B-163509, APR 18, 1968

B-163509, APR 18, 1968

PRECIS-UNAVAILABLE

FIRST LIEUTENANT J. P. GAMEL:

FINANCE AND ACCOUNTING OFFICER

THROUGH CHIEF OF FINANCE AND ACCOUNTING

OFFICE OF THE COMPTROLLER OF THE ARMY

DEPARTMENT OF THE ARMY

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 13, 1967, WITH ENCLOSURES, REQUESTING DECISION AS TO ENTITLEMENT OF FIRST LIEUTENANT JAMES E. PRICE, JR., 05340067, TO BASIC ALLOWANCE FOR QUARTERS ON ACCOUNT OF A COMMON-LAW WIFE, FORMERLY DONNA L. LINCOLN, UNDER THE CIRCUMSTANCES DESCRIBED. THE REQUEST WAS ASSIGNED D.O. NO. A-984 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

AMONG THE ENCLOSURES SUBMITTED WITH YOUR LETTER IS AN UPDATED LETTER FROM THE OFFICER TO THE COUNTY RECORDER, RICHMOND COUNTY, AUGUSTA, GEORGIA, IN WHICH HE STATES THAT ON JULY 7, 1967, HE WAS MARRIED BY A JUSTICE OF THE PEACE IN AUGUSTA, GEORGIA , AND THAT HE LOST OR MISPLACED HIS COPY OF THE MARRIAGE LICENSE. IN REPLY DATED NOVEMBER 2, 1967, WRITTEN ON THE REVERSE SIDE OF THE OFFICER'S LETTER, THE ORDINARY'S OFFICE, RICHMOND COUNTY, GEORGIA, STATED THAT HIS OFFICE CHECKED THE BOOKS, RECORDS, INDEX AND THE MARRIAGE LICENSE BOOK PAGE BY PAGE FOR JUNE AND JULY 1967, AND DID NOT FIND THE LICENSE.

ON NOVEMBER 4, 1967, THE OFFICER ENTERED INTO A CEREMONIAL MARRIAGE WITH DONNA L. LINCOLN AT MINERAL WELLS, PALO PINTO COUNTY, TEXAS.

THE OFFICER CONTENDS THAT HIS RELATIONS WITH DONNA L. LINCOLN WERE SUCH THAT A VALID COMMON-LAW MARRIAGE EXISTED DURING THE PERIOD FROM JULY 7 TO NOVEMBER 3, 1967, AND THAT HE IS ENTITLED TO PAYMENT OF BASIC ALLOWANCE FOR QUARTERS AS FOR AN OFFICER WITH A DEPENDENT (LAWFUL WIFE) FOR THAT PERIOD.

THERE WAS ALSO SUBMITTED AN AFFIDAVIT FROM THE OFFICER'S PARENTS IN WHICH IT IS STATED THAT THEY WERE TOLD BY THEIR SON ON JULY 7, 1967, THAT HE HAD MARRIED DONNA LEE LINCOLN AND THAT THE OFFICER'S MOTHER VISITED THE COUPLE IN GEORGIA IN AUGUST 1967 AND THAT THE COUPLE WERE LIVING TOGETHER AS MAN AND WIFE AND SO HELD THEMSELVES OUT TO ALL PERSONS THEY MET. THE RECORD ALSO CONTAINS ADDITIONAL AFFIDAVITS FROM LIEUTENANTS HALL, GRIEGER, THOMPSON AND MRS. THOMPSON IN WHICH EACH OF THE INDIVIDUALS NAMED STATE THAT THEY MET LIEUTENANT PRICE AND DONNA L. LINCOLN AT FORT GORDON, GEORGIA, IN JULY 1967 AND KNEW THEM AS A MARRIED COUPLE AND ALWAYS BELIEVED FROM THEIR STATEMENTS AND ACTIONS THAT THEY WERE MARRIED.

