B-132249, SEPTEMBER 17, 1957, 37 COMP. GEN. 188

B-132249, SEPTEMBER 17, 1957, 37 COMP. GEN. 188

MILITARY PERSONNEL - ANNUITIES - REMARRIED WIDOWS - EFFECT OF ANNULMENT THE EFFECT OF A CALIFORNIA COURT DECREE ANNULLING A NEVADA MARRIAGE CONTRACTED BY THE WIDOW OF A NAVAL OFFICER IS GOVERNED, UNDER THE CALIFORNIA CONFLICT OF LAW RULE, BY THE LAW OF THE PLACE WHERE THE MARRIAGE IS CONTRACTED AND UNDER NEVADA LAW SUCH AN ANNULMENT IS EFFECTIVE FROM THE DATE OF THE DECREE; THEREFORE, THE WIDOW WHO WAS IN RECEIPT OF AN ANNUITY WHICH WAS PAYABLE UNTIL HER DEATH OR REMARRIAGE AND THEN WENT TO THE DECEDENT'S ADOPTED SON IS NOT ENTITLED TO RESUME RECEIVING THE ANNUITY IN HER OWN RIGHT AFTER THE DATE OF THE DECREE.

TO L. A. CAMPBELL, DEPARTMENT OF THE NAVY, SEPTEMBER 17, 1957:

IN YOUR LETTER OF MARCH 27, 1957, FORWARDED VIA THE COMPTROLLER OF THE NAVY AND THE JUDGE ADVOCATE GENERAL OF THE NAVY, YOU REQUEST AN ADVANCE DECISION REGARDING THE ENTITLEMENT OF THE WIDOW OF A DECEASED NAVAL OFFICER TO ANNUITY PAYMENTS PURSUANT TO THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501, 10 U.S.C. 1434 (A) (3).

THE NAVAL OFFICER RETIRED EFFECTIVE JULY 1, 1946. BY AN APPROPRIATE FORM EXECUTED ON APRIL 30, 1954, HE ELECTED, UNDER THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, TO ACCEPT REDUCED RETIRED PAY IN ORDER TO PROVIDE AN ANNUITY EQUAL TO ONE-HALF OF HIS REDUCED RETIRED PAY FOR HIS WIFE AND CHILD. SPECIFICALLY, HE SELECTED OPTION THREE, 10 U.S.C. 1434, WHICH PROVIDES AN ANNUITY PAYABLE---

(3) TO, OR ON BEHALF OF, THE SURVIVING SPOUSE, AND AFTER THE DEATH OR REMARRIAGE OF THAT SPOUSE, IN EQUAL SHARES TO, OR ON BEHALF OF, THE SURVIVING CHILDREN, ENDING WHEN THERE IS NO SURVIVING ELIGIBLE CHILD.

FOLLOWING HIS DEATH ON MARCH 14, 1955, ANNUITY PAYMENTS WERE MADE TO THE WIDOW UNTIL JULY 1, 1956, WHICH WAS THE FIRST MONTH AFTER HER REMARRIAGE IN NEVADA ON JUNE 18, 1956, TO ANOTHER MAN. SHE WAS SEPARATED FROM HIM ON JULY 9, 1956, AND WAS GRANTED A DECREE OF ANNULMENT IN THE STATE OF CALIFORNIA ON FEBRUARY 4, 1957. BEGINNING JULY 1, 1956, THE ANNUITY PAYMENTS HAVE BEEN MADE TO THE WIDOW ON BEHALF OF THE DECEDENT'S ADOPTED SON. SINCE THE WIDOW'S DECREE OF ANNULMENT DECLARES THAT HER REMARRIAGE WAS "NULL AND VOID AB INITIO," THAT IS, FROM THE INCEPTION OF THE MARRIAGE, THE QUESTION IS PRESENTED WHETHER THE ANNUITY PAYMENTS REVERT TO THE WIDOW IN HER OWN RIGHT OR SHOULD CONTINUE TO BE PAID TO HER ON BEHALF OF HER ADOPTED SON.

WHILE THE DECREE DECLARED THE MARRIAGE "NULL AND VOID AB INITIO," THE RECORD DOES NOT DEFINITELY DISCLOSE WHETHER THE MARRIAGE WAS VOID OR WAS ONLY VOIDABLE. A LETTER FROM THE WIDOW'S ATTORNEY, HOWEVER, STATES THAT THE MARRIAGE "DID NOT "JELL" AND THE PARTIES SEPARATED," WHICH SUGGESTS THAT THE MARRIAGE WAS NOT INTRINSICALLY VOID AND THAT THE COURT DETERMINED THE MARRIAGE TO BE VOIDABLE ONLY. SEE MCDONALD V. MCDONALD, 6 CAL.2D 457, 58 P.2D 163, 104 A.L.R. 1290; SEFTON V. SEFTON, 291 P.2D 439. IN GENERAL A VOID MARRIAGE IS NO MARRIAGE AT ALL, CONFERS NO LEGAL RIGHTS, DOES NOT CREATE A MARITAL STATUS, THE SURVIVOR IS NOT THE WIDOW OR WIDOWER, AND A DECLARATION OF NULLITY MAY BE OBTAINED EVEN AFTER THE DEATH OF ONE OF THE PARTIES.

