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B-152506, NOVEMBER 6, 1964, 44 COMP. GEN. 269

B-152506 Nov 06, 1964
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PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - ANNULMENT OF WIDOW'S REMARRIAGE THE MONTHLY PAYMENTS OF ANNUITY TO THE WIDOW OF A RETIRED OFFICER OF THE UNIFORMED SERVICES UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN WHICH WERE TERMINATED UPON HER REMARRIAGE MAY BE REINSTATED. 1964: FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 21. YOUR REQUEST WAS FORWARDED HERE BY LETTER DATED SEPTEMBER 15. WAS APPROVED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE AS AIR FORCE REQUEST NO. THAT HIS WIDOW WAS PAID A MONTHLY ANNUITY UNDER OPTION 3 OF THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN. THAT THE ANNUITY PAYMENTS WERE TERMINATED OCTOBER 31. UPON THE ALLEGATION AND PROOF OF FRAUD AND THAT THE PURPORTED MARRIAGE WAS NOT CONSUMMATED.

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B-152506, NOVEMBER 6, 1964, 44 COMP. GEN. 269

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - ANNULMENT OF WIDOW'S REMARRIAGE THE MONTHLY PAYMENTS OF ANNUITY TO THE WIDOW OF A RETIRED OFFICER OF THE UNIFORMED SERVICES UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN WHICH WERE TERMINATED UPON HER REMARRIAGE MAY BE REINSTATED, THE PURPORTED "MARRIAGE," ALTHOUGH VOIDABLE ONLY, HAVING BEEN ANNULLED BY COURT DECREE FROM ITS INCEPTION UPON THE PROOF OF FRAUD, AND NO ANNUITY PAYMENTS HAVING BEEN MADE TO ANY CHILDREN DURING THE INTERIM PERIOD, THE MONTHLY ANNUITY PAYMENTS MAY BE REINSTATED FROM THE BEGINNING OF THE MONTH IN WHICH THE SEPARATION OF THE PARTIES OCCURRED, BUT NOT FOR ANY EARLIER PERIOD.

TO N. R. BRENINGSTALL, DEPARTMENT OF THE AIR FORCE, NOVEMBER 6, 1964:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 21, 1964, REQUESTING AN ADVANCE DECISION ON THE PROPRIETY OF PAYMENT OF A VOUCHER FOR $1,317.04, REPRESENTING ANNUITY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN FOR THE PERIOD NOVEMBER 1, 1963, THROUGH JUNE 30, 1964, IN FAVOR OF MRS. ROZELLA Z. MARKS, AS UNREMARRIED WIDOW OF MAJOR HOWARD T. MARKS, AO 82 9259, RETIRED, DECEASED. YOUR REQUEST WAS FORWARDED HERE BY LETTER DATED SEPTEMBER 15, 1964, FROM HEADQUARTERS, UNITED STATES AIR FORCE, AND WAS APPROVED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE AS AIR FORCE REQUEST NO. DO-AF-804.

YOU SAY THAT MAJOR MARKS DIED JANUARY 24, 1957; THAT HIS WIDOW WAS PAID A MONTHLY ANNUITY UNDER OPTION 3 OF THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431-1446; AND THAT THE ANNUITY PAYMENTS WERE TERMINATED OCTOBER 31, 1963, DUE TO HER REMARRIAGE, ON NOVEMBER 8, 1963, TO JOHN R. FRICKS. YOU FORWARDED A COPY OF FINAL DECREE OF ANNULMENT TO THIS MARRIAGE, DATED JUNE 23, 1964, WHEREIN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA, UPON THE ALLEGATION AND PROOF OF FRAUD AND THAT THE PURPORTED MARRIAGE WAS NOT CONSUMMATED, DECLARED THIS MARRIAGE NULL AND VOID AND OF NO LEGAL EFFECT AND ANNULLED THE MARRIAGE FROM ITS INCEPTION, AS IF IT HAD NEVER OCCURRED. NO ANNUITY PAYMENTS HAD BEEN ESTABLISHED ON BEHALF OF ANY CHILDREN OF MAJOR MARKS SUBSEQUENT TO THE "REMARRIAGE" OF MRS. MARKS AND SHE HAS CLAIMED ANNUITY PAYMENTS AS UNREMARRIED WIDOW RETROACTIVE TO NOVEMBER 1, 1963. IN VIEW OF THE DOUBT AS TO WHETHER SHE IS ENTITLED TO THE ANNUITY CLAIMED, YOU HAVE REFERRED THE MATTER HERE FOR DECISION IN ACCORDANCE WITH THE INSTRUCTION CONTAINED IN OUR DECISION, B-152506, OF JANUARY 30, 1964, 43 COMP. GEN. 531.

UNDER THE LAW OF THE STATE OF ALABAMA, WHERE THE ALLEGED MARRIAGE WAS SOLEMNIZED AND DECLARED A NULLITY, ANNULMENT IS NOT A STATUTORY REMEDY, BUT IS WITHIN THE GENERAL EQUITY POWERS OF THE COURTS WITH RESPECT TO CONTRACTS. CONSTANTINE V. CONSTANTINE, 72 SO.2D 831, AND CASES CITED IN THAT DECISION. A MARRIAGE PROCURED BY FRAUD OF SUCH CHARACTER AS TO GO TO THE ESSENCE OF THE MARRIAGE AND EFFECT THE FREE CONDUCT OF THE INJURED PARTY MAY BE ANNULLED. HYSLOP V. HYSLOP, 2 SO.2D 443.

THUS, WHILE THE "MARRIAGE" IN THIS CASE WAS VOIDABLE ONLY, NOT ABSOLUTELY AND INTRINSICALLY VOID, THE COURT, ACTING WITHIN THE SCOPE OF ITS AUTHORITY BASED ON THE EVIDENCE BEFORE IT, DECLARED THE MARRIAGE VOID FROM ITS INCEPTION. SINCE NO ANNUITY HAS BEEN PAID TO ANY CHILDREN IN THE INTERIM, AND SINCE THE VOIDABLE MARRIAGE HAS BEEN ANNULLED FROM ITS INCEPTION, THE ANNUITY MAY BE REINSTATED FROM THE BEGINNING OF THE MONTH IN WHICH THE SEPARATION OF THE PARTIES OCCURRED BUT NOT FOR ANY EARLIER PERIOD. ACCORDINGLY, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE PAID, IF THE PARTIES SEPARATED PERMANENTLY BEFORE THE END OF NOVEMBER 1963. IF THEY SEPARATED IN A SUBSEQUENT MONTH, THE VOUCHER SHOULD BE ADJUSTED TO COVER THE PERIOD COMMENCING WITH THAT MONTH. COMPARE 10 U.S.C. 1437.

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