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B-130944, MAY 22, 1957

B-130944 May 22, 1957
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FRYEFIELD: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 31. WHILE YOU WERE SERVING IN THE NAVY. FAMILY ALLOWANCE PAYMENTS WERE AUTHORIZED IN FAVOR OF YOUR WIFE AND TWO SONS EFFECTIVE WITH THE MONTH OF JANUARY 1947 AND SUCH ALLOWANCE WAS PAID TO YOUR WIFE AT THE RATE OF $100 A MONTH THROUGH MAY. THAT APPLICATION WAS DATED MAY 19. CONTAINED THE STATEMENT "COPIES OF DIVORCE DECREE CERTIFIED BY CLERK OF COURT AND CERTIFIED COPIES ARE FORWARDED HEREWITH.'. IT WAS DETERMINED THAT YOUR FORMER WIFE'S RIGHT TO FAMILY ALLOWANCE CEASED AS OF FEBRUARY 28. PAYMENTS MADE ON HER BEHALF AFTER THAT DATE WERE ERRONEOUS. FRYEFIELD WAS ENTITLED TO FAMILY ALLOWANCE PAYMENTS ONLY AT THE RATE OF $62 A MONTH AS CUSTODIAN OF YOUR CHILDREN.

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B-130944, MAY 22, 1957

TO MR. SAMUEL B. FRYEFIELD:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 31, 1957, CONCERNING YOUR INDEBTEDNESS TO THE UNITED STATES ON ACCOUNT OF ERRONEOUS FAMILY ALLOWANCE PAYMENTS MADE TO YOUR FORMER WIFE, BARBARA R. FRYEFIELD (NOW MRS. BARBARA R. FLEMING), FOR THE PERIOD FROM MARCH 1, 1947, TO MAY 31, 1948, WHILE YOU WERE SERVING IN THE NAVY. THERE HAS ALSO BEEN RECEIVED YOUR UNDATED LETTER WRITTEN IN RESPONSE TO OUR LETTER OF APRIL 4, 1957, CONCERNING THE MATTER.

THE OFFICIAL RECORDS FURNISHED US BY THE DEPARTMENT OF THE NAVY SHOW THAT, IN ACCORDANCE WITH YOUR SUPPLEMENTAL APPLICATION OF JANUARY 31, 1947, BY REASON OF THE BIRTH OF YOUR SECOND SON, FAMILY ALLOWANCE PAYMENTS WERE AUTHORIZED IN FAVOR OF YOUR WIFE AND TWO SONS EFFECTIVE WITH THE MONTH OF JANUARY 1947 AND SUCH ALLOWANCE WAS PAID TO YOUR WIFE AT THE RATE OF $100 A MONTH THROUGH MAY, 1948. UPON RECEIPT OF NOTICE OF YOUR DIVORCE, THE DISBURSING OFFICER PAYING THE FAMILY ALLOWANCE TERMINATED THAT PORTION OF THE ALLOWANCE ON BEHALF OF YOUR WIFE, EFFECTIVE MAY 31, 1948. IN THAT CONNECTION, IT APPEARS FROM THE RECORD THAT THE DISBURSING OFFICER PAYING THE FAMILY ALLOWANCE FIRST RECEIVED NOTICE OF YOUR DIVORCE WHEN YOU SUBMITTED A SUPPLEMENTAL APPLICATION FOR FAMILY ALLOWANCE FOR YOUR TWO SONS ONLY. THAT APPLICATION WAS DATED MAY 19, 1948, AND CONTAINED THE STATEMENT "COPIES OF DIVORCE DECREE CERTIFIED BY CLERK OF COURT AND CERTIFIED COPIES ARE FORWARDED HEREWITH.'

