B-155795, FEB. 16, 1965, 44 COMP. GEN. 485

B-155795, FEB. 16, 1965, 44 COMP. GEN. 485

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - MARITAL STATUS DEDUCTIONS FROM THE RETIRED PAY OF AN OFFICER OF THE UNIFORMED SERVICES WHO ELECTED TO PROVIDE AN ANNUITY UNDER THE AUTHORITY OF THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN (10 U.S.C. CH. 73), FOR HIS WIFE WHOSE FIRST MARRIAGE PERFORMED IN MEXICO WAS DISSOLVED THERE BY A "MAIL-ORDER" DIVORCE, NEITHER PARTY TO THE MARRIAGE BEING A RESIDENT OR DOMICILED IN MEXICO AT THE TIME OF THE MARRIAGE OR DIVORCE, SHOULD BE CONTINUED, NOTWITHSTANDING THE UNCERTAINTY CAST ON THE SECOND MARRIAGE BY THE "MAIL- ORDER" DECREE OF DIVORCE--- A MATTER TO BE RESOLVED BY THE COURTS--- IN VIEW OF THE PRESUMPTION, BASED ON PUBLIC POLICY, IN FAVOR OF THE VALIDITY OF THE SECOND OR LAST MARRIAGE, THEREBY FAVORING THE LEGITIMACY OF OFFSPRINGS OF THE MARRIAGE, A PRESUMPTION STRENGTHENED BY THE FACT THAT THE SECOND MARRIAGE PERFORMED IN 1936 CONTINUED UNBROKEN AND UNCHALLENGED.

TO COMMANDER M. L. CONNER, DEPARTMENT OF THE NAVY, FEBRUARY 16, 1965:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 10, 1964, AND ENCLOSURES, CONCERNING THE PROPRIETY OF MAKING DEDUCTIONS IN THE RETIRED PAY OF A CAPTAIN, USN, RETIRED, UNDER AUTHORITY OF THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN (CH. 73, TITLE 10, U.S. CODE) ON THE BASIS OF THE ELECTION EXERCISED BY HIM TO PROVIDE AN ANNUITY FOR HIS WIFE. THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE HAS ASSIGNED SUBMISSION NO. DO-N-820 TO YOUR REQUEST.

BRIEFLY, THE RECORD SHOWS THAT THE OFFICER AND HIS WIFE WERE UNITED IN MARRIAGE ON JUNE 8, 1936, IN YUMA, ARIZONA. THE MATRIMONIAL STATUS WHICH COMMENCED THAT DATE HAS CONTINUED UNBROKEN AND UNCHALLENGED TO DATE AND THE COUPLE HAVE HAD TWO CHILDREN. IN ADDITION, IT APPEARS THAT A THIRD, CHILD, THE DAUGHTER OF THE WIFE UNDER HER PRIOR MARRIAGE, WAS ADOPTED IN 1936 BY THE OFFICER.

THE OFFICER WAS TRANSFERRED TO THE RETIRED LIST OF THE NAVY EFFECTIVE JULY 1, 1964, AND IN ACCORDANCE WITH HIS ELECTION UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN DEDUCTIONS ARE BEING MADE FROM HIS RETIRED PAY ON ACCOUNT OF THE ANNUITY BENEFITS HE ELECTED FOR HIS WIFE. THE DOUBT AS TO THE PROPRIETY OF MAKING SUCH DEDUCTIONS ARISES FROM THE ELEMENT OF UNCERTAINTY WHICH IS CAST ON THE VALIDITY OF THE MATRIMONIAL STATUS ENTERED INTO BY THE OFFICER AND HIS WIFE ON JUNE 8, 1936, BY THE MEXICAN DECREE OF DIVORCE DATED JUNE 10, 1935, DISSOLVING, OR PURPORTING TO DISSOLVE, THE WIFE'S PRIOR MARRIAGE.

