B-164713, OCT. 15, 1968

B-164713, OCT. 15, 1968

TO MR. C. N. BENSINGER, JR.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 24, 1968, REQUESTING AN ADVANCE DECISION WHETHER JOYCE J. BROWN IS THE LAWFUL DEPENDENT WIFE OF LIEUTENANT COLONEL ALLEN W. BROWN, JR., ASN 0 96 743. YOUR LETTER WAS FORWARDED TO THIS OFFICE UNDER DATE OF JUNE 26, 1968, BY THE OFFICE OF THE COMPTROLLER OF THE ARMY AFTER BEING ALLOCATED D.O. NUMBER A-1007 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE ENCLOSURES RECEIVED WITH YOUR LETTER SHOW THAT COLONEL BROWN WAS MARRIED TO HIS FIRST WIFE, PATRICIA LORRAINE FORSYTH, IN TRINIDAD, COLORADO, ON AUGUST 8, 1954, AND THAT ON MAY 29, 1967, APPARENTLY WHILE LIVING IN MARYLAND, THEY ENTERED INTO A SEPARATION AGREEMENT WHEREBY THE THREE CHILDREN BORN OF THAT MARRIAGE WERE TO BE SUPPORTED BY THE MEMBER, BUT WERE TO REMAIN IN THE CUSTODY AND GUARDIANSHIP OF THEIR MOTHER.

FOLLOWING THAT AGREEMENT, THE PARTIES SECURED A DIVORCE IN MEXICO, THE ENGLISH TRANSLATION OF THE DECREE, ENTERED JUNE 12, 1967, STATING THAT THE MARRIAGE CONTRACTED BY COLONEL BROWN AND HIS WIFE, PATRICIA, WAS DISSOLVED ON THAT DATE BY THE FIRST CIVIL COURT OF THE BRAVOS DISTRICT, STATE OF CHIHUAHUA, REPUBLIC OF MEXICO, AND THAT THE TERMS OF THE ABOVE MENTIONED SEPARATION AGREEMENT WERE INCORPORATED THEREIN BY REFERENCE. IT IS SHOWN THAT THE PLAINTIFF, COLONEL BROWN, PERSONALLY APPEARED BEFORE THE COURT AND SUBMITTED A CERTIFICATE PURPORTEDLY ESTABLISHING HIM AS AN OFFICIAL RESIDENT OF CIUDAD JUAREZ, CHIHUAHUA, AS REQUIRED BY MEXICAN LAW; AND THAT MRS. PATRICIA BROWN APPEARED IN COURT THROUGH COUNSEL, EXPRESSLY SUBMITTING TO THE JURISDICTION OF THE COURT AND ADMITTING ALL OF THE ALLEGATIONS CONTAINED IN THE PETITION.

COLONEL BROWN MARRIED JOYCE J. ANGLE ON JUNE 26, 1967, IN HAGERSTOWN, MARYLAND, AND ON MARCH 27, 1968, SECURED A DECLARATORY DECREE FROM THE CIRCUIT COURT FOR WASHINGTON COUNTY, MARYLAND, WHEREIN THE COURT RECOGNIZED THE VALIDITY OF THE MEXICAN DIVORCE.

THE GENERAL RULE IN THE MATTER OF RECOGNITION OF DIVORCE DECREES ISSUED BY A FOREIGN COURT IS THAT UNLESS SUCH COURT HAD JURISDICTION OVER THE SUBJECT MATTER OF THE DIVORCE BY REASON OF BONA FIDE RESIDENCE OR DOMICILE OF AT LEAST ONE OF THE PARTIES, ITS DECREE OF DIVORCE IS NOT, UNDER THE RULES OF INTERNATIONAL COMITY, REQUIRED TO 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 OF THE FOREIGN COURT'S JURISDICTION. CONSISTENT WITH THIS RULE, WE HAVE TAKEN THE POSITION THAT UNLESS A COURT OF COMPETENT JURISDICTION IN THE UNITED STATES RECOGNIZES THAT A DIVORCE DECREE OF A FOREIGN COURT INVOLVING PERSONS DOMICILED IN THE UNITED STATES EFFECTIVELY TERMINATES A MARRIAGE, PAYMENT OF AN ALLOWANCE BASED UPON THE VALIDITY OF A SUBSEQUENT MARRIAGE ADMITS OF TOO MUCH DOUBT TO PERMIT APPROVAL BY THIS OFFICE.

WHILE THE EXISTENCE OF A BONA FIDE RESIDENCE OR DOMICILE IN MEXICO OF EITHER PARTY TO THE MEXICAN DIVORCE IN THIS CASE IS QUESTIONABLE, THE DECREE OF THE MARYLAND COURT DATED MARCH 27, 1968, MAY BE ACCEPTED AS REMOVING ANY IMPEDIMENT TO THE VALIDITY OF THE SECOND MARRIAGE ARISING OUT OF THE DIVORCE PROCEEDINGS. ACCORDINGLY, JOYCE J. BROWN MAY BE RECOGNIZED CURRENTLY AS THE MEMBER'S LAWFUL WIFE.

IT IS NOTED THAT NO VOUCHER ACCOMPANIED YOUR LETTER AND THAT THE STATED PURPOSE OF THE REQUEST FOR DECISION IS TO SECURE A DETERMINATION WHETHER JOYCE J. BROWN PRESENTLY MAY BE VIEWED AS THE OFFICER'S DEPENDENT FOR QUARTERS ALLOWANCE PURPOSES. IN THIS REGARD, ATTENTION IS DIRECTED TO THE FACT THAT ORDINARILY A DISBURSING OFFICER IS ENTITLED TO A DECISION FROM THE COMPTROLLER GENERAL ONLY ON A SPECIFIC VOUCHER PRESENTED TO HIM FOR PAYMENT AND THAT SUCH VOUCHER SHOULD ACCOMPANY THE REQUEST FOR DECISION. SEE 21 COMP. GEN. 1128 AND 26 COMP. GEN. 797.