B-154831, NOVEMBER 10, 1964, 44 COMP. GEN. 280

B-154831, NOVEMBER 10, 1964, 44 COMP. GEN. 280

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - BENEFICIARY ELIGIBILITY - DIVORCED CHILD THE MONTHLY SURVIVORSHIP ANNUITY PAYMENTS ELECTED BY AN ARMY OFFICER RETIRED PRIOR TO NOVEMBER 1, 1953, THE EFFECTIVE DATE OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, REDESIGNATED THE RETIRED SERVICEMANS' FAMILY PROTECTION PLAN, FOR A DAUGHTER THEN 51 YEARS OF AGE, INCAPABLE OF SELF-SUPPORT BECAUSE OF A MENTAL CONDITION EXISTING PRIOR TO REACHING THE AGE OF 18, AND WHO WAS DIVORCED IN 1925, MAY BE PAID TO THE DAUGHTER, THE TERM "UNMARRIED" CHILD AS EMPLOYED IN 10 U.S.C. 1435 (2) (A) MEANING NOT HAVING A HUSBAND OR WIFE AT THE TIME OF THE SERVICE MEMBER'S RETIREMENT OR NOVEMBER 1, 1953, AND WITHOUT REGARD TO A PRIOR MARRIAGE, AND THE RECORD ESTABLISHING THE DAUGHTER OF THE DECEASED OFFICER WAS AN UNMARRIED CHILD ON NOVEMBER 1, 1953, WITHIN THE PURVIEW OF 10 U.S.C. 1435 (2) (A), INCAPABLE OF SELF-SUPPORT PURSUANT TO 10 U.S.C. 1435 (2) (B), SHE IS ENTITLED TO RECEIVE ANNUITY PAYMENTS AS AN ELIGIBLE BENEFICIARY.

TO COLONEL J. L. CLANCY, DEPARTMENT OF THE ARMY, NOVEMBER 10, 1964:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 28, 1964, AND ENCLOSURES, FORWARDED HERE JULY 27, 1964, UNDER NO. DO-A-782, ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE. YOU REQUEST A DECISION CONCERNING THE PROPRIETY OF PAYMENT ON A VOUCHER STATED IN FAVOR OF NATALIE MORENO, DAUGHTER OF FIRST LIEUTENANT JOAQUIN F. MORENO, XC- 398082, RETIRED, DECEASED. THE VOUCHER IS STATED IN THE AMOUNT OF $102.17 AND REPRESENTS A SURVIVORSHIP ANNUITY FOR THE MONTH OF JANUARY 1964 COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF CH. 73, TITLE 10, U.S.C.

THE PERTINENT FACTS GIVING RISE TO THE BASIC QUESTION PRESENTED IN YOUR LETTER ARE AS FOLLOWS:

(1) LIEUTENANT MORENO WAS PLACED ON THE EMERGENCY OFFICERS' RETIRED LIST PRIOR TO NOVEMBER 1, 1953, THE EFFECTIVE DATE OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, CH. 393, AUGUST 8, 1953, 67 STAT. 501- 505. THAT ACT, REDESIGNATED AS THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN IN PUBLIC LAW 87-381, OCTOBER 4, 1961, 75 STAT. 810-812, IS CODIFIED IN CH. 73, 10 U.S.C. 1431-1446.

(2) IN MARCH 1954 LIEUTENANT MORENO ELECTED AN ANNUITY AT ONE-HALF REDUCED RETIRED PAY FOR HIS DAUGHTER, NATALIE, THEN 51 YEARS OF AGE, HAVING PREVIOUSLY ASSERTED IN A LETTER DATED FEBRUARY 16, 1954, ADDRESSED TO THE RETIRED PAY BRANCH, FINANCE CENTER, UNITED STATES ARMY, THAT "SHE (NATALIE) IS INCAPABLE OF SELF-SUPPORT BECAUSE OF MENTAL DISABILITY, WHICH CONDITION EXISTED PRIOR TO REACHING THE AGE OF18.'

