B-142790, MAY 23, 1962

B-142790, MAY 23, 1962

TO CULP, DWYER, GUTERSON AND EDWARDS:

REFERENCE IS MADE TO YOUR LETTER DATED MARCH 20, 1962, REQUESTING REINSTATEMENT OF ANNUITY FOR MURIEL S. THURBER BASED ON AN ORDER OF THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, NO. 183214, DATED MARCH 19, 1962. MRS. THURBER WAS HELD NOT ENTITLED TO AN ANNUITY UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, AS THE UNREMARRIED WIDOW OF COLONEL PHILIP LOOMIS THURBER, BY OUR DECISION OF AUGUST 16, 1960, B-142790, 40 COMP. GEN. 103, TO LIEUTENANT COLONEL R. H. MACPHERSON, FC, UNITED STATES ARMY.

THE DECISION HELD THAT MRS. THURBER WAS INELIGIBLE FOR AN ANNUITY, IT APPEARING THAT SHE HAD MARRIED AGAIN IN HAWAII. EVIDENCE WAS SUBMITTED AT THAT TIME TO SHOW THAT THAT MARRIAGE WAS ANNULLED SOME EIGHT MONTHS LATER BY A NEVADA COURT ON THE GROUND OF FRAUD. SINCE IT DID NOT APPEAR ON THE RECORD BEFORE US THAT THE LAW OF HAWAII WAS ALLEGED AND PROVED IN THE NEVADA PROCEEDINGS, A NEVADA STATUTORY PREREQUISITE FOR APPLYING THE LAWS OF HAWAII TO THE CASE, THE LAW OF NEVADA AS TO THE EFFECTIVE DATE OF THE ANNULMENT WAS APPLIED UNDER WHICH AN ANNULMENT OF A MARRIAGE VOIDABLE FOR FRAUD IS EFFECTIVE ONLY FROM THE DATE OF THE ANNULMENT DECREE. THIS LEFT A PERIOD OF VALID MARRIAGE FROM MARCH 4, 1959, UNTIL THE ISSUANCE OF THE DECREE DATED NOVEMBER 19, 1959, WHICH MARRIAGE DISQUALIFIED MRS. THURBER FROM RECEIVING THE ANNUITY AS AN UNREMARRIED WIDOW.

IN RESPONSE TO YOUR LETTER DATED OCTOBER 14, 1960, REQUESTING RECONSIDERATION OF OUR DECISION OF AUGUST 16, 1960, YOU WERE ADVISED, BY LETTER DATED DECEMBER 29, 1960, THAT THE ACTION TAKEN ON ANY SUCH CLAIM NECESSARILY WOULD BE BASED ON THE ANNULMENT DECREE AS ISSUED BY THE COURT, AND THAT, IF THE DECREE PREVIOUSLY CONSIDERED SHOULD BE MODIFIED IN ANY MATERIAL ASPECT, THE MODIFICATION WOULD BE GIVEN CONSIDERATION AT YOUR REQUEST. WE DID NOT IMPLY, HOWEVER, THAT WE WOULD GIVE ANY EFFECT TO ANY MODIFICATION WITHOUT INQUIRING INTO THE JURISDICTION OF THE COURT TO MODIFY THE DECREE AT THE TIME AND IN THE MANNER EFFECTED.

YOU ENCLOSE WITH YOUR LETTER OF MARCH 20 A CERTIFIED COPY OF AN "ORDER MODIFYING DECREE OF ANNULMENT" IN THE CASE OF MURIEL STEWART THURBER CARSON V. ERMYN MCNARY CARSON, NO. 183214, ISSUED BY THE NEVADA COURT ON MARCH 19, 1962, WHICH ORDER STATES AS FOLLOWS:

