B-140083, AUGUST 24, 1959, 39 COMP. GEN. 123

B-140083, AUGUST 24, 1959, 39 COMP. GEN. 123

MILITARY PERSONNEL - GRATUITIES - SIX MONTHS' DEATH - CHILDREN - CONFLICTING GUARDIANS WHERE DIFFERENT GUARDIANS APPOINTED BY COURTS OF DIFFERENT JURISDICTIONS EACH CLAIMS SIX MONTHS' DEATH GRATUITY DUE THE MINOR CHILD OF DECEASED ENLISTED MAN, THE GUARDIAN IN ACTUAL CONTROL OF THE PERSON AND PROPERTY OF THE MINOR CHILD, WHO WAS APPOINTED BY THE COURT WHOSE JURISDICTION TO APPOINT A GUARDIAN HAS BEEN TESTED BETWEEN THE TWO CONTENDING GUARDIANS, MAY BE RECOGNIZED TO RECEIVE THE SIX MONTHS' DEATH GRATUITY, NOTWITHSTANDING THE LACK OF FINAL DETERMINATION BETWEEN THE CONTENDING GUARDIANS AS TO THE RIGHT TO RECEIVE THE SIX MONTHS' DEATH GRATUITY, SINCE SUCH A FINAL DETERMINATION UNDER THESE CIRCUMSTANCES IS NOT NECESSARY TO PROTECT THE INTERESTS OF THE UNITED STATES OR OF THE MINOR CHILD.

TO LIEUTENANT COLONEL J. L. WHIPPLE, DEPARTMENT OF THE ARMY, AUGUST 24, 1959:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 12, 1959, REQUESTING DECISION BY THIS OFFICE AS TO THE PROPRIETY OF PAYMENT OF SIX MONTHS' DEATH GRATUITY IN THE AMOUNT OF $1866.60 TO THE CLAIMING GUARDIANS OF THE MINOR CHILD DONALD P. FORE, THE ONLY SURVIVING CHILD OF MASTER SERGEANT DONNIE R. FORE, RA 14054267, AND HIS DECEASED SPOUSE. YOUR REQUEST WAS ASSIGNED D.O. NUMBER 430 BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE.

SERGEANT FORE ENTERED THE ARMED SERVICES FROM LOUISIANA IN 1941 AND SERVED CONTINUOUSLY UNTIL HIS DEATH ON SEPTEMBER 7, 1957, IN FRANCE. MARRIED HIS WIFE FRANZISKA, A GERMAN NATIONAL, IN GERMANY IN 1952 AND THE CHILD, DONALD P. FORE, WAS BORN IN VIRGINIA IN 1954. AT THE TIME OF HIS DEATH SERGEANT FORE WAS RUSHING HIS WIFE TO A HOSPITAL IN FRANCE IN THEIR AUTO WHEN HE MISSED A CURVE, CRASHED AND WAS KILLED INSTANTLY. FRANZISKA DIED SEVERAL HOURS LATER.

DONALD P. FORE WAS TURNED OVER TO THE CUSTODY OF HIS MATERNAL AUNT, MRS. JAKOBINE TOTH, OF CLEVELAND, OHIO, BY ARMY OFFICIALS AFTER THE FUNERAL OF HIS PARENTS, FOR THE APPARENT PURPOSE OF RETURNING THE CHILD TO THE UNITED STATES. IN ARRANGING FOR HIS RETURN TO THE UNITED STATES THE ARMY CONSULTED MRS. ELLA V. FORE, THE SURVIVING PARENT OF SERGEANT FORE, A DOMICILIARY RESIDENT OF LOUISIANA, AND SHE AGREED THAT HER DAUGHTER, MRS. TILLERY, WOULD QUALIFY AS LEGAL GUARDIAN UNDER THE LAWS OF MISSISSIPPI. ON OCTOBER 18, 1957, MRS. TILLERY WAS APPOINTED LEGAL GUARDIAN BY THE CHANCERY COURT OF ANITA COUNTY, MISSISSIPPI.

MRS. TILLERY WENT TO NEW YORK TO MEET THE CHILD ON ITS ARRIVAL ABOUT OCTOBER 25, 1957, AND SERVED UPON MRS. TOTH A COPY OF A PETITION IN HABEAS CORPUS SEEKING THE RELEASE OF THE BOY. AFTER A HEARING, A NEW YORK COURT, ON NOVEMBER 25, 1957, REFUSED TO RELEASE THE BOY AND ATTEMPTED TO AWARD LEGAL CUSTODY TO MRS. TOTH.