(3) IT WAS DETERMINED BY THE DEPARTMENT OF THE ARMY UNDER AUTHORITY OF 10 U.S.C. 1444 (C) THAT MISS MORENO WAS AN ELIGIBLE BENEFICIARY FOR THE ANNUITY SELECTED BY HER FATHER. SUCH DETERMINATION WAS BASED ON TWO FACTORS:

(A) THAT SHE WAS AN "UNMARRIED" CHILD WITHIN THE PURVIEW OF 10 U.S.C. 1435 (2) (A) FOR THE REASON THAT HER MARRIAGE OF MARCH 17, 1925, WAS TERMINATED BY A DECREE OF DIVORCE ON MAY 14, 1926, AND

(B) THE AFFIDAVIT EXECUTED ON JANUARY 25, 1955, BY DR. HELEN RISLOW BURNS, ASSISTANT MEDICAL DIRECTOR, COMPTON SANITARIUM, COMPTON, CALIFORNIA, WAS DEEMED AS SUFFICIENT PROOF OF MISS MORENO'S INCAPABILITY OF SELF-SUPPORT BECAUSE OF A MENTAL DEFECT WHICH EXISTED PRIOR TO HER EIGHTEENTH BIRTHDAY.

(4) THE ELECTION OF ANNUITY WAS ESTABLISHED RETROACTIVELY TO MARCH 1, 1954, AT A MONTHLY COST OF $1.30 FOR A PROSPECTIVE ANNUITY OF $102.17 PER MONTH. IT APPEARS THAT THE EXTREMELY LOW COST OF THE ANNUITY IN THIS CASE, ONLY $1.30 PER MONTH, REFLECTS AN ACTUARIAL ASSUMPTION THAT ELIGIBILITY OF ALL CHILDREN ENDS AT AGE 18; THAT FOR PRACTICAL (ACTURIAL) REASONS IT WAS ASSUMED THAT ALL DISABLED CHILDREN AGE 18 OR OVER DESIGNATED AS BENEFICIARIES UNDER THE ACT WOULD RECEIVE BENEFITS FOR ONLY ONE YEAR AND THUS THAT FOR ACTUARIAL PURPOSES A DISABLED CHILD 18 YEARS OF AGE OR OVER IS TO BE CONSIDERED AS AGE 17.

(5) LIEUTENANT MORENO DIED JANUARY 10, 1963, AND ANNUITY PAYMENTS HAVE BEEN MADE TO MISS MORENO IN THE AMOUNT OF $1,226.04, COVERING THE CALENDAR YEAR 1963.

MISS MORENO'S MARITAL STATUS DURING THE PERIOD MARCH 17, 1925, TO MAY 14, 1926, IS ESTABLISHED BY A COPY OF A DECREE OF DIVORCE RENDERED MAY 14, 1926, IN THE SUPERIOR COURT OF YAVAPAI COUNTY, ARIZONA, RESTORING HER MAIDEN NAME, NATALIE MORENO. SHE WAS THE DEFENDANT IN THE COURT ACTION AND NO PROVISION WAS MADE FOR THE PAYMENT OF ALIMONY. THE MARRIAGE LASTED ONLY ONE MONTH AND SHE THEN MOVED BACK TO LIVE WITH HER PARENTS, APPARENTLY BECAUSE SHE WAS MENTALLY UNABLE TO ADJUST TO MARRIAGE. THERE ARISES THE QUESTION WHETHER IN SUCH A CIRCUMSTANCE SHE WAS AN "UNMARRIED" CHILD ON NOVEMBER 1, 1953, EFFECTIVE DATE OF THE CONTINGENCY OPTION ACT, WITHIN THE MEANING OF THAT TERM AS USED IN 10 U.S.C. 1435 (2) (A). IF SO, SHE WAS ELIGIBLE TO BE DESIGNATED AS A BENEFICIARY UNDER THAT LAW.

PARAGRAPH 7 OF YOUR LETTER MAKES SPECIFIC REFERENCE TO THE STATEMENT CONTAINED IN BLACK'S LAW DICTIONARY THAT WHILE THE PRIMARY MEANING OF THE TERM "UNMARRIED" IS "NEVER HAVING BEEN MARRIED," THE WORD IS A WORD OF FLEXIBLE MEANING AND IT MAY BE CONSTRUED AS NOT HAVING A HUSBAND OR WIFE AT THE TIME IN QUESTION. IT IS FURTHER STATED IN BLACK THAT A DIVORCED WOMAN HAS BEEN HELD AN UNMARRIED WOMAN, CITING IN RE GILES, 158 F. 596 (1908), AND STATE V. WALLACE, 154 P. 430 (1916).

IN WORDS AND PHRASES, VOLUME 43, PAGE 334, IT IS STATED THAT THE TERM "UNMARRIED" DOES NOT NECESSARILY MEAN THAT THE PERSON WAS NEVER MARRIED; THAT IT IS A WORD OF FLEXIBLE MEANING AND MAY BE INTERPRETED EITHER AS "NEVER HAVING BEEN MARRIED" OR "NOT HAVING A HUSBAND OR WIFE AT THE E.' IN STATE V. WALLACE, IT WAS STATED THAT NO FIXED MEANING CAN BE ASSIGNED TO THE TERM ,UNMARRIED" BUT THAT SUCH MEANING MUST BE DETERMINED ACCORDING TO THE PARTICULAR FACTS OF THE CASE.