AMONG THE ENCLOSURES RECEIVED WITH YOUR LETTER ARE COPIES OF AN EXTRACT OF MARRIAGE AND OF THE FINAL RULING ON JUNE 10, 1935, BY THE JUDGE OF THE FIRST COURT OF THE CIVIL REGISTRY, TIJUANA, STATE OF LOWER CALIFORNIA, UNITED STATES OF MEXICO, IN THE DIVORCE CASE OF THE WIFE. THE FIRST DOCUMENT DISCLOSES THAT THE WIFE AND HER FORMER HUSBAND WERE UNITED IN MATRIMONY ON DECEMBER 24, 1934, BY ONE SATURNINO URIAS, JUDGE OF THE LICENSE BUREAU OF THE CIVIL REGISTRY IN TIJUANA, MEXICO. THE MARRIAGE CEREMONY APPEARS TO HAVE BEEN PERFORMED IN DUE FORM PURSUANT TO THE LAWS OF THE REPUBLIC OF MEXICO. INSOFAR AS HEREIN PERTINENT, THE SECOND DOCUMENT RECITES THAT ON JUNE 10, 1935, THE JUDGE OF THE FIRST COURT OF THE CIVIL REGISTRY PROCEEDED TO RULE AS FOLLOWS IN THE DIVORCE ACTION OF * * *, BY VIRTUE OF CERTAIN EVIDENCE "SENT" TO THAT OFFICE, (1) THAT JURISDICTION EXISTED TO PROCEED AN ACT WITH AUTHORITY, IN THE MATTER, (2) THAT THE ACTION TO BE TAKEN "HAS NO OPPOSITION," (3) THAT IN CONSIDERATION OF THE DIVORCE DECREE AND THE DISSOLUTION OF THE MATRIMONIAL TIES BETWEEN * * * "EACH DECREE AND THE DISSOLUTION OF THE MATRIMONIAL TIES BETWEEN * * * "EACH WILL BE FREE TO CONTRACT A NEW MARRIAGE" AND (4) THAT THE DAUGHTER OF THAT MARRIAGE (THE CHILD MENTIONED ABOVE) WAS TO REMAIN WITH HER MOTHER. IT WAS FURTHER PROVIDED THAT EACH PARTY TO THE DIVORCE ACTION WAS TO BE NOTIFIED PERSONALLY AND FINAL JUDGMENT AND DECREE OF DIVORCE WAS ENTERED ON JUNE 10, 1935.

IN THE FOURTH PARAGRAPH OF YOUR LETTER YOU REFER SPECIFICALLY TO TWO DECISIONS OF THIS OFFICE. IN THESE DECISIONS, 25 COMP. GEN. 821, MAY 29, 1946, AND 36 COMP. GEN. 121, AUGUST 16, 1956, IT WAS POINTED OUT THAT UNLESS A FOREIGN COURT GRANTING A DIVORCE HAD JURISDICTION OVER THE SUBJECT MATTER OF THE DIVORCE BY REASON OF BONA FIDE RESIDENCE OR DOMICILE THERE, OF AT LEAST ONE OF THE PARTIES, ITS DECREE OF DIVORCE WILL NOT, UNDER THE RULES OF INTERNATIONAL COMITY, BE RECOGNIZED IN ONE OF THE STATES OF THE UNITED STATES, EVEN THOUGH THE LAWS OF SUCH FOREIGN COUNTRY DO NOT MAKE RESIDENCE OR DOMICILE A CONDITION TO ITS COURT'S TAKING JURISDICTION.

IN THE CIRCUMSTANCES ABOVE RELATED YOU SUBMIT THE FOLLOWING THREE QUESTIONS:

A. WAS THE PRIOR MARRIAGE OF THE WIFE LEGALLY DISSOLVED BY ENCLOSURE (5) (MEXICAN DECREE OF DIVORCE/?

B. IF THE ANSWER TO THE ABOVE QUESTION IS NEGATIVE, MAY WE DISCONTINUE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN DEDUCTIONS AND REFUND THE DEDUCTIONS ENTERED IN THE MEMBER'S ACCOUNT SINCE 1 JULY 1964, ON THE BASIS THAT THE MEMBER DID NOT HAVE A LAWFUL SPOUSE ON THE DATE OF HIS RETIREMENT AND SUCH DETERMINATION WILL NOT BE AFFECTED BY ANY FUTURE ACTION TO VALIDATE THE MARRIAGE OF 8 JUNE 1936?

C. IF THE ANSWERS TO BOTH OF THE ABOVE QUESTIONS ARE NEGATIVE, IS IT REQUIRED THAT DEDUCTIONS BE CONTINUED UNTIL THE MEMBER'S DEATH, OR THE TERMINATION OF HIS MARRIAGE TO * * * BY HER DEATH, OR BY DIVORCE, WHICHEVER IS EARLIER, ON THE BASIS THAT EITHER PARTY MIGHT, AT A FUTURE DATE, OBTAIN A COURT ORDER VALIDATING THE MARRIAGE OF 8 JUNE 1936? IT IS CONCEIVABLE THAT * * * COULD HAVE THE MARRIAGE VALIDATED EVEN AFTER THE MEMBER'S DEATH.