THE DEPARTMENT OF THE NAVY REPORTED THAT NEITHER THE INTERLOCUTORY DECREE OF FEBRUARY 10, 1947, NOR THE FINAL DECREE ENTERED ON MARCH 10, 1948, MADE PROVISION FOR THE PAYMENT OF ALIMONY AND, ON THAT BASIS, IT WAS DETERMINED THAT YOUR FORMER WIFE'S RIGHT TO FAMILY ALLOWANCE CEASED AS OF FEBRUARY 28, 1947. PAYMENTS MADE ON HER BEHALF AFTER THAT DATE WERE ERRONEOUS. THE REPORT FURTHER STATES THAT SINCE MRS. FRYEFIELD WAS ENTITLED TO FAMILY ALLOWANCE PAYMENTS ONLY AT THE RATE OF $62 A MONTH AS CUSTODIAN OF YOUR CHILDREN, EFFECTIVE MARCH 1, 1947, AND SINCE SHE WAS PAID SUCH ALLOWANCE AT THE RATE OF $100 A MONTH FOR THE PERIOD MARCH 1, 1947, THROUGH MAY 31, 1948, THERE WAS AN OVERPAYMENT OF THE ALLOWANCE IN THE AMOUNT OF $570 (A DIFFERENCE OF $30 A MONTH FOR 15 MONTHS).

IT APPEARS FROM THE RECORD THAT YOU HAVE REDUCED THE INDEBTEDNESS OF $570 BY MONTHLY INSTALLMENTS AND THAT THE PRESENT BALANCE DUE IS $70.

YOU NOW CONTEND THAT YOU ARE NOT LEGALLY LIABLE FOR SUCH OVERPAYMENT AND YOU MAKE CLAIM FOR REFUND OF A PORTION OF THE AMOUNT PREVIOUSLY PAID BY YOU. YOU CITE SEVERAL OF OUR DECISIONS IN SUPPORT OF YOUR BELIEF THAT YOUR MARITAL STATUS REMAINED UNCHANGED DURING THE PERIOD THE INTERLOCUTORY DIVORCE DECREE WAS IN EFFECT.

SECTION 102 OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, 56 STAT. 381, AS AMENDED, 37 U.S.C. (1946 ED.) 202, PROVIDED THAT THE FAMILY ALLOWANCE SHALL BE COMPOSED OF TWO PARTS, (1) THE GOVERNMENT'S CONTRIBUTION AND (2) THE REDUCTION IN, OR CHARGE TO, THE PAY OF THE ENLISTED MAN. WHILE SECTION 107/B) OF THE ACT, AS AMENDED, PROVIDED THAT ENTITLEMENT TO FAMILY ALLOWANCE SHALL TERMINATE OR BE MODIFIED AT THE END OF THE MONTH IN WHICH A CHANGE IN STATUS OF THE ENLISTED MAN OR HIS DEPENDENT OCCURS, SUCH SECTION ALSO SPECIFICALLY PROVIDED THAT PAYMENT OF SUCH ALLOWANCE SHALL BE TERMINATED ON THE LAST DAY OF THE MONTH IN WHICH THE DISBURSING OFFICER PAYING THE ALLOWANCE RECEIVES NOTICE OF A CHANGE IN STATUS OF THE ENLISTED MAN OR HIS DEPENDENT WHICH TERMINATED THE RIGHT OF THE DEPENDENT TO RECEIVE SUCH ALLOWANCE, AND SECTION 106/A) OF THE ACT PROVIDED THAT THE MONTHLY PAY OF THE ENLISTED MAN SHALL BE REDUCED BY, OR CHARGED WITH, THE AMOUNT OF $22 FOR ANY MONTH FOR WHICH A FAMILY ALLOWANCE IS PAID TO HIS DEPENDENT.

SECTION 106 (C) (1) OF THE ACT AS AMENDED, QUOTED IN OUR LETTER OF FEBRUARY 21, 1952, TO YOU, AUTHORIZED PAYMENT OF A FAMILY ALLOWANCE TO A WIFE LIVING SEPARATE AND APART FROM THE ENLISTED MAN UNDER A COURT ORDER OR WRITTEN AGREEMENT, WHERE EITHER THE COURT ORDER OR WRITTEN AGREEMENT MADE PROVISION FOR PAYMENT OF ALIMONY OR SUPPORT, AND IF THE COURT ORDER, DECREE, OR WRITTEN AGREEMENT PROVIDED NO AMOUNT TO BE PAID TO THE WIFE, NO FAMILY ALLOWANCE WAS PAYABLE TO HER. IT IS REPORTED THAT THE INTERLOCUTORY DECREE AND THE FINAL DECREE MADE NO PROVISION FOR THE PAYMENT OF ALIMONY AND, HENCE, BARBARA FRYEFIELD'S ENTITLEMENT TO FAMILY ALLOWANCE UNDER THE STATUTE CEASED ON THE LAST DAY OF FEBRUARY 1947.

