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B-156453, JAN. 27, 1966

B-156453 Jan 27, 1966
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RUBIN GERTZ: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 5. SHE WAS GRANTED A DIVORCE BY THE FIRST CIVIL COURT OF BRAVOS DISTRICT. IN WHICH ACTION HE MADE NO APPEARANCE ALTHOUGH IT IS UNDERSTOOD THAT HE WAS SERVED WITH PROCESS IN NEW YORK. CLAIM IS ASSERTED FOR BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A DEPENDENT (WIFE) ON THE BASIS OF HIS MARRIAGE ON JUNE 20. WHOSE MARITAL STATUS AT THAT TIME WAS SHOWN ON THE MARRIAGE CERTIFICATE TO HAVE BEEN "DIVORCED.'. OTHER INFORMATION CONCERNING HER MARITAL STATUS IS OF RECORD HERE. WE AGAIN REVIEWED CAPTAIN WILTSHIRE'S CASE AND ADVISED YOU WHY WE DID NOT THINK THAT THE VALIDITY OF HIS MARRIAGE IN MARYLAND WAS ESTABLISHED. YOU NOW SAY THAT YOU ARE CONTEMPLATING FILING A BILL FOR DECLARATORY JUDGMENT IN A MARYLAND COURT (VESTED WITH MARITAL AND DIVORCE JURISDICTION) WHEREIN CAPTAIN WILTSHIRE WILL BE THE COMPLAINANT AND WIFE NO. 1 AND WIFE NO. 2 WILL BE THE RESPONDENTS.

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B-156453, JAN. 27, 1966

TO MR. RUBIN GERTZ:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 5, 1966, CONCERNING THE CLAIM OF YOUR CLIENT, CAPTAIN ARTHUR B. WILTSHIRE, FOR BASIC ALLOWANCE FOR QUARTERS AS AN OFFICER OF THE ARMY WITH A DEPENDENT (WIFE).

THE RECORD INDICATES THAT CAPTAIN WILTSHIRE MARRIED JOAN WHITEMAN ON JUNE 1, 1957, IN NEW YORK, NEW YORK, AND THAT ON FEBRUARY 14, 1962,SHE WAS GRANTED A DIVORCE BY THE FIRST CIVIL COURT OF BRAVOS DISTRICT, STATE OF CHIHUAHUA, REPUBLIC OF MEXICO, IN WHICH ACTION HE MADE NO APPEARANCE ALTHOUGH IT IS UNDERSTOOD THAT HE WAS SERVED WITH PROCESS IN NEW YORK. CLAIM IS ASSERTED FOR BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A DEPENDENT (WIFE) ON THE BASIS OF HIS MARRIAGE ON JUNE 20, 1964, IN BALTIMORE, MARYLAND, TO VERA J. HODDRICK, WHOSE MARITAL STATUS AT THAT TIME WAS SHOWN ON THE MARRIAGE CERTIFICATE TO HAVE BEEN "DIVORCED.' OTHER INFORMATION CONCERNING HER MARITAL STATUS IS OF RECORD HERE.

BY LETTER DATED SEPTEMBER 23, 1965, B-156453, WE INFORMED CAPTAIN WILTSHIRE OF THE REASONS WHY THE HOLDING OF THE NEW YORK COURT OF APPEALS IN THE CASE OF ROSENSTIEL V. ROSENSTIEL, 16 N.Y.2D 64, 209 N.E.2D 709 (1965), ESTABLISHING A POLICY IN NEW YORK OF RECOGNITION ON THE GROUND OF COMITY OF MEXICAN DIVORCES IN WHICH BOTH HUSBAND AND WIFE APPEARED, PROVIDES NO PROPER BASIS FOR PAYMENT OF THE QUARTERS ALLOWANCE TO HIM AS AN OFFICER WITH A LAWFUL WIFE. BY LETTER DATED DECEMBER 7, 1965, WE AGAIN REVIEWED CAPTAIN WILTSHIRE'S CASE AND ADVISED YOU WHY WE DID NOT THINK THAT THE VALIDITY OF HIS MARRIAGE IN MARYLAND WAS ESTABLISHED, CITING THE MARYLAND CASES OF BREWSTER V. BREWSTER, 114 A.2D 53 (1955), AND GREGG V. GREGG, 155 A.2D 500 (1959), AS INDICATING DOUBT THAT MARYLAND WOULD UPHOLD THE VALIDITY OF THE EX PARTE DIVORCE IN CAPTAIN WILTSHIRE'S CASE.