COMMON-LAW MARRIAGES ARE RECOGNIZED AS VALID IN THE STATE OF GEORGIA, SEE 53 GA. CODE ANN. 101. SEE ALSO, SMITH V. SMITH, 11 S.E. 496; DRAWDY V. HESTERS, 60 S.E. 451; HATHCOCK V. STATE, 195 S.E. 308 AND ALLEN V. STATE, 3 S.E. 2D 780. TO ESTABLISH A COMMON-LAW MARRIAGE IN GEORGIA THREE REQUISITES MUST BE MET. THERE MUST BE (1) PARTIES ABLE TO CONTRACT (2) AN ACTUAL CONTRACT OF MARRIAGE AND (3) CONSUMMATION BY COHABITATION IN GEORGIA. KERSEY V. GARDNER, 264 F. SUPP. 887, 889.

WITH RESPECT TO ITEM (1), THE RECORD SHOWS THERE WAS NO IMPENDIMENT BARRING EITHER PARTY'S CAPACITY TO MARRY IN GEORGIA.

WITH RESPECT TO ITEM (2), TO CONSTITUTE A VALID MARRIAGE THERE MUST BE AN AGREEMENT TO BECOME HUSBAND AND WIFE IMMEDIATELY FROM THE TIME WHEN MUTUAL CONSENT IS GIVEN. UNITED STATES V. LAYTON, 68 F.SUPP. 247, 250. CONCERNING THIS, IT HAS BEEN HELD THAT AN AGREEMENT IN WORDS TO BECOME HUSBAND AND WIFE IS NOT NECESSARY TO A COMMON-LAW MARRIAGE. THE AGREEMENT MAY BE INFERRED FROM HABIT AND REPUTE AND OTHER EVIDENCE THAT THE PARTIES AGREED TO TAKE EACH OTHER IN MARRIAGE AND TO STAND IN THE MUTUAL RELATION OF HUSBAND AND WIFE. SMITH V. PEOPLE, 170 P. 959, AND MARSICANO V. MARSICANO, 84 SO. 156, 158.

THE AFFIDAVIT SIGNED BY THE PARTIES, STATES THAT FROM JULY 7, 1967, THEY REGARDED THEMSELVES AS HUSBAND AND WIFE. ALSO, THE ABOVE MENTIONED LETTER TO THE COUNTY RECORDER, RICHMOND COUNTY, AUGUSTA, GEORGIA, REQUESTING A COPY OF THE MARRIAGE LICENSE AND IN WHICH LIEUTENANT PRICE STATES THAT CEREMONIAL MARRIAGE WAS PERFORMED BETWEEN THE PARTIES INDICATES THEY ENTERED INTO A CONTRACT OF MARRIAGE.

BASED ON THESE FACTS AND CIRCUMSTANCES IT APPEARS THAT THE EVIDENCE OF RECORD IS SUFFICIENT TO SHOW THAT THE PARTIES AGREED TO BE HUSBAND AND WIFE. WHITE V. WHITE, 23 P. 276.

WITH RESPECT TO ITEM (3), THE RECORD ESTABLISHES THAT THE OFFICER AND HIS WIFE LIVED AND COHABITED TOGETHER IN THE STATE OF GEORGIA FROM JULY 7 TO SEPTEMBER 9, AND IN MINERAL WELLS, TEXAS, COMMENCING THE FOLLOWING DAY AND IT WAS UNDERSTOOD BY HIS PARENTS AND ASSOCIATES THAT THEY WERE HUSBAND AND WIFE. CF: 39 COMP.GEN. 374.

ALTHOUGH THE PARTIES WERE UNABLE TO PROVE COMPLIANCE WITH THE STATUTORY PROVISIONS RELATING TO CEREMONIAL MARRIAGE, IT APPEARS THEIR RELATIONSHIP POSSESSED THE REQUISITE ELEMENTS SUFFICIENT TO CONSTITUTE A COMMON-LAW MARRIAGE. THEREFORE, IT IS CONCLUDED THAT LIEUTENANT PRICE DID HAVE A LAWFUL WIFE FOR THE PERIOD FROM JULY 7 TO NOVEMBER 3, 1967.

ACCORDINGLY, IF OTHERWISE ENTITLED, LIEUTENANT PRICE MAY BE CREDITED WITH BASIC ALLOWANCE FOR QUARTERS AS FOR AN OFFICER WITH A LAWFUL WIFE, EFFECTIVE JULY 7, 1967.