00" MAY NOT BE ACCEPTED AS PROOF OF THE REPRESENTATIONS MADE.

ACCORDINGLY, ON THE PRESENT RECORD, IT MUST BE CONCLUDED THAT IT IS NOT ESTABLISHED THAT THE OFFICER HAD A DEPENDENT (LAWFUL WIFE) WITHIN THE MEANING AND SPIRIT OF THE STATUTORY PROVISIONS AUTHORIZING INCREASED ALLOWANCES ON THAT ACCOUNT, AND HE IS NOT ENTITLED TO CREDIT OF SUCH ALLOWANCES FROM OCTOBER 18, 1945, THE DATE OF THE INTERLOCUTORY JUDGMENT OF DIVORCE.