B-87534, MARCH 9, 1950, 29 COMP. GEN. 360

B-87534: Mar 9, 1950

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THE OFFICER'S MARRIAGE ENTERED INTO IN MEXICO WHERE BOTH PARTIES WERE REPRESENTED BY PROXY MAY NOT BE CONSIDERED AS ENTITLING THE OFFICER TO INCREASED RENTAL AND SUBSISTENCE ALLOWANCES ON ACCOUNT OF A DEPENDENT LAWFUL WIFE. EVEN THOUGH THEIR MARRIAGE WAS DISSOLVED BY DIVORCE RATHER THAN BY ANNULMENT. 1950: REFERENCE IS MADE TO LETTER OF LIEUTENANT (JG) T. THE RECORD INDICATES THAT THE OFFICER WAS MARRIED TO V. WHERE PROXY MARRIAGES ARE RECOGNIZED. THE RECORD SHOWS THAT THEREAFTER THE OFFICER WAS CREDITED WITH INCREASED ALLOWANCES FOR DEPENDENTS (LAWFUL WIFE) FOR THE PERIOD FROM JANUARY 8. THE ALLOWANCES SO CREDITED WERE CHECKED IN HIS PAY ACCOUNT AT HIS REQUEST "WHEN IT APPEARED THAT MY MARRIAGE MIGHT BE ANNULLED.'.

B-87534, MARCH 9, 1950, 29 COMP. GEN. 360

PROXY MARRIAGES - VALIDITY - DISSOLUTION BY DIVORCE AS DETERMINING IN VIEW OF THE DOUBT EXISTING AS TO THE VALIDITY OF THE PRIOR DIVORCE OF THE WIFE OF A NAVAL RESERVE OFFICER AND IN THE ABSENCE OF EVIDENCE SHOWING THAT HER PRIOR MARRIAGE HAD BEEN DISSOLVED BY A COURT OF COMPETENT JURISDICTION, THE OFFICER'S MARRIAGE ENTERED INTO IN MEXICO WHERE BOTH PARTIES WERE REPRESENTED BY PROXY MAY NOT BE CONSIDERED AS ENTITLING THE OFFICER TO INCREASED RENTAL AND SUBSISTENCE ALLOWANCES ON ACCOUNT OF A DEPENDENT LAWFUL WIFE, EVEN THOUGH THEIR MARRIAGE WAS DISSOLVED BY DIVORCE RATHER THAN BY ANNULMENT.

DECISION BY ASSISTANT COMPTROLLER GENERAL YATES, MARCH 9, 1950:

REFERENCE IS MADE TO LETTER OF LIEUTENANT (JG) T. OF JUNE 1, 1949, REQUESTING REVIEW OF GENERAL ACCOUNTING OFFICE, CLAIMS DIVISION, SETTLEMENT DATED MAY 20, 1949, WHICH DISALLOWED HIS CLAIM FOR ALLOWANCES AS FOR AN OFFICER WITH DEPENDENTS (LAWFUL WIFE) FOR THE PERIOD FROM JANUARY 8, 1946, TO JULY 15, 1946, THE LATTER DATE BEING THE DATE OF HIS RELEASE FROM ACTIVE DUTY IN THE U.S. NAVAL RESERVE. ALSO, THERE HAS BEEN RECEIVED A LETTER OF DECEMBER 3, 1949, FROM THE OFFICER INQUIRING AS TO THE STATUTES OF THIS MATTER.

THE RECORD INDICATES THAT THE OFFICER WAS MARRIED TO V. J. T. ON JANUARY 8, 1946, IN THE MUNICIPALITY OF ZACATEPEC DE HIDALGO, STATE OF MORELOS, REPUBLIC OF MEXICO, WHERE PROXY MARRIAGES ARE RECOGNIZED, BOTH PARTIES HAVING BEEN REPRESENTED BY AN ATTORNEY. ALSO, THE RECORD SHOWS THAT THEREAFTER THE OFFICER WAS CREDITED WITH INCREASED ALLOWANCES FOR DEPENDENTS (LAWFUL WIFE) FOR THE PERIOD FROM JANUARY 8, 1946, TO MAY 15, 1946, BUT THE ALLOWANCES SO CREDITED WERE CHECKED IN HIS PAY ACCOUNT AT HIS REQUEST "WHEN IT APPEARED THAT MY MARRIAGE MIGHT BE ANNULLED.' SUBSEQUENTLY, THE OFFICER STATED THAT HE HAD THE ALLOWANCES CHECKED "BECAUSE SOME DOUBT EXISTED IN MY WIFE'S MIND ABOUT THE COMPLETENESS OF HER DIVORCE FROM HER FIRST HUSBAND.'