WHILE A FEW JURISDICTIONS IN CERTAIN CIRCUMSTANCES WILL APPLY THE LAW OF THE FORUM TO ANNUL A FOREIGN MARRIAGE ( MITCHELL V. MITCHELL, 117 NYS 671; CUNNINGHAM V. CUNNINGHAM, 99 N.E. 845), THE GENERAL RULE IS THAT THE LAW WHICH DETERMINES THE VALIDITY OF THE MARRIAGE, THAT IS, THE LAW OF THE STATE WHERE THE CONTRACT OF MARRIAGE TAKES PLACE, IS APPLICABLE. RESTATEMENT OF THE LAW OF CONFLICT OF LAWS, SECTIONS 136 AND 121; MCDONALD V. MCDONALD, 58 P.2D 163, 165; IN RE GOSNELL'S ESTATE, 146 P.2D 42, 43. AN ANNULMENT DECREE IN CALIFORNIA NORMALLY IS EFFECTIVE FROM THE INCEPTION OF THE MARRIAGE. SEFTON V. SEFTON, 291 P.2D 439. CALIFORNIA FOLLOWS THE RULE, HOWEVER, THAT A DECREE OF NULLITY IS GOVERNED BY THE LAW WHICH DETERMINES THE VALIDITY OF THE MARRIAGE. IN RE GOSNELL'S ESTATE, 146 P.2D 42, 43. IN THAT CASE THE CALIFORNIA COURT WAS CONFRONTED WITH A CALIFORNIA DECREE OF NULLITY PURPORTEDLY RENDERING A NEVADA MARRIAGE VOID "FROM THE BEGINNING.' THE COURT CONCLUDED THAT THE LOWER COURT WAS NOT AUTHORIZED TO DECLARE THE NEVADA MARRIAGE VOID FROM THE BEGINNING, SINCE UNDER NEVADA LAW IT COULD ONLY BE VOID FROM THE DATE OF THE ANNULMENT DECREE.

CONCERNING THE DIFFERENCE BETWEEN ANNULMENT DECREES THAT ARE EFFECTIVE FROM THE INCEPTION OF THE MARRIAGE AND THOSE EFFECTIVE ONLY FROM THE DATE OF THE DECREE, THE RESTATEMENT OF THE LAW OF CONFLICT OF LAWS IN COMMENT TO SECTION 115 STATES:

PROCEEDINGS TO NULLIFY A MARRIAGE FROM THE DATE OF THE DECREE ARE PROVIDED BY STATUTE IN SOME STATES. THIS PROCEEDING * * * DESTROYS THE MARRIAGE, NOT FROM ITS INCEPTION, BUT ONLY FROM THE DATE OF THE DECREE. IT DIFFERS FROM DIVORCE IN THAT THE CAUSE EXISTED AT THE TIME OF THE MARRIAGE INSTEAD OF ARISING AFTER IT. THE EFFECT OF SUCH A DECREE UPON THE MARRIAGE IS THE SAME AS THAT OF A DECREE OF DIVORCE.

THE WIDOW'S NEVADA MARRIAGE WAS ANNULLED IN CALIFORNIA. SECTION 125.290 OF THE NEVADA REVISED STATUTES DEFINES VOID MARRIAGES AS THOSE PROHIBITED BY CONSANGUINITY OR EXISTENCE OF A HUSBAND OR WIFE THEN LIVING. SINCE IT DOES NOT APPEAR FROM THE RECORD BEFORE US THAT THE WIDOW'S MARRIAGE TO THE OTHER MAN WAS VOID FOR EITHER OF THOSE REASONS, HER MARRIAGE APPARENTLY WAS ONLY VOIDABLE UNDER NEVADA LAW, NEVADA REVISED STATUTES, SECTIONS 125.300 THROUGH 125.350. UNDER THE PROVISIONS OF THOSE SECTIONS AN ANNULMENT DECREE OPERATES TO TERMINATE THE VOIDABLE MARRIAGES ONLY PROSPECTIVELY. CONSEQUENTLY, SINCE THE WIDOW WAS REMARRIED DURING THE INTERVAL FROM JUNE 18, 1956, TO FEBRUARY 4, 1957, THE ANNUITY PAYMENTS SHOULD CONTINUE TO HER AS GUARDIAN OF HER ADOPTED SON.