B-156453, APR. 27, 1965
Highlights
WAS DISSOLVED ON FEBRUARY 14. IT IS WELL ESTABLISHED THAT UNLESS A FOREIGN COURT GRANTING A DIVORCE HAD JURISDICTION OF THE SUBJECT MATTER OF THE DIVORCE BY REASON OF ACTUAL RESIDENCE OR DOMICILE THERE. ITS DECREE OF DIVORCE WILL NOT. WHILE THERE IS AUTHORITY FOR THE VIEW THAT A SPOUSE WHO IS DIVORCED BY A FOREIGN DECREE AND WHO THEREAFTER REMARRIES. IS ESTOPPED TO DENY THE VALIDITY OF THE DIVORCE. THE FEDERAL GOVERNMENT IS NOT ESTOPPED FROM CHALLENGING THE VALIDITY OF SUCH FOREIGN DIVORCE DECREE WHEN ITS INTERESTS MIGHT BE ADVERSELY AFFECTED. IN THE CIRCUMSTANCES THERE IS SUBSTANTIAL DOUBT AS TO THE MARITAL STATUS OF THE PARTIES CONCERNED AND. IN THE ABSENCE OF A FINDING BY A COURT OF COMPETENT JURISDICTION IN THE UNITED STATES THAT THE MEXICAN DIVORCE IS VALID.
B-156453, APR. 27, 1965
TO MAJOR J. H. MOORE, FC, FINANCE AND ACCOUNTING OFFICER, DEPARTMENT OF THE ARMY:
BY FIRST INDORSEMENT DATED MARCH 31, 1965, THE OFFICE OF THE CHIEF OF FINANCE FORWARDED UNDER D.O. NUMBER A 836, ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, YOUR LETTER DATED JANUARY 28, 1965, REQUESTING THAT DETERMINATION OF DEPENDENCY BE MADE FOR THE DEPENDENT WIFE OF CAPTAIN ARTHUR B. WILTSHIRE, 01 936 636, UNDER THE PROVISIONS OF PARAGRAPH 5-35, CHANGE 4, AR 37-104 (NOW PARAGRAPH 10303C (4) ( SINCE THE CASE INVOLVES A DIVORCE GRANTED IN MEXICO.
THE TRANSLATION OF THE MEXICAN DECREE OF DIVORCE DISCLOSES THAT THE MARRIAGE CONTRACTED BY THE OFFICER AND JOAN WHITEMAN ON JUNE 1, 1957, IN NEW YORK, NEW YORK, WAS DISSOLVED ON FEBRUARY 14, 1962, BY THE FIRST CIVIL COURT OF THE BRAVOS DISTRICT, STATE OF CHIHUAHUA, REPUBLIC OF MEXICO. THE PLAINTIFF, JOAN WHITEMAN WILTSHIRE, ATTEMPTED TO ESTABLISH CONSTRUCTIVE RESIDENCE IN MEXICO BY A RESIDENCE CERTIFICATE SHOWING REGISTRATION IN THE OFFICIAL BOOK OF RESIDENCE OF THE CITY OF JUAREZ BUT APPARENTLY DID NOT OTHERWISE ESTABLISH A RESIDENCE OR DOMICILE THERE AND THE DEFENDANT, THOUGH PERSONALLY SERVED WITH SUMMONS IN NEW YORK, NEW YORK, DID NOT ANSWER THE PETITION OR CONTEST THE PROCEEDINGS. THE OFFICER, BY DD FORM 137, DATED DECEMBER 10, 1964, CLAIMS BASIC ALLOWANCE FOR QUARTERS FOR HIS DEPENDENT WIFE, VERA WILTSHIRE, EFFECTIVE FROM THE DATE OF THEIR MARRIAGE ON JUNE 20, 1964, AT BALTIMORE, MARYLAND.
IT IS WELL ESTABLISHED THAT UNLESS A FOREIGN COURT GRANTING A DIVORCE HAD JURISDICTION OF THE SUBJECT MATTER OF THE DIVORCE BY REASON OF ACTUAL RESIDENCE OR DOMICILE THERE, OF AT LEAST ONE OF THE PARTIES, ITS DECREE OF DIVORCE WILL NOT, UNDER THE RULES OF INTERNATIONAL COMITY, BE RECOGNIZED IN ONE OF THE STATES OF THE UNITED STATES, EVEN THOUGH THE LAWS OF SUCH FOREIGN COUNTRY DO NOT MAKE RESIDENCE OR DOMICILE A CONDITION TO ITS COURT'S TAKING JURISDICTION. WHILE THERE IS AUTHORITY FOR THE VIEW THAT A SPOUSE WHO IS DIVORCED BY A FOREIGN DECREE AND WHO THEREAFTER REMARRIES, THUS ACCEPTING THE BENEFITS OF THE FOREIGN DIVORCE DECREE, IS ESTOPPED TO DENY THE VALIDITY OF THE DIVORCE, THE FEDERAL GOVERNMENT IS NOT ESTOPPED FROM CHALLENGING THE VALIDITY OF SUCH FOREIGN DIVORCE DECREE WHEN ITS INTERESTS MIGHT BE ADVERSELY AFFECTED. SEE 25 COMP. GEN. 821, 36 COMP. GEN. 121 AND CASES THERE CITED.
IN THE CIRCUMSTANCES THERE IS SUBSTANTIAL DOUBT AS TO THE MARITAL STATUS OF THE PARTIES CONCERNED AND, IN THE ABSENCE OF A FINDING BY A COURT OF COMPETENT JURISDICTION IN THE UNITED STATES THAT THE MEXICAN DIVORCE IS VALID, THE OFFICER'S SECOND WIFE MAY NOT BE RECOGNIZED AS A LAWFUL WIFE FOR PURPOSES OF HIS ENTITLEMENT TO BASIC ALLOWANCE FOR QUARTERS ON HER BEHALF.