B-130795, APR. 18, 1957
Highlights
MARGARET SMITH ADAMS: REFERENCE IS MADE TO LETTER DATED JUNE 23. IN ANY CASE IN WHICH A FAMILY ALLOWANCE IS GRANTED UNDER THIS CHAPTER. SUCH IS NOT THE CASE. THE INITIAL FAMILY ALLOWANCE OF $80 IS FOR A WIFE AND ONE CHILD. THE ENLISTED MAN'S PAY IS REDUCED BY. SINCE YOU WERE DIVORCED IN DECEMBER 1940. - PAYMENTS OF $62 MONTHLY (UNDER THE 1942 ACT) AND $80 MONTHLY (UNDER THE 1943 AMENDMENT) WERE BOTH ERRONEOUS. YOU WERE ENTITLED TO RECEIVE. SINCE THE DECREE BY WHICH YOU WERE DIVORCED MADE NO PROVISION FOR SUPPORT PAYMENTS OR ALIMONY. THE RIGHTS OF PERSONS IN YOUR SITUATION ARE CLEARLY FIXED BY THE STATUTE AND YOU WERE NOT AUTHORIZED TO RETAIN THE EXCESS AMOUNTS PAID TO YOU. IT IS WELL ESTABLISHED THAT PERSONS RECEIVING MONEY ERRONEOUSLY PAID BY A GOVERNMENT AGENCY OR OFFICIAL ACQUIRE NO RIGHT TO THE MONEY AND THE COURTS CONSISTENTLY HAVE HELD THAT SUCH PERSONS ARE BOUND IN EQUITY AND GOOD CONSCIENCE TO MAKE RESTITUTION.
B-130795, APR. 18, 1957
TO MRS. MARGARET SMITH ADAMS:
REFERENCE IS MADE TO LETTER DATED JUNE 23, 1956, WRITTEN IN YOUR BEHALF BY MR. ROBERT LEE KELLEHER, RELATIVE TO YOUR INDEBTEDNESS TO THE UNITED STATES AMOUNTING TO $1,022, COVERING OVERPAYMENT OF FAMILY ALLOWANCE RECEIVED BY YOU AFTER YOUR DIVORCE FROM JAMES BURR SMITH.
RESPECTING THE PAYMENT OF A FAMILY ALLOWANCE TO A WIFE SEPARATED OR DIVORCED FROM HER HUSBAND, SECTION 106/C) OF THE SERVICEMEN'S DEPENDENT ALLOWANCE ACT OF 1942, 56 STAT. 383, AS AMENDED BY SECTION 6/C) OF THE ACT OF OCTOBER 26, 1943, 57 STAT. 578 (37 U.S.C. 206 (C/-- 1946 EDITION), PROVIDED:
"/C) NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS CHAPTER, IN ANY CASE IN WHICH A FAMILY ALLOWANCE IS GRANTED UNDER THIS CHAPTER---
"/1) TO A WIFE LIVING SEPARATE AND APART FROM THE ENLISTED MAN UNDER A PERMANENT OR TEMPORARY COURT ORDER OR DECREE OR WRITTEN AGREEMENT, THE AMOUNT OF THE FAMILY ALLOWANCE PAYABLE TO SUCH WIFE SHALL NOT EXCEED THE AMOUNT PROVIDED IN SUCH ORDER, DECREE, OR WRITTEN AGREEMENT TO BE PAID TO SUCH WIFE, AND IF SUCH ORDER, DECREE, OR WRITTEN AGREEMENT PROVIDES NO AMOUNT TO BE PAID SUCH WIFE, NO FAMILY ALLOWANCE SHALL BE PAYABLE TO HER; OR
"/2) TO A FORMER WIFE DIVORCED, THE AMOUNT OF THE FAMILY ALLOWANCE PAYABLE TO SUCH FORMER WIFE DIVORCED SHALL NOT EXCEED THE AMOUNT FIXED IN THE COURT ORDER OR DECREE AS THE AMOUNT TO BE PAID TO SUCH FORMER WIFE DIVORCED.'
