B-128548, AUG. 31, 1956

B-128548, AUG. 31, 1956

TO LIEUTENANT COLONEL O. A. COLEMAN, FC:

BY SIXTH INDORSEMENT DATED JULY 9, 1956, THE CHIEF OF FINANCE FORWARDED TO US YOUR LETTER OF MAY 11, 1956, WITH ENCLOSURES, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO CREDIT CHIEF WARRANT OFFICER ORLINZA A. BULLOCK, RW 2 153 653, WITH AN INCREASED BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A LAWFUL WIFE (SYLVIA HAWTHORNE BULLOCK). YOUR DOUBT IN THE MATTER IS DUE TO THE FACT THAT THE OFFICER MARRIED SYLVIA HAWTHORNE WITHIN THE PERIOD DIVORCED PERSONS ARE PROHIBITED FROM REMARRYING THIRD PERSONS UNDER THE LAWS OF THE STATE OF OKLAHOMA.

THERE WAS SUBMITTED WITH YOUR LETTER A TRUE COPY OF A CERTIFIED COPY OF A "JOURNAL ENTRY AND DECREE OF DIVORCE," NO. D-4148, DATED JANUARY 30, 1956, ENTERED IN THE DISTRICT COURT OF WASHINGTON COUNTY, OKLAHOMA, IN THE CASE OF ORLINZA BULLOCK, PLAINTIFF V. TOMMIE K. BULLOCK, DEFENDANT, WHEREIN THE DEFENDANT WAS AWARDED A DIVORCE FROM THE PLAINTIFF ON THE BASIS OF HER CROSS PETITION. IN ADDITION TO THE AWARD OF PERSONAL PROPERTY THEREIN DESIGNATED AND THE AWARD OF A JUDGMENT IN THE SUM OF $2,500 PAYABLE AT THE RATE OF $100 PER MONTH BEGINNING MARCH 1, 1956, IT WAS FURTHER ORDERED BY THE DECREE THAT "AS TO THE DIVORCE HEREIN GRANTED, THIS DECREE DOES NOT TAKE EFFECT OR BECOME ABSOLUTE UNTIL THE EXPIRATION OF SIX MONTHS FROM THIS DATE.' THERE ALSO WAS TRANSMITTED WITH YOUR LETTER THE OFFICER'S DEPENDENCY CERTIFICATE (DD FORM 137), DATED MAY 4, 1956, ON THE REVERSE SIDE OF WHICH IS A CERTIFICATE BY AN "ASSISTANT ADJUTANT" TO THE EFFECT THAT HE HAD SEEN THE MARRIAGE LICENSE OF ORLINZA A. BULLOCK AND SYLVIA HAWTHORNE BULLOCK, MARRIED ON THE FIRST DAY OF FEBRUARY 1956 AT LAS CRUCES, NEW MEXICO. IT APPEARS THAT THE OFFICER IS CLAIMING A BASIC ALLOWANCE FOR QUARTERS FOR THE PERIOD COMMENCING FEBRUARY 1, 1956, ON THE BASIS OF THE MARRIAGE CEREMONY PRESUMABLY PERFORMED ON THAT DATE.

IN OUR DECISION OF MAY 29, 1946, 25 COMP. GEN. 821, IT WAS STATED, PAGE 822, AS FOLLOWS:

"WHEN ONE OF THE PARTIES TO A SUBSISTING VALID MARRIAGE OBTAINS A DECREE OF DIVORCE, FINAL IN CHARACTER, THAT ACTION--- EVEN THOUGH THE VALIDITY OF SUCH DECREE MAY BE DOUBTFUL--- CREATES SUBSTANTIAL DOUBT AS TO THE MARITAL STATUS OF THE PARTIES CONCERNED, AND IN THE ABSENCE OF A FINDING OF A COURT OF COMPETENT JURISDICTION IN THE UNITED STATES THAT SUCH A DIVORCE DECREE IS VALID OR INVALID IN THE UNITED STATES THE MATTER ADMITS OF TOO MUCH DOUBT FOR THIS OFFICE TO AUTHORIZE PAYMENT OF INCREASED ALLOWANCES TO THE HUSBAND OF SUCH A MARRIAGE ON ACCOUNT OF A ,LAWFUL WIFE.' B-54947, APRIL 1, 1946. MOREOVER, IN VIEW OF THE UNCERTAINTY WITH RESPECT TO THE MARITAL STATUS INVOLVED IN SUCH A DIVORCE PROCEEDING, IT IS OBVIOUS THAT ANY PURPORTED MARRIAGE CONTRACT SUBSEQUENTLY ENTERED INTO BY A PARTY OBTAINING SUCH A DIVORCE WOULD NOT CREATE A MARITAL STATUS FREE FROM DOUBT, UNLESS THE VALIDITY OF THE SAID DIVORCE WAS ESTABLISHED IN A PROPER RT.'

