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B-157707, NOV. 8, 1965

B-157707 Nov 08, 1965
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DEPARTMENT OF THE ARMY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 23. THAT ELECTION WAS MADE ON BEHALF OF CONNIE MCKIM BRIDGMAN. WHO WAS HIS WIFE AT THE TIME HE MADE THE ELECTION AND AT THE TIME OF HIS RETIREMENT. IT IS CLAIMED BY HIM THAT SHE IS NO LONGER AN ELIGIBLE BENEFICIARY. IT IS REPORTED THAT HE WAS SERVING ON DUTY IN KOREA AT THE TIME OF HIS RETIREMENT ON OCTOBER 1. HE WAS BORN IN BINGHAMTON. RELEVANT TO DIVORCE DECREES GRANTED IN FOREIGN COUNTRIES THE GENERAL RULE IS WELL SETTLED AS STATED IN 143 ALR 1312 WHICH READS IN PERTINENT PART AS FOLLOWS: "* * * SINCE THE FULL FAITH AND CREDIT PROVISION DOES NOT APPLY TO JUDGMENTS AND DECREES OF FOREIGN COUNTRIES. THE ONLY BASIS UPON WHICH RECOGNITION MAY BE EXTENDED TO FOREIGN DECREES OF DIVORCE IS THE RULE OF INTERNATIONAL COMITY.

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B-157707, NOV. 8, 1965

TO LIEUTENANT COLONEL H. W. KASSERMAN, FC, FINANCE AND ACCOUNTING OFFICER, DEPARTMENT OF THE ARMY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 23, 1965, REQUESTING AN ADVANCE DECISION AS TO WHETHER PAYMENT MAY BE PROPERLY MADE OF A VOUCHER IN THE AMOUNT OF $62, REPRESENTING THE MONTHLY COST OF AN ELECTION MADE BY LIEUTENANT COLONEL J. ALLINGTON BRIDGMAN, 0 81 965, U.S. ARMY, RETIRED, UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN AND WITHHELD FROM HIS RETIRED PAY FOR THE PERIOD MARCH 1, 1965, THROUGH JULY 31, 1965, AND WHETHER COST DEDUCTIONS FROM HIS RETIREMENT PAY MAY BE DISCONTINUED.

COLONEL BRIDGMAN ELECTED TO PARTICIPATE IN THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN TO PROVIDE AN ANNUITY AT THE RATE OF ONE-FOURTH OF HIS REDUCED RETIRED PAY FOR HIS WIFE, INCLUDING AN OPTION FOR TERMINATING RETIRED PAY DEDUCTIONS IN THE EVENT NO BENEFICIARY WOULD BE ELIGIBLE FOR THE ANNUITY UPON HIS DEATH. THAT ELECTION WAS MADE ON BEHALF OF CONNIE MCKIM BRIDGMAN, WHO WAS HIS WIFE AT THE TIME HE MADE THE ELECTION AND AT THE TIME OF HIS RETIREMENT. AS A RESULT OF A DIVORCE DECREE GRANTED THIS OFFICER ON FEBRUARY 9, 1965, BY THE SEOUL FAMILY COURT, SEOUL, REPUBLIC OF KOREA, IT IS CLAIMED BY HIM THAT SHE IS NO LONGER AN ELIGIBLE BENEFICIARY. IT IS REPORTED THAT HE WAS SERVING ON DUTY IN KOREA AT THE TIME OF HIS RETIREMENT ON OCTOBER 1, 1962; THAT HE CONTINUED TO LIVE IN THAT COUNTRY FOLLOWING HIS RETIREMENT; AND THAT HIS WIFE DID NOT JOIN HIM IN KOREA BUT CONTINUED TO LIVE IN CALIFORNIA AFTER HIS RETIREMENT. HE WAS BORN IN BINGHAMTON, NEW YORK.

RELEVANT TO DIVORCE DECREES GRANTED IN FOREIGN COUNTRIES THE GENERAL RULE IS WELL SETTLED AS STATED IN 143 ALR 1312 WHICH READS IN PERTINENT PART AS FOLLOWS:

"* * * SINCE THE FULL FAITH AND CREDIT PROVISION DOES NOT APPLY TO JUDGMENTS AND DECREES OF FOREIGN COUNTRIES, THE ONLY BASIS UPON WHICH RECOGNITION MAY BE EXTENDED TO FOREIGN DECREES OF DIVORCE IS THE RULE OF INTERNATIONAL COMITY. BUT HERE TOO, THE WELL-SETTLED PRINCIPLE IS THAT UNLESS THE FOREIGN COURT 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 COMITY, BE RECOGNIZED IN ONE OF THE STATES OF THE UNITED STATES; AND THIS, IT SEEMS, ALTHOUGH THE LAWS OF SUCH FOREIGN COUNTRY DO NOT MAKE RESIDENCE OR DOMICILE A CONDITION OF ITS COURT'S JURISDICTION.'

