B-142790, SEP. 4, 1962

B-142790, SEP. 4, 1962

TO CULP, DWYER, GUTERSON AND EDWARDS:

REFERENCE IS MADE TO YOUR LETTER OF JULY 10, 1962, REQUESTING RECONSIDERATION OF THE CLAIM OF MRS. MURIEL S. THURBER FOR REINSTATEMENT OF ANNUITY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN WHICH WAS DENIED BY OUR DECISIONS OF AUGUST 16, 1960, AND MAY 23, 1962, B-142790.

THE ANNUITY WAS DISCONTINUED UPON THE MARRIAGE OF MRS. THURBER ON MARCH 4, 1959, IN HONOLULU, HAWAII. THAT MARRIAGE WAS ANNULLED ON THE BASIS OF FRAUD IN NEVADA ON NOVEMBER 19, 1959. THE ANNUITY WAS NOT REINSTATED BECAUSE UNDER THE LAW OF NEVADA A MARRIAGE PROCURED BY FRAUD IS VOIDABLE ONLY AND THE ANNULMENT IS EFFECTIVE ONLY "FROM THE TIME ITS NULLITY SHALL BE DECLARED BY A COURT OF COMPETENT AUTHORITY.' THE LAW OF THE PLACE OF MARRIAGE, HAWAII, IS PRESUMED TO BE THE SAME AS THE LAW OF NEVADA IN AN ANNULMENT ACTION IN THAT STATE UNLESS THE LAW OF THE PLACE OF MARRIAGE IS PLEADED AND PROVED.

THE ANNULMENT DECREE WAS AMENDED BY THE NEVADA COURT ON MARCH 19, 1962, IN WHICH BOTH PARTIES WERE REPRESENTED, TO SHOW THAT IN THE ORIGINAL ANNULMENT PROCEEDING, THROUGH OVERSIGHT OR OMISSION, THE LAW OF HAWAII HAD NOT BEEN PLEADED OR PROVED; AND THAT IT THEN APPEARING THAT UNDER THE LAW OF HAWAII THE MARRIAGE WAS "NULL AND VOID AB INITIO," AND IT APPEARING THAT THE COURT HAD JURISDICTION UNDER RULE 60 (A) OF THE NEVADA RULES OF CIVIL PROCEDURE TO CORRECT ITS ORDERS, JUDGMENTS AND DECREES ARISING FROM OVERSIGHT OR OMISSION, THE COURT AMENDED THE ANNULMENT DECREE TO SHOW MRS. THURBER'S 1959 MARRIAGE "TO BE NULL AND VOID AND OF NO FORCE AND EFFECT, AB INITIO.'

WE DENIED REINSTATEMENT OF THE ANNUITY ON THE BASIS OF THE NEVADA DECREE OF MARCH 19, 1962, BY LETTER OF MAY 23, 1962, IN VIEW OF THE RULINGS OF THE COURTS THAT A COURT HAS NO AUTHORITY, UNDER THE GUISE OF AN AMENDMENT OR CORRECTION OF A JUDGMENT PURPORTEDLY MADE UNDER THE PROVISIONS OF A RULE OF PROCEDURE PERMITTING AMENDMENT OR MODIFICATION OF A JUDGMENT IN ORDER TO CORRECT A CLERICAL ERROR ARISING FROM OVERSIGHT OR OMISSION, SUCH AS THAT CONTAINED IN NEVADA RULE 60 (A), TO MAKE OF RECORD AN ORDER OR JUDGMENT THAT WAS NEVER IN FACT MADE, CITING, FOR EXAMPLE, IN RE HUMBOLDT RIVER SYSTEM (NEVADA 1961), 362 P.2D 265.

