B-156453, SEPT. 23, 1965, 45 COMP. GEN. 155

B-156453, SEPT. 23, 1965, 45 COMP. GEN. 155

QUARTERS ALLOWANCE - DEPENDENTS - PROOF OF DEPENDENCY - DIVORCE VALIDITY A MEMBER OF THE UNIFORMED SERVICES WHO WAS REMARRIED AFTER THE GRANT OF AN EX PARTE DIVORCE TO HIS WIFE, WHO ALTHOUGH SIGNING THE LOCAL MUNICIPAL REGISTER OF RESIDENTS AND APPEARING IN COURT HAD NOT OTHERWISE ESTABLISHED A RESIDENCE OR DOMICILE, AND WHERE THE MEMBER SERVED WITH PAPERS AND A SUMMONS IN NEW YORK, NEW YORK, FAILED TO APPEAR OR FILE AN ANSWER, IS NOT ENTITLED TO A BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A DEPENDENT WIFE, THE FOREIGN COURT LACKING JURISDICTION OF THE SUBJECT MATTER OF THE DIVORCE IN THE ABSENCE OF ACTUAL RESIDENCE OR DOMICILE OF AT LEAST ONE OF THE PARTIES TO THE DIVORCE, THE VALIDITY OF THE EX PARTE DIVORCE IS TOO DOUBTFUL TO WARRANT PAYMENT OF THE ALLOWANCE CLAIMED INCIDENT TO THE REMARRIAGE OF THE MEMBER, NOTWITHSTANDING THE NEW YORK COURT OF APPEALS RECOGNIZED A BILATERAL MEXICAN DIVORCE IN ROSENSTIEL V. ROSENSTIEL, AND LACKING INDICATION SIMILAR RECOGNITION WOULD BE EXTENDED TO A UNILATERAL OR EX PARTE DIVORCE, THE SERVICE OF PROCESS UPON THE MEMBER IS NOT REGARDED AS EQUIVALENT TO AN ACTUAL APPEARANCE IN THE FOREIGN COURT.

TO CAPTAIN ARTHUR B. WILTSHIRE, SEPTEMBER 23, 1965:

REFERENCE IS MADE TO LETTER OF SEPTEMBER 2, 1965, FROM YOUR ATTORNEY REQUESTING REVIEW OF OUR DECISION OF APRIL 27, 1965, B 156453, TO THE EFFECT THAT THE VALIDITY OF YOUR MARRIAGE FOLLOWING THE EX PARTE DIVORCE GRANTED IN MEXICO TO YOUR FORMER WIFE IS TOO DOUBTFUL TO WARRANT PAYMENT OF A BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A DEPENDENT (WIFE).

THE RECORD INDICATES THAT YOU MARRIED JOAN WHITEMAN ON JUNE 1, 1957, IN NEW YORK, NEW YORK, AND THAT ON FEBRUARY 14, 1962, SHE WAS GRANTED A DIVORCE BY THE FIRST CIVIL COURT OF BRAVOS DISTRICT, STATE OF CHIHUAHUA, REPUBLIC OF MEXICO. IT APPEARS THAT SHE SIGNED THE LOCAL MUNICIPAL REGISTER OF RESIDENTS AND PHYSICALLY APPEARED BEFORE THE MEXICAN COURT, BUT APPARENTLY DID NOT OTHERWISE ESTABLISH A RESIDENCE OR DOMICILE THERE. IT IS STATED THAT ON JANUARY 20, 1962, YOU WERE SERVED WITH PAPERS FOR PETITION FOR DIVORCE AND OTHER PAPERS INCLUDING THE SUMMONS OF THE MEXICAN COURT IN NEW YORK, NEW YORK, BUT THAT YOU DID NOT APPEAR OR FILE AN ANSWER IN THE MEXICAN ACTION.

CLAIM FOR BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A DEPENDENT (WIFE) IS ASSERTED ON THE BASIS OF YOUR MARRIAGE ON JUNE 20, 1964, IN BALTIMORE, MARYLAND, TO VERA J. HODDRICK. IT APPEARS FROM A COPY OF THE MARRIAGE CERTIFICATE THAT SHE WAS "DIVORCED," BUT THE RECORD HERE CONTAINS NO OTHER INFORMATION CONCERNING HER MARITAL STATUS.

