B-166987, JUN. 16, 1969

B-166987, JUN. 16, 1969

TO MRS. CATHERINE I. FOUNTAIN:

REFERENCE IS MADE TO LETTER DATED MAY 1, 1969, WRITTEN IN YOUR BEHALF BY MR. GERALD J. PHILLIPS, ATTORNEY-AT-LAW, CONCERNING A SETTLEMENT OF OUR CLAIMS DIVISION DATED APRIL 16, 1969, WHICH DISALLOWED YOUR CLAIM FOR SIX MONTHS' DEATH GRATUITY AS SURVIVING SPOUSE OF STAFF SERGEANT MACK DONALD FOUNTAIN, 1070295, U.S. MARINE CORPS.

THE RECORD INDICATES THAT YOU WERE MARRIED TO THE DECEDENT ATLAS VEGAS, NEVADA, ON NOVEMBER 1, 1968. YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED APRIL 16, 1969, FOR THE REASON THAT THE DECEDENT HAD ENTERED INTO A PRIOR MARRIAGE WITH ETHEL LOIS FOUNTAIN AND SHE WAS GRANTED A DIVORCE FROM HIM ON APRIL 19, 1965, IN JUAREZ, CHIHUAHUA, MEXICO.

IN THE SETTLEMENT IT WAS EXPLAINED THAT SINCE AS A GENERAL RULE, THE STATE COURTS IN THE UNITED STATES HAVE NOT RECOGNIZED THE VALIDITY OF MEXICAN DIVORCES, IT IS THE GENERAL POLICY OF OUR OFFICE IN CASES WHERE A PRIOR MARRIAGE OF A MEMBER OF THE UNIFORMED SERVICES HAS BEEN THE SUBJECT OF A MEXICAN DIVORCE, AND HE SUBSEQUENTLY REMARRIES, TO REQUIRE A JUDICIAL DETERMINATION OF THE VALIDITY OF THE MARRIAGE BEFORE APPROVING PAYMENT OF MILITARY ALLOWANCES OR DEATH GRATUITY INCIDENT TO SUCH MARRIAGES.

IN HIS LETTER MR. PHILLIPS SAYS THAT YOU HAVE CONSULTED HIM ON YOUR CLAIM FOR THE GRATUITY AND THAT YOU ARE UNDER THE IMPRESSION FROM OUR OFFICE LETTER OF APRIL 16, 1969, THAT A COURT IN THE STATE OF CALIFORNIA WILL DECLARE THE MEXICAN DIVORCE YOUR LATE HUSBAND'S FIRST WIFE OBTAINED TO BE VALID IN THE STATE OF CALIFORNIA. MR. PHILLIPS DOUBTS THIS AND IT SEEMS TO BE HIS VIEW THAT YOUR CLAIM SHOULD BE ALLOWED ON THE BASIS OF THE PRESENT RECORD.

IN THIS CONNECTION, MR. PHILLIPS SAYS HE HAS CONCLUDED THAT THERE IS NO COURT OF COMPETENT JURISDICTION IN THE STATE OF CALIFORNIA NOR WITHIN ANY OTHER STATE, THAT WILL DECLARE SUCH A DIVORCE TO BE VALID. FURTHER, HE REQUESTS THAT IF WE ARE FAMILIAR WITH ANY CASE WITHIN THE STATE OF CALIFORNIA WHERE SUCH A DIVORCE HAS BEEN DECLARED VALID, HE WOULD APPRECIATE US SENDING HIM INFORMATION ON THE CASE.

ELIGIBILITY OF SURVIVORS TO RECEIVE THE SIX MONTHS' DEATH GRATUITY IS GOVERNED BY 10 U.S.C. 1477. THAT SECTION (SO FAR AS APPLICABLE HERE) PROVIDES THAT SUCH GRATUITY SHALL BE PAID TO OR FOR THE LIVING SURVIVOR HIGHEST ON THE FOLLOWING LIST: (1) SURVIVING SPOUSE; (2) CHILDREN (INCLUDING STEPCHILDREN WHO WERE PART OF THE DECEDENT'S HOUSEHOLD AT THE TIME OF HIS DEATH), IN EQUAL SHARES; AND (3) CERTAIN PERSONS (INCLUDING HIS PARENTS) IF DESIGNATED BY HIM.

SINCE YOU CLAIM THE GRATUITY AS SURVIVING SPOUSE IT MUST BE ESTABLISHED THAT A VALID MARRIAGE EXISTED BETWEEN YOU AND THE DECEDENT. IT HAS LONG BEEN HELD THAT WHERE THE VALIDITY OF A SECOND MARRIAGE IS DEPENDENT UPON THE DISSOLUTION OF THE FIRST MARRIAGE BY A DIVORCE DECREE OF A MEXICAN COURT WHICH HAS NOT BEEN RECOGNIZED BY A COURT OF COMPETENT JURISDICTION IN THE UNITED STATES, THE VALIDITY OF THE MARITAL STATUS OF THE PARTIES IS TOO DOUBTFUL TO JUSTIFY APPROVAL BY THIS OFFICE OF PAYMENT OF AN ALLOWANCE SUCH AS HERE INVOLVED. SEE OUR DECISION OF AUGUST 16, 1956, B-128267 (36 COMP. GEN. 121), COPY ENCLOSED. ALSO, IT IS A WELL ESTABLISHED RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT THAT THEY WILL NOT ALLOW A CLAIM AGAINST THE UNITED STATES IF THERE IS SUBSTANTIAL BASIS FOR DOUBT THAT A COURT OF COMPETENT JURISDICTION WOULD ALLOW THE CLAIM. SEE LONGWILL V UNITED STATES, 17 CT. CL. 288 AND CHARLES V UNITED STATES, 19 CT. CL. 316.

IT WAS FOR THESE REASONS THAT OUR CLAIMS DIVISION STATED IN THE SETTLEMENT OF APRIL 16, 1969, THAT IN CASES WHERE THE PRIOR MARRIAGE OF THE HUSBAND OR WIFE HAS BEEN THE SUBJECT OF A MEXICAN DIVORCE OUR OFFICE HAS REQUIRED A JUDICIAL DETERMINATION OF THE VALIDITY OF THE MARRIAGE BEFORE AUTHORIZING PAYMENT OF THE SIX MONTHS' DEATH GRATUITY OR OTHER ALLOWANCES INCIDENT TO THE MARRIAGE RELATIONSHIP. SEE DECISION OF NOVEMBER 22, 1967, B-160591 (47 COMP. GEN. 286), COPY HEREWITH.

THE SETTLEMENT WAS NOT INTENDED TO IMPLY THAT A COURT OF THE STATE OF CALIFORNIA WOULD DECLARE THE MEXICAN DIVORCE TO BE VALID. IT IS REGRETTED THAT YOU SO UNDERSTOOD IT.IN THIS REGARD SEE THE ENCLOSED COPIES OF DECISIONS OF JANUARY 27, 1966, DECEMBER 7, 1965, AND SEPTEMBER 23, 1965, B -156453 AND DECISION OF MARCH 4, 1968, B-163335.

WITH RESPECT TO MR. PHILLIP'S REQUEST FOR INFORMATION CONCERNING A CASE WHERE A MEXICAN DIVORCE WAS DECLARED VALID BY A COURT OF COMPETENT JURISDICTION IN CALIFORNIA, WE INVITE HIS ATTENTION TO THE CASE OF CORTIS PAUL FRALEY AND FLORENCE CHAMBERLIN FRALEY, PLAINTIFFS V BURMA ELIZABETH THOMPSON, DEFENDANT, NO. 303330 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO. IN THAT CASE, ON OCTOBER 31, 1967, JUDGE BYRON F. LINDSLEY, PRESIDING IN DEPARTMENT 21, ISSUED JUDGMENT ESTABLISHING THE VALIDITY OF MEXICAN DIVORCE AND OF SUBSEQUENT MARRIAGE. THERE IS ALSO ENCLOSED FOR HIS INFORMATION A COPY OF OUR LETTER OF MAY 4, 1966, B-156453, TO THE OFFICE OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, CONCERNING THE JUDICIAL DETERMINATION IN BALTIMORE, MARYLAND, OF THE VALIDITY OF A MEXICAN DIVORCE OBTAINED BY THE FIRST WIFE OF AN ARMY OFFICER.

AS STATED ABOVE, THE RECORD BEFORE US SHOWS THAT YOU MARRIED THE DECEDENT ON NOVEMBER 1, 1968, AFTER A MEXICAN DIVORCE WAS ISSUED ON APRIL 19, 1965, PURPORTING TO DISSOLVE HIS PRIOR MARRIAGE TO ETHEL LOIS FOUNTAIN, WHO HAS ALSO REMARRIED. IN THESE CIRCUMSTANCES, THE ACCOUNTING OFFICERS OF THE GOVERNMENT MAY NOT AUTHORIZE PAYMENT OF THE SIX MONTHS' GRATUITY TO YOU AS SURVIVING SPOUSE IN THE ABSENCE OF RECOGNITION BY A COURT OF COMPETENT JURISDICTION THAT THE MARRIAGE ON NOVEMBER 1, 1968, BETWEEN YOU AND THE DECEDENT WAS VALID.

IN ADDITION TO THE AUTHORITY OF THIS OFFICE TO SETTLE CLAIMS AGAINST THE UNITED STATES, YOUR ATTENTION IS INVITED TO THE JURISDICTION OF THE COURT OF CLAIMS OF THE UNITED STATES AND THE UNITED STATES DISTRICT COURTS TO CONSIDER AND DETERMINE CIVIL ACTIONS ARISING OUT OF CLAIMS AGAINST THE UNITED STATES. 28 U.S.C. 1346 (2) AND 1491.

UNDER OUR OFFICE PROCEDURES, AN ATTORNEY REPRESENTING A CLAIMANT MUST SUBMIT A DULY EXECUTED POWER OF ATTORNEY OR OTHER DOCUMENTARY EVIDENCE OF HIS RIGHT TO ACT FOR THE CLAIMANT. THEREFORE, IF YOU WISH MR. PHILLIPS TO REPRESENT YOU BEFORE OUR OFFICE, A POWER OF ATTORNEY AUTHORIZING HIM TO DO SO SHOULD BE SUBMITTED.