B-122443, MAY 25, 1955, 34 COMP. GEN. 629

B-122443, MAY 25, 1955, 34 COMP. GEN. 629

HUSBAND AND WIFE - MARRIAGE - VALIDITY - QUARTERS, FAMILY, ETC., ALLOWANCES THE MARRIAGE OF A MARINE CORPS ENLISTED MAN TO A WOMAN WHOSE FORMER MARRIAGE WAS RETROACTIVELY DISSOLVED BY A NEW YORK STATE SUPREME COURT JUDGMENT NINE YEARS AFTER HER MARRIAGE TO THE ENLISTED MAN IS OF SUCH DOUBTFUL VALIDITY THAT PAYMENT OF FAMILY ALLOWANCE OR BASIC ALLOWANCE FOR QUARTERS IS PRECLUDED.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO MASTER SERGEANT CLYDE A. PETTEY, UNITED STATES MARINE CORPS, MAY 25, 1955:

REFERENCE IS MADE TO YOUR CLAIM FOR THE GOVERNMENT'S CONTRIBUTION TO FAMILY ALLOWANCE FOR THE PERIOD FROM JANUARY 1945 THROUGH SEPTEMBER 1949; FOR BASIC ALLOWANCE FOR QUARTERS FOR THE PERIODS FROM OCTOBER 1, 1949, TO DECEMBER 31, 1949, AND FROM JANUARY 1, 1952, TO JUNE 30, 1952, ON ACCOUNT OF A DEPENDENT WIFE, LOUISE P. PETTEY; AND FOR REFUND OF YOUR CONTRIBUTION TO THE FAMILY ALLOWANCE OF $5 A MONTH FROM FEBRUARY TO DECEMBER 1945, INCIDENT TO YOUR SERVICE IN THE UNITED STATES MARINE CORPS.

IT APPEARS THAT YOU AND LOUISE P. PARKER WERE MARRIED ON JANUARY 5, 1945, IN SAN DIEGO, CALIFORNIA, AND THAT ON FEBRUARY 26, 1945, YOU APPLIED FOR A FAMILY ALLOWANCE IN HER BEHALF, AS AUTHORIZED BY THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, 37 U.S.C; 1946 USED., SECTIONS 201-221. THE APPLICATION WAS NOT APPROVED AT THAT TIME BECAUSE SHE COULD NOT FURNISH DOCUMENTARY EVIDENCE OF THE DISSOLUTION OF HER FORMER MARRIAGE TO JAMES J. PARKER.

AT A SPECIAL TERM OF THE SUPREME COURT OF THE STATE OF NEW YORK, CONVENED IN THE CITY OF SCHENECTADY, NEW YORK, ON APRIL 15, 1954, A JUDGMENT WAS ISSUED REINSTATING AN INTERLOCUTORY DECREE OF DIVORCE, WHICH HAD BEEN GRANTED JAMES J. PARKER, THE HUSBAND OF LOUISE P. PARKER, WHICH HAD BEEN ENTERED IN THE ST. LAWRENCE COUNTY CLERK'S OFFICE ON OCTOBER 27, 1941, AND WHICH HAD BEEN VACATED BY AN ORDER ENTERED IN THE CLERK'S OFFICE ON JANUARY 22, 1942. THE JUDGMENT OF APRIL 15, 1954, ALSO GRANTED THE PARTIES AN INTERLOCUTORY JUDGMENT OF DIVORCE TO BECOME A FINAL JUDGMENT THREE MONTHS AFTER ENTRY AND FILING. ON JULY 7, 1954, THE SAME COURT ISSUED AN ORDER AMENDING AND MODIFYING THE JUDGMENT OF APRIL 15, 1954, TO SHOW THAT THE SAID VACATED INTERLOCUTORY DECREE OF DIVORCE OF OCTOBER 27, 1941, WAS REINSTATED "NUNC PRO TUNC" AS OF OCTOBER 27, 1941; THAT THE MARRIAGE OF THE PARTIES WAS DISSOLVED AS OF THAT DATE; AND THAT THE PARTIES WERE FREE FROM THE OBLIGATION OF SAID MARRIAGE ON JANUARY 27, 1942.