THE MEXICAN DIVORCE DOCUMENTS, ABOVE REFERRED TO, SHOW THAT * * * AND * * * WERE NOT RESIDENTS OT DOMICILED IN MEXICO AT THE TIME OF THEIR MARRIAGE IN THAT COUNTRY ON DECEMBER 24, 1934. MOREOVER, THE RECORD DOES NOT INDICATE THAT THEY ESTABLISHED A MATRIMONIAL DOMICILE IN MEXICO. APPEARS THAT THEY RETURNED TO THE UNITED STATES AS HUSBAND AND WIFE FOLLOWING THEIR MARRIAGE IN MEXICO AND IT IS INDICATED THAT THE SUBSEQUENT MEXICAN DIVORCE PROCEEDINGS INSTITUTED IN JUNE 1935 WERE BASED ON EVIDENCE "SENT" BY THEM TO THE FIRST COURT OF CIVIL REGISTRY IN TIJUANA, MEXICO. HENCE, IT SEEMS QUITE CLEAR THAT THE MEXICAN DIVORCE DECREE OF JUNE 10, 1935, WAS A ,MAIL-ORDER" DIVORCE AND NOT BASED UPON THE BONA FIDE RESIDENCE OR DOMICILE IN THAT COUNTRY OF EITHER ONE OF THE PARTIES IN THE ACTION. THIS JURISDICTIONAL DEFECT OF THE MEXICAN COURT WAS NOT RENDERED ANY LESS OBJECTIONABLE MERELY BECAUSE THE MARRIAGE WHICH WAS DISSOLVED BY THE DIVORCE DECREE OF JUNE 10, 1935, HAD BEEN ENTERED INTO IN MEXICO IN DECEMBER 1934. THE SITUS OF THE MARRIAGE (MEXICO) DID NOT GIVE RISE TO A LEGAL RESIDENCE OR DOMICILE IN THAT COUNTRY AND THE DECREE OF DIVORCE DOES NOT IN ANY MANNER INDICATE THAT THE JUDGE OF THE FIRST COURT OF THE CIVIL REGISTRY IN TIJUANA, MEXICO, UNDERTOOK TO TAKE ACTION IN THE CASE ON THAT BASIS. CONSEQUENTLY, THERE IS SOME BASIS FOR UNCERTAINTY AS TO WHAT LEGAL EFFECT THE MEXICAN DECREE OF DIVORCE OF JUNE 10, 1935, HAD ON THE VALIDITY OF THE OFFICER'S MARRIAGE.

ONE OF THE BASIC PRESUMPTIONS KNOWN IN LAW IS THE PRESUMPTION IN FAVOR OF THE VALIDITY OF THE SECOND OR LAST MARRIAGE. SEE BRIGGS V. UNITED STATES, 116 CT.CL. 638 (1950). SUCH PRESUMPTION BECOMES STRONGER WITH THE PASSAGE OF TIME. AZAR V. THOMAS, 57 S.E.2D 821 (1950). THE PRESUMPTION IS FOUNDED ON A SOUND PUBLIC POLICY WHICH ADOPTS THE VIEW THAT THE PRECEDING MARRIAGE SHOULD BE HELD AS HAVING BEEN LEGALLY DISSOLVED BEFORE THE SUCCEEDING MARRIAGE WAS CONTRACTED THEREBY FAVORING INNOCENCE, MORALITY AND LEGITIMACY OF OFFSPRING OF THE LATTER MARRIAGE.

WHILE IT IS TRUE AS NOTED IN THE DECISION OF AUGUST 16, 1956, 36 COMP. GEN. 121, THAT A SPOUSE WHO IS DIVORCED BY A FOREIGN DECREE AND WHO THEREAFTER REMARRIES, THEREBY ACCEPTING THE BENEFITS OF THE FOREIGN DIVORCE DECREE, GENERALLY IS ESTOPPED TO DENY THE VALIDITY OF THE DIVORCE, THE FEDERAL GOVERNMENT IS NOT ESTOPPED FROM CHALLENGING THE VALIDITY OF SUCH A FOREIGN DIVORCE DECREE WHEN ITS INTERESTS MIGHT BE ADVERSELY AFFECTED. IN THE CIRCUMSTANCES HERE INVOLVED, IT IS BELIEVED THAT THE SHADOW OF UNCERTAINTY THAT IS CAST ON THE 1936 MARRIAGE BETWEEN THE OFFICER AND HIS WIFE BY THE MEXICAN "MAIL-ORDER" DECREE OF DIVORCE IS A MATTER WHICH SHOULD BE RESOLVED BY THE COURTS.

HOWEVER, THE STRONG PRESUMPTION WHICH THE FACTS AND THE LAW IN THIS CASE PLACE ON THE VALIDITY OF THE MEMBER'S MARRIAGE IMPELS US TO THE VIEW THAT DEDUCTIONS FROM HIS RETIRED PAY SHOULD CONTINUE TO BE MADE IN ACCORDANCE WITH THE ELECTION OF ANNUITY WHICH HAS BEEN EXERCISED BY HIM UNDER THE PROVISIONS OF THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN. COMPARE 38 COMP. GEN. 836, A CASE IN WHICH SUBSTANTIAL PROOF OF A "FIRST" MARRIAGE WAS LACKING.

INASMUCH AS QUESTION (A) PRESENTS AN ISSUE WHICH WE VIEW AS BEING FOR JUDICIAL DETERMINATION, WE OFFER NO RESPONSE THERETO. QUESTION (B) IS ANSWERED IN THE NEGATIVE AND QUESTION (C) IN THE AFFIRMATIVE.