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B-160591, JUNE 5, 1970, 49 COMP. GEN. 833

B-160591 Jun 05, 1970
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THESE DECISIONS WILL BE ACCEPTED AS AUTHORITATIVE JUDICIAL DETERMINATIONS THAT THE ROSENSTIEL CASE IS FOR APPLICATION IN DETERMINING THE VALIDITY OF MEXICAN DIVORCES OBTAINED IN LIKE SITUATIONS BOTH BEFORE AND AFTER SEPTEMBER 1. 1970: FURTHER REFERENCE IS MADE TO LETTER DATED MARCH 26. IN ITS DISCUSSION OF THE QUESTION THE COMMITTEE SAYS THAT IT WAS HELD IN 47 COMP. THE COURT HELD THE DIVORCE WAS VALID EVEN THOUGH IT 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. NO DOMICILE OF EITHER PARTY IS SHOWN WITHIN THE MEXICAN JURISDICTION. IT IS REPORTED THAT THE NEW YORK SUPREME COURT. THAT UNDER SECTION 250 THE PRESUMPTION OF THE VALIDITY OF THE DIVORCE STILL EXISTS AND THE BURDEN OF SHOWING ITS INVALIDITY IS UPON ITS ASSAILANT WHO MUST ESTABLISH THE FOREIGN COUNTRY'S LACK OF JURISDICTION OVER THE MARITAL STATUS AS WELL AS OVER THE PARTIES.

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B-160591, JUNE 5, 1970, 49 COMP. GEN. 833

HUSBAND AND WIFE -- DIVORCE -- VALIDITY -- FOREIGN ALTHOUGH 47 COMP. GEN. 286 HELD THAT BECAUSE OF THE UNCERTAINTY OF SECTION 250 OF THE NEW YORK STATE DOMESTIC RELATIONS LAWS CONCERNING FOREIGN DIVORCES, AFTER SEPTEMBER 1, 1967, THE EFFECTIVE DATE OF SECTION 250, ROSENSTIEL V ROSENTIEL, 16 N. Y. 2D 64, 209 N. E. 2D 709, WOULD NO LONGER BE VIEWED AS CONSTITUTING A JUDICIAL DETERMINATION OF A MEXICAN DIVORCE FOR THE PURPOSES OF THE PAYMENT OF QUARTERS ALLOWANCES, ON THE BASIS THAT IN ROSE V ROSE AND KAKARAPIS V KAKARAPIS, THE LOWER NEW YORK COURTS SUBSEQUENT TO THE ENACTMENT OF SECTION 250, FOLLOWED THE ROSENSTIEL CASE IN UPHOLDING THE VALIDITY OF A BILATERAL MEXICAN DIVORCE, THESE DECISIONS WILL BE ACCEPTED AS AUTHORITATIVE JUDICIAL DETERMINATIONS THAT THE ROSENSTIEL CASE IS FOR APPLICATION IN DETERMINING THE VALIDITY OF MEXICAN DIVORCES OBTAINED IN LIKE SITUATIONS BOTH BEFORE AND AFTER SEPTEMBER 1, 1967. 47 COMP. GEN. 286, MODIFIED.

TO THE SECRETARY OF DEFENSE, JUNE 5, 1970:

FURTHER REFERENCE IS MADE TO LETTER DATED MARCH 26, 1970, FROM THE DEPUTY ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING OUR DECISION WHETHER THE RULE STATED IN 47 COMP. GEN. 286 (1967) HAS BEEN AFFECTED BY SUBSEQUENT JUDICIAL DECISIONS DISCUSSED IN AN ENCLOSED COPY OF DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 439.

