B-131677, JUN. 3, 1957

B-131677, JUN. 3, 1957

TO MR. L. A. CAMPBELL, DISBURSING OFFICER:

WITH LETTER DATED APRIL 26, 1957 (JAG:1342.2:SH), THE JUDGE ADVOCATE GENERAL OF THE NAVY FORWARDED HERE YOUR LETTER OF FEBRUARY 26, 1957 (XB3:C:40 L16-4/1), WITH ENCLOSURES, REQUESTING A DECISION CONCERNING THE ENTITLEMENT OF THE BENEFICIARIES OF GILBERT HOLMES JOHNSON, 342 53 61, (RET.) USN ADC (DECEASED), TO ANNUITY PAYMENTS UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501.

IT APPEARS FROM YOUR LETTER THAT UNDER DATE OF DECEMBER 21, 1955, THE FORMER RETIRED ENLISTED MAN EXERCISED AN ELECTION UNDER THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, ELECTING OPTION 2 AT ONE-HALF HIS REDUCED RETIRED PAY. IN CONNECTION WITH THE ELECTION, HE LISTED THREE CHILDREN, JOYE MELINDA JOHNSON, BORN OCTOBER 4, 1947, DANNY GILBERT JOHNSON, BORN FEBRUARY 19, 1950, AND JOHN JERRY JOHNSON, BORN AUGUST 30, 1954.

THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 ESTABLISHED A PLAN WHEREBY AN ACTIVE OR RETIRED MEMBER OF THE REGULAR AND RESERVE COMPONENTS OF THE UNIFORMED SERVICES MIGHT ELECT, WITHIN CERTAIN SPECIFIED PERIODS, DEPENDING UPON HIS LENGTH OF SERVICE AND STATUS AS AN ACTIVE OR RETIRED MEMBER, TO RECEIVE A REDUCED AMOUNT OF RETIRED PAY DURING HIS LIFETIME TO PROVIDE ANNUITIES FOR HIS "WIDOW, CHILD, OR CHILDREN.'

SECTION 2 (F) OF THE STATUTE, 67 STATUTE, 67 STAT. 501, PROVIDES---

"THE TERM "CHILD" MEANS A LEGITIMATE CHILD, A STEPCHILD IN FACT DEPENDENT UPON THE MEMBER FOR SUPPORT, OR A LEGALLY ADOPTED CHILD, WHO IS UNDER EIGHTEEN YEARS OF AGE AND UNMARRIED, * * *"

THE RECORD SUBMITTED HERE APPEARS TO ESTABLISH THAT IN MARCH 1944 THE FORMER RETIRED ENLISTED MAN INSTITUTED A SUIT FOR DIVORCE AGAINST MRS. BETTY JANE JOHNSON AT NORFOLK, VIRGINIA, AND THAT HE OBTAINED A DIVORCE FROM BED AND BOARD. THE RECORD INDICATES THAT NO FINAL DECREE SEVERING THE BOND OF MATRIMONY WAS EVER ENTERED IN THE CASE. THEREAFTER HE MARRIED ONE MARY MARGARET HOWELL, WHO UNDER DATE OF JUNE 20, 1946, OBTAINED AN ABSOLUTE DECREE OF DIVORCE FROM THE DECEASED IN THE COURT OF DOMESTIC RELATIONS, ST. LOUIS, MISSOURI. UNDER DATE OF NOVEMBER 20, 1946, HE MARRIED LOIS MAUREANE RAWLS IN ARKANSAS, AND IT WAS OF THIS UNION THAT THE THREE CHILDREN WERE BORN.

SINCE THE FIRST MARRIAGE OF MR. JOHNSON WAS NEVER FINALLY DISSOLVED, IT DOES NOT APPEAR THAT MRS. LOIS M. RAWLS JOHNSON IS HIS LEGAL WIDOW. THE QUESTION PRESENTED FOR DETERMINATION IS WHETHER THE CHILDREN ARE "LEGITIMATE" WITHIN THE MEANING OF THAT TERM AS USED IN THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953.