"THE MOTION OF THE PLAINTIFF IN THE ABOVE-ENTITLED ACTION, PRAYING THAT THE DECREE OF ANNULMENT HERETOFORE ENTERED IN THE ABOVE-ENTITLED ACTION ON THE 19TH DAY OF NOVEMBER, 1959, BE AMENDED SO AS TO PROVIDE THAT THE MARRIAGE OF THE PLAINTIFF AND THE DEFENDANT BE DECREED TO BE NULL AND VOID AND OF NO FORCE AND EFFECT AB INITIO, AND THAT THERE HAD BEEN NO VALID MARRIAGE OF THE PARTIES, COMING ON REGULARLY TO BE HEARD BEFORE THE COURT THIS DATE, AND IT APPEARING TO THE SATISFACTION OF THE COURT FROM THE SIGNED AND ACKNOWLEDGED STIPULATIONS OF THE PLAINTIFF AND THE DEFENDANT FOR THE MODIFICATION OF THE DECREE, NOW ON FILE IN THE INSTANT ACTION, THAT BOTH OF SAID PARTIES HAVE HAD NOTICE OF THE MOTION AND HAVE GIVEN THEIR WRITTEN CONSENT TO THE MODIFICATION OF THE DECREE, AND THE COURT HAVING AT THE TIME OF HEARING SAID MOTION PERMITTED COUNSEL FOR THE PLAINTIFF TO INTRODUCE INTO EVIDENCE THE LAWS OF THE TERRITORY OF HAWAII RELATIVE TO ANNULMENT IN EFFECT AT THE TIME OF THE MARRIAGE OF THE PARTIES HERETO ON THE 4TH DAY OF MARCH, 1959, WHICH LAWS OF THE TERRITORY OF HAWAII WERE NOT INTRODUCED INTO EVIDENCE AT THE TIME OF THE TRIAL OF THE INSTANT ACTION, THROUGH OVERSIGHT AND OMISSION, AND WHICH INTRODUCTION OF THE LAWS OF HAWAII IS PERMITTED BY VIRTUE OF THE PROVISIONS OF SECTION 125.420 N.R.S., AND IT APPEARING TO THE SATISFACTION OF THE COURT, UNDER THE PROVISIONS OF RULE 60 (A) N.R.C.P., THAT THE COURT HAS JURISDICTION TO CORRECT ITS ORDERS, JUDGMENT AND DECREES ARISING FROM OVERSIGHT OR OMISSION ON ITS OWN INITIATIVE OR ON THE MOTION OF ANY PARTY, AND IT FURTHER APPEARING TO THE SATISFACTION OF THE COURT FROM THE PROVISIONS OF CHAPTER 324, LAWS OF THE TERRITORY OF HAWAII, AND FROM THE DECIDED CAUSE, THAT AN ANNULMENT OF MARRIAGE UPON THE GROUND "THAT THE CONSENT TO THE MARRIAGE OF THE PARTY APPLYING FOR ANNULMENT WAS OBTAINED BY * * * OR FRAUD * * *" REQUIRES THE COURT GRANTING AN ANNULMENT TO HOLD THE MARRIAGE TO BE NULL AND VOID AB INITIO, AND OF NO FORCE AND EFFECT AS IF NO MARRIAGE HAD EVER TAKEN PLACE,

"NOW, UPON MOTION OF THE PLAINTIFF, AND GOOD CAUSE THEREFOR APPEARING, IT IS ORDERED, ADJUDGED AND DECREED THAT THE LAST PARAGRAPH OF THE DECREE OF ANNULMENT HERETOFORE ENTERED HEREIN UNDER DATE OF NOVEMBER 19, 1959, BE, AND THE SAME IS HEREBY, AMENDED AND MODIFIED TO READ AS FOLLOWS:

"THAT THE SAID MARRIAGE OF PLAINTIFF AND DEFENDANT BE, AND THE SAME IS HEREBY, DECREED TO BE NULL AND VOID AND OF NO FORCE AND EFFECT, AB INITIO, AND THAT THERE HAS BEEN NO VALID MARRIAGE OF THE PLAINTIFF AND DEFENDANT, AND THAT THE PLAINTIFF SHALL HEREAFTER BE KNOWN AS MURIEL STEWART THURBER.'

DONE IN OPEN COURT THIS 19TH DAY OF MARCH, 1962.'