IN ITS DISCUSSION OF THE QUESTION THE COMMITTEE SAYS THAT IT WAS HELD IN 47 COMP. GEN. 286 (1967) THAT THE DECISION OF THE NEW YORK COURT OF APPEALS IN ROSENSTIEL V ROSENSTIEL, 16 N.Y. 2D 64, 209 N.E. 2D 709 (1965), MAY NOT BE VIEWED AS CONSTITUTING A JUDICIAL DETERMINATION OF THE VALIDITY OF FOREIGN STATE (USUALLY MEXICAN) DIVORCES OBTAINED BY NEW YORK DOMICILIARIES ON OR AFTER SEPTEMBER 1, 1967, THE EFFECTIVE DATE OF SECTION 250 OF THE DOMESTIC RELATIONS LAWS OF THE STATE OF NEW YORK, FOR THE PURPOSE OF PAYMENT OF QUARTERS ALLOWANCES.

IN THE ROSENSTIEL DECISION THE NEW YORK 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 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. THE COURT HELD THE DIVORCE WAS VALID EVEN THOUGH IT 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, AND NO DOMICILE OF EITHER PARTY IS SHOWN WITHIN THE MEXICAN JURISDICTION.

THE COMMITTEE REFERS TO THE DECISION RENDERED BY THE FAMILY COURT OF MONTGOMERY COUNTY, NEW YORK, IN KAKARAPIS V KAKARAPIS, 58 MISC. 2D 515, 296 N.Y.S. 2D (1968). THE COMMITTEE SAYS THE COURT RULED THAT IN VIEW OF CERTAIN JUDICIAL PRECEDENTS ESTABLISHED BY THE COURTS PRIOR TO SEPTEMBER 1, 1967, THE VALIDITY OF A BILATERAL FOREIGN STATE DIVORCE OF THE NEW YORK RESIDENTS OBTAINED ON OR AFTER THAT DATE WOULD NOT BE QUESTIONED, I.E., WOULD BE DEEMED VALID, EVEN THOUGH NEITHER OF THE PARTIES TO THE DIVORCE HAD PERFECTED A BONA FIDE DOMICILE IN THE FOREIGN NATION.

FURTHER, THE COMMITTEE SAYS THAT ON OCTOBER 9, 1968, AT PAGE 19, COLUMN 4, IN THE NEW YORK LAW JOURNAL, IT IS REPORTED THAT THE NEW YORK SUPREME COURT, QUEENS COUNTY, AT A SPECIAL TERM, IN A CASE, ROSE V ROSE, REACHED A SOMEWHAT SIMILAR CONCLUSION. ALSO, THE COMMITTEE REFERS TO AN ARTICLE APPEARING IN THE "FAMILY LAW QUARTERLY," VOLUME 2, JUNE 1968, PAGES 174- 181, BY MR. ELLIOTT L. BISKIND, IDENTIFIED AS A MEMBER OF THE NEW YORK BAR AND EDITOR-IN-CHIEF OF BOARDMAN'S NEW YORK FAMILY LAW WITH FORMS (1967).

THE COMMITTEE STATES THAT IT APPEARS TO BE THE AUTHOR'S VIEWS THAT SECTION 205 (250) OF THE DOMESTIC RELATIONS LAW OF THE STATE OF NEW YORK CREATES MERELY A RULE OF EVIDENCE IN ORDER TO SIMPLIFY THE DIFFICULTY AND EXPENSE OF A DIVORCED SPOUSE IN ATTEMPTING TO OBTAIN A DECLARATORY JUDGMENT THAT HE OR SHE REMAINS THE SPOUSE OF THE ONE WHO SOUGHT THE DIVORCE; THAT UNDER SECTION 250 THE PRESUMPTION OF THE VALIDITY OF THE DIVORCE STILL EXISTS AND THE BURDEN OF SHOWING ITS INVALIDITY IS UPON ITS ASSAILANT WHO MUST ESTABLISH THE FOREIGN COUNTRY'S LACK OF JURISDICTION OVER THE MARITAL STATUS AS WELL AS OVER THE PARTIES; AND THAT IN ENACTING SECTION 250 THE STATE LEGISLATURE HAD NO INTENTION TO, AND DID NOT, AFFECT THE ROSENSTIEL CASE.