IN YOUR LETTER OF JULY 10, 1962, YOU CONTEND THAT MRS. THURBER'S 1959 MARRIAGE WAS INTRINSICALLY VOID AND NOT MERELY VOIDABLE; THAT THE NEVADA COURT HAD JURISDICTION TO AMEND THE DECREE OF ANNULMENT; THAT INASMUCH AS THE ANNULMENT OF A MARRIAGE IS AN EQUITY ACTION THE COURT HAD INHERENT JURISDICTION TO ENTER THE AMENDED DECREE WITHOUT REGARD TO RULE 60 (A); THAT PROVISION IS MADE IN RULE 60 (B) FOR CORRECTING JUDGMENTS AS WAS DONE IN THIS CASE; AND, CITING SECTION 432 OF THE RESTATEMENT, CONFLICT OF LAWS, THAT, EVEN IF THE COURT ERRONEOUSLY APPLIED THE LAW, ITS JUDGMENT OF MARCH 19, 1962, MAY NOT BE COLLATERALLY ATTACKED BY THE GOVERNMENT, IT APPEARING THAT THE COURT HAD JURISDICTION OF THE SUBJECT MATTER AND OF THE PARTIES. ALSO YOU RELY UPON CERTAIN CASES OF THE UNITED STATES SUPREME COURT RELATING TO THE REQUIREMENT OF GIVING FULL FAITH AND CREDIT TO DECISIONS OF STATE COURTS IN WHICH BOTH PARTIES APPEARED BUT IN WHICH STATE NEITHER PARTY WAS DOMICILED, NOT ONLY IN SUBSEQUENT ACTIONS BETWEEN THE SAME PARTIES, BUT ALSO IN ACTIONS INVOLVING THEIR ESTATES AND PERSONS IN PRIVITY WITH THEM.

WITH RESPECT TO WHETHER MRS. THURBER'S 1959 MARRIAGE IN HAWAII WAS ABSOLUTELY AND INTRINSICALLY VOID OR ONLY VOIDABLE, IT IS OUR OPINION THAT THE MARRIAGE WAS VOIDABLE ONLY. WHILE THE LANGUAGE OF THE HAWAIIAN STATUTE MAY SEEM TO INDICATE THAT THE MARRIAGE WAS VOID, THE SAME STATUTORY PROVISIONS APPLY TO UNDERAGE MARRIAGES. IN ESTATE OF HENRY GORDON, DECEASED, 6 HAWAIIAN REPORTS 289, THE HAWAIIAN COURT HELD THAT AN UNDERAGE MARRIAGE IS VOIDABLE ONLY AND THAT THE SURVIVING HUSBAND OF THE UNDERAGE FEMALE WHO DIED WHILE UNDERAGE WAS THE WIDOWER AND ENTITLED TO SHARE IN HER ESTATE. INASMUCH AS THE COMMON LAW IS IN EFFECT IN HAWAII AND AT COMMON LAW A MARRIAGE PROCURED BY FRAUD IS VOIDABLE AND NOT VOID (35 AM.JUR. 235, MARRIAGE, SECS. 87, 88; 55 C.J.S. 866, MARRIAGE, SEC. 34B), WE DO NOT FIND AUTHORITY ON WHICH TO CONCLUDE THAT THE MARRIAGE WAS ABSOLUTELY AND INTRINSICALLY VOID AND THERE IS NOTHING IN THE AMENDED DECREE OF ANNULMENT TO INDICATE THAT THE COURT HELD THE MARRIAGE TO BE ABSOLUTELY AND INTRINSICALLY VOID. IN GENERAL A VOID MARRIAGE IS NO MARRIAGE ET 511, REQUIRES NO COURT ADJUDICATION TO ANNUL IT, CONFERS NO LEGAL RIGHTS, DOES NOT CREATE A MARITAL STATUS, THE SURVIVOR IS NOT THE WIDOW OR WIDOWER, AND A DECLARATION OF NULLITY MAY BE OBTAINED EVEN AFTER THE DEATH OF ONE OF THE PARTIES.