WHILE PROPER JUDGMENTS ISSUED BY STATE COURTS HAVING JURISDICTION IN THE MATTER ARE FOLLOWED BY THIS OFFICE, A DECLARATION BY A STATE COURT IN AN ORDER ISSUED BY IT THAT IT HAS JURISDICTION OF THE MATTER IS NOT BINDING UPON THE UNITED STATES WHERE THE UNITED STATES WAS NOT A PARTY IN THE SUIT. THE BASIS FOR JURISDICTION IN THE DISTRICT COURT TO ISSUE THE ORDER OF MARCH 19, 1962, MODIFYING THE ANNULMENT DECREE IS STATED TO BE RULE 60 (A) OF THE NEVADA RULES OF CIVIL PROCEDURE WHICH PROVIDES AS FOLLOWS:

"CLERICAL MISTAKES. CLERICAL MISTAKES IN JUDGMENTS, ORDERS OR OTHER PARTS OF THE RECORD AND ERRORS THEREIN ARISING FROM OVERSIGHT OR OMISSION MAY BE CORRECTED BY THE COURT AT ANY TIME OF ITS OWN INITIATIVE OR ON THE MOTION OF ANY PARTY AND AFTER SUCH NOTICE, IF ANY, AS THE COURT ORDERS. DURING THE PENDENCY OF AN APPEAL, SUCH MISTAKES MAY BE SO CORRECTED BEFORE THE APPEAL IS DOCKETED IN THE APPELLATE COURT, AND THEREAFTER WHILE THE APPEAL IS PENDING MAY BE SO CORRECTED WITH LEAVE OF THE APPELLATE COURT.'

IT HAS BEEN UNIFORMLY HELD BY 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 STATUTE OR RULE OF PROCEDURE PERMITTING AMENDMENT OR MODIFICATION OF A JUDGMENT IN ORDER TO CORRECT A CLERICAL ERROR ARISING FROM OVERSIGHT OR OMISSION, TO MAKE OF RECORD AN ORDER OR JUDGMENT THAT WAS NEVER IN FACT MADE. SEE FOR EXAMPLE, IN RE HUMBOLDT RIVER SYSTEM (NEVADA 1961), 362 P.2D 265. IT HAS BEEN HELD THAT UNDER SUCH STATUTES OR RULES A COURT MAY AMEND ITS JUDGMENT SO AS TO EXPRESS WHAT WAS ACTUALLY DECIDED OR INTENDED IN ORDER TO SPEAK THE TRUTH, BUT IT CANNOT CHANGE THE JUDGMENT ACTUALLY RENDERED TO ONE WHICH THE COURT NEITHER RENDERED NOR INTENDED TO RENDER. IF THE PROPOSED AMENDMENT IS A MERE AFTERTHOUGHT AND FORMED NO PART OF THE JUDGMENT AS ORIGINALLY INTENDED AND PRONOUNCED, IT MAY NOT BE BROUGHT IN BY WAY OF AMENDMENT; THAT IS, A COURT MAY NOT GRANT RELIEF IN ADDITION TO, OR IN LIEU OF, THAT ORIGINALLY INTENDED TO BE GIVEN, BUT WAS NOT CONSIDERED AND DETERMINED ON THE TRIAL.

IN VIEW OF SUCH HOLDINGS AND THE DECISIONS OF THE UNITED STATES COURT OF CLAIMS IN LONGWILL V. UNITED STATES, 17 CT.CL. 288, AND CHARLES V. UNITED STATES, 19 CT.CL. 316, THAT 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," WE MAY NOT GIVE FAVORABLE CONSIDERATION TO THE CLAIM OF MRS. THURBER FOR REINSTATEMENT OF AN ANNUITY UNDER THE PROVISIONS OF THE CONTINGENCY OPTION ACT OF 1953 (NOW ENTITLED "RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN), 10 U.S.C. 1431-1446. HOWEVER, FURTHER CONSIDERATION MAY BE GIVEN THE MATTER UPON A CONCLUSIVE SHOWING THAT THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA HAD JURISDICTION TO RENDER THE JUDGMENT OF MARCH 19, 1962. IN THE ABSENCE OF SUCH SHOWING, WE CANNOT TAKE ANY FAVORABLE ACTION IN THIS CASE.