B-157498, OCT. 27, 1965

B-157498, OCT. 27, 1965

TO LIEUTENANT COLONEL E. C. HEFFELFINGER, FINANCE AND ACCOUNTING OFFICER, DEPARTMENT OF THE RMY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 2, 1965, AND ACCOMPANYING PAPERS, REQUESTING AN ADVANCE DECISION (ASSIGNED D.O. NO. A- 866 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE) AS TO WHETHER FIRST LIEUTENANT JOSE M. GONZALES, MN2 312 529, IS ENTITLED TO ALLOWANCES FOR MARY E. GONZALES AS HIS DEPENDENT WIFE.

THE PAPERS ACCOMPANYING YOUR LETTER OF APRIL 2, 1965, INCLUDED A TRANSLATION OF A JUDGMENT OF DIVORCE DATED DECEMBER 14, 1964, BY THE THIRD CIVIL COURT OF THE DISTRICT OF BRAVOS, STATE OF CHIHUAHUA, REPUBLIC OF MEXICO, DECLARING DISSOLVED THE MARRIAGE CONTRACTED ON APRIL 13, 1952, BY JOSE M. GONZALEZ AND BERUTA ANN GONZALEZ, LEAVING THEM "FREE AND IN LEGAL CAPACITY TO CONTRACT NEW MARRIAGES.' THE JUDGMENT OF DIVORCE STATED THAT MR. GONZALEZ INSTITUTED AN ACTION FOR ABSOLUTE DIVORCE AGAINST HIS WIFE, BERUTA ANN GONZALEZ; THAT HE APPEARED IN PERSON IN THAT COURT ACCOMPANIED BY HIS COUNSEL AND SUBMITTED HIMSELF EXPRESSLY TO THE JURISDICTION OF THE COURT; AND THAT MRS. GONZALEZ WAS REPRESENTED BY HER ATTORNEY WHO SUBMITTED HIS PRINCIPAL EXPRESSLY TO THE JURISDICTION OF THE COURT, ENTERING A CONFESSION OF JUDGMENT OF EACH AND EVERYONE OF THE ALLEGATIONS OF THE PETITION FOR DIVORCE. THE JUDGMENT ALSO STATED THAT THE SEPARATION AGREEMENT DATED NOVEMBER 30, 1964, ENTERED INTO BY MR. AND MRS. GONZALEZ WAS APPROVED AND SHALL SURVIVE THE DIVORCE DECREE, AND THAT THEIR THREE DAUGHTERS SHALL REMAIN IN THE CUSTODY OF MRS. GONZALEZ. A COPY OF A TRANSLATION OF TAX RECEIPT NO. 67541 ISSUED BY THE MUNICIPALITY OF CIUDAD JUAREZ, CHIHUAHUA, SHOWS THAT MR. JOSE M. GONZALEZ REGISTERED IN THE BOOK OF RESIDENCE FOR THAT MUNICIPALITY ON DECEMBER 14, 1964.

LIEUTENANT GONZALEZ CLAIMS THAT HE IS A LEGAL RESIDENT OF GREAT NECK, NEW YORK, AND HAS GIVEN THE ADDRESS FOR MRS. BERUTA ANN GONZALEZ AND THEIR THREE DAUGHTERS AS 21 HAYDEN AVENUE, GREAT NECK, NEW YORK. ON FORM DD 137, APPLICATION FOR BASIC ALLOWANCE FOR QUARTERS FOR MEMBERS WITH DEPENDENTS, HE SAYS THAT HE MARRIED MARY E. GONZALEZ ON JANUARY 5, 1965, AT COLUMBIA, SOUTH CAROLINA. BY LETTER DATED MAY 11, 1965, YOU ADVISED LIEUTENANT GONZALEZ THAT IT HAD BEEN OFFICIALLY DETERMINED THAT HE HAD BEEN ERRONEOUSLY PAID ALLOWANCES IN THE AMOUNT OF $671.46 FOR HIS PURPORTED WIFE, MARY E. SUCH DETERMINATION WAS BASED ON OUR DECISION OF MARCH 24, 1960, B-141895, WHICH HELD IN A CASE INVOLVING SOMEWHAT SIMILAR CIRCUMSTANCES THAT UNTIL THE MEXICAN DIVORCE DECREE OBTAINED BY THE OFFICER IS RECOGNIZED AS VALID BY A COURT OF COMPETENT JURISDICTION IN THE UNITED STATES, THE OFFICER MAY NOT BE CONSIDERED TO HAVE A LAWFUL WIFE, INSOFAR AS HIS MARRIAGE FOLLOWING THE MEXICAN DIVORCE IS CONCERNED, WITHIN THE MEANING OF THE APPLICABLE STATUTORY PROVISIONS RELATING TO ALLOWANCES FOR A WIFE. A SIMILAR CONCLUSION WAS REACHED IN 36 COMP. GEN. 151. HIS REQUEST FOR REVIEW OF THE ADMINISTRATIVE DETERMINATION OF HIS INDEBTEDNESS, LIEUTENANT GONZALEZ CITES THE CASE OF ROSENSTIEL V. ROSENSTIEL, 253 N.Y.S. 2D 206 (1964), AS SUPPORTING THE VALIDITY OF HIS DIVORCE AND SUBSEQUENT REMARRIAGE.