YOU NOW SAY THAT YOU ARE CONTEMPLATING FILING A BILL FOR DECLARATORY JUDGMENT IN A MARYLAND COURT (VESTED WITH MARITAL AND DIVORCE JURISDICTION) WHEREIN CAPTAIN WILTSHIRE WILL BE THE COMPLAINANT AND WIFE NO. 1 AND WIFE NO. 2 WILL BE THE RESPONDENTS; THAT THE BILL OF COMPLAINT AND PETITION FOR DECLARATORY JUDGMENT WILL SET OUT THE FOLLOWING:

"1. HIS FIRST MARRIAGE TO WIFE NO. 1 WITH A COPY OF THE MARRIAGE CERTIFICATE PUT IN EVIDENCE.

"2. THE FACTS RELATING TO THE FILING FOR AN OBTAINING OF THE MEXICAN DIVORCE WITH A COPY OF THE MEXICAN DIVORCE DECREE PUT IN EVIDENCE.

"3. SETTING OUT THE MARRIAGE OF CAPTAIN WILTSHIRE TO WIFE NO. 2, IN MARYLAND, WITH A COPY OF THE MARYLAND MARRIAGE CERTIFICATE PUT IN EVIDENCE.'

ALSO YOU SAY THAT PERSONAL SERVICE WILL BE MADE ON WIFE NO. 1 IN NEW YORK AND ON WIFE NO. 2 IN MARYLAND. YOU SEEK OUR APPROVAL OF THE PROPOSED COURSE OF ACTION AS A MEANS OF DETERMINING THE VALIDITY OF CAPTAIN WILTSHIRE'S SECOND MARRIAGE AND THUS ESTABLISHING HIS RIGHT TO THE BASIC ALLOWANCE FOR QUARTERS CLAIMED.

UPON EXAMINATION OF THE MARYLAND DECLARATORY JUDGMENT ACT, WE NOTE THE PROVISIONS OF THAT ACT CONTAINED IN SECTION 6, ARTICLE 31A, ANNOTATED CODE OF MARYLAND, RELATING TO "AN ACTUAL CONTROVERSY" "ANTAGONIST CLAIMS" AND "AN ADVERSE PARTY.' IT WOULD SEEM THAT THE INTERESTS OF ALL THE PARTIES TO THE ACTION YOU PROPOSE ARE THE SAME IN THAT EACH IS INTERESTED IN THE ENTERING OF A DECREE UPHOLDING THE VALIDITY OF THE MEXICAN DIVORCE. THE COURT WELL MIGHT REFUSE TO CONSIDER THE MATTER IN THE ABSENCE OF AN ACTUAL CHALLENGE OF THE MEXICAN DIVORCE. NEITHER CAPTAIN WILTSHIRE NOR WIFE NO. 2 WOULD BE IN A POSITION TO ATTACK THAT DOCUMENT AND IT SEEMS UNLIKELY THAT WIFE NO. 1 WOULD BE PERMITTED TO ATTACK THE DIVORCE SINCE SHE INSTITUTED THE MEXICAN DIVORCE PROCEEDINGS. COMPARE SMITH V. SMITH, 36 F.SUPP. 412. ALSO, YOUR ATTENTION IS INVITED TO PAGE 4 OF OUR LETTER OF DECEMBER 7, 1965, IN WHICH IT IS INDICATED THAT WE HAVE NOT FOUND SUFFICIENT AUTHORITY TO JUSTIFY A CONCLUSION THAT A MARYLAND COURT WOULD UPHOLD THE VALIDITY OF CAPTAIN WILTSHIRE'S MEXICAN DIVORCE. HENCE, WE HAVE DOUBT (1) THAT THE PROCEEDINGS YOU PROPOSE WOULD RESULT IN THE COURT ACTUALLY ISSUING A DECLARATORY JUDGMENT AS TO THE CHARACTER OF THE OFFICER'S SECOND MARRIAGE AND (2) THAT IF THE COURT SHOULD TAKE JURISDICTION OF THE MATTER IT WOULD FIND AUTHORITY FOR CONCLUDING THAT THE MARRIAGE IS VALID.

HOWEVER, NOTWITHSTANDING THE DOUBTS EXPRESSED, IF THE COURT ACTUALLY DOES TAKE JURISDICTION AND ISSUES A DECLARATORY JUDGMENT TO THE EFFECT THAT CAPTAIN WILTSHIRE WAS FREE TO MARRY WHEN HE ENTERED INTO HIS MARRIAGE WITH VERA J. HODDRICK AND THAT THEREFORE HIS MARRIAGE TO HER IS VALID, SUCH A DECREE WOULD BE ACCEPTED AS A BASIS FOR PAYMENT OF OTHERWISE PROPER PAYMENTS OF BASIC ALLOWANCE FOR QUARTERS TO CAPTAIN WILTSHIRE.

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