THERE IS MUCH CONFLICT OF OPINION IN THE DECISIONS OF THE COURTS, AND IN LEGAL TREATIES, AS TO THE PARTICULAR JURISDICTION THE LAW OF WHICH SHALL GOVERN IN DETERMINING THE LEGITIMACY STATUS OF CHILDREN SUCH AS ARE HERE INVOLVED. IT DOES APPEAR, HOWEVER, TO BE THE GENERAL TENDENCY OF THE COURTS TO EFFECT A STATUTE OF LEGITIMACY RATHER THAN ILLEGITIMACY EVEN TO APPLYING THE LAW OF WHICHEVER JURISDICTION WOULD HAVE THE EFFECT OF SUSTAINING LEGITIMACY, ALTHOUGH, UNDER THE STRICT THEORY OF CONFLICT OF LAWS, SUCH LAW CLEARLY WOULD BE INAPPLICABLE. SEE IN RE LUND'S ESTATE, 159 P.2D 643; 162 A.L.R. 606, AND THE ANNOTATIONS THERETO AT PAGE 628. THE ANNOTATION IN 162 A.L.R., AT PAGE 627 (1946), THIS CONFLICT OF OPINION IS REFERRED TO AS GIVING RISE TO THE SITUATION THAT ANYONE OF THE FOLLOWING CONCEIVABLY MAY FURNISH THE LAW BY WHICH A CHILD'S LEGITIMACY IS TO BE DETERMINED---

(1) THE STATE WHERE THE MARRIAGE WAS CELEBRATED

(2) THE STATE WHERE THE PARENTS WERE DOMICILED AT THE TIME OF CELEBRATION

(3) THE STATE WHERE THE CHILD WAS BORN.

SOME AUTHORITIES HAVE CONCEDED THE GENERAL RULE TO BE THAT THE LAW OF THE PLACE OF MARRIAGE IS CONTROLLING. SEE WITHROW V. EDWARDS (1943) 181 VA. 344, 25 S.E.2D 343; LEONARD V. BRASWELL (1896), 99 KY. 528, 36 S.W. 684; ANNOTATION, 73 A.O.R. 951; 11 AM.JUR., CONFLICT OF LAWS, SEC. 18.

ON THE BASIS OF THE RECORD BEFORE OUR OFFICE WE ARE UNABLE TO DETERMINE THE STATE WHERE THE PARENTS WERE DOMICILED AT THE TIME OF THEIR MARRIAGE, AND NEITHER ARE WE ADVISED AS TO THE STATE IN WHICH THE CHILDREN WERE BORN. THE RECORD DOES ESTABLISH THAT THE PARENTS WERE MARRIED IN ARKANSAS ON NOVEMBER 20K 1946. SECTION 61-104 OF THE ARKANSAS STATUTES (1947) PROVIDES AS OLLOWS:

"ISSUE OF NULL OR DISSOLVED MARRIAGES DEEMED LEGITIMATE.--- THE ISSUE OF ALL MARRIAGES DEEMED NULL IN LAW, OR DISSOLVED BY DIVORCE, SHALL BE DEEMED AND CONSIDERED AS LEGITIMATE.'

IN THE CASE OF EVATT V. MILLER, 114 ARK. 84, 169 S.W. 817, THE COURT IN CONSTRUING AN IDENTICAL STATUTE, HELD THAT WHERE A DECEDENT, HAVING MARRIED, LEFT HIS WIFE, AND AFTER FALSELY INFORMING ANOTHER WOMAN THAT HE HAD PROCURED A DIVORCE, MARRIED HER, EVEN THOUGH THE MARRIAGE WAS VOID, THE CHILDREN WERE NEVERTHELESS LEGITIMATE UNDER THE STATUTE AND ENTITLED TO INHERIT THE DECEDENT'S ESTATE EQUALLY WITH THE ISSUE OF THE FIRST MARRIAGE. IN DEALING WITH THE MATTERS INVOLVED THE COURT STATED:

"* * * AT COMMON LAW ALL CHILDREN, EXCEPT THE ISSUE OF LAWFUL MARRIAGE, WERE ILLEGITIMATE AND REMAINED SO; BUT THE HARSHNESS OF THIS RULE HAS BEEN MUCH RELAXED, UNTIL NOW IN MOST, IF NOT ALL, AMERICAN STATES STATUTES HAVE BEEN ENACTED WHICH PROVIDE THAT THE ISSUE OF A VOID OR VOIDABLE MARRIAGE SHALL BE LEGITIMATE NOTWITHSTANDING THE INVALIDITY OF THE MARRIAGE.'

SEE, ALSO, THE CASE OF COOPER V. MCCOY, 116 ARK. 501, 173 S.W. 412.

CONSIDERING THE RULE THAT THE LAW OF THE PLACE OF MARRIAGE MAY BE APPLIED IN DETERMINE THE LEGITIMACY OF CHILDREN BORN OF VOID OR VOIDABLE MARRIAGES, WE ARE OF THE VIEW THAT THE CHILDREN OF THE DECEASED BY HIS MARRIAGE TO LOIS M. RAWLS ARE LEGITIMATE AND ARE THUS ENTITLED TO BE PAID THE ANNUITY PAYMENTS PROVIDED BY THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953.