RETURNING WITH THE CHILD TO CLEVELAND, OHIO, MRS. TOTH FILED AN APPLICATION FOR LETTERS OF GUARDIANSHIP OF THE PERSON AND ESTATE OF DONALD IN THE PROBATE COURT OF CUYAHOGA COUNTY, NAMING AS NEXT OF KIN THE MATERNAL GRANDPARENTS IN GERMANY AND THE PATERNAL GRANDMOTHER, MRS. ELLA V. FORE, RESIDING IN LOUISIANA. THE APPLICATION WAS GRANTED BY THE PROBATE COURT OF CUYAHOGA COUNTY ON DECEMBER 2, 1957. ON APRIL 21, 1958, TEN DAYS AFTER THE GRANTING OF AN APPLICATION FOR TUTORSHIP IN THE FIFTH DISTRICT COURT, FRANKLIN PARISH, LOUISIANA, THE TUTRIX, MRS. ELLA V. FORE, INSTITUTED AN ACTION IN HABEAS CORPUS IN THE COURT OF APPEALS FOR CUYAHOGA COUNTY, OHIO. (IN RE FORE'S PETITION, 151 N.E.2D 777.) THE COURT OF APPEALS FOUND THAT THE CHILD WAS ILLEGALLY DETAINED, AS THE PROBATE COURT WAS WITHOUT JURISDICTION TO APPOINT MRS. TOTH GUARDIAN, AND THAT THE LOUISIANA DECREE OF TUTORSHIP SHOULD BE RECOGNIZED. THE OHIO SUPREME COURT REVERSED THIS DECISION, IN RE FORE, 168 OHIO ST. 363, 155 N.E.2D 194. THE LAW OF THE CASE WAS STATED BY THE COURT IN THE SYLLABI AS FOLLOWS:

1. WHERE THERE IS NO EXISTING AWARD OF CUSTODY OF AN ORPHANED MINOR RESIDENT OF OHIO BY A FOREIGN COURT, THE PROBATE COURT OF THE COUNTY OF SUCH RESIDENCE HAS JURISDICTION, UNDER SECTION 2111.02, REVISED CODE, TO APPOINT A GUARDIAN OF THE MINOR, IRRESPECTIVE OF THE FACT THAT THE DOMICILE OF SUCH MINOR MAY BE IN ANOTHER STATE.

2. A DECREE OF GUARDIANSHIP OF A MINOR RESIDENT OF OHIO BY A COURT IN THE STATE WHERE THE CHILD HAS A TECHNICAL DOMICILE, WHICH DECREE IS MADE WITHOUT PERSONAL SERVICE ON EITHER THE CHILD OR THE PERSON WITH WHOM SUCH CHILD IS LIVING, IS NOT ENTITLED, UNDER SECTION 1, ARTICLE IV OF THE CONSTITUTION OF THE UNITED STATES, TO SUCH FAITH AND CREDIT AS WILL NULLIFY THE PRIOR APPOINTMENT OF A GUARDIAN OF SUCH MINOR BY THE PROBATE COURT OF THE COUNTY OF HIS RESIDENCE.

MRS. FORE APPEALED THIS REVERSAL TO THE SUPREME COURT OF THE UNITED STATES, BUT THAT COURT DENIED REVIEW ON APRIL 20, 1959, CONSIDERING THE PAPERS PRESENTED AS A PETITION FOR CERTIORARI, 27 L.W. 3293.

BOTH MRS. FORE AND MRS. TOTH HAVE MADE CLAIM FOR THE SIX MONTHS' DEATH GRATUITY ON BEHALF OF THE CHILD AND THERE REMAINS A THIRD POSSIBLE CLAIMANT IN MRS. TILLERY AS GUARDIAN APPOINTED IN MISSISSIPPI.