SINCE THE RECORD DOES NOT SHOW THAT YOU ATTEMPTED TO NOTIFY THE DISBURSING OFFICER PAYING THE ALLOWANCE OF THE INTERLOCUTORY DECREE--- WHICH WAS ENTERED ON FEBRUARY 10, 1947--- PRIOR TO MAY 19, 1948, THE DATE OF YOUR SUPPLEMENTAL APPLICATION, YOU AND YOUR FORMER WIFE ARE JOINTLY AND SEVERALLY LIABLE FOR THE FULL AMOUNT OF THE OVERPAYMENT. SEE 33 COMP. GEN. 309.

THE DECISIONS OF OUR OFFICE CITED BY YOU, 22 COMP. GEN. 1145-1151; 26 COMP. GEN. 514-518 AND 34 COMP. GEN. 16-17, IN SUPPORT OF YOUR CONTENTION THAT UNDER THE LAWS OF THE STATE OF CALIFORNIA YOU AND BARBARA R. FRYEFIELD WERE STILL HUSBAND AND WIFE DURING THE PERIOD THE INTERLOCUTORY DECREE WAS IN EFFECT, HAVE NO APPLICATION IN YOUR CASE INSOFAR AS FAMILY ALLOWANCE PAYMENTS ARE CONCERNED. IN 22 COMP. GEN. 1145 AND 26 COMP. GEN. 514, IT WAS PERTINENT THAT THERE BE CONSIDERED THE LAWS OF THE STATE OF CALIFORNIA AND JUDICIAL PRECEDENTS RESPECTING THE EFFECT OF AN INTERLOCUTORY DIVORCE DECREE, SINCE IT WAS NECESSARY TO DETERMINE THE RIGHT OF AN OFFICER TO RECEIVE INCREASED RENTAL AND SUBSISTENCE ALLOWANCES ON ACCOUNT OF A LAWFUL WIFE UNDER THE PROVISIONS OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359. IN 34 COMP. GEN. 16 THERE WAS CONSIDERED THE RIGHT OF AN OFFICER TO BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A LAWFUL WIFE UNDER THE PROVISIONS OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 802. IT WILL BE SEEN THAT THOSE DECISIONS WERE BASED ON SEPARATE AND DISTINCT STATUTES NOT INVOLVING FAMILY ALLOWANCE PAYMENTS. IN YOUR CASE, FAMILY ALLOWANCE PAYMENTS WERE AUTHORIZED UNDER THE PROVISIONS OF THE SERVICEMEN'S DEPENDENTS ALLOWANCE ACT OF 1942, WHICH ACT EXPRESSLY PROVIDED (37 U.S.C. (1946 ED.) 206 (C) (1) ( THAT "IF SUCH ORDER, DECREE (OF DIVORCE), OR WRITTEN AGREEMENT PROVIDES NO AMOUNT TO BE PAID TO SUCH WIFE, NO FAMILY ALLOWANCE SHALL BE PAYABLE TO HER.' UNDER THE CLEAR PROVISIONS OF THE STATUTE, NO FAMILY ALLOWANCE PAYMENTS WERE AUTHORIZED ON ACCOUNT OF YOUR WIFE AFTER THE MONTH IN WHICH THE INTERLOCUTORY DECREE WAS GRANTED AND THE PAYMENTS MADE ON HER ACCOUNT DURING THE PERIOD SUCH DECREE WAS IN EFFECT WERE ERRONEOUS.

ACCORDINGLY, THERE IS NO LEGAL BASIS TO REFUND TO YOU ANY PART OF THE AMOUNT THAT YOU HAVE REMITTED AND PAYMENTS SHOULD BE PROMPTLY RESUMED ON THE BALANCE DUE.

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