IN A LETTER DATED SEPTEMBER 14, 1954, THE ACTING HEAD, PERSONAL AFFAIRS BRANCH, HEADQUARTERS UNITED STATES MARINE CORPS, WASHINGTON, D.C., ADVISED US THAT, PURSUANT TO AUTHORITY VESTED IN HIM BY THE SECRETARY OF THE NAVY, HE RECOMMENDS THAT PAYMENT OF FAMILY ALLOWANCE BE MADE FOR MRS. LOUISE P. PETTEY AS YOUR LAWFUL WIFE FOR THE PERIOD SHOWN ON YOUR CLAIM AND THAT," IN VIEW OF THE EXPLICIT LANGUAGE USED IN THE MODIFIED ORDER OF 7 JULY 1954, IT HAS BEEN DETERMINED THAT MRS. PETTEY'S FORMER MARRIAGE WAS DISSOLVED BY DIVORCE EFFECTIVE 27 JANUARY 1942, AND, CONSEQUENTLY, THAT HER SUBSEQUENT MARRIAGE TO MASTER SERGEANT PETTEY ON 5 JANUARY 1945 (IN CALIFORNIA) MUST BE CONSIDERED VALID AB INITIO FOR THE PURPOSE OF DETERMINING ENTITLEMENT TO BENEFITS UNDER THE AFOREMENTIONED ACT.'

THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT, OF 1942, 56 STAT. 381, PROVIDED THAT THE DETERMINATION OF ALL FACTS, INCLUDING THE FACT OF DEPENDENCY, NECESSARY TO BE DETERMINED IN THE ADMINISTRATION OF THAT ACT WAS TO BE MADE BY THE SECRETARY OF THE DEPARTMENT CONCERNED AND "SUCH DETERMINATION SHALL BE FINAL AND CONCLUSIVE FOR ALL PURPOSES AND SHALL NOT BE SUBJECT TO REVIEW IN ANY COURT OR BY ANY ACCOUNTING OFFICER OF THE GOVERNMENT.' THAT ACT, HOWEVER, WAS REPEALED BY THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802, AND HENCE THE DETERMINATIONS BY THE SECRETARY OF THE NAVY OR HIS DESIGNEES OF THE ENTITLEMENT OF ANY PERSON TO THE FAMILY ALLOWANCE ARE NO LONGER CONCLUSIVE. SEE 29 COMP. GEN. 241; 30 ID. 65.

SECTION 13 OF THE DEPENDENTS ASSISTANCE ACT OF 1950, 64 STAT. 794, AUTHORIZES US TO MAKE PAYMENTS OF FAMILY ALLOWANCE UNDER THE PROVISIONS OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942 UPON THE RECOMMENDATIONS OF THE HEADS OF THE DEPARTMENTS CONCERNED OR SUCH SUBORDINATES AS THEY MAY DESIGNATE IN THOSE CASES WHERE THE APPLICATIONS FILED BY THE ENLISTED AND FORMER ENLISTED MEMBERS OF THE UNIFORMED SERVICES OR THEIR DEPENDENTS WERE NOT FINALLY ACTED UPON PRIOR TO OCTOBER 1, 1949. HOWEVER, THE DEPENDENTS ASSISTANCE ACT OF 1950 DID NOT MAKE THE DETERMINATIONS BY THE SECRETARY OF THE DEPARTMENT CONCERNED OR THEIR DESIGNEES OF THE ENTITLEMENT OF ANY PERSON TO A FAMILY ALLOWANCE CONCLUSIVE, ALTHOUGH THEIR DETERMINATIONS AS TO DEPENDENCY AND RELATIONSHIP ARE MADE CONCLUSIVE WITH RESPECT TO THE ENTITLEMENT OF ENLISTED MEN TO THE BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF DEPENDENTS FOR THE PERIOD BEGINNING AUGUST 1, 1950. ACCORDINGLY, WE MAY NOT AUTHORIZE PAYMENT OF A FAMILY ALLOWANCE UNLESS THE RIGHT OF THE BENEFICIARY TO RECEIVE IT IS ESTABLISHED. IT HAS LONG BEEN THE ESTABLISHED RULE THAT THE GOVERNMENT ACCOUNTING AND ADMINISTRATIVE OFFICERS SHOULD REJECT OR DISALLOW ALL CLAIMS TO WHICH THEY BELIEVE THERE MAY BE A SUBSTANTIAL DEFENSE IN LAW OR AS TO THE VALIDITY OF WHICH THEY ARE IN DOUBT. LONGWILL V. UNITED STATES, 17 C.1CLS. 288, 291; CHARLES V. UNITED STATES, 19 C.1CLS. 316, 319.