YOUR CLAIM WAS DENIED ON THE BASIS THAT, UNLESS A FOREIGN COURT GRANTING A DIVORCE WAS JURISDICTION OF THE SUBJECT MATTER OF THE DIVORCE BY REASON OF ACTUAL RESIDENCE OR DOMICILE 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 COURT'S TAKING JURISDICTION. WE POINTED OUT THAT, WHILE THERE IS AUTHORITY FOR THE VIEW THAT A SPOUSE WHO IS DIVORCED BY A FOREIGN DECREE AND WHO THEREAFTER REMARRIES, THUS ACCEPTING THE BENEFITS OF THE FOREIGN DIVORCE DECREE, IS ESTOPPED TO DENY THE VALIDITY OF SUCH FOREIGN DIVORCE, THE FEDERAL GOVERNMENT IS NOT ESTOPPED FROM CHALLENGING THE VALIDITY OF SUCH FOREIGN DIVORCE DECREE WHEN ITS INTERESTS MIGHT BE ADVERSELY AFFECTED.

YOUR ATTORNEY NOW URGES THAT YOUR MARYLAND REMARRIAGE SHOULD BE CONSIDERED VALID ON THE BASIS OF THE DECISION OF JULY 12, 1965, OF THE NEW YORK COURT OF APPEALS IN ROSENSTIEL V. ROSENSTIEL. IN THAT CASE THE COURT OF APPEALS HELD THAT A DIVORCE GRANTED BY A MEXICAN COURT WHICH CONFORMS TO MEXICAN LAW SHOULD BE RECOGNIZED IN NEW YORK IF THE MEXICAN COURT ACQUIRED JURISDICTION OF THE PARTIES BY THE PLAINTIFF'S SIGNING A MUNICIPAL REGISTER OF RESIDENTS AND PHYSICALLY APPEARING BEFORE THE COURT AND PRESENTING A PETITION FOR A DIVORCE AND IF THE DEFENDANT APPEARED BY A DULY AUTHORIZED ATTORNEY WHO FILED AN ANSWER SUBMITTING TO THE COURT'S JURISDICTION AND ADMITTING THE ALLEGATIONS OF THE PETITION, EVEN THOUGH THE DIVORCE WAS GRANTED ON GROUNDS NOT ACCEPTED IN NEW YORK AND THE PLAINTIFF WAS PHYSICALLY PRESENT IN MEXICO FOR A BRIEF PERIOD OF ONLY ABOUT 1 HOUR. CLEARLY THERE WAS NO INTENTION OF ESTABLISHING A DOMICILE IN MEXICO, NOR WAS THERE WHAT NEW YORK COURTS WOULD REGARD AS A BONA FIDE RESIDENCE, BUT THE COURT DETERMINED THAT THE PLAINTIFF HAD MET THE REQUIREMENTS OF MEXICAN LAW TO MAINTAIN A DIVORCE ACTION. BY VIRTUE OF THE PLAINTIFF'S PERSONAL APPEARANCE AND THE DEFENDANT'S APPEARANCE IN AND SUBMISSION TO THE MEXICAN COURT BY AN ATTORNEY, THE NEW YORK COURT APPARENTLY ALSO DETERMINED THAT THE MEXICAN COURT HAD ACQUIRED JURISDICTION IN MEXICO "OVER THE MARRIAGE AS A LEGAL ENTITY," AND THAT THE DIVORCE "JUDGMENT IS RECOGNIZED AS VALID BY THE REPUBLIC OF MEXICO.' THE NEW YORK COURT CONCLUDED:

A BALANCED PUBLIC POLICY NOW REQUIRED THAT RECOGNITION OF THE BILATERAL DIVORCE BE GIVEN RATHER THAN WITHHELD AND SUCH RECOGNITION AS A MATTER OF COMITY OFFENDS NO PUBLIC POLICY OF THIS STATE.

THERE IS NOTHING IN THAT DECISION TO INDICATE THAT THE NEW YORK COURT OF APPEALS INTENDED TO INDICATE THAT SIMILAR RECOGNITION WOULD BE EXTENDED TO A UNILATERAL OR EX PARTE MEXICAN DIVORCE (ONE GRANTED BY A COURT HAVING NO PERSONAL JURISDICTION OVER THE DEFENDANT SPOUSE) EVEN THOUGH THE DEFENDANT SPOUSE WAS PERSONALLY SERVED WITH PROCESS. ON THE CONTRARY, IN ROSENSTIEL ITSELF THE NEW YORK COURT OF APPEALS STRESSED THE APPEARANCE OF THE DEFENDANT SPOUSE IN THAT CASE BY ATTORNEY AND MADE NUMEROUS REFERENCES TO "BILATERAL" MEXICAN DIVORCES; THAT JURISDICTION HAD BEEN OBTAINED OVER THE PLAINTIFF BY HIS PHYSICAL PRESENCE BEFORE THE MEXICAN COURT "AND JURISDICTION OF THE OTHER HAS BEEN ACQUIRED BY APPEARANCE AND PLEADING THROUGH AN AUTHORIZED ATTORNEY.' IT REFERRED TO "A LONG SERIES OF DECISIONS OVER A PERIOD OF A QUARTER OF A CENTURY IN THE NEW YORK SUPREME COURT * * * RECOGNIZING THE VALIDITY OF BILATERAL MEXICAN DIVORCES,"IN CONTRAST TO CASES IN WHICH A DIVORCE WAS OBTAINED WHERE THERE WAS

* * * PHYSICAL SUBMISSION TO THE JURISDICTION BY ONE, WITH NO PERSONAL SERVICE OF PROCESS WITHIN THE FOREIGN JURISDICTION UPON, AND NO APPEARANCE OR SUBMISSION BY, THE OTHER, DECISION HAS BEEN AGAINST THE VALIDITY OF THE FOREIGN DECREE (CALDWELL V. CALDWELL, 298 N.Y. 146 (1958); ROSENBAUM V. ROSENBAUM, 309 N.Y. 371 (1953).

THUS THE GENERAL TENOR OF THE NEW YORK COURT OF APPEALS DECISION IN ROSENSTIEL ITSELF SEEMS TO BE AGAINST RECOGNITION OF EX PARTE MEXICAN DIVORCES.

THE DISCUSSION OF THE NEW YORK SUPREME COURT, APPELLATE DIVISION, IN THE CASE OF BURFORD V. BURFORD, 261 N.Y.S.2D 489 (1965),INDICATES THAT IT IS EXTREMELY DOUBTFUL THAT THE NEW YORK COURTS WOULD RECOGNIZE AN EX PARTE MEXICAN DIVORCE. IN THAT CASE THE HUSBAND OBTAINED AN EX PARTE DIVORCE IN TEXAS TO WHICH STATE HE MOVED HIS DOMICILE AND WHICH WAS ENTITLED TO FULL FAITH AND CREDIT AS TO THE DISSOLUTION OF THE MARRIAGE, EVEN THOUGH SERVICE OF PROCESS HAD BEEN MADE ON THE DEFENDANT SPOUSE IN NEW YORK, WHO NEITHER APPEARED NOR ANSWERED IN THE TEXAS ACTION. THE COURT SAID:

* * * PERSONAL SERVICE OF PROCESS ISSUING OUT OF THE TEXAS COURT UPON THE WIFE IN NEW YORK COULD NOT CONFER PERSONAL JURISDICTION OVER HER BY THE TEXAS COURT (VANDERBILT V. VANDERBILT, 1 N.Y.2D 342, 351, 153 N.Y.S.2D 1, 7, 135 N.E.2D 553, 557, AFFD. 354 U.S. 416, 77 S.CT. 1360, 1 L.ED.2D 1456; PENNOYER V. NEFF, 95 U.S. 714, 24 L.ED. 565).

IN THE COMPANION CASE OF WOOD V. WOOD, DECIDED BY THE NEW YORK COURT OF APPEALS ON THE SAME DATE AS ROSENSTIEL, THE NEW YORK SUPREME COURT, AT SPECIAL AND TRIAL TERM, 245 N.Y.S.2D 800, 804 (1963), HAD SAID:

* * * IF THE WIFE HAD GONE TO CHIHUAHUA AND HAD OBTAINED A DIVORCE BY SERVICE ON HER HUSBAND IN NEW YORK, BUT WITHOUT HIS APPEARANCE, THAT DIVORCE WOULD HAVE BEEN VOID (ALFARO V. ALFARO, 5 A.D.2D 770, 169 N.Y.S.2D 943, AFF-D 7 N.Y.2D 949, 198 N.Y.S.2D 318, 165 N.E.2D 880).

IN THE WOOD CASE THERE WAS A PERSONAL APPEARANCE BY THE PLAINTIFF AND APPEARANCE BY THE DEFENDANT SPOUSE "THROUGH A DULY AUTHORIZED ATTORNEY.' WHILE THE NEW YORK SUPREME COURT DECISION WAS REVERSED IN THAT CASE AS TO RECOGNITION OF THE MEXICAN DIVORCE ON GROUNDS OF COMITY BY THE NEW YORK COURT OF APPEALS, WE MUST ASSUME THAT THE STATEMENT OF LAW THERE CONTAINED CONCERNING AN EX PARTE FOREIGN DIVORCE REPRESENTS THE LAW OF NEW YORK IN THE ABSENCE OF A DECISION BY THE NEW YORK COURT OF APPEALS THAT AN EX PARTE FOREIGN DIVORCE WILL BE RECOGNIZED WHERE THE DEFENDANT SPOUSE IS PERSONALLY SERVED WITH PROCESS IN NEW YORK. SEE ALSO HYTELL V. HYTELL, 254 N.Y.S.2D 851, 854 (1964), WHERE THE NEW YORK SUPREME COURT SAID:

MEXICAN DECREES ARE RECOGNIZED IN THIS STATE IF "THE PETITIONING SPOUSE HAS APPEARED IN PERSON AND THE ANSWERING SPOUSE IN PERSON OR BY ATTORNEY.' ROSENSTIEL V. ROSENSTIEL, * * * 253 N.Y.S.2D 206, 209 * * *.

COMPARE, ALSO, VANDERBILT V. VANDERBILT, 135 N.E.2D 553, 153 N.Y.S.2D 1 (1956), AFF. 354 U.S. 416 (1957), WHERE THE DEFENDANT SPOUSE WAS NOT SERVED WITH PROCESS IN THE DIVORCE FORUM AND DID NOT APPEAR BEFORE THE DIVORCE COURT, BUT "PROCESS IN WHICH WAS SERVED ON THE WIFE IN NEW YORK.' IN THAT CASE THE NEVADA DIVORCE WAS VALID IN NEW YORK (BECAUSE OF THE PLAINTIFF'S DOMICILE IN THE DIVORCE FORUM) AS TO THE MARITAL STATUS ONLY, BUT NOT AS TO PROPERTY OR SEPARATE PERSONAL RIGHTS. EVEN THOUGH THE NEW YORK COURT HELD THAT THE NEVADA DIVORCE HAD EFFECTIVELY DISSOLVED THE MARRIAGE, IT ENTERED AN ORDER DIRECTING THE PLAINTIFF HUSBAND TO MAKE SUPPORT PAYMENTS TO HIS WIFE, AND SUCH ORDER WAS AFFIRMED BY THE UNITED STATES SUPREME COURT. A SIMILAR DECISION WAS RENDERED BY THE NEW YORK COURT OF APPEALS IN ESTIN V. ESTIN, 296 N.Y. 308, 73 N.E.2D 113 (1947), AFFIRMED 334 U.S. 541 (1948), IN WHICH THE HUSBAND, AFTER ESTABLISHING A DOMICILE IN NEVADA, OBTAINED A DIVORCE AFTER PERSONAL SERVICE OF PROCESS IN NEW YORK ON THE WIFE, WHO DID NOT APPEAR IN THE NEVADA ACTION. IN THE CASE OF LYNN V. LYNN, 302 N.Y. 193, 97 N.E.2D 748 (1951), CERT.DEN. 342 U.S. 849 (1951), HOWEVER, PRIOR TO THE NEVADA DIVORCE ACTION THE WIFE HAD OBTAINED A SEPARATION FROM HER HUSBAND IN NEW YORK WITH AN ORDER FOR SUPPORT, AND THE WIFE HAD PERSONALLY APPEARED IN THE NEVADA DIVORCE ACTION. IN THAT CASE THE NEW YORK COURT OF APPEALS HELD THAT, EVEN THOUGH THE NEVADA DECREE MADE NO PROVISION FOR ALIMONY AND THE WIFE MADE NO CLAIM FOR SUPPORT IN THE NEVADA DIVORCE ACTION, THE NEVADA COURT HAD JURISDICTION OF THE WIFE'S PERSON AND THE POWER TO DETERMINE HER RIGHT TO ALIMONY, SO THAT THE NEVADA DIVORCE DECREE TERMINATED THE ALIMONY PROVISIONS OF THE PRIOR NEW YORK JUDGMENT AND HENCE THE NEW YORK COURT OF APPEALS WOULD NOT AUTHORIZE THE AMENDMENT OF THE PRIOR NEW YORK SEPARATION DECREE SO AS TO INCREASE THE ALIMONY THERE AWARDED HERE (WHICH THE FORMER HUSBAND HAD VOLUNTARILY CONTINUED TO PAY).

THERE HAS BEEN NO SHOWING THAT THE NEW YORK COURT OF APPEALS HAS REGARDED THE SERVICE OF PROCESS IN NEW YORK AND UPON THE DEFENDANT NEW YORK RESIDENT SPOUSE IN A FOREIGN DIVORCE CASE AS EQUIVALENT TO ACTUAL APPEARANCE IN THE CASE.

ACCORDINGLY, THE VALIDITY OF THE EX PARTE MEXICAN DIVORCE IN THIS CASE AS WELL AS THE SUBSEQUENT MARYLAND MARRIAGE ARE TOO DOUBTFUL TO WARRANT OUR ALLOWANCE OF YOUR CLAIM. SEE LONGWILL V. UNITED STATES, 17 CT.CL. 288 (1881), AND CHARLES V. UNITED STATES, 19 CT.CL. 316 (1884).