IN THE CASE OF ROSENSTIEL V. ROSENSTIEL, 262 N.Y.S. 2D 86 (DECIDED JULY 9, 1965) THE COURT OF APPEALS OF NEW YORK AFFIRMED THE DECISION OF THE NEW YORK SUPREME COURT, APPELLATE DIVISION, IN THE ABOVE-CITED CASE. IN THE DECISION OF JULY 9, 1965, THE COURT HELD THAT A DIVORCE GRANTED BY A MEXICAN COURT WHICH CONFORMS TO MEXICAN LAW SHOULD BE RECOGNIZED IN NEW YORK IF THE MEXICAN COURT ACQUIRED JURISDICTION OF THE PARTIES BY THE PLAINTIFF'S SIGNING A MUNICIPAL REGISTER OF RESIDENTS, PHYSICALLY APPEARING BEFORE THE COURT AND PRESENTING A PETITION FOR DIVORCE, AND IF THE DEFENDANT APPEARED BY A DULY AUTHORIZED ATTORNEY WHO FILED AN ANSWER SUBMITTING TO THE COURT'S JURISDICTION AND ADMITTING THE ALLEGATIONS OF THE PETITION. THE DIVORCE SHOULD BE RECOGNIZED, THE COURT HELD, EVEN THOUGH THE GROUNDS FOR IT ARE NOT ACCEPTED IN NEW YORK AND THE PLAINTIFF WAS PHYSICALLY PRESENT IN MEXICO FOR A BRIEF PERIOD OF ONLY ABOUT ONE HOUR. CLEARLY THERE WAS NO INTENTION OF ESTABLISHING A DOMICILE IN MEXICO, NOR WAS THERE WHAT NEW YORK COURTS WOULD REGARD AS A BONA FIDE RESIDENCE, BUT THE COURT DETERMINED THAT THE PLAINTIFF HAD MET THE REQUIREMENTS OF MEXICAN LAW TO MAINTAIN A DIVORCE ACTION. BY VIRTUE OF THE PLAINTIFF'S PERSONAL APPEARANCE AND THE DEFENDANT'S APPEARANCE IN AND SUBMISSION TO THE JURISDICTION OF THE MEXICAN COURT BY AN ATTORNEY, THE NEW YORK COURT APPARENTLY ALSO DETERMINED THAT THE MEXICAN COURT HAD ACQUIRED JURISDICTION IN MEXICO "OVER THE MARRIAGE AS A LEGAL ENTITY," AND THAT THE DIVORCE "JUDGMENT IS RECOGNIZED AS VALID BY THE REPUBLIC OF MEXICO.' THE NEW YORK COURT CONCLUDED:

"A BALANCED PUBLIC POLICY NOW REQUIRES THAT RECOGNITION OF THE BILATERAL MEXICAN DIVORCE BE GIVEN RATHER THAN WITHHELD AND SUCH RECOGNITION AS A MATTER OF COMITY OFFENDS NO PUBLIC POLICY OF THIS STATE.'

