B-165312, OCT. 10, 1968

B-165312, OCT. 10, 1968

TO MR. C. W. BIRD:

THIS REFERS TO YOUR LETTER OF SEPTEMBER 11, 1968, WITH ENCLOSURES, REFERENCE BR3, FORWARDED HERE BY NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, WASHINGTON, D.C., ON SEPTEMBER 20, 1968, REFERENCE BFG, REQUESTING OUR DECISION WHETHER A VOUCHER IN THE AMOUNT OF $433.30 IN FAVOR OF WALLACE D. GRAVES REPRESENTING SUBSISTENCE EXPENSES AT DOWNEY, LOS ANGELES, CALIFORNIA, WHILE OCCUPYING TEMPORARY QUARTERS INCIDENT TO A PERMANENT CHANGE OF STATION EFFECTIVE DECEMBER 12, 1966, MAY BE PAID.

THE INFORMATION OF RECORD SHOWS THAT BY TRAVEL AUTHORIZATION, OF DECEMBER 1, 1966, MR. GRAVES WAS AUTHORIZED TO TRAVEL FROM HOUSTON, TEXAS, TO DOWNEY, LOS ANGELES, CALIFORNIA, INCIDENT TO A PERMANENT CHANGE OF STATION. THE TRAVEL ORDER AUTHORIZED THE TRANSPORTATION OF THE EMPLOYEE, HIS WIFE AND FIVE CHILDREN; USE OF A SECOND PRIVATELY OWNED VEHICLE AS MORE ADVANTAGEOUS TO THE GOVERNMENT; TRANSPORTATION OF HOUSEHOLD GOODS; TRAVEL PER DIEM FOR EMPLOYEE AND FAMILY; TEMPORARY QUARTERS AND SUBSISTENCE; EXPENSES FOR SALE OF OLD RESIDENCE AND PURCHASE OF NEW, SUBJECT TO LIMITATIONS CONTAINED IN BUREAU OF BUDGET CIRCULAR NO. A-56; AND MISCELLANEOUS MOVING EXPENSES. IN MAY 1967, THE TRAVEL ORDER WAS AMENDED TO AUTHORIZE ONE ROUND TRIP FOR SPOUSE TO SEEK PERMANENT RESIDENCE. THE EMPLOYEE HAS BEEN REIMBURSED FOR THE ABOVE-CITED EXPENSES EXCEPT FOR THE SUBSISTENCE EXPENSE WHILE OCCUPYING TEMPORARY QUARTERS AT DOWNEY, LOS ANGELES, CALIFORNIA. YOU SAY THAT SUBSEQUENT TO THE ABOVE- MENTIONED PAYMENTS IT BECAME KNOWN TO YOUR OFFICE THAT MR. GRAVES HAD BEEN DIVORCED FROM HIS WIFE SINCE OCTOBER 5, 1966. BESIDES AN ADVANCE DECISION ON THE PROPRIETY OF AUTHORIZING PAYMENT OF THE SUBSISTENCE EXPENSES WHILE OCCUPYING TEMPORARY QUARTERS YOU ALSO REQUEST INFORMATION AS TO THE LEGALITY OF THE PAYMENTS THAT HAVE BEEN MADE.

ON AUGUST 1, 1966, MRS. BERTHA RUTH GRAVES FILED A DIVORCE PETITION AGAINST WALLACE D. GRAVES CHARGING CRUELTY. A JUDGMENT WAS ISSUED BY THE JUDGE EDWARD GOFF, BRAZORIA COUNTY, TEXAS, ON OCTOBER 5, 1966, GRANTING A DIVORCE FROM THE DEFENDANT. THE JUDGMENT STIPULATED THAT CARE AND CUSTODY OF THE FIVE CHILDREN WAS AWARDED TO THE PLAINTIFF AND THE DEFENDANT WAS TO HAVE REASONABLE RIGHTS OF VISITATION WITH THESE CHILDREN. DEFENDANT WAS ORDERED TO PAY PLAINTIFF $75 PER MONTH FOR EACH MINOR CHILD UNTIL HE ATTAINS THE AGE OF 18. THE INITIAL PAYMENT OF $375 WAS TO START OCTOBER 5, 1966. THE JUDGMENT ALSO STATED THAT THE PLAINTIFF AND DEFENDANT HAVE AGREED UPON A PARTITION AND DIVISION OF THEIR COMMUNITY PROPERTY.

MR. WALLACE SAYS THAT ALTHOUGH THE TERMS OF THE DIVORCE PROVIDED FOR PAYMENT OF $75 PER MONTH PER CHILD SUPPORT HE CONTINUED TO PAY THE BILLS FOR MORTGAGE, AUTOMOBILE, UTILITIES AND OTHER REGULAR OPERATING EXPENSES AND THEY CONTINUED TO OPERATE AS THE SAME FAMILY AFTER THE DIVORCE AS THEY HAD PRIOR TO IT. EVEN WHILE IN CALIFORNIA BETWEEN DECEMBER 1966 AND JUNE 1967 HE REGARDED THEIR HOUSE IN TEXAS AS HIS HOME AND LIVED THERE AS MAN AND WIFE DURING THE VISITS HE MADE TO TEXAS FROM CALIFORNIA DURING THAT PERIOD. THERE NEVER WAS A DIVISION OF THEIR COMMUNITY PROPERTY AND IT CONTINUED TO BE TREATED AS BELONGING TO THE ENTIRE FAMILY. THEY LIVED TOGETHER AS MAN AND WIFE AND STILL FILE JOINT TAX RETURNS AND HAVE CONTINUED IN THE SAME WAY AFTER THE DIVORCE AS BEFORE IT. IN FACT THEY CONTINUED THEIR JOINT CHECKING ACCOUNT IN TEXAS AFTER THE DIVORCE AND DID NOT CLOSE IT OUT UNTIL THEY MOVED TO CALIFORNIA. VARIOUS LOANS WERE MADE SINCE THE DIVORCE AND HAVE BEEN MADE IN BOTH NAMES.

IT IS NECESSARY TO EXAMINE THE LAWS OF TEXAS TO DETERMINE THE MATRIMONIAL STATUS OF MR. GRAVES AT THE TIME OF HIS TRANSFER TO CALIFORNIA. ARTICLE 4640 OF VERNON'S REVISED CIVIL STATUTES OF THE STATE OF TEXAS ANNOTATED, IS AS FOLLOWS:

"NEITHER PARTY TO A DIVORCE SUIT, WHERE A DIVORCE IS GRANTED UPON THE GROUND OF CRUEL TREATMENT, SHALL MARRY ANY OTHER PERSON FOR A PERIOD OF TWELVE MONTHS NEXT AFTER SUCH DIVORCE IS GRANTED, BUT THE PARTIES SO DIVORCED MAY MARRY EACH OTHER AT ANY TIME. IN ALL OTHER CASES EITHER PARTY MAY MARRY AGAIN AFTER THE DISSOLUTION OF THE MARRIAGE.' THE PURPOSE OF THIS ARTICLE RELATING TO CRUEL TREATMENT IS TO ENCOURAGE THE REMARRIAGE OF THE DIVORCED PERSONS. NICHOLAS V HOLDER, 244 S.W. 2D 313.

ALSO, WE DIRECT YOUR ATTENTION TO ARTICLE 4602 OF VERNON'S REVISED CIVIL STATUTES OF THE STATE OF TEXAS ANNOTATED, WHICH READS, AS FOLLOWS:

"ALL LICENSED OR ORDAINED MINISTERS OF THE GOSPEL, JEWISH RABBIS, OR OFFICERS OF RELIGIOUS ORGANIZATIONS, WHICH OFFICERS ARE DULY AUTHORIZED BY THE ORGANIZATION TO PERFORM MARRIAGE CEREMONIES, JUDGES OF THE DISTRICT AND COUNTY COURTS, AND JUSTICES OF THE PEACE ARE AUTHORIZED TO CELEBRATE THE RITES OF MATRIMONY BETWEEN PERSONS LEGALLY AUTHORIZED TO MARRY.' VARIOUS TEXAS COURT CASES CITED IN THE CODE AFTER THE SECTION ARE TO THE EFFECT THAT COMMON-LAW MARRIAGES ARE RECOGNIZED IN TEXAS. IN ORDER TO CONSTITUTE A VALID "COMMON-LAW MARRIAGE" IT MUST BE ESTABLISHED THAT THE PARTIES ENTERED INTO AN EXPRESS OR IMPLIED AGREEMENT TO BECOME HUSBAND AND WIFE, THAT THE AGREEMENT WAS FOLLOWED BY COHABITATION AS MAN AND WIFE, AND THAT THEY HELD EACH OTHER OUT PROFESSEDLY AND PUBLICLY AS HUSBAND AND WIFE. ESPARAZA V ESPARAZA (1965) 382 S.W. 2D 162; RUSH V TRAVELERS INS. CO., (1961) 347 S.W. 2D 758; WILLIAMS V WILLIAMS (1960), 336 S.W. 2D 757. THE FACT THAT THE COUPLE MOVED TO CALIFORNIA WHERE THE COURT CASES HAVE HELD IN EFFECT SINCE 1895 THAT SOLEMNIZATION OF A MARRIAGE IS ESSENTIAL TO ITS VALIDITY WOULD NOT AFFECT THEIR STATUS AS MAN AND WIFE SINCE CALIFORNIA RECOGNIZES COMMON-LAW MARRIAGES VALIDLY CREATED IN STATES WHICH ALLOW SUCH MARRIAGES. TATUM V TATUM, 241 F.2D 401; COLBERT V COLBERT, 169 P.2D 633; IN RE KEIG'S ESTATE, 140 P.2D 163.

ON THE BASIS OF THE INFORMATION PRESENTED IT APPEARS THAT FOLLOWING THE DIVORCE PROCEEDINGS THE EMPLOYEE AND BERTHA GRAVES AT ALL TIMES CONTINUED TO LIVE TOGETHER AS MAN AND WIFE THEREBY REESTABLISHING THEIR MARRIAGE IN TEXAS PRIOR TO THE TRANSFER SOME THREE MONTHS AFTER THE DIVORCE. UNDER THE CIRCUMSTANCES THE PAYMENTS ALREADY MADE INCIDENT TO THE TRANSFER SHOULD NOT BE QUESTIONED FURTHER IF OTHERWISE CORRECT. ALSO, THE EMPLOYEE WOULD BE ENTITLED TO SUBSISTENCE FOR HIMSELF AND SON FOR THE 30-DAY PERIOD DECEMBER 11, 1966, THROUGH JANUARY 9, 1967, WHILE OCCUPYING TEMPORARY QUARTERS IN DOWNEY,LOS ANGELES, CALIFORNIA. IN SUCH CONNECTION YOU ADVISE THAT THIS REQUEST FOR A DECISION IS AS TO THE LEGALITY OF THE PAYMENT ONLY AND NOT THE AMOUNT DUE. THEREFORE, WE ASSUME THAT ANY AMOUNT FOUND DUE FOR SUBSISTENCE WHILE OCCUPYING TEMPORARY QUARTERS IS IN ACCORDANCE WITH SECTION 2.5 OF CIRCULAR NO. A-56.

ACCORDINGLY, THE VOUCHER WHICH IS RETURNED HEREWITH MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT.