B-158049, JAN. 6, 1966

B-158049, JAN. 6, 1966

TO LIEUTENANT COLONEL HOWARD C. WILLIAMS, FC, FINANCE AND ACCOUNTING OFFICER, DEPARTMENT OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 15, 1965, FORWARDED UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE D.O. NUMBER A- 874, REQUESTING DECISION AS TO THE PROPRIETY OF PAYMENT OF THE ACCOMPANYING VOUCHER STATED IN FAVOR OF MRS. RACHEL J. RIVAS AND REPRESENTING CLASS Q ALLOTMENT FOR THE MONTH OF JUNE 1965, PROPOSED TO BE PAID TO HER AS THE DEPENDENT WIFE OF CARLOS A. RIVAS, SP4, RA 18 650 577.

THE PERTINENT FACTS PRESENTED BY YOU ARE AS FOLLOWS: THAT MR. RIVAS WAS BORN IN MEXICO AND STILL RETAINS HIS MEXICAN CITIZENSHIP; THAT IN 1958 HE MARRIED A UNITED STATES CITIZEN, EDITH P. SHERNOCK, AND LIVED WITH HER FOR A PERIOD IN EXCESS OF 3 YEARS IN THE STATE OF NEW JERSEY WHERE SHE WAS GRANTED A DIVORCE FROM HIM IN MAY 1962; THAT ON MAY 25, 1962, HE ENLISTED IN THE UNITED STATES ARMY AT SAN ANTONIO, TEXAS, SHOWING AS HIS HOME OF RECORD, LAREDO, TEXAS; THAT ON OCTOBER 2, 1962, WHILE STATIONED AT FORT KNOX, KENTUCKY, HE ENTERED INTO A CEREMONIAL MARRIAGE WITH RACHEL J. TRUAX, A UNITED STATES CITIZEN AND RESIDENT OF KENTUCKY, THE MARRIAGE TAKING PLACE AT JEFFERSONVILLE, INDIANA; THAT HE DEPARTED FORT KNOX FOR AN OVERSEAS ASSIGNMENT ON OCTOBER 6, 1962, ARRIVING IN GERMANY ON OCTOBER 19, 1962, WHEREUPON HE ESTABLISHED A CLASS Q ALLOTMENT FOR RACHEL, EFFECTIVE NOVEMBER 1, 1962; THAT ON NOVEMBER 19, 1963, HE WAS HONORABLY DISCHARGED AND IMMEDIATELY REENLISTED IN THE ARMY FOR A PERIOD OF 6 YEARS, AGAIN SHOWING AS HIS HOME OF RECORD, LAREDO, TEXAS; THAT IN FEBRUARY 1964, WHILE STATIONED IN GERMANY HE OBTAINED, BY MAIL FROM A COURT IN MEXICO, A DIVORCE FROM RACHEL J. RIVAS WITH NO NOTIFICATION OF THE SUIT HAVING BEEN FURNISHED TO HER; THAT HE REQUESTED STOPPAGE OF HIS CLASS Q ALLOTMENT IN FAVOR OF RACHEL, EFFECTIVE APRIL 30, 1964; AND THAT ON NOVEMBER 4, 1964, AT BAMBERG, GERMANY, WITH THE APPROVAL OF THE UNITED STATES ARMY AUTHORITIES, HE ENGAGED IN A CEREMONIAL MARRIAGE WITH ELISABETH E. SPARRER, A GERMAN CITIZEN, WHEREUPON HE REQUESTED ESTABLISHMENT OF A CLASS Q ALLOTMENT IN FAVOR OF ELISABETH AND HER TWO CHILDREN, EFFECTIVE DECEMBER 1, 1964. IT IS REPORTED THAT NO ALLOTMENT PAYMENTS HAVE BEEN MADE TO ELISABETH ON THE STRENGTH OF THAT REQUEST.

THE QUESTION ARISES WHETHER RACHEL J. RIVAS REMAINS THE LAWFUL WIFE OF CARLOS A. RIVAS WITH ENTITLEMENT TO HIS CLASS Q ALLOTMENT AFTER THE DATE OF THE MEXICAN DIVORCE.

RIVAS CONTENDS THAT HIS MEXICAN DIVORCE SHOULD BE RECOGNIZED BECAUSE HE IS A CITIZEN OF MEXICO, THAT BY MARRYING HIM RACHEL BECAME A MEXICAN CITIZEN AND UNDER MEXICAN LAW THE DIVORCE IS VALID. ALTHOUGH RIVAS HAS CONTINUOUSLY RETAINED HIS MEXICAN CITIZENSHIP, RACHEL'S MARRIAGE TO HIM DID NOT DEPRIVE HER OF HER UNITED STATES CITIZENSHIP. (SECTION 3, ACT OF SEPTEMBER 22, 1922, CH. 411, 42 STAT. 1022).

IN 25 COMP. GEN. 821, 822, AND 36 COMP. GEN. 121, 122, INVOLVING THE QUESTION OF VALIDITY OF MEXICAN DIVORCES, WE HELD:

"IT IS WELL ESTABLISHED 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. ANNOTATION, 143 A.L.R. 1312, AND CASES CITED.'