IN THE CASE OF MARSHALL'S ESTATE, 252 N.Y.S. 683 (1931), IT WAS HELD THAT THE WORD "UNMARRIED" WAS THERE EMPLOYED IN THE SENSE OF NEVER MARRIED. THE OTHER HAND, IN THE GILES CASE (A BANKRUPTCY CASE INVOLVING AN EXEMPTION GRANTED UNDER AN OHIO STATUTE IN LIEU OF A HOMESTEAD UNDER CERTAIN PRESCRIBED CONDITIONS TO A WIDOW, OR TO AN UNMARRIED FEMALE) THE UNITED STATES COURT OF APPEALS, SIXTH CIRCUIT, EXPRESSED INABILITY "TO PERCEIVE ANY DISTINCTION BETWEEN "AN UNMARRIED FEMALE" AND A DIVORCED WOMAN.' THE COURT STATED THAT "BOTH ARE UNMARRIED FEMALES.' IT WAS HELD BY THE COURT OF APPEALS OF NEW YORK (IN RE UNION TRUST COMPANY, 72 N.E. 107, DECIDED OCTOBER 18, 1904) THAT THE WORD "UNMARRIED" AS USED BY THE TESTATOR IN THE TESTAMENTARY PROVISION THERE PLACED IN ISSUE MEANT NOT MARRIED AT THE TIME OF THE TESTATOR'S DEATH, NOT AS NEVER HAVING BEEN MARRIED. IN NEWELL V. NEWELL, 293 P.2D 663 (1956), IT WAS STATED THAT THE EFFECT OF A JUDGMENT DECREEING A DIVORCE IS TO RESTORE THE PARTIES TO THE ESTATE OF UNMARRIED PERSONS. TO THE SAME EFFECT ARE NOVAK V. NOVAK, 24 N.W.2D 20 (1946); AND SMITH V. SMITH, 164 S.W.2D 921 (1942).

THE STATUTORY PROVISIONS HERE INVOLVED, 10 U.S.C. 1435, ARE AS FOLLOWS:

ONLY THE FOLLOWING PERSONS ARE ELIGIBLE TO BE MADE THE BENEFICIARIES OF, OR TO RECEIVE PAYMENTS UNDER, AN ANNUITY ELECTED UNDER THIS CHAPTER (CH. 73) BY A MEMBER OF THE ARMED FORCES:

(1) THE SPOUSE OF THE MEMBER ON THE DATE WHEN THE MEMBER IS RETIRED OR BECOMES ENTITLED TO RETIRED OR RETAINER PAY OR, IF THE MEMBER WAS ALREADY RETIRED OR ENTITLED TO RETIRED OR RETAINER PAY ON NOVEMBER 1, 1953, THE SPOUSE ON THAT DATE.

(2) THE CHILDREN OF THE MEMBER WHO ARE---

(A) UNMARRIED;

(B) UNDER 18 YEARS OF AGE OR INCAPABLE OF SUPPORTING THEMSELVES BECAUSE OF A MENTAL DEFECT OR PHYSICAL INCAPACITY EXISTING BEFORE THEIR EIGHTEENTH BIRTHDAY;

(C) LEGITIMATE OR ADOPTED CHILDREN OF, OR STEPCHILDREN IN FACT DEPENDENT FOR THEIR SUPPORT UPON, THE MEMBER;

(D) LIVING ON THE DATE WHEN THE MEMBER IS RETIRED OR BECOMES ENTITLED TO RETIRED OR RETAINER PAY OR, IF THE MEMBER WAS ALREADY RETIRED OR ENTITLED TO RETIRED OR RETAINER PAY ON NOVEMBER 1, 1953, LIVING ON THAT DATE; AND

(E) BORN ON OR BEFORE THE DATE PRESCRIBED IN CLAUSE (D).