THE DECISION IN THE ROSENSTIEL CASE REFERRED TO "A LONG SERIES OF DECISIONS OVER A PERIOD OF A QUARTER OF A CENTURY IN THE NEW YORK SUPREME COURT * * * RECOGNIZING THE VALIDITY OF A BILATERAL MEXICAN DIVORCES * * *.' AMONG THE DECISIONS CITED WERE LAFF V. LAFF, 160 N.Y.S. 2D 933 (1957); SKOLNICK V. SKOLNICK, 204 N.Y.S. 2D 63 (1960); MILLMAN V. MILLMAN, 207 N.Y.S. 2D 159 (1960).

THUS, THE NEW YORK COURTS HAVE RECOGNIZED THE VALIDITY OF MEXICAN DIVORCES OF RESIDENTS OF NEW YORK STATE AND THEIR SUBSEQUENT MARRIAGES IN THAT STATE WHERE ONE PARTY PERSONALLY APPEARED IN THE MEXICAN COURT AND THE OTHER PARTY APPEARED BY ATTORNEY AND SUBMITTED TO THE JURISDICTION OF THE COURT EVEN THOUGH NEITHER PARTY ESTABLISHED A RESIDENCE NOR REMAINED IN MEXICO LONGER THAN THE TIME NECESSARY TO SECURE THE DIVORCE. BUT SEE OUR DECISION OF SEPTEMBER 23, 1965, B 156453, COPY ENCLOSED, IN WHICH WE CONCLUDED THAT THE ROSENSTIEL CASE DID NOT AFFORD A BASIS FOR RECOGNIZING AS VALID AN OFFICER'S MEXICAN DIVORCE IN WHICH THE DEFENDANT WIFE DID NOT APPEAR IN THE COURT PROCEEDINGS OR OTHERWISE SUBMIT TO THE COURT'S JURISDICTION.

GENERALLY, EACH STATE HAS THE RIGHT TO DETERMINE THE MARITAL STATUS OF ITS CITIZENS UNDER ITS LAWS, INCLUDING THE RECOGNITION OF MARRIAGES AND DIVORCES SECURED BY THEM IN FOREIGN JURISDICTIONS. 27B C.J.S. DIVORCE SEC. 326; 55 C.J.S. MARRIAGE SECS. 4, 52B; ALGAZY V. ALGAZY, 135 N.Y.S. 2D 123; WAY V. WAY, 128, S.E. 705, 132 S.C. 288; EVERLY V. BAUMIL, 39 S.E. 2D 905, 209 S.C. 287; CUNNINGHAM V. CUNNINGHAM, 206 N.Y. 341, 99 N.E. 845. ALSO, THE GENERAL RULE IS THAT THE VALIDITY OF A MARRIAGE IS DETERMINED BY THE LAW OF THE PLACE WHERE IT WAS CONTRACTED. 55 C.J.S. MARRIAGE SEC. 4. NEW YORK STATE, THE DOMICILE OF LIEUTENANT GONZALEZ, PRESUMABLY WILL RECOGNIZE HIS MEXICAN DIVORCE IN VIEW OF THE ROSENSTIEL DECISION. HOWEVER, THE RECORD DOES NOT SHOW THE DOMICILE OF MARY E. GONZALEZ AT THE TIME OF THE MARRIAGE CEREMONY ON JANUARY 5, 1965, IN SOUTH CAROLINA AND THERE IS NO BASIS FOR CONCLUDING THAT THAT STATE WHERE THE CEREMONY OCCURRED OR THE STATE OF HER DOMICILE IF IT WAS ELSEWHERE AT THAT TIME RECOGNIZES AS VALID MEXICAN DIVORCES PROCURED UNDER THE CIRCUMSTANCES OBTAINING IN THE CASE OF LIEUTENANT GONZALEZ. CONSEQUENTLY, IN THE ABSENCE OF A JUDICIAL DETERMINATION BY A COURT OF COMPETENT JURISDICTION OF THE VALIDITY OF HIS MARRIAGE, THE MATTER IS CONSIDERED TOO DOUBTFUL FOR US TO CONCLUDE THAT HE IS ENTITLED TO ALLOWANCES FOR A DEPENDENT WIFE.

ACCORDINGLY, ON THE PRESENT RECORD, PAYMENT OF ALLOWANCES TO LIEUTENANT GONZALEZ FOR A DEPENDENT WIFE MAY NOT BE AUTHORIZED. THE PAPERS WHICH ACCOMPANIED YOUR REQUEST FOR DECISION WILL BE RETAINED HERE.