B-180588, JAN 17, 1975, 54 COMP GEN 600

B-180588, JAN 17, 1975, 54 COMP GEN 600

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - ANNULMENT OF WIDOW'S REMARRIAGE ANNUITY PAYMENTS TO A WIDOW OF A DECEASED MEMBER UNDER 10 U.S.C. 1434 OF THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN WHICH WERE TERMINATED BECAUSE THE WIDOW REMARRIED IN NEVADA, MAY BE RESUMED FROM THE DATE OF TERMINATION SINCE A CALIFORNIA STATE COURT DECLARED SUCH MARRIAGE A NULLITY AND SINCE THE EFFECT OF SUCH DECREE UNDER THE CALIFORNIA CONFLICT OF LAWS RULE IS THAT THE MARRIAGE BECAME VOID AB INITIO WHEN THE DECREE OF ANNULMENT WAS ENTERED.

IN THE MATTER OF REINSTATEMENT OF RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN ANNUITY, JANUARY 17, 1975:

THIS ACTION IS IN RESPONSE TO A LETTER WITH ENCLOSURES, FROM MR. N.R. BRENINGSTALL, CHIEF, ACCOUNTING AND FINANCE DIVISION, HEADQUARTERS AIR FORCE ACCOUNTING AND FINANCE CENTER, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT ON A VOUCHER IN THE AMOUNT OF $6,816 IN FAVOR OF THE UNREMARRIED WIDOW OF A LATE LIEUTENANT COLONEL, RETIRED, IN THE CIRCUMSTANCES DESCRIBED. THE SUBMISSION WAS FORWARDED TO THIS OFFICE BY THE OFFICE OF THE DEPUTY ASSISTANT COMPTROLLER FOR ACCOUNTING AND FINANCE, UNITED STATES AIR FORCE AND HAS BEEN ASSIGNED AIR FORCE SUBMISSION NO. DO-AF-1218 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE SUBMISSION STATES THAT THE MEMBER WAS RETIRED FROM THE UNITED STATES AIR FORCE ON AUGUST 31, 1960, AND DIED ON AUGUST 3, 1966. HAVING PREVIOUSLY ELECTED TO PARTICIPATE IN THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN (RSFPP), A MONTHLY ANNUITY IN THE AMOUNT OF $170.40 WAS ESTABLISHED EFFECTIVE AUGUST 1, 1966, PAYABLE TO THE UNREMARRIED WIDOW OF THE DECEASED RETIREE. THE ANNUITY WAS CONTINUED THROUGH JULY 1970, WHEN HER ENTITLEMENT TERMINATED PURSUANT TO 10 U.S.C. 1434(A)(1) BECAUSE OF HER REMARRIAGE ON JULY 4, 1970.

ON DECEMBER 4, 1972, 2 YEARS AND 5 MONTHS AFTER THE MARRIAGE CEREMONY, THE WIDOW AND HER SECOND HUSBAND SEPARATED. THEREAFTER, A PETITION FOR ANNULMENT WAS FILED IN THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES UNDER SECTION 4425(D) OF THE CALIFORNIA CIVIL CODE, WHICH PROVIDES THAT A MARRIAGE MAY BE DECLARED A NULLITY IF AT THE TIME OF THE MARRIAGE THE CONSENT OF EITHER PARTY WAS OBTAINED BY FRAUD UNLESS SUCH PARTY AFTERWARDS, WITH FULL KNOWLEDGE OF THE FACTS WHICH CONSTITUTED THE FRAUD, FREELY COHABITED WITH THE OTHER AS HUSBAND OR WIFE. ON MAY 22, 1973, THE COURT DECREED THE MARRIAGE TO BE A NULLITY, BUT IT WAS NOT STATED IN THE DECREE WHETHER THE MARRIAGE WAS ANNULLED FROM ITS INCEPTION OR ONLY FROM THE DATE OF THE DECREE. HOWEVER, BASED UPON THAT DECREE, THE CLAIMANT SEEKS REINSTATEMENT OF HER ANNUITY AS THE UNREMARRIED WIDOW OF THE LIEUTENANT COLONEL.

A DECISION BY THIS OFFICE IS REQUESTED ON THE QUESTION AS TO WHETHER THE CLAIMANT, FOLLOWING THE ANNULMENT OF THE REMARRIAGE, QUALIFIES AS THE UNREMARRIED WIDOW OF THE MEMBER AND IF SO, THE DATE ANNUITY PAYMENTS MAY BE RESUMED. IN THIS REGARD, DOUBT IS EXPRESSED AS TO THE PROPRIETY OF SUCH PAYMENT, CITING CERTAIN DECISIONS OF THIS OFFICE CONCERNING VOID AND VOIDABLE MARRIAGES WHICH MAY BE FOR APPLICATION.

SECTION 1434(A) OF TITLE 10, U.S. CODE, PROVIDES THAT AN ELIGIBLE MEMBER MAY MAKE AN ANNUITY UNDER THE RSFPP PAYABLE TO HIS SURVIVING SPOUSE, ENDING WHEN THE SPOUSE DIES OR REMARRIES.

IT IS THE GENERAL RULE THAT THE VALIDITY OF A MARRIAGE IS DETERMINED BY THE LAW OF THE PLACE WHERE CONTRACTED. SEE 37 COMP. GEN. 188 (1957), AND CASES CITED THEREIN. IT IS ALSO THE GENERAL RULE THAT AN ANNULMENT DECREE RENDERS A PURPORTED MARRIAGE VOID FROM THE BEGINNING. SEE 55 C.J.S. 951, NOTE 54. SEE ALSO MCDONALD V. MCDONALD, 58 P.2D 163 (1936); FOLSON V. PEARSALL, 245 F.2D 562 (1952); AND STARACE V. CLEBREZE, 233 F. SUPP. 452 (1964). HOWEVER, IN CERTAIN INSTANCES, THE STATUTES TEND TO RECOGNIZE THAT AN ANNULLED MARRIAGE HAS SUFFICIENT STATUS TO SUPPORT CERTAIN RIGHTS WHICH FLOW FROM THE "MARRIAGE." SEE HAHN V. GRAY, 203 F.2D 625 (1953); NOTT V. FOLSOM, 161 F. SUPP. 905 (