THE LEGISLATIVE HISTORY OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 IS DEVOID OF ANY INFORMATION AS TO WHETHER THE TERM "UNMARRIED" AS USED IN 10 U.S.C. 1435 (2) (A) SHOULD, OR SHOULD NOT, INCLUDE A PREVIOUSLY MARRIED AND DIVORCED CHILD, MALE OR FEMALE. IN ITS ORIGINAL LANGUAGE THE BILL, H.R. 5304, 83D CONGRESS, WHICH AS LATER AMENDED WAS ENACTED INTO LAW, REFERRED IN SECTIONS 2 (F) AND 4 (A) (2) AND (3) ONLY TO A CHILD OR CHILDREN UNDER 18 YEARS OF AGE AND UNMARRIED. UNDER THOSE PROVISIONS THE ANNUITY COULD HAVE BEEN PAID ONLY UP TO THE TIME THE CHILD REACHED THE AGE OF 18. THE BILL WAS AMENDED (SEE 99 CONG.REC. 6364-5) BY ADDING TO SECTION 2 (F) THE PHRASE "OR A CHILD OVER 18 YEARS OF AGE AND UNMARRIED WHO IS INCAPABLE OF SELF-SUPPORT BECAUSE OF BEING MENTALLY DEFECTIVE OR PHYSICALLY INCAPACITATED IF THAT CONDITION EXISTED PRIOR TO REACHING AGE 18," TOGETHER WITH SIMILAR CHANGES IN CLAUSES (2) AND (3) OF SECTION 4 (A), 10 U.S.C. 1434 (A) (2) AND 1434 (A) (3), RESPECTIVELY. IN EXPLAINING THE PURPOSE OF THESE AMENDMENTS, IT WAS STATED THAT IT WAS INTENDED TO MAKE IT POSSIBLE FOR AN INDIVIDUAL IN THE UNIFORMED SERVICE WHO MAY HAVE A CRIPPLED CHILD, A PHYSICALLY HANDICAPPED CHILD, OR A MENTALLY DEFICIENT CHILD, TO TAKE CARE OF THAT CHILD EVEN THOUGH SUCH CHILD MAY LIVE BEYOND THE AGE OF 18 YEARS.

THE LANGUAGE OF THE STATUTE APPEARS TO BE ADDRESSED TO THE SITUATIONS OF CHILDREN WHO, OF NECESSITY, MUST LOOK TO THEIR PARENT MEMBER OF THE ARMED FORCES FOR THEIR SUPPORT. NORMALLY, UNMARRIED CHILDREN UNDER THE AGE OF 18 ARE DEPENDENT ON THEIR PARENTS FOR THEIR SUPPORT. THIS IS USUALLY TRUE ALSO IN THE COMPARATIVELY FEW INSTANCES OF CHILDREN WHOSE UNSUCCESSFUL MARRIAGES TERMINATE IN DIVORCE PRIOR TO THEIR ATTAINING THE AGE OF 18 YEARS. A CHILD OVER THAT AGE WHO HAS NO INDEPENDENT SOURCE OF INCOME AND IS THUS DEPENDENT BECAUSE OF BEING INCAPABLE OF SUPPORTING HERSELF DUE TO A MENTAL DEFECT EXISTING PRIOR TO HER EIGHTEENTH BIRTHDAY IS NO LESS DEPENDENT WHERE, AS HERE, THE UNSUCCESSFUL MARRIAGE IS TERMINATED APPARENTLY AS THE RESULT OF THE WIFE'S FAILURE TO ADJUST TO THE MARRIAGE STATUS DUE TO HER MENTAL CONDITION. IN THE CIRCUMSTANCES, IT IS CONCLUDED THAT THE WORD "UNMARRIED" WAS EMPLOYED IN 10 U.S.C. 1435 (2) (A) IN THE SENSE OF NOT HAVING A HUSBAND OR WIFE AT THE TIME OF THE SERVICE MEMBER'S RETIREMENT OR NOVEMBER 1, 1953, AS THE CASE MAY BE, AND WITHOUT REGARD TO THE FACT THAT THE CHILD MIGHT AT SOME PRIOR TIME HAVE BEEN MARRIED.

SINCE THE RECORD ESTABLISHES THAT NATALIE MORENO DID NOT HAVE A HUSBAND ON NOVEMBER 1, 1953, SHE WAS THE "UNMARRIED" CHILD OF LIEUTENANT JOAQUIN F. MORENO, NOW DECEASED, ON THAT DATE AND BY REASON OF THE DETERMINATIONS HERETOFORE MADE BY THE DEPARTMENT OF THE ARMY UNDER AUTHORITY OF 10 U.S.C. 1444 (C), CONCERNING HER STATUS UNDER THE PROVISIONS OF 10 U.S.C. 1435 (2) (B), SHE IS AN ELIGIBLE BENEFICIARY ENTITLED TO RECEIVE ANNUITY PAYMENTS UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN.