B-160591, FEB. 17, 1967

B-160591, FEB. 17, 1967

TO THE U.S. NAVY REGIONAL FINANCE CENTER:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 23, 1966, FM10, JCR:MW, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO THE LEGALITY OF CREDITING THE PAY ACCOUNT OF LIEUTENANT JAMES C. NABORS, 645087, USN, WITH BASIC ALLOWANCE FOR QUARTERS AS A MEMBER WITH A DEPENDENT (WIFE) FROM JUNE 18, 1966, UNDER THE CIRCUMSTANCES PRESENTED. THE REQUEST, APPARENTLY MADE ON BEHALF OF THE DISBURSING OFFICER CARRYING LIEUTENANT NABOR'S ACCOUNT, WAS ASSIGNED SUBMISSION NO. DO-N-939, BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE RECORD SHOWS THAT LIEUTENANT NABORS AND HIS FIRST WIFE, GLORIA MAI NABORS, WERE MARRIED IN 1960 AND THAT SHE OBTAINED A MEXICAN DIVORCE IN 1966. AN ENGLISH TRANSLATION OF THE DIVORCE DECREE ENTERED ON MAY 30, 1966, BY THE THIRD CIVIL COURT OF BRAVOS DISTRICT, STATE OF CHIHAUHUA, REPUBLIC OF MEXICO, SHOWS THAT GLORIA MAI NABORS REGISTERED AS A RESIDENT OF THE CITY OF JUAREZ, BRAVOS DISTRICT, STATE OF CHIHUAHUA, AS REQUIRED BY MEXICAN LAW; THAT SHE PERSONALLY APPEARED BEFORE THE COURT ACCOMPANIED BY COUNSEL AND EXPRESSLY SUBMITTED HERSELF TO THE JURISDICTION OF THE COURT, AND THAT JAMES CARLTON NABORS APPEARED IN COURT BY COUNSEL AND SUBMITTED TO THE JURISDICTION OF THE COURT, ADMITTING THE ALLEGATIONS CONTAINED IN THE PETITION. THE DECREE PROVIDES THAT THE MARRIAGE OF JAMES CARLTON NABORS AND GLORIA MAI NABORS,PERFORMED ON APRIL 16, 1960, IN NEWARK, NEW JERSEY,"IS HEREBY DECLARED DISSOLVED.'

COPY OF A MARRIAGE CERTIFICATE SHOWS THAT ON JUNE 18, 1966, JAMES CARLTON NABORS OF NEW YORK, NEW YORK, MARRIED ARNEATHA CHAMBERS OF NEW YORK, NEW YORK, IN BROOKLYN, NEW YORK.

THE QUESTION PRESENTED IS WHETHER LIEUTENANT NABORS IS TO BE REGARDED AS HAVING A LAWFUL WIFE BEGINNING JUNE 18, 1966, FOR THE PURPOSE OF PAYMENT TO HIM OF BASIC ALLOWANCE FOR QUARTERS AS A MEMBER WITH A DEPENDENT UNDER 37 U.S.C. 403, IN VIEW OF THE MEXICAN DIVORCE.

IN THIS CONNECTION, IN AN ENCLOSURE WHICH ACCOMPANIED YOUR LETTER (COPY OF LETTER OF SEPTEMBER 22, 1966, FROM THE 3RD LEGAL OFFICE, U.S. NAVAL STATION ANNEX, BROOKLYN) THE OPINION IF EXPRESSED THAT UNDER OUR DECISION OF SEPTEMBER 23, 1965, B-156453, 45 COMP. GEN. 155, AND THE DECISION OF JULY 9, 1965, OF THE NEW YORK COURT OF APPEALS IN ROSENSTIEL V. ROSENSTIEL, 16 N.Y.2D 64, 209 N.E.2D 709, THE MEXICAN DIVORCE AND LIEUTENANT NABORS' SECOND MARRIAGE ARE VALID.