WHILE THAT DECISION INVOLVED THE STATUS OF THE PARTIES FOLLOWING AN INVALID MEXICAN DIVORCE, THE RULE IS EQUALLY APPLICABLE WHERE THE SAME DOUBT ARISES INCIDENT TO STATUS FOLLOWING DIVORCES GENERALLY, WHERE COUPLED WITH QUALIFICATIONS SUCH AS HERE INVOLVED. JUDICIAL DECISIONS OF THE COURTS OF THE STATE OF OKLAHOMA ARE FAR FROM HARMONIOUS UNDER THE DIVORCE STATUTES OF THAT STATE. AND THESE SEEMING INCONSISTENCIES AND CONFLICTS EXTEND, MORE OR LESS INDISCRIMINATELY, TO CASES WHERE THE SECOND MARRIAGE CEREMONY OCCURRED OUTSIDE THE STATE. THE FOLLOWING, AMONG OTHER CASES, APPEAR ABUNDANTLY TO REFLECT THIS CONFLICT: ATKESON V. SOVEREIGN CAMP. W.O.W. (1923), 90 OKLA. 154, 216 P. 467, HOLDING THAT UNTIL THE PERIOD OF SIX MONTHS HAS EXPIRED SUBSEQUENT TO THE OKLAHOMA DIVORCE DECREE, A MARRIAGE CONTRACT ENTERED INTO IN VIOLATION OF THE STATUTE IS A VOID CONTRACT WHEREVER ENTERED INTO. THIS CASE WAS CITED WITH APPROVAL IN 23 COMP. GEN. 128, 130. THE CASE OF PLUMMER V. DAVIS (1934), 169 OKLA. 374, 36 P.2D 938, CONSIDERED THE RIGHT OF AN ALLEGED SPOUSE TO SHARE IN AN ESTATE, AND IT WAS HELD THAT THE HUSBAND OF A FEMALE WHOM HE HAD MARRIED IN ANOTHER STATE WITHIN THE PROHIBITED PERIOD REQUIRED IN OKLAHOMA AFTER HER DIVORCE, AND SHE HAVING DIED WITHIN THE SIX-MONTH PERIOD, WAS ENTITLED TO SHARE IN HER ESTATE. THE CASE OF BROWN V. CAPPS, 22 P.2D 1008, HELD THAT DEEDS EXECUTED BY A WIFE NOT JOINED BY THE ALLEGED HUSBAND, PRIOR TO SIX MONTHS FOLLOWING DIVORCE, WERE VALID. HESS V. HESS (1947), 198 OKLA. 130, 176 P.2D 808--- WHILE CITING THE CASE OF MANTZ V. GILL, 147 OKLA. 199, 296 P. 441 (AND OTHER CASES) FOR THE PROPOSITION THAT "GOOD FAITH" IS REQUIRED OF PARTIES ENTERING INTO A SECOND MARRIAGE, AND THAT SUCH RELATIONSHIP WILL RIPEN INTO A COMMON LAW MARRIAGE IF THEY CONTINUE TO COHABIT WITHOUT CHANGE BEYOND THE SIX MONTH STATUTORY PERIOD OF IMPEDIMENT --- HELD, QUOTING FROM THE SYLLABUS, THAT:

"THE REMOVAL OF A LEGAL IMPEDIMENT TO MARRIAGE WHILE PARTIES CONTINUE TO LIVE TOGETHER AS HUSBAND AND WIFE, GIVES RISE TO A COMMON LAW MARRIAGE EVEN THOUGH ONE OR BOTH OF THE PARTIES KNEW OF THE IMPEDIMENT.'

THE CASE OF CASTOR V. UNITED STATES (1948), 78 F.SUPP. 750, 752, POSED FOR JUDICIAL DETERMINATION THE PARTY LEGALLY ENTITLED TO THE INSURANCE BENEFITS OF ONE ARLEY C. CASTOR, WHO DIED JULY 10, 1943. THE DECEDENT PREVIOUSLY HAD BEEN DIVORCED FROM ONE JUANITA CASTOR, ON MAY 18, 1940, IN OKLAHOMA, AND HAD MARRIED THE PLAINTIFF ON JUNE 10, 1940, AND THEREAFTER THEY LIVED TOGETHER AND COHABITED UNTIL JULY 10, 1943, THE DATE OF HIS DEATH. ALTHOUGH THE PARTY-DEFENDANTS SHOWED THAT THE PLAINTIFF HAD PREVIOUSLY BEEN MARRIED IN THE STATE OF KANSAS TO A THIRD PERSON, WHICH RELATIONSHIP HAD NOT BEEN TERMINATED PRIOR TO HER MARRIAGE TO THE DECEDENT CASTOR--- FOR WHICH REASON THE COURT HELD THAT SHE WAS UNABLE TO PREVAIL-- - THE COURT DEEMED IT NECESSARY FIRST TO RESOLVE HER RELATIONSHIP, REGARDLESS OF THE PRIOR UNTERMINATED MARRIAGE, INCIDENT TO THE OKLAHOMA MARRIAGE TO CASTOR, AS FOLLOWS:

"* * * THE OKLAHOMA STATUTE R.L. 1910, SEC. 4971, LAWS OF 1925, CH. 119, P. 166, SEC. 1, 12 O.S. 1941 SEC. 1280, PROVIDES, AMONG OTHER THINGS, THAT:

" "* * * AND IT SHALL BE UNLAWFUL FOR ANY PERSON WHO HAS A LIVING HUSBAND OR WIFE TO MARRY ANOTHER PERSON IN ANY OTHER STATE WITHIN SIX (6) MONTHS FROM DATE OF DECREE OF DIVORCEMENT GRANTED IN THIS STATE AND COHABIT WITH SUCH SECOND HUSBAND OR WIFE IN THIS STATE DURING SAID PERIOD. IT SHALL BE UNLAWFUL IN ANY EVENT FOR EITHER PARTY TO SUCH DIVORCE SUIT TO MARRY ANY OTHER PERSON WITHIN SIX MONTHS FROM THE DATE OF THE DECREE OF DIVORCEMENT;

"THE OTHER SECTIONS OF THE STATUTE WITH RESPECT TO THE SUBJECT MAKE PERSONS SO REMARRYING GUILTY OF BIGAMY.

"DEFENDANTS CONTEND THAT IN VIEW OF THIS STATUTE THE MARRIAGE BETWEEN PLAINTIFF AND DECEASED WAS VOID. THE OKLAHOMA COURTS HAVE HELD OTHERWISE. THE QUESTION WAS BEFORE THE SUPREME COURT OF OKLAHOMA IN MANTZ V. GILL, 147 OKL. 199, 296 P. 441, 445. IN THAT CASE THE COURT SAID:

" "WHERE A SECOND MARRIAGE IS ENTERED INTO IN GOOD FAITH, AND THE PARTIES CONTINUE TO COHABIT WITHOUT CHANGE DURING AND BEYOND THE STATUTORY SIX- MONTH PERIOD OF IMPEDIMENT, THIS RELATIONSHIP RIPENS INTO A COMMON-LAW MARRIAGE. SUCH MARRIAGE IS RECOGNIZED AS VALID IN THIS STATE BY OUR COURT.'

"THIS RULING HAS BEEN FOLLOWED IN NUMEROUS OTHER CASES. IN VIEW OF THIS INTERPRETATION OF THE STATUTE BY THE OKLAHOMA COURT THE MARRIAGE BETWEEN PLAINTIFF AND THE DECEASED CANNOT BE HELD INVALID FOR THAT REASON ALONE. THERE IS NOTHING BEFORE THE COURT TO SHOW ANY LACK OF GOOD FAITH ON THEIR PART; ON THE CONTRARY, IT IS ALLEGED WITHOUT DISPUTE THAT FOLLOWING THE CONSUMMATION OF THE ALLEGED MARRIAGE THEY LIVED TOGETHER FOR APPROXIMATELY THREE YEARS. THIS WOULD COMPLY WITH THE RULE LAID DOWN IN THE MANTZ CASE, SUPRA.'

ON THE WHOLE, WE ARE INCLINED TO VIEW THE DECISIONS INVOLVING THE PERTINENT PROVISIONS OF THE OKLAHOMA STATUTE PRESENTLY IN EFFECT, AS STANDING FOR THE PROPOSITION THAT REMARRIAGE IN GOOD FAITH WITHIN THE SIX- MONTH PROHIBITORY PERIOD BY OTHERWISE COMPETENT PARTIES, MAY RIPEN INTO A COMMON-LAW RELATIONSHIP, NOT PRIOR TO THE EXPIRATION OF SUCH PERIOD. NECESSARILY FOLLOWS THAT THE SAID PARTIES MAY NOT LEGALLY BE RECOGNIZED AS HUSBAND AND WIFE DURING THE PERIOD OF THE INHIBITION SO AS TO ENTITLE THE OFFICER TO A BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A LAWFUL WIFE DURING THAT PERIOD.

ACCORDINGLY, IT IS CONCLUDED THAT MR. BULLOCK MAY NOT IN ANY EVENT BE CREDITED WITH AN INCREASED BASIC ALLOWANCE FOR QUARTERS AS FOR AN OFFICER WITH A LAWFUL WIFE (SYLVIA HAWTHORNE BULLOCK) FOR THE PERIOD FROM JANUARY 30 TO JULY 29, 1956, AND NOT THEREAFTER IN THE ABSENCE OF EVIDENCE THAT THE MARRIAGE PERFORMED ON FEBRUARY 1, 1956, RIPENED INTO A VALID COMMON- LAW MARRIAGE BY COHABITATION OF THE PARTIES IN A STATE WHERE SUCH MARRIAGES ARE RECOGNIZED OR EVIDENCE THAT THEY WERE CEREMONIALLY MARRIED ON OR AFTER JULY 29, 1956.