B-164214, JUL. 26, 1968

B-164214, JUL. 26, 1968

TO LIEUTENANT COLONEL W. R. STERLING:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 13, 1968 (AEUTCFTPMP) REQUESTING AN ADVANCE DECISION IN THE CASE OF MAJOR ERNEST S. AUERBACH, OF 100 323, CONCERNING HIS CLAIM FOR BASIC ALLOWANCE FOR QUARTERS FOR A DEPENDENT WIFE. YOUR LETTER WAS FORWARDED TO THIS OFFICE UNDER DATE OF MAY 2, 1968, BY THE OFFICE OF THE COMPTROLLER OF THE ARMY AND HAS BEEN ALLOCATED D.O. NUMBER A-997 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE RECORD SHOWS THAT THE MEMBER MARRIED HIS FIRST WIFE, KAY JOAN (MADDOCK) AUERBACH ON JUNE 11, 1960, WHILE STATIONED AT BOLLING AIR FORCE BASE, WASHINGTON, D.C., AND THAT ONE CHILD WAS BORN OF THIS MARRIAGE. JULY 20, 1965, WHILE ACCOMPANYING THE MEMBER ON HIS TOUR OF DUTY IN GERMANY, MRS. AUERBACH SECURED A DIVORCE FROM HIM IN THE 2ND CIVIL CHAMBER OF THE MANNHEIM DISTRICT COURT, WHICH DIVORCE BECAME FINAL ON OCTOBER 2, 1965. IT FURTHER APPEARS THAT ON MARCH 22, 1967, HE MARRIED NINA V. AUERBACH IN MANNHEIM, GERMANY, ON WHOSE ACCOUNT HE IS NOW SEEKING AN INCREASE IN BASIC ALLOWANCE FOR QUARTERS. THERE IS NO EVIDENCE SHOWING THAT HE SUPPORTS HIS FIRST WIFE OR THE CHILD BY THAT MARRIAGE.

THE GENERAL RULE IS WELL SETTLED WITH RESPECT TO RECOGNITION OF DIVORCE DECREES SECURED IN FOREIGN COUNTRIES. IN 36 COMP. GEN. 121, 122, WE SAID:

"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.'

WHILE THE GERMAN COURT DETERMINED THAT THE MEMBER'S "DOMICILE OF * * * CHOICE" (ACTUAL RESIDENCE) WAS IN GERMANY, FOR PURPOSES OF RECOGNITION OF THE DIVORCE DECREE THE EVIDENCE ESTABLISHING DOMICILE SHOULD INCLUDE A CLEAR SHOWING OF INTENT TO MAKE THAT PLACE HIS PERMANENT HOME AS DISTINGUISHED FROM A PLACE OF RESIDENCE.

THE INFORMATION CONTAINED IN THE DIVORCE DECREE ACCOMPANYING THE REQUEST INDICATES THAT THE OFFICER AND MRS. KAY AUERBACH ARE BOTH CITIZENS OF THE UNITED STATES, THE MEMBER AS A NATURALIZED CITIZEN BORN IN GERMANY; THAT THEY WERE DOMICILED IN THE DISTRICT OF COLUMBIA BEFORE THE MEMBER WAS SENT TO GERMANY ON MILITARY ASSIGNMENT; AND THAT THEY BOTH APPARENTLY RESIDED IN WEINHEIM, GERMANY, AT THE TIME OF THE DIVORCE. THE COURT FOUND THAT THE MEMBER INTENDS TO REMAIN IN GERMANY UPON COMPLETION OF HIS TOUR OF MILITARY SERVICE AND APPARENTLY TO ACQUIRE GERMAN CITIZENSHIP.

WHILE THE DIVORCE JUDGMENT RECITES THE FACTS WITH RESPECT TO RESIDENCE IN GERMANY AND MENTIONS OTHER MATTERS INDICATING AN INTENTION BY THE OFFICER TO REMAIN THERE, SUCH AS TAKING "AN ACTIVE PART IN THE SOCIAL LIFE OF HIS GERMAN SURROUNDINGS, FOR INSTANCE BY VISITING THE MANNHEIM ATRE," AND PREPARING HIMSELF FOR THE PRACTICE OF PRIVATE INTERNATIONAL AND ECONOMIC LAW, HE HAS CONTINUED HIS ARMY CAREER UP TO THE PRESENT TIME AND THE RECORD BEFORE US IS DEVOID OF UNEQUIVOCAL EXTRINSIC EVIDENCE OF THE ESTABLISHMENT BY THE OFFICER OR HIS FORMER WIFE OF A DOMICILE IN GERMANY. SEE 25 AM. JUR. 2D, DOMICILE, SECTION 90-99.

THE COURT'S STATEMENTS REGARDING THE OFFICER'S INTENTION TO PRACTICE LAW AND PREPARATIONS THEREFOR ARE AS COMPATIBLE WITH THE PRACTICE OF LAW IN THE UNITED STATES FOR CLIENTS ENGAGED IN BUSINESS DEALINGS WITH GERMAN INDUSTRY AND COMMERCE AS IT IS WITH AN INTENTION OF ESTABLISHING HIS DOMICILE IN GERMANY AND PRACTICING LAW THERE. IT IS NOTED THAT HE DID NOT CONTEST THE ACTION AND WAS NOT REPRESENTED BY COUNSEL. ON THE PRESENT RECORD WE THINK THAT THE EVIDENCE OF ESTABLISHMENT OF A DOMICILE IN GERMANY IS TOO EQUIVOCAL AND MEAGER TO WARRANT OUR RECOGNITION OF THE GERMAN DIVORCE DECREE.

ACCORDINGLY, ON THE PRESENT RECORD THE OFFICER'S SECOND WIFE MAY NOT BE RECOGNIZED AS A LAWFUL WIFE FOR THE PURPOSES OF HIS ENTITLEMENT TO INCREASED QUARTERS ALLOWANCE ON HER BEHALF.