OUR DECISION OF SEPTEMBER 23, 1965, INVOLVED THE CASE OF AN OFFICER IN THE ARMY WHOSE FORMER WIFE IN 1962 OBTAINED A DIVORCE FROM HIM IN MEXICO WHILE BOTH SPOUSES WERE DOMICILED IN NEW YORK, AND THE OFFICER REMARRIED IN ANOTHER STATE. IN THAT CASE, WE CONSIDERED THE RELEVANCE OF THE DECISION OF THE NEW YORK COURT OF APPEALS IN THE ROSENSTIEL CASE, IN WHICH IT WAS HELD THAT A BALANCED PUBLIC POLICY NOW REQUIRES THAT RECOGNITION BE GIVEN TO A BILATERAL MEXICAN DIVORCE IN THE CIRCUMSTANCES THERE INVOLVED. IN THE ROSENSTIEL CASE BOTH HUSBAND AND WIFE (NEW YORK DOMICILIARIES) SUBMITTED TO THE JURISDICTION OF THE MEXICAN COURT, THE PLAINTIFF HAVING PERSONALLY APPEARED BEFORE THE COURT AND THE DEFENDANT HAVING MADE AN APPEARANCE AND SUBMITTED TO THE COURT BY AN ATTORNEY. WE CONCLUDED THAT THE ROSENSTIEL CASE DID NOT AFFORD A BASIS FOR RECOGNIZING AS VALID THE MEXICAN DIVORCE OBTAINED BY THE OFFICER'S WIFE SINCE HE DID NOT APPEAR IN THE COURT PROCEEDINGS OR OTHERWISE SUBMIT TO THE COURT'S JURISDICTION, AND THE SECOND MARRIAGE OCCURRED IN MARYLAND.

IN DECISIONS OF OCTOBER 27, 1965, AND MAY 3, 1966, B-157498, WE CONSIDERED THE CASE OF AN OFFICER WHO PERSONALLY APPEARED BEFORE A MEXICAN COURT IN AN ACTION IN WHICH HE WAS GRANTED A DIVORCE, HIS WIFE HAVING BEEN REPRESENTED BY AN ATTORNEY WHO EXPRESSLY SUBMITTED HER TO THE COURT'S JURISDICTION. BOTH PARTIES WERE DOMICILED IN THE STATE OF NEW YORK, AND THE OFFICER LATER REMARRIED IN SOUTH CAROLINA, THE SECOND WIFE ALSO BEING DOMICILED IN NEW YORK STATE.

WE SAID THAT IN VIEW OF THE ROSENSTIEL DECISION NEW YORK COURTS PRESUMABLY WOULD RECOGNIZE AS VALID THE OFFICER'S MEXICAN DIVORCE. HOWEVER, IN VIEW OF THE DOUBT WHETHER SOUTH CAROLINA, THE STATE WHERE THE SECOND MARRIAGE WAS PERFORMED, WOULD RECOGNIZE AS VALID SUCH DIVORCE, WE CONCLUDED THAT IN THE ABSENCE OF A JUDICIAL DETERMINATION OF THE VALIDITY OF THE OFFICER'S MARRIAGE THE MATTER WAS TOO DOUBTFUL TO CREDIT HIM WITH ALLOWANCES FOR A DEPENDENT WIFE.

AS TO DOMICILE IN THE PRESENT CASE, THE PAPERS SUBMITTED WITH THE REQUEST SHOWED ONLY THAT LIEUTENANT NABORS AND HIS SECOND WIFE WERE DOMICILED IN NEW YORK AT THE TIME OF HIS SECOND MARRIAGE WHICH OCCURRED 2 WEEKS AFTER THE DIVORCE. HOWEVER, THERE NOW HAS BEEN FURNISHED A CERTIFICATE BY LIEUTENANT NABORS THAT BOTH HE AND HIS FIRST WIFE WERE DOMICILED IN NEW YORK ON MAY 30, 1966, THE DATE OF THE MEXICAN DIVORCE.

SINCE THE RECORD NOW INDICATES THAT BOTH PARTIES WERE DOMICILED IN NEW YORK AT THE TIME OF THE DIVORCE; THAT THE PLAINTIFF PERSONALLY APPEARED BEFORE THE MEXICAN COURT; THAT THE DEFENDANT APPEARED BY AN ATTORNEY AND SUBMITTED TO THE COURT'S JURISDICTION, AND THAT THE SECOND MARRIAGE OCCURRED IN NEW YORK BETWEEN NEW YORK DOMICILIARIES, THE PRESENT CASE FALLS SQUARELY WITHIN THE ROSENSTIEL CASE.

ACCORDINGLY, IF LIEUTENANT NABORS IS OTHERWISE ENTITLED TO BASIC ALLOWANCE FOR QUARTERS, HE MAY BE CREDITED WITH SUCH ALLOWANCE AS A MEMBER WITH A DEPENDENT (WIFE) FROM JUNE 18, 1966, THE DATE OF HIS SECOND MARRIAGE.