IN HIS LETTER MR. KELLEHER REQUESTED AN EXPLANATION OF THE DIFFERENCE BETWEEN FAMILY ALLOWANCE PAYMENTS OF $80 AND $72 MONTHLY. HE ASSUMES THAT FOR A WIFE AND CHILD THE INITIAL FAMILY ALLOWANCE WOULD BE $80 IN THE MONTH OF ENLISTMENT OR INDUCTION BUT $72 MONTHLY THEREAFTER. SUCH IS NOT THE CASE. THE INITIAL FAMILY ALLOWANCE OF $80 IS FOR A WIFE AND ONE CHILD. THE INITIAL FAMILY ALLOWANCE FOR A FORMER WIFE DIVORCED WITH ONE CHILD MAY NOT EXCEED $72 MONTHLY--- $42 FOR THE FORMER WIFE DIVORCED AND $30 FOR THE CHILD. SUBSEQUENT FAMILY ALLOWANCE PAYMENTS WOULD BE AT THE SAME RATE EXCEPT THAT, AFTER THE INITIAL PAYMENT, THE ENLISTED MAN'S PAY IS REDUCED BY, OR CHARGED WITH, $22 MONTHLY TO PROVIDE HIS SHARE OF THE PAYMENT, THE GOVERNMENT PAYING THE BALANCE.
SINCE YOU WERE DIVORCED IN DECEMBER 1940--- NO PROVISION FOR ALIMONY OR SUPPORT PAYMENTS HAVING BEEN MADE IN THE DIVORCE DECREE--- PAYMENTS OF $62 MONTHLY (UNDER THE 1942 ACT) AND $80 MONTHLY (UNDER THE 1943 AMENDMENT) WERE BOTH ERRONEOUS. AS SHOWN IN OUR CLAIMS DIVISION LETTER OF APRIL 16, 1956, TO YOUR ATTORNEY, YOU WERE ENTITLED TO RECEIVE--- AS CUSTODIAN OF THE CHILD ONLY--- FAMILY ALLOWANCE PAYMENTS OF $42 FROM JANUARY 1943 TO MAY 1945, AND $30 MONTHLY FOR JUNE AND JULY 1945.
IN VIEW OF THE ABOVE-QUOTED PROVISIONS OF SECTION 106 (C) OF THE 1942 ACT, AS AMENDED, AND SINCE THE DECREE BY WHICH YOU WERE DIVORCED MADE NO PROVISION FOR SUPPORT PAYMENTS OR ALIMONY, WE SEE NO BASIS FOR PAYMENT TO YOU OF AMOUNTS IN EXCESS OF THOSE TO WHICH ENTITLED AS CUSTODIAN OF THE CHILD. THE RIGHTS OF PERSONS IN YOUR SITUATION ARE CLEARLY FIXED BY THE STATUTE AND YOU WERE NOT AUTHORIZED TO RETAIN THE EXCESS AMOUNTS PAID TO YOU. IT SEEMS APPARENT THAT THE REPORTED REMARRIAGE OF THE SERVICEMAN DOES NOT AFFECT YOUR RIGHT IN THE MATTER.
IT IS WELL ESTABLISHED THAT PERSONS RECEIVING MONEY ERRONEOUSLY PAID BY A GOVERNMENT AGENCY OR OFFICIAL ACQUIRE NO RIGHT TO THE MONEY AND THE COURTS CONSISTENTLY HAVE HELD THAT SUCH PERSONS ARE BOUND IN EQUITY AND GOOD CONSCIENCE TO MAKE RESTITUTION. ACCORDINGLY, THE FACT THAT YOU INNOCENTLY MAY HAVE RECEIVED THE FAMILY ALLOWANCE PAYMENTS DOES NOT RELIEVE YOU OF LIABILITY TO RETURN THOSE PAYMENTS. SEE BARNES, ET AL., V. DISTRICT OF COLUMBIA, 22 C.CLS. 366; UNITED STATES V. BURCHARD, 125 U.S. 176; UNITED STATES V. WURTZ, 164 U.S. 190; AND THE CASES COLLECTED AND DISCUSSED IN UNITED STATES V. SUTTON CHEMICAL COMPANY, 11 F.2D 24; AND IN 63 A.L.R. 1346. THOSE PAYMENTS CONSTITUTE A DEBT DUE TO THE UNITED STATES FROM YOU.
IT APPEARS FROM RECORDS AVAILABLE TO US THAT YOU ARE FINANCIALLY ABLE TO MAKE MONTHLY REMITTANCES TO REDUCE THIS DEBT OF $1,022. IT IS REQUESTED, THEREFORE, THAT COMMENCING WITHIN 30 DAYS FROM THE DATE OF THIS LETTER YOU BEGIN TO MAKE MONTHLY PAYMENTS, SUBMITTING WITH SUCH FIRST PAYMENT A PLAN FOR SETTLEMENT SO THAT THE BALANCE MAY BE LIQUIDATED WITHIN A REASONABLE TIME.
YOUR PAYMENTS SHOULD BE MADE PAYABLE TO THE UNITED STATES GENERAL ACCOUNTING OFFICE, POST OFFICE BOX 2610, WASHINGTON 13, D.C. ..END :