PRIOR TO 1954, WHEN THE JUDGMENTS DIVORCING JAMES AND LOUISE PARKER WERE ENTERED, THEIR MARRIAGE HAD NOT BEEN DISSOLVED. WHILE THE JUDGMENT RENDERED ON JULY 7, 1954, PURPORTS TO DISSOLVE SUCH MARRIAGE AS OF JANUARY 27, 1942, IT HAS BEEN HELD THAT UNDER NEW YORK LAW A DIVORCE DECREE CANNOT BE MADE RETROACTIVE AND THAT A SECOND MARRIAGE CONTRACTED BY ONE OF THE PARTIES WHILE THE SPOUSE IS LIVING AND THE FIRST MARRIAGE HAS NOT BEEN DISSOLVED IS VOID AND IS NOT RETROACTIVELY VALIDATED BY SUBSEQUENT DISSOLUTION OF THE FIRST MARRIAGE BY A DIVORCE JUDGMENT ENTERED NUNC PRO TUNC PURPORTING TO BE RETROACTIVE. SEE KARPUK V. KARPUK, 31 N.Y.S.2D 769; POWELL V. POWELL, 122 N.Y.S.2D 281. COMPARE GHEM V. UNITED STATES, 83 F.1SUPP. 1003; DAINE V. COMMISSIONER OF INTERNAL REVENUE, 168 F.2D 449. HENCE IT DOES NOT APPEAR THAT PRIOR TO 1954 EITHER OF THE PARTIES COULD CONTRACT A VALID MARRIAGE WITH ANY OTHER PERSON.

IN VIEW OF THE FOREGOING, (1) THE COURT'S ORDER OF JULY 7, 1954, RETROACTIVELY TERMINATING LOUISE E. (P.) PARKER'S FORMER MARRIAGE AS OF JANUARY 27, 1942, AND (2) YOUR MARRIAGE TO HER ON JANUARY 5, 1945, ARE OF SUCH DOUBTFUL VALIDITY THAT WE MAY NOT CONCLUDE THAT SHE WAS YOUR "LAWFUL WIFE" FROM JANUARY 5, 1945, WITHIN THE MEANING OF THAT TERM AS USED IN THE SERVICEMEN'S DEPENDENT'S ALLOWANCE ACT OF 1942 OR IN THE CAREER COMPENSATION ACT OF 1949, SO AS TO ENTITLE HER TO PAYMENT OF THE GOVERNMENT'S CONTRIBUTION TO THE FAMILY ALLOWANCE FROM THAT DATE TO SEPTEMBER 30, 1949, OR TO ENTITLE YOU TO PAYMENT OF BASIC ALLOWANCE FOR QUARTERS ON HER ACCOUNT FROM OCTOBER 1, 1949, THROUGH DECEMBER 31, 1949. HOWEVER, A SETTLEMENT WILL ISSUE IN DUE COURSE IN YOUR FAVOR FOR THE AMOUNT FOUND DUE ON ACCOUNT OF THE REMAINING ITEMS COVERED BY YOUR CLAIM.