B-157498, MAY 3, 1966

B-157498, MAY 3, 1966

TO FINANCE AND ACCOUNTING OFFICER, DEPARTMENT OF THE ARMY:

FURTHER REFERENCE IS MADE TO YOUR COMMUNICATION OF JANUARY 31, 1966, AND ACCOMPANYING PAPERS, (ASSIGNED D.O. NO. A-902 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE) IN EFFECT REQUESTING RECONSIDERATION OF OUR DECISION OF OCTOBER 27, 1965, B 157498, CONCERNING THE ENTITLEMENT OF CAPTAIN JOSE M. GONZALEZ, MN2 312 529, TO ALLOWANCES FOR MARY E. GONZALEZ AS HIS DEPENDENT WIFE.

IN THE DECISION OF OCTOBER 27, 1965, INVOLVING THE MEXICAN DIVORCE OF CAPTAIN GONZALEZ AND BERUTA ANN GONZALEZ, WE ACKNOWLEDGED THAT THE NEW YORK COURTS HAVE RECOGNIZED THE VALIDITY OF MEXICAN DIVORCES OF RESIDENTS OF NEW YORK STATE AND THEIR SUBSEQUENT MARRIAGES IN THAT STATE WHERE ONE PARTY PERSONALLY APPEARED IN THE MEXICAN COURT AND THE OTHER PARTY APPEARED BY ATTORNEY AND SUBMITTED TO THE JURISDICTION OF THE COURT EVEN THOUGH NEITHER PARTY ESTABLISHED A RESIDENCE NOR REMAINED IN MEXICO LONGER THAN THE TIME NECESSARY TO SECURE THE DIVORCE. WE, ALSO POINTED OUT IN THE DECISION THAT GENERALLY, EACH STATE HAS THE RIGHT TO DETERMINE THE MARITAL STATUS OF ITS CITIZENS UNDER ITS LAWS, INCLUDING THE RECOGNITION OF MARRIAGES AND DIVORCES SECURED BY THEM IN FOREIGN JURISDICTIONS, AND THAT THE GENERAL RULE IS THAT THE VALIDITY OF A MARRIAGE IS DETERMINED BY THE LAW OF THE PLACE WHERE IT WAS CONTRACTED. WE STATED IN THE DECISION OF OCTOBER 27, 1965, THAT NEW YORK STATE, THE DOMICILE OF CAPTAIN GONZALEZ AND BERUTA ANN GONZALEZ, PRESUMABLY WILL RECOGNIZE THEIR MEXICAN DIVORCE IN VIEW OF THE DECISION IN ROSENSTIEL V. ROSENSTIEL, 262 N.Y.S. 2D 86 (DECIDED JULY 9, 1965); BUT THAT THE RECORD BEFORE US DID NOT SHOW THE DOMICILE OF MARY E. GONZALEZ AT THE TIME OFHER MARRIAGE CEREMONY WITH CAPTAIN GONZALEZ ON JANUARY 5, 1965, IN SOUTH CAROLINA AND THERE IS NO BASIS FOR CONCLUDING THAT SOUTH CAROLINA OR THE STATE OF HER DOMICILE IF IT WAS ELSEWHERE AT THAT TIME RECOGNIZES AS VALID MEXICAN DIVORCES PROCURED UNDER THE CIRCUMSTANCES OF THE CASE OF CAPTAIN GONZALEZ. CONCLUDED IN THE DECISION THAT IN THE ABSENCE OF A JUDICIAL DETERMINATION BY A COURT OF COMPETENT JURISDICTION OF THE VALIDITY OF HIS MARRIAGE TO MARY E. GONZALEZ, THE MATTER IS CONSIDERED TOO DOUBTFUL FOR US TO CONCLUDE THAT HE IS ENTITLED TO ALLOWANCES FOR A DEPENDENT WIFE.

THE PAPERS ACCOMPANYING YOUR COMMUNICATION OF JANUARY 31, 1966, SHOW THAT NEW YORK STATE WAS THE DOMICILE OF MARY E. GONZALEZ AT THE TIME OF HER MARRIAGE CEREMONY WITH CAPTAIN GONZALEZ ON JANUARY 5, 1965. THUS, ON THE PRESENT RECORD THEIR MARRIAGE WOULD APPARENTLY BE RECOGNIZED AS VALID BY THE NEW YORK COURTS IF IT HAD BEEN CONTRACTED IN NEW YORK. THE MARRIAGE, HOWEVER, WAS CONTRACTED IN SOUTH CAROLINA AND THE QUESTION OF RECOGNITION OF THE MEXICAN DIVORCE OF CAPTAIN GONZALEZ BY SOUTH CAROLINA, STILL REMAINS. WE CAN FIND NO AUTHORITY TO INDICATE THAT SOUTH CAROLINA WOULD RECOGNIZE AS VALID HIS MEXICAN DIVORCE. ACCORDINGLY, WE HAVE NO ALTERNATIVE BUT TO AGAIN ADVISE YOU THAT THE MATTER IS CONSIDERED TOO DOUBTFUL TO AUTHORIZE ALLOWANCES TO CAPTAIN GONZALEZ FOR A DEPENDENT WIFE IN THE ABSENCE OF A JUDICIAL DETERMINATION AS TO HIS MARITAL STATUS.

THE PAPERS WHICH ACCOMPANIED YOUR COMMUNICATION OF JANUARY 31, 1966, WILL BE RETAINED HERE.