THE OFFICER'S CLAIM WAS DISALLOWED BECAUSE OF THE DOUBT AS TO THE VALIDITY OF HIS MARRIAGE, THE SETTLEMENT HAVING MADE REFERENCE TO THE SAID CHECK AGE AND TO THE RECORD THAT HE WAS MARRIED BY PROXY. IN HIS LETTER OF JUNE 1, 1949, HE STATED THAT "BOTH MY WIFE AND I WERE PRESENT IN MEXICO, AND BOTH, PERSONALLY, PARTICIPATED IN THE MARRIAGE CEREMONY," BUT HE FURNISHED NO EVIDENCE THAT HE WAS PRESENT THERE AND THE COPY OF HIS MARRIAGE CERTIFICATE INDICATES THAT EACH PARTY WAS REPRESENTED BY A PROXY. BUT, HOWEVER THAT MAY BE, NO FURTHER QUESTION NEED BE RAISED AS TO THE VALIDITY OF THE MARRIAGE BECAUSE OF THE PROXY PHASE OF THE MATTER. HOWEVER, AS PROOF OF THE COMPETENCY OF THE OFFICER'S "WIFE" TO ENTER INTO THE SAID MARRIAGE AND, THEREFORE, OF THE VALIDITY OF THE SAID MARRIAGE ON THAT SCORE, HE REFERS TO THE FACT THAT SHE SUBSEQUENTLY SEVERED THE MARRIAGE RELATIONSHIP ON JULY 18, 1946, THROUGH THE MEDIUM OF A DIVORCE RATHER THAN BY ANNULMENT. A COPY OF THAT DIVORCE DECREE ENTERED IN THE FIRST CIVIL COURT OF THE DISTRICT OF BRAVOS, STATE OF CHIHUAHUA, REPUBLIC OF MEXICO, AT CIUDAD JUAREZ, CHIHUAHUA, HAS BEEN FURNISHED. THE DECREE SHOWS THAT THE OFFICER MADE NO DEFENSE TO THE SUIT AND SPECIFICALLY RECITES THAT THE SUIT "WAS INSTITUTED BY MR. A. UNDER POWER OF ATTORNEY.' ALSO, IT APPEARS THAT NEITHER PARTY WAS DOMICILED IN MEXICO AT THE TIME OF THE DIVORCE, BUT, RATHER, THAT BOTH PARTIES WERE DOMICILED IN THE UNITED STATES. IN ADDITION, IT APPEARS FROM THE DECREE THAT THE VALIDITY OF THE MARRIAGE IN THE STATE OF MORELOS WAS NOT PUT IN ISSUE BUT THAT THE MATTER OF THE MARRIAGE WAS DETERMINED MERELY BY THE "FILING OF A CERTIFIED COPY OF THE MARRIAGE CERTIFICATE WITH THIS COURT.'

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 COURTS' TAKING JURISDICTION. SEE 25 COMP. GEN. 821, AND LEGAL ANNOTATION AND CASES CITED THEREIN. ASIDE FROM THIS, THE OFFICER STRONGLY INDICATED THAT THERE MAY HAVE BEEN AN IMPEDIMENT TO HIS MARRIAGE, AND THERE HAVING BEEN A POSSIBLE IMPEDIMENT TO THE MARRIAGE, THE DECREE OF DIVORCE, EVEN IF NOT INVALID ON JURISDICTIONAL GROUNDS, MAY NOT BE CONSIDERED CONCLUSIVE OF THE VALIDITY OF THE MARRIAGE PURPORTEDLY THEREBY DISSOLVED, THE VALIDITY OF THE MARRIAGE NOT HAVING BEEN PUT IN ISSUE BEFORE THE COURT.

IN VIEW OF THE FOREGOING, AND IN THE ABSENCE OF EVIDENCE SHOWING THAT THE "WIFE" WAS NOT UNDER AN IMPEDIMENT TO MARRY THE OFFICER BECAUSE OF HER PRIOR MARRIAGE--- WHICH BEST CAN BE DETERMINED FROM A CERTIFIED COPY OF THE DECREE OF THE COURT DISSOLVING SUCH PRIOR MARRIAGE--- THERE IS TOO MUCH DOUBT FOR THIS OFFICE TO CONCLUDE THAT DURING THE PERIOD FOR WHICH THE ALLOWANCES ARE CLAIMED THE OFFICER HAD A "LAWFUL WIFE" WITHIN THE MEANING OF THE STATUTORY PROVISIONS AUTHORIZING THE PAYMENT OF INCREASED ALLOWANCES ON ACCOUNT OF SUCH A DEPENDENT.

ACCORDINGLY, ON THE PRESENT RECORD, THE DISALLOWANCE OF THE CLAIM BY THE SETTLEMENT OF MAY 20, 1949, IS SUSTAINED.