A QUESTION ARISES AS TO WHETHER COLONEL BRIDGMAN WAS ACTUALLY DOMICILED IN KOREA SINCE THE KOREAN DIVORCE DECREE LISTS A NEW YORK ADDRESS AS HIS "PERMANENT ADDRESS.' IT APPEARS TO BE WELL ESTABLISHED THAT WHERE JURISDICTION TO CONSIDER A DIVORCE ACTION IS BASED ON A PERSON'S RESIDENCE IN A PARTICULAR AREA, SUCH RESIDENCE MUST BE ACTUAL AND GENUINE AND ACCOMPANIED BY AN INTENT TO MAKE THAT PLACE HIS HOME. SEE 27B C.J.S. 806, NOTES 1 AND 2 AND CASES THERE CITED. BY INFORMING THE COURT OF HIS PERMANENT ADDRESS IN NEW YORK, THE PLAINTIFF TOOK A POSITION WHICH WAS NOT CONSISTENT WITH AN INTENTION TO MAKE KOREA HIS HOME AND SUCH ACTION ON HIS PART RAISES A SUBSTANTIAL DOUBT AS TO WHETHER THE KOREAN COURT OBTAINED JURISDICTION OVER THE SUBJECT MATTER OF THE DIVORCE SUIT.

IN THE RECENT CASE OF ROSENSTIEL V. ROSENSTIEL, 262 N.Y.S.2D, 86 (1965), THE NEW YORK COURT OF APPEALS HELD THAT WHERE THE PLAINTIFF PERSONALLY APPEARED BEFORE A FOREIGN COURT AND THE DEFENDANT APPEARED BY AN ATTORNEY, THAT COURT ACQUIRED JURISDICTION "OVER THE MARRIAGE AS A LEGAL ENTITY" AND THAT RECOGNITION OF THE FOREIGN "BILATERAL DIVORCE" THUS VALIDLY OBTAINED "OFFENDS NO PUBLIC POLICY OF THIS STATE.' SINCE THE NEW YORK COURT STRESSED THE BILATERAL NATURE OF THE DIVORCE ACTION, THERE IS A CLEAR INDICATION THAT SUCH RECOGNITION WOULD BE WITHHELD WHERE A UNILATERAL OR EX PARTE DIVORCE IS GRANTED BY A FOREIGN COURT HAVING NO PERSONA JURISDICTION OVER THE DEFENDANT.

THE GENERAL RULE REGARDING THE NECESSITY FOR DUE PROCESS AS APPLICABLE TO A DECREE OF A FOREIGN COUNTRY HAS BEEN STATED AS FOLLOWS:

"A CONSTRUCTIVE SERVICE OF PROCESS ON A NON-RESIDENT DEFENDANT IN ACCORD WITH THE LAWS OF THE COUNTRY OR STATE IN WHICH THE DIVORCE IS GRANTED IS SUFFICIENT AS A SERVICE OF PROCESS TO ENTITLE THE FOREIGN DIVORCE TO RECOGNITION BY COMITY, WHERE THE COURT HAS JURISDICTION OF THE CAUSE AND THE DEFENDANT ACTUALLY RECEIVED TIMELY NOTICE OF THE PENDENCY OF THE ACTION.' 17A AM.JUR. DIVORCE AND SEPARATION, SEC. 963. (SEE ALSO 27B C.J.S. DIVORCE, SEC. 344.)

IT DOES NOT APPEAR EITHER WITHIN THE DIVORCE DECREE ITSELF, OR ELSEWHERE, THAT PROPER SERVICE OF PROCESS WAS MADE ON CONNIE MCKIM BRIDGMAN OR THAT SHE RECEIVED ACTUAL NOTICE OF THE KOREAN DIVORCE PROCEEDING.

IN VIEW OF THE DOUBT AS TO KOREAN COURT'S JURISDICTION OVER THE DEFENDANT AND THE SUBJECT MATTER OF THE ACTION, IT IS BELIEVED THAT NO ACTION SHOULD BE TAKEN TO REFUND THE AMOUNTS WITHHELD FROM COLONEL BRIDGMAN'S RETIRED PAY UNTIL A COURT OF COMPETENT JURISDICTION IN THIS COUNTRY HAS DETERMINED THE MARITAL STATUS OF THE PARTIES TO THE DIVORCE PROCEEDINGS. PENDING SUCH ACTION, THE COST DEDUCTIONS SHOULD BE CONTINUED. THE SUBMITTED VOUCHER IS BEING RETAINED HERE.

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