B-141945, JAN. 16, 1963
Highlights
THAT BECAUSE OF YOUR MARRIAGE TO ALFRED FREEMAN YOU ARE NOT ENTITLED TO FURTHER ANNUITY PAYMENTS AS WIDOW OF LIEUTENANT MYRON ROSENFIELD UNDER THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953. WAS REACHED AFTER CAREFUL CONSIDERATION OF ALL THE FACTS AND CIRCUMSTANCES OF YOUR CASE AND THE APPLICABLE LAWS AND COURT DECISIONS. IT IS TRUE THAT A NUMBER OF DECISIONS INVOLVING THE NEW YORK DOMESTIC RELATIONS LAW. THE PARTIES ARE IN THE SAME POSITION AFTER THE ANNULMENT AS THOUGH THE MARRIAGE HAD NEVER BEEN ENTERED INTO. AFTER SECTION 1140-A OF THE CIVIL PRACTICE ACT WAS ENACTED PERMITTING THE WIFE TO RECEIVE SUPPORT FROM THE HUSBAND OF THE ANNULLED MARRIAGE. THE COURTS HAVE HELD THAT UNDER NEW YORK LAW A VOIDABLE MARRIAGE ANNULLED ON THE GROUND OF FRAUD IS NOT VOID AB INITIO AND THE RULE OF THE SLEICHER CASE THAT AN ANNULMENT DESTROYS A MARRIAGE "AS IF IT HAD NEVER BEEN" IS NO LONGER THE LAW.
B-141945, JAN. 16, 1963
TO MRS. FRANCES ROSENFIELD:
YOUR LETTER DATED DECEMBER 21, 1962, REQUESTS RECONSIDERATION OF THE CONCLUSION REACHED IN OUR LETTER DATED FEBRUARY 26, 1960, ADDRESSED TO HONORABLE STEVEN B. DEROUNIAN, B-141945, THAT BECAUSE OF YOUR MARRIAGE TO ALFRED FREEMAN YOU ARE NOT ENTITLED TO FURTHER ANNUITY PAYMENTS AS WIDOW OF LIEUTENANT MYRON ROSENFIELD UNDER THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, APPROVED AUGUST 8, 1953, CH. 393, 67 STAT. 501 (NOW RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431-1446).
OUR CONCLUSION OF FEBRUARY 26, 1960, WAS REACHED AFTER CAREFUL CONSIDERATION OF ALL THE FACTS AND CIRCUMSTANCES OF YOUR CASE AND THE APPLICABLE LAWS AND COURT DECISIONS. IT IS TRUE THAT A NUMBER OF DECISIONS INVOLVING THE NEW YORK DOMESTIC RELATIONS LAW, SECTION 7, INDICATE THAT AN ANNULMENT OF A MARRIAGE PUTS AN END TO SUCH MARRIAGE FROM THE VERY BEGINNING, AND THE PARTIES ARE IN THE SAME POSITION AFTER THE ANNULMENT AS THOUGH THE MARRIAGE HAD NEVER BEEN ENTERED INTO. THOSE CASES FOLLOW THE RULE OF SLEICHER V. SLEICHER, 251 N.Y. 366, 167 N.E. 501 (1929) AND OTHER SIMILAR CASES.
HOWEVER, AFTER SECTION 1140-A OF THE CIVIL PRACTICE ACT WAS ENACTED PERMITTING THE WIFE TO RECEIVE SUPPORT FROM THE HUSBAND OF THE ANNULLED MARRIAGE, THE COURTS HAVE HELD THAT UNDER NEW YORK LAW A VOIDABLE MARRIAGE ANNULLED ON THE GROUND OF FRAUD IS NOT VOID AB INITIO AND THE RULE OF THE SLEICHER CASE THAT AN ANNULMENT DESTROYS A MARRIAGE "AS IF IT HAD NEVER BEEN" IS NO LONGER THE LAW. SEE NOTT V. FOLSOM, 161 F.SUPP. 905 (1958), AFFIRMED, NOTT V. FLEMMING, 272 F.2D 380, WHERE THE COURT NOTED THAT THE WIFE COULD OBTAIN ALIMONY FROM THE HUSBAND OF THE ANNULLED MARRIAGE.
YOUR LETTER OF DECEMBER 21, 1962, PRESENTS NO FACTS OR EVIDENCE NOT PREVIOUSLY CONSIDERED AND HENCE AFFORDS NO GROUNDS FOR MODIFICATION OF THE ACTION PREVIOUSLY TAKEN IN YOUR CASE.