YOU STATE THAT WHEN RIVAS FIRST ENLISTED IN THE ARMY ON MAY 25, 1962,HE DISCLOSED THAT HE WAS NOT A CITIZEN OF THE UNITED STATES AND HAD NOT DECLARED AN INTENTION TO BECOME A CITIZEN, ALSO THAT HIS PERSONNEL RECORD SHOWS HE WAS LAWFULLY ADMITTED TO THE UNITED STATES, THUS INDICATING COMPLIANCE WITH THE PROVISIONS OF 10 U.S.C. 3253 (C), WHICH HAD BEEN AMENDED BY PUBLIC LAW 87-143, DATED AUGUST 17, 1961, 75 STAT. 364, TO READ AS FOLLOWS:

"/C) IN TIME OF PEACE, NO PERSON MAY BE ACCEPTED FOR ORIGINAL ENLISTMENT IN THE ARMY UNLESS HE IS A CITIZEN OF THE UNITED STATES OR HAS BEEN LAWFULLY ADMITTED TO THE UNITED STATES FOR PERMANENT RESIDENCE UNDER THE APPLICABLE PROVISIONS OF CHAPTER 12 OF TITLE 8.'

SINCE RIVAS, AS A MEXICAN NATIONAL, PRESUMABLY WAS LAWFULLY ADMITTED TO THE UNITED STATES FOR PERMANENT RESIDENCE IT APPEARS HE COULD NOT HAVE MAINTAINED CONCURRENTLY A BONA FIDE RESIDENCE OR DOMICILE IN MEXICO.

WHILE THE RECORD SHOWS HE WAS BORN IN CHILPANCINGO, STATE OF GUERRERO, MEXICO, AND HAD STAYED FOR SHORT PERIODS IN MEXICO CITY PRIOR TO ENLISTMENT IN THE UNITED STATES ARMY, THE PURPORTED DIVORCE WAS OBTAINED FROM A COURT IN JOJUTLA DE JUAREZ, STATE OF MORELOS, MEXICO. THERE IS NOTHING IN THE FILE TO INDICATE THAT HE EVER RESIDED IN THE STATE OF MORELOS. THE MARRIAGE CERTIFICATE OF CARLOS ANGEL RIVAS CABALLERO AND ELISABETH DOROTHEA ALBERTINE SPARRER, ISSUED AT BAMBERG, BAVARIA, UNDER DATE OF NOVEMBER 4, 1964, SHOWS RIVAS AS "LIVING IN LAREDO/TEXAS, PRESENTLY RESIDING IN BAMBERG.'

IN THE CASE OF ROSENSTIEL V. ROSENSTIEL, 262 N.Y.S.2D 86, DECIDED JULY 9, 1965, THE NEW YORK COURT OF APPEALS HELD THAT THE MEXICAN DIVORCE DECREE THERE CONSIDERED SHOULD BE RECOGNIZED IN THAT STATE, ALTHOUGH IT WAS GRANTED ON GROUNDS NOT ACCEPTED IN NEW YORK. THE COURT, HOWEVER, EMPHASIZED THAT THE MEXICAN COURT HAD ACQUIRED JURISDICTION OVER THE MARRIAGE, IN ACCORDANCE WITH MEXICAN LAW, BY BOTH PARTIES SUBMITTING TO THE JURISDICTION OF THE COURT AND APPEARING IN THE ACTION EITHER IN PERSON OR BY ATTORNEY. THERE IS NO INDICATION IN THE DECISION THAT THE NEW YORK COURT OF APPEALS WOULD BE INCLINED TO EXTEND SUCH RECOGNITION TO A MAIL ORDER DIVORCE WHERE THE PARTY BEING SUED WAS NOT NOTIFIED OF THE ACTION AND NEITHER PARTY APPEARED BEFORE THE COURT, EVEN THOUGH ONE PARTY WAS A MEXICAN NATIONAL. ENCLOSED IS A COPY OF OUR DECISION OF DECEMBER 7, 1965, B-156453, WHEREIN WE DISCUSSED MORE FULLY THE MATTER OF FOREIGN DIVORCES AS A BASIS FOR PAYMENT OF MONETARY BENEFITS TO OR ON BEHALF OF MEMBERS OF THE ARMED FORCES.

ALTHOUGH RIVAS'"MAIL ORDER" DIVORCE MAY BE ENTITLED TO FULL RECOGNITION IN MEXICO, IT IS NOT CLEAR WHETHER SUCH RECOGNITION WOULD OR WOULD NOT BE ACCORDED THE DIVORCE BY A COURT OF COMPETENT JURISDICTION IN THE UNITED STATES. THE INFORMATION WHICH HAS BEEN FURNISHED INDICATES THAT THE SECRETARY OF THE ARMY, OR HIS DESIGNEE, HAS MADE NO OFFICIAL DETERMINATION OF DEPENDENCY (25 COMP. GEN. 821) OR OF RELATIONSHIP UNDER AUTHORITY CONTAINED IN THE DEPENDENTS ASSISTANCE ACT OF 1950, SINCE THE DATE OF THE MEXICAN DIVORCE IN 1964. IN SUCH CIRCUMSTANCES AND IN THE ABSENCE OF A PROPER JUDICIAL DETERMINATION AS TO LEGAL EFFECT OF THE DIVORCE ACTION, THE MATTER IS TOO DOUBTFUL TO WARRANT PAYMENTS OF THE CLASS Q ALLOTMENT IN THE CASE OF CARLOS A. RIVAS. THE VOUCHER SUBMITTED WITH YOUR LETTER, NOT BEING APPROVED FOR PAYMENT ON THE PRESENT RECORD, WILL BE RETAINED HERE. 44 COMP. GEN. 185. COMPARE 38 COMP. GEN. 97.