B-157498, DEC. 15, 1966

B-157498: Dec 15, 1966

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TAYLOR: FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 18. PRESUMABLY WILL RECOGNIZE THEIR MEXICAN DIVORCE. THAT SINCE NEW YORK WAS ALSO THE DOMICILE OF MARY E. WE CONCLUDED THAT THE MATTER IS CONSIDERED TOO DOUBTFUL TO AUTHORIZE ALLOWANCES TO CAPTAIN GONZALEZ FOR A DEPENDENT WIFE IN THE ABSENCE OF A JUDICIAL DETERMINATION AS TO HIS MARITAL STATUS. NOT BY THE COURTS OF THE STATE WHERE THE MARRIAGE CEREMONY WAS PERFORMED. ARGUMENTS SIMILAR TO THOSE WHICH YOU HAVE ADVANCED WERE CONSIDERED WHEN WE RENDERED OUR DECISIONS OF OCTOBER 27. IT MAY BE THAT THE COURTS OF SOUTH CAROLINA WOULD LOOK TO THE DECISIONS OF THE STATE OF NEW YORK TO DETERMINE WHETHER CAPTAIN GONZALEZ WAS LEGALLY DIVORCED FROM BERUTA ANN GONZALEZ AND QUALIFIED TO ENTER INTO LAWFUL MARRIAGE IN SOUTH CAROLINA WITH MARY E.

B-157498, DEC. 15, 1966

TO MR. FRANK L. TAYLOR:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 18, 1966, REQUESTING RECONSIDERATION OF OUR DECISION OF OCTOBER 27, 1965, B 157498, CONCERNING THE ENTITLEMENT OF CAPTAIN JOSE M. GONZALEZ, MN2 312 529, TO ALLOWANCES FOR MARY E. GONZALEZ AS HIS DEPENDENT WIFE.

THE DECISIONS OF OCTOBER 27, 1965, AND MAY 3, 1966, B-157498, RELATED TO THE MEXICAN DIVORCE OF CAPTAIN GONZALEZ FROM BERUTA ANN GONZALEZ ON DECEMBER 14, 1964, AND HIS SUBSEQUENT MARRIAGE CEREMONY WITH MARY E. GONZALEZ IN COLUMBIA, SOUTH CAROLINA, ON JANUARY 5, 1965. WE STATED THAT IN VIEW OF ROSENSTIEL V. ROSENSTIEL, 262 N.Y.S.2D 86 (DECIDED JULY 9, 1965) THE STATE OF NEW YORK, DOMICILE OF CAPTAIN GONZALEZ AND BERUTA AND GONZALEZ, PRESUMABLY WILL RECOGNIZE THEIR MEXICAN DIVORCE, AND THAT SINCE NEW YORK WAS ALSO THE DOMICILE OF MARY E. GONZALEZ, HER MARRIAGE TO CAPTAIN GONZALEZ WOULD APPARENTLY BE RECOGNIZED IN NEW YORK IF IT HAD BEEN CONTRACTED THERE.

NO AUTHORITY, HOWEVER, COULD BE FOUND TO INDICATE THAT SOUTH CAROLINA WOULD RECOGNIZE AS VALID THE MEXICAN DIVORCE OF CAPTAIN GONZALEZ FROM BERUTA ANN GONZALEZ. FOR THIS REASON, WE CONCLUDED THAT THE MATTER IS CONSIDERED TOO DOUBTFUL TO AUTHORIZE ALLOWANCES TO CAPTAIN GONZALEZ FOR A DEPENDENT WIFE IN THE ABSENCE OF A JUDICIAL DETERMINATION AS TO HIS MARITAL STATUS.

IN YOUR LETTER OF OCTOBER 18, 1966, YOU CITE CASES AND AUTHORITY TO SUPPORT YOUR CONTENTION THAT THE VALIDITY OF THE MARRIAGE OF CAPTAIN GONZALEZ AND MARRY E. GONZALEZ SHOULD BE DETERMINED BY THE COURTS OF THE DOMICILE OF THE PARTIES, THE STATE OF NEW YORK, AND NOT BY THE COURTS OF THE STATE WHERE THE MARRIAGE CEREMONY WAS PERFORMED.

ARGUMENTS SIMILAR TO THOSE WHICH YOU HAVE ADVANCED WERE CONSIDERED WHEN WE RENDERED OUR DECISIONS OF OCTOBER 27, 1965, AND MAY 3, 1966. AS YOU SAY, IT MAY BE THAT THE COURTS OF SOUTH CAROLINA WOULD LOOK TO THE DECISIONS OF THE STATE OF NEW YORK TO DETERMINE WHETHER CAPTAIN GONZALEZ WAS LEGALLY DIVORCED FROM BERUTA ANN GONZALEZ AND QUALIFIED TO ENTER INTO LAWFUL MARRIAGE IN SOUTH CAROLINA WITH MARY E. GONZALEZ. APPARENTLY NO DECISIONS CONCERNING SUCH A SITUATION, HOWEVER, HAVE BEEN RENDERED BY THE SOUTH CAROLINA COURTS. THEREFORE, SINCE THE VALIDITY OF A MARRIAGE GENERALLY IS FOR DETERMINATION UNDER THE LAWS OF THE STATE WHERE THE CEREMONY IS PERFORMED, THE DOUBT AS TO THE OFFICER'S MARITAL STATUS REMAINS. IN THESE CIRCUMSTANCES WE MAY NOT PROPERLY AUTHORIZE THE PAYMENT TO HIM OF ALLOWANCES AS AN OFFICER WITH A LAWFUL WIFE UNTIL A COURT OF COMPETENT JURISDICTION IN THE UNITED STATES HAS DETERMINED HIS MARITAL STATUS. SEE CHARLES V. UNITED STATES, 19 CT.CL. 316, AND LONGWILL V. UNITED STATES, 17 CT.CL. 283, 291, WHEREIN IT WAS STATED THAT IT IS THE DUTY OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO REJECT CLAIMS TO WHICH THEY BELIEVE THERE MAY BE SUBSTANTIAL DEFENSES IN LAW OR AS TO THE VALIDITY OF WHICH THEY ARE IN DOUBT.

RELATIVE TO YOUR STATEMENT THAT YOU CONSIDERED BRINGING AN ACTION IN SOUTH CAROLINA TO HAVE CAPTAIN GONZALEZ'S REMARRIAGE IN THAT STATE DECLARED VALID BUT CONCLUDED THAT THE COURT WOULD NOT ENTERTAIN SUCH A SUIT, YOUR ATTENTION IS INVITED TO THE JURISDICTION OF THE COURT OF CLAIMS OF THE UNITED STATES AND THE UNITED STATES DISTRICT COURTS TO CONSIDER AND DETERMINE SUITS FOR PAY AND ALLOWANCES BELIEVES TO BE DUE MILITARY MEMBERS. 28 U.S.C. 1346 (2) AND 1491.

Oct 29, 2020

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