THE COMMITTEE ALSO STATES THAT THERE HAVE BEEN INSTANCES WHERE MILITARY MEMBERS, RELYING ON ADVICE FROM NEW YORK ATTORNEYS THAT FOREIGN STATE DIVORCES GRANTED ON OR AFTER SEPTEMBER 1, 1967, ARE RECOGNIZED UNDER NEW YORK LAW, HAVE IN GOOD FAITH CONTRACTED MARRIAGES IN WHICH ONE OF THE PARTIES HAD BEEN GRANTED AN EARLIER (BUT ON OR AFTER SEPTEMBER 1, 1967) MEXICAN DIVORCE. IN ADDITION, THE COMMITTEE SAYS IT IS UNDERSTOOD THAT IT IS NOT UNCOMMON FOR NEW YORK ATTORNEYS TO ARRANGE SUCH DIVORCES. NEVERTHELESS, THE COMMITTEE STATES THAT UNDER THE CURRENT RULE, THE MEMBER DOES NOT QUALIFY FOR PAYMENT OF BASIC ALLOWANCE FOR QUARTERS AS A MEMBER WITH DEPENDENTS.

OUR DECISION 47 COMP. GEN. 286 (1967) CONSIDERED SEVERAL QUESTIONS CONCERNING THE VALIDITY OF MEXICAN DIVORCES FOR THE PURPOSES OF PAYMENT OF QUARTERS ALLOWANCES PARTICULARLY WITH RESPECT TO MEXICAN DIVORCES OBTAINED BY MEMBERS OF THE ARMED FORCES DOMICILED IN THE STATE OF NEW YORK AFTER THE EFFECTIVE DATE OF SECTION 250, DOMESTIC RELATIONS LAW, MCKINNEY'S CONSOLIDATED LAWS OF NEW YORK.

IN QUESTION 3 WE WERE ASKED WHETHER THE PROVISIONS OF SECTION 250 OF THE DOMESTIC RELATIONS LAW REQUIRE THE CONCLUSION THAT ON OR AFTER SEPTEMBER 1, 1967, ANY SERVICE MEMBER WITHIN ITS PURVIEW WHO OBTAINS A MEXICAN DIVORCE MUST HAVE THAT DIVORCE DECREE RECOGNIZED AS VALID BY A COURT OF COMPETENT JURISDICTION OF THE STATE OF NEW YORK BEFORE HE MAY BE CONSIDERED ENTITLED TO BASIC ALLOWANCE FOR QUARTERS IN BEHALF OF A WIFE OF A SECOND MARRIAGE.

IN ANSWERING QUESTION 3, WE STATED THAT THE PROVISIONS OF SECTION 250 WERE ENACTED IN CONJUNCTION WITH A GENERAL REVISION OF THE NEW YORK DIVORCE LAW AND WHILE THEIR IMPACT ON THE ROSENSTIEL TYPE CASE IS NOT CLEAR, THEY CLEARLY REPRESENT A SUBSTANTIAL CHANGE IN STATE LAW. CONCLUDED THAT THE ROSENSTIEL CASE MAY NOT BE VIEWED AS CONSTITUTING A JUDICIAL DETERMINATION OF THE VALIDITY OF MEXICAN DIVORCES OBTAINED AFTER SEPTEMBER 1, 1967, THE EFFECTIVE DATE OF SECTION 250.

THE FIRST DIRECT JUDICIAL PRONOUNCEMENT CONCERNING THE VALIDITY OF BILATERAL MEXICAN DIVORCE DECREES PROCURED AFTER THE ENACTMENT OF SECTION 250 OF THE DOMESTIC RELATIONS LAW APPEARS TO BE THE DECISION OF THE NEW YORK SUPREME COURT, QUEENS COUNTY IN ROSE V ROSE, N.Y. LAW JOURNAL, OCTOBER 9, 1968. IN THAT CASE THE PLAINTIFF-WIFE BROUGHT AN ACTION FOR DIVORCE BASED UPON CRUEL AND INHUMAN TREATMENT. A NOTICE OF APPEARANCE ON BEHALF OF THE DEFENDANT-HUSBAND WAS FILED, BUT THE HUSBAND DID NOT ANSWER THE COMPLAINT.

IN THE COURSE OF THE TRIAL ON JUNE 11, 1968, THE PLAINTIFF'S ATTORNEY INTRODUCED IN EVIDENCE A BILATERAL MEXICAN DECREE OF DIVORCE DATED MARCH 20, 1968. THE DEFENDANT HUSBAND DID NOT ASSERT THE PRIOR ACTION. THE COURT DISMISSED THE COMPLAINT, HOWEVER, STATING THAT IT WOULD NOT PERMIT A JUDGMENT FOR DIVORCE TO BE ENTERED IN THE ABSENCE OF A PREREQUISITE SHOWING OF THE EXISTENCE OF A VALID MARRIAGE. THE ROSENSTIEL DECISION WAS CITED AS UPHOLDING THE VALIDITY OF SUCH MEXICAN DIVORCES. THE COURT, ON ITS OWN INITIATIVE, GRANTED JUDGMENT DISMISSING THE COMPLAINT AND JUDGMENT WAS ENTERED ACCORDINGLY.

WHILE THE COURT DID NOT MENTION SECTION 250 OR ITS EFFECTIVE DATE, SEPTEMBER 1, 1967, IT IS REASONABLE TO ASSUME THAT THE COURT CONSIDERED THE STATUTE WHEN REACHING ITS DECISION. THUS, WHAT APPEARS TO HAVE BEEN THE FIRST NEW YORK DECISION CONCERNING A MEXICAN DIVORCE OBTAINED AFTER SEPTEMBER 1, 1967, FOLLOWED THE ROSENSTIEL DECISION IN UPHOLDING THE VALIDITY OF THE BILATERAL MEXICAN DIVORCE.

IN KAKARAPIS V KAKARAPIS, 296 NYS 2D 208 (1968), THE PETITIONER INSTITUTED A PROCEEDING FOR SUPPORT IN THE FAMILY COURT, MONTGOMERY COUNTY, NEW YORK, ALLEGING IN SUBSTANCE THAT SHE WAS THEN THE WIFE OF RESPONDENT AND MOTHER OF RESPONDENT'S EIGHTEEN YEAR OLD DAUGHTER. THE RESPONDENT CONCEDED LEGAL RESPONSIBILITY FOR THE SUPPORT OF HIS DAUGHTER, BUT DENIED RESPONSIBILITY FOR THE SUPPORT OF THE PETITIONER, CONTENDING THAT SHE WAS NO LONGER HIS WIFE. HE CONTENDED THAT A MEXICAN DIVORCE DECREE GRANTED ON NOVEMBER 7, 1967, DISSOLVED THE MARRIAGE. THE PETITIONER CONTENDED THAT THE MEXICAN DECREE OF DIVORCE IS A NULLITY BECAUSE OF THE PROVISIONS OF SECTION 250 OF THE DOMESTIC RELATIONS LAW, THE RESPONDENT HAVING RETURNED TO THE STATE OF NEW YORK TO RESUME HIS RESIDENCE FOLLOWING THE DIVORCE. IN ITS OPINION, THE COURT SAID THE QUESTION TO BE DECIDED WAS THE EFFECT OF SECTION 250, IF ANY, ON THE LAW OF THE STATE OF NEW YORK AS ENUNCIATED IN THE ROSENSTIEL CASE.

THE COURT POINTED OUT THAT SECTION 250 WAS ENACTED ALMOST TWO YEARS AFTER THE ROSENSTIEL DECISION WAS RENDERED AND STATED "SURELY THIS LANDMARK DECISION AFFECTING MATRIMONIAL JURISPRUDENCE WAS WELL-KNOWN TO THE LEGISLATURE WHEN THAT SECTION WAS ENACTED. HAD NEW YORK LEGISLATORS SOUGHT TO NULLIFY THE EFFECT OF THE ROSENSTIEL DECISION ON FOREIGN DIVORCES, THEN CERTAINLY MORE DECISIVE AND COMPREHENSIVE LANGUAGE COULD HAVE BEEN CHOSEN." THE COURT ALSO DISCUSSED THE DECISION IN ROSE V ROSE, CONSIDERED ABOVE, AS SUPPORTING THE VIEW THAT SECTION 250 DID NOT AFFECT THE ROSENSTIEL DECISION. THE COURT DECIDED THAT SECTION 250 DOES NOT OVERTHROW THE ROSENSTIEL PRINCIPLE OF LAW THAT A BILATERAL MEXICAN DIVORCE IS VALID AND DENIED PETITIONER AN ORDER PROVIDING FOR HER SUPPORT.

WITH RESPECT TO THE JURISDICTION OF THE FAMILY COURT OF MONTGOMERY COUNTY, NEW YORK, TO CONSIDER THE MATTER OF DIVORCE BETWEEN THE PARTIES, UNDER SECTION 115, THE FAMILY COURT ACT, MCKINNEY'S CONSOLIDATED LAWS OF NEW YORK, THE FAMILY COURT HAS EXCLUSIVE ORIGINAL JURISDICTION OVER SUBSTANTIALLY ALL ASPECTS OF FAMILY LIFE, EXCEPT ACTIONS FOR SEPARATION, ANNULMENT OR DIVORCE. JURISDICTION OVER THESE ACTIONS IS CONSTITUTIONALLY RESERVED TO THE SUPREME COURT.

IN THE KAKARAPIS CASE INVOLVING A PROCEEDING FOR SUPPORT BROUGHT BY THE PETITIONER AS WIFE OF THE RESPONDENT, IT WOULD SEEM THAT THE FAMILY COURT NECESSARILY HAD THE AUTHORITY TO DETERMINE WHETHER THERE WAS A VALID AND SUBSISTING MARRIAGE, INCLUDING THE QUESTION OF THE VALIDITY OF THE MEXICAN DIVORCE.

WHILE, AS FAR AS WE ARE AWARE, NO APPELLATE DECISION IN NEW YORK HAS AS YET BEEN RENDERED ON THE VALIDITY OF BILATERAL MEXICAN DIVORCES PROCURED AFTER SEPTEMBER 1, 1967, THE DECISIONS IN LOWER COURTS CITED ABOVE SUSTAINING THE VALIDITY OF BILATERAL MEXICAN DIVORCES REFLECT IMPRESSIVE JUDICIAL OPINION THAT SECTION 250 DID NOT MODIFY THE ROSENSTIEL DECISION AND THAT IT IS STILL THE LAW IN NEW YORK. IN THIS CONNECTION, SEE BUTLER V BUTLER, 239 A. 2D 616, 619, IN WHICH THE DISTRICT OF COLUMBIA COURT OF APPEALS IN AN OPINION BY JUDGE KELLY WRITTEN AFTER SEPTEMBER 1, 1967, CITES THE ROSENSTIEL CASE AS THE LAW IN NEW YORK.

THEREFORE, IN THE ABSENCE OF ANY JUDICIAL DETERMINATION TO THE CONTRARY, THE DECISIONS IN THE ROSE AND KAKARAPIS CASES WILL BE VIEWED AS AUTHORITATIVE JUDICIAL DETERMINATIONS THAT THE ROSENSTIEL CASE IS FOR APPLICATION IN DETERMINING THE VALIDITY OF MEXICAN DIVORCES OBTAINED IN LIKE SITUATIONS BOTH BEFORE AND AFTER SEPTEMBER 1, 1967.

OUR ANSWER TO QUESTION 3, 47 COMP. GEN. 286 (1967) IS MODIFIED ACCORDINGLY.

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