B-127814, AUG. 7, 1956

B-127814: Aug 7, 1956

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THAT HE WAS DISCHARGED ON NOVEMBER 5. FAMILY ALLOWANCE PAYMENTS IN THE AMOUNT OF $50 PER MONTH WERE MADE TO YOU FOR THE MONTHS OF JUNE 1942 THROUGH AUGUST 1945 IN THE TOTAL AMOUNT OF $1. THAT SUCH FAMILY ALLOWANCE PAYMENTS WERE DISCONTINUED WITH THE MONTH OF AUGUST 1945 FOR THE REASON THAT YOU WERE NEVER ELIGIBLE TO RECEIVE SUCH BENEFITS. HERBERT HUNTLEY AND EFFIE MCDOW WERE UNITED IN THE BONDS OF MATRIMONY. EDWARDS WERE MARRIED IN THE DISTRICT OF COLUMBIA ON JUNE 27. THE RECORD FURTHER SHOWS THAT CLASS F DEDUCTIONS OF $22 PER MONTH WERE MADE FROM MR. SINCE THE DEDUCTIONS WERE NOT PROPER. THE SUM OF $880 WAS APPLIED TO THE INDEBTEDNESS THUS REDUCING IT TO $1. IT WAS STATED IN PERTINENT PART AS FOLLOWS: "SHE (MRS.

B-127814, AUG. 7, 1956

TO MRS. BERNICE E. HUNTLEY:

THERE HAS BEEN CONSIDERED A LETTER DATED MARCH 21, 1956, FROM MR. W. EDWIN CUMBERLAND CONCERNING YOUR INDEBTEDNESS TO THE UNITED STATES IN THE AMOUNT OF $1,070 ON ACCOUNT OF ERRONEOUS PAYMENTS OF FAMILY ALLOWANCE MADE TO YOU DURING THE PERIOD JUNE 1, 1942, TO AUGUST 31, 1945, AS THE ALLEGED WIFE OF MR. HERBERT L. HUNTLEY.

THE RECORD SHOWS THAT MR. HERBERT L. HUNTLEY ENTERED THE ARMY ON JUNE 18, 1942, AND THAT HE WAS DISCHARGED ON NOVEMBER 5, 1945; THAT ON THE BASIS OF YOUR APPLICATION DATED OCTOBER 8, 1942, AS ,WIFE" OF MR. HUNTLEY, FAMILY ALLOWANCE PAYMENTS IN THE AMOUNT OF $50 PER MONTH WERE MADE TO YOU FOR THE MONTHS OF JUNE 1942 THROUGH AUGUST 1945 IN THE TOTAL AMOUNT OF $1,950; AND THAT SUCH FAMILY ALLOWANCE PAYMENTS WERE DISCONTINUED WITH THE MONTH OF AUGUST 1945 FOR THE REASON THAT YOU WERE NEVER ELIGIBLE TO RECEIVE SUCH BENEFITS, SINCE AN INVESTIGATION DISCLOSED THAT MR. HUNTLEY HAD A LIVING SPOUSE DURING THAT PERIOD.

THE FILE CONTAINS A CERTIFIED COPY OF A MARRIAGE CERTIFICATE SHOWING THAT ON SEPTEMBER 24, 1929, AT LANCASTER, IN LANCASTER COUNTY, STATE OF SOUTH CAROLINA, HERBERT HUNTLEY AND EFFIE MCDOW WERE UNITED IN THE BONDS OF MATRIMONY. ALSO, THE FILE CONTAINS A CERTIFIED COPY OF A CERTIFICATE OF MARRIAGE SHOWING THAT HERBERT HUNTLEY AND BERNICE R. EDWARDS WERE MARRIED IN THE DISTRICT OF COLUMBIA ON JUNE 27, 1938, AT THE MUNICIPAL COURT. THE RECORD FURTHER SHOWS THAT CLASS F DEDUCTIONS OF $22 PER MONTH WERE MADE FROM MR. HUNTLEY'S PAY DURING THE PERIOD AUGUST 1942 THROUGH NOVEMBER 1945 IN THE AMOUNT OF $880. SINCE THE DEDUCTIONS WERE NOT PROPER, THE SUM OF $880 WAS APPLIED TO THE INDEBTEDNESS THUS REDUCING IT TO $1,070.

IN A LETTER DATED JUNE 21, 1952, FROM A MR. JAMES L. WRAY, AN ASSOCIATE OF MR. W. EDWIN CUMBERLAND, IT WAS STATED IN PERTINENT PART AS FOLLOWS:

"SHE (MRS. BERNICE E. HUNTLEY) AND MR. HUNTLY WENT THROUGH A MARRIAGE CEREMONY IN THE DISTRICT OF COLUMBIA ON JUNE 27, 1938. THE CEREMONY OF THAT DATE WAS OF NO EFFECT BECAUSE MRS. HUNTLEY WAS STILL MARRIED TO A MR. JACKSON ROYAL AND MR. HUNTLEY STILL HAD A WIFE LIVING. SUBSEQUENTLY, MRS. HUNTLEY DIVORCED MR. ROYAL IN THE DISTRICT OF COLUMBIA IN FEBRUARY, 1943. THE FIRST MRS. HUNTLY (WHOSE FULL NAME I HAVE AS YET BEEN UNABLE TO LEARN) DIED IN 1946.'

HE FURTHER SAID IN THE LETTER THAT IT IS THEIR UNDERSTANDING THAT, UNDER THE LAW IN THE DISTRICT OF COLUMBIA, YOU AND MR. HUNTLEY BECAME HUSBAND AND WIFE BY VIRTUE OF A COMMON-LAW MARRIAGE AFTER THE TWO IMPEDIMENTS HAD BEEN REMOVED AND THAT YOUR MARRIAGE, WHEN IT BECAME VALID, DATED BACK TO THE FIRST COHABITATION AND HOLDING OUT AS HUSBAND AND WIFE. MR. CUMBERLAND IN HIS LETTER OF MARCH 21, 1956, ALSO EXPRESSES THE OPINION THAT ONCE THE IMPEDIMENTS WERE REMOVED THE COMMON-LAW MARRIAGE REVERTED TO THE BEGINNING OF THE RELATIONSHIP. HE FEELS THAT THE MATTER SHOULD BE PRESENTED TO A PROPER COURT FOR A JUDICIAL DECISION. IN A LETTER DATED JULY 22, 1955, MR. CUMBERLAND SAID THAT MR. HUNTLEY IS NOW ILL IN A VETERANS ADMINISTRATION HOSPITAL. HE DID NOT FURNISH US WITH THE LOCATION OF THAT HOSPITAL.

SECTION 104 OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, AS AMENDED, 37 U.S.C. 204 (1946 EDITION), PROVIDED THAT A FAMILY ALLOWANCE SHOULD BE PAID TO THE WIFE OF AN ENLISTED MAN UPON A WRITTEN APPLICATION MADE BY THE MAN OR BY HIS WIFE, AND SECTION 120 OF THE ACT (37 U.S.C. 220) DEFINES THE TERM "WIFE" TO MEAN "A LAWFUL WIFE.' IT SEEMS QUITE CLEAR THAT UNDER THE PROVISIONS OF THE CITED ACT ONLY A "LAWFUL WIFE" OF AN ENLISTED MAN WAS ENTITLED TO RECEIVE THE FAMILY ALLOWANCE BENEFITS. SINCE THE RECORD SHOWS THAT MR. HUNTLEY HAD A LIVING LAWFUL WIFE AT THE TIME OF FILING YOUR APPLICATION FOR FAMILY ALLOWANCE BENEFITS AND DURING THE ENTIRE PERIOD WHEN SUCH PAYMENTS WERE MADE TO YOU, IT IS OBVIOUS THAT YOU WERE NOT HIS "LAWFUL WIFE" WITHIN THE MEANING OF THAT TERM AS USED IN THE ACT DURING THE PERIOD JUNE 1, 1942, TO AUGUST 31, 1945, SO AS TO ENTITLE YOU TO FAMILY ALLOWANCE PAYMENTS.

CONCERNING MR. CUMBERLAND'S BELIEF THAT ONCE THE IMPEDIMENT TO YOUR MARRIAGE WITH MR. HUNTLEY WAS REMOVED--- THUS CONSTITUTING A VALID COMMON- LAW MARRIAGE IN THE DISTRICT OF COLUMBIA--- THE COMMON-LAW MARRIAGE REVERTED TO THE BEGINNING OF THE RELATIONSHIP, YOUR ATTENTION IS CALLED TO THE CASE OF UTTERBACK V. UTTERBACK (DECIDED APRIL 16, 1947) DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA. IN THAT CASE THE COURT QUOTED BISHOP IN HIS WORK ON MARRIAGE AND DIVORCE, VOLUME 1, PAGE 970, AS FOLLOWS:

" * * * IF THE PARTIES DESIRE MARRIAGE, AND DO WHAT THEY CAN TO RENDER THEIR UNION MATRIMONIAL, ALTHOUGH ONE IS UNDER A DISABILITY, THEIR COHABITATION THUS MATRIMONIALLY MEANT, WILL IN MATTER OF LAW MAKE THEM HUSBAND AND WIFE, FROM THE MOMENT WHEN THE DISABILITY IS REMOVED.'

THE COURT CONCLUDED IN THE UTTERBACK CASE:

" * * * THE COURT DECREES THAT, WHILE THE CEREMONIAL MARRIAGE OF THE PARTIES WAS VOID UNDER TITLE 16, SEC. 403, OF THE DISTRICT OF COLUMBIA CODE, THEIR CONTINUED COHABITATION AFTER THE REMOVAL OF THE IMPEDIMENT CONSTITUTED A VALID COMMON LAW MARRIAGE AS OF THAT MOMENT, AND SUCH VALID COMMON LAW MARRIAGE CONTINUES TO EXIST.'

YOU SHOULD MAKE ARRANGEMENTS TO LIQUIDATE THIS INDEBTEDNESS IN ORDER TO AVOID FURTHER COLLECTION ACTION BY US. ..END :

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