IT DOES NOT APPEAR THAT DONALD LIVED AT ANY TIME IN EITHER LOUISIANA OR MISSISSIPPI, ALTHOUGH PRESUMABLY THE DOMICILE OF HIS FATHER WAS LOUISIANA AT THE TIME OF DEATH (SEE 148 A.L.R. 1413), NOR DOES IT APPEAR THAT DONALD IS POSSESSED OF ANY PROPERTY IN EITHER OT THOSE STATES. IN THE AWARD OF THE CUSTODY OF DONALD, THE OHIO SUPREME COURT CLEARLY INDICATED THAT THE JURISDICTION TO APPOINT A GUARDIAN IS NOT SOLELY DEPENDENT UPON THE DOMICILE OF THE CHILD, EVEN THOUGH IT BE CONCEDED THAT THE DOMICILE OF THE CHILD COULD BECOME THAT OF ITS SURVIVING PATERNAL GRANDPARENT AFTER THE DEATH OF THE PARENTS, WITHOUT THE CHILD LIVING WITH THE GRANDPARENT, A PROPOSITION WITH WHICH THE COURT DID NOT AGREE. THE COURT STATED THAT THE BASIS FOR JURISDICTION IN THE APPOINTMENT OF A GUARDIAN IS THAT THE STATE SEEKING TO EXERCISE SUCH JURISDICTION BE SO CLOSELY CONNECTED WITH THE WELFARE OF THE CHILD THAT IT IS IN THE FURTHERANCE OF HIS INTERESTS THAT HIS CUSTODY BE DETERMINED IN THAT STATE. MOREOVER, THE COURT DETERMINED THAT RESIDENCE OF THE CHILD WITHIN THE STATE WAS A SUFFICIENTLY CLOSE CONNECTION FOR THIS PURPOSE.

IT APPEARS THAT BOTH THE APPOINTMENTS OF MRS. TOTH AND MRS. FORE ARE VALID AND SUBSISTING, AND ALTHOUGH THERE IS DOUBT WHETHER THE MISSISSIPPI APPOINTMENT IS WITHIN THE JURISDICTION OF THE APPOINTING COURT, SEE MISSISSIPPI CODE 1942, VOL. A RECOMPILED, TITLE 4, CHAP. 2. SEC. 404, IT MAY, FOR THE PURPOSES HERE INVOLVED, BE PRESUMED VALID. HOWEVER, THE WARD IS BEYOND THE JURISDICTION OF THE LOUISIANA AND MISSISSIPPI COURTS, AND ACCORDINGLY THE AUTHORITY OF GUARDIANS APPOINTED IN THOSE STATES WOULD SEEM TO BE LIMITED TO PROPERTY WITHIN THE STATE. MORGAN V. POTTER, 157 U.S. 195; 25 AM. JUR. GUARDIAN AND WARD SECTION 215.

INASMUCH AS THE OHIO COURT HAS DULY APPOINTED MRS. TOTH AS GUARDIAN, THE JURISDICTION OF THAT COURT HAS BEEN TESTED BY COURT ACTION, THE GUARDIAN HAS ACTUAL CARE AND CUSTODY OF THE PERSON AND ESTATE OF DONALD, AND A DEBT DUE FROM THE UNITED STATES HAS NO SITUS IN A PARTICULAR STATE BUT IS PAYABLE WHEREVER THE UNITED STATES CHOOSES TO PAY IT, UNITED STATES V. BORCHERLING, 185 U.S. 223, PAYMENT TO MRS. TOTH OF THE SIX MONTHS' DEATH GRATUITY WOULD PROVIDE A VALID ACQUITTANCE TO THE UNITED STATES.

IN THE MATTER HEREIN CONSIDERED, THERE ARE CIRCUMSTANCES WHICH DID NOT EXIST IN 11 COMP. GEN. 418. THESE CIRCUMSTANCES INCLUDE THE FACT THAT A MINOR IS INVOLVED, THE JURISDICTION OF THE OHIO COURT TO APPOINT A GUARDIAN HAS BEEN TESTED BETWEEN TWO OF THE CONTENDING GUARDIANS, AND THE OHIO GUARDIAN HAS ACTUAL CONTROL OF THE PERSON AND PROPERTY OF THE MINOR. COMPARE 38 COMP. GEN. 124; B-9399, MAY 17, 1940; A-60240, MARCH 8, 1935. APPLICATION OF THE PRINCIPLES OF 11 COMP. GEN. 418, WHICH WOULD REQUIRE A FINAL DETERMINATION AMONG THE CONFLICTING GUARDIANS AS TO THE RIGHT TO RECEIVE PAYMENT, IS NOT NECESSARY IN THIS INSTANCE TO PROTECT THE INTERESTS OF THE UNITED STATES OR OF THE CHILD.

IN VIEW OF THE FACTS AND CIRCUMSTANCES PRESENTLY AVAILABLE, PAYMENT OF THE VOUCHER RETURNED HEREWITH MAY BE MADE TO MRS. JAKOBINE TOTH AS GUARDIAN OF DONALD P. FORE, MINOR.