WHILE WE HAVE NOT QUESTIONED THE JURISDICTION OF THE NEVADA COURT TO ANNUL THE MARRIAGE, IT IS NOT ESTABLISHED THAT THE COURT HAS AUTHORITY INDEPENDENT OF THE NEVADA RULES OF CIVIL PROCEDURE TO ANNUL MARRIAGES CONTRARY TO THOSE RULES. SEE, FOR EXAMPLE, 55 YALE LAW JOURNAL 623 ON FEDERAL RELIEF FROM CIVIL JUDGMENTS, AT 627-629 AND 637. THE PROVISIONS OF RULE 60 (B) APPARENTLY WERE INTENDED TO COVER THE TYPE OF PROBLEM PRESENT IN THIS CASE, BUT IT IS NOTED THAT THE TIME WITHIN WHICH THAT RULE PRESCRIBES ACTION MUST BE TAKEN FOR THE RELIEF TO BE AVAILABLE HAD EXPIRED AT THE TIME THE AMENDATORY ACTION WAS COMMENCED.

AS INDICATED BY YOU, SECTION 432 OF THE RESTATEMENT, CONFLICT OF LAWS, STATES:

"A VALID FOREIGN JUDGMENT WILL NOT BE DENIED RECOGNITION BECAUSE THE PROCEDURAL LAW OF THE STATE WHERE THE JUDGMENT WAS RENDERED WAS VIOLATED IN THE PROCEEDINGS BEFORE JUDGMENT.'

WE ALSO NOTE, HOWEVER, THAT COMMENT B THEREON STATES:

"A RULE WHICH REGULATES PROCEDURE OF ITS COURT MAY, UNDER THE LAW OF A STATE, BE INTERPRETED AS A LIMITATION UPON THE COMPETENCE OF THAT COURT TO ACT UNLESS THE RULE IS COMPLIED WITH. A JUDGMENT RENDERED IN VIOLATION OF THE RULE, UNDER SUCH CIRCUMSTANCES, IS INVALID AND SUBJECT TO COLLATERAL ATTACK IN THE STATE WHERE RENDERED. AS AMONG THE STATES OF THE UNITED STATES, IF A RULE PHRASED IN TERMS OF PROCEDURE IS, BY THE LAW OF THE STATE WHICH HAS THE RULE, INTERPRETED TO BE ONE LIMITING THE COMPETENCE OF ITS COURT TO ACT UNLESS THE RULE IS COMPLIED WITH, A JUDGMENT RENDERED IN VIOLATION OF THE RULE, BEING INVALID IN THE STATE WHERE RENDERED, IS NOT ENTITLED TO FAITH AND CREDIT IN ANOTHER STATE.'

AS ESTABLISHED BY THE NEVADA SUPREME COURT IN THE HUMBOLDT CASE AND BY NUMEROUS OTHER COURTS, IT DOES NOT APPEAR THAT THE NEVADA COURT HAD AUTHORITY TO ENTER THE AMENDED JUDGMENT UNDER RULE 60 (A) OF THE NEVADA RULES OF CIVIL PROCEDURE.

ATTENTION IS ALSO INVITED TO COMMENT D TO SECTION 450 OF THE RESTATEMENT, CONFLICT OF LAWS, AS FOLLOWS:

"A JUDGMENT IS VALID ONLY AS AGAINST PARTIES WHO WERE SUBJECT TO THE JURISDICTION OF THE COURT WHICH RENDERED THE JUDGMENT AND PERSONS IN PRIVITY WITH THEM. THE LAW OF THE STATE WHERE A VALID JUDGMENT IS RENDERED DETERMINES WHO ARE IN PRIVITY WITH THE PARTIES TO THE JUDGMENT. IF BY THE LAW OF A STATE, PRIVITY IS IMPOSED UPON PERSONS OVER WHOM THE STATE HAS NO JURISDICTION, THE JUDGMENT IS TO THAT EXTENT INVALID (SEE SEC. 429).'

SEE, ALSO, 61 YALE LAW JOURNAL 238 COMMENTING ON THE CASE OF JOHNSON V. MUELBERGER, 340 U.S. 581, CITED BY YOU, WITH RESPECT TO THE EFFECT OF JUDGMENTS ON THIRD PARTIES.

IT IS THE DUTY OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO REJECT THOSE CLAIMS AS TO THE VALIDITY OF WHICH THEY ARE IN DOUBT. LONGWILL V. UNITED STATES, 17 CT.CL. 288 AND CHARLES V. UNITED STATES, 18 CT.CL. 316. IN SUCH CASES THE CLAIMANT IS LEFT TO HIS REMEDY IN THE COURTS TO ESTABLISH HIS RIGHT TO THE AMOUNT CLAIMED. ON THAT BASIS WE HAVE REFUSED TO RECOGNIZE THE DATE OF DEATH FIXED BY A STATE COURT JUDGMENT DECLARING THAT THE MISSING PERSON DIED ON A CERTAIN DATE SOME SEVEN YEARS AFTER HIS UNEXPLAINED ABSENCE BEGAN AND HENCE WE DENIED A CLAIM FOR $25,200 IN RETIRED PAY BASED ON THAT JUDICIAL DETERMINATION. 14 COMP. GEN. 411.

SIMILARLY WE REFUSED TO GIVE EFFECT TO A STATE COURT JUDGMENT ENTERED IN 1954 GRANTING A NUNC PRO TUNC DIVORCE AS OF 1942 IN A DIVORCE PROCEEDING IN WHICH THE INTERLOCUTORY DECREE HAD BEEN VACATED IN 1942. IN THAT CASE WE REFUSED TO PAY MONETARY BENEFITS THAT WOULD HAVE BEEN PAID HAD THE DIVORCE DECREE IN FACT BEEN ENTERED IN 1942, IT APPEARING FROM THE STATE'S APPELLATE DECISIONS THAT AN INTERVENING MARRIAGE COULD NOT BE VALIDATED BY SUCH NUNC PRO TUNC DECREE. 34 COMP. GEN. 629. SEE, ALSO, PETITION OF TAFFEL, 49 F.SUPP. 109. SEE ANNOTATION IN 12 ALR 2D 734.

WE DO NOT QUESTION THAT THE ACTION OF THE NEVADA COURT ANNULLED MRS. THURBER'S 1959 MARRIAGE. THAT WAS DONE BY THE DECREE OF NOVEMBER 19, 1959. THE DOUBT ARISES IN CONNECTION WITH DETERMINING THE LEGAL EFFECT OF THE DECREE OF THE COURT AS TO THE PERIOD PRIOR TO ITS DATE. YOU HAVE CITED NO CASE, AND WE HAVE FOUND NO CASE, IN WHICH A COURT HAS CONSIDERED THE EFFECT OF A NEVADA DECREE OF ANNULMENT WHICH ANNULLED A MARRIAGE PERFORMED OUTSIDE OF NEVADA AND IN CONNECTION WITH WHICH THE COURT DID NOT CONSIDER THE LAW OF THE PLACE WHERE THE MARRIAGE WAS PERFORMED. THAT DOUBT AND THE DOUBT INDICATED ABOVE WITH RESPECT TO THE AMENDED DECREE ARE MATTERS WHICH MUST BE RESOLVED. THE ARGUMENTS AND AUTHORITIES CITED IN YOUR LETTER HAVE BEEN GIVEN CAREFUL CONSIDERATION, BUT IN OUR OPINION IT IS NOT ESTABLISHED THAT THE DECREE OF NOVEMBER 19, 1959, WAS EFFECTIVE PRIOR TO ITS DATE; THAT THE COURT HAD THE POWER TO ENTER THE AMENDATORY JUDGMENT OF MARCH 19, 1962, OR THAT THE UNITED STATES IS REQUIRED TO PAY THE AMOUNTS CLAIMED ON THE BASIS OF THAT AMENDATORY JUDGMENT. ACCORDINGLY, WE MAY NOT GIVE FAVORABLE CONSIDERATION TO MRS. THURBER'S CLAIM FOR REINSTATEMENT OF THE ANNUITY PROVIDED FOR IN THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 (NOW RETIRED SERVICEMEN'S FAMILY PROTECTION PLAN), 10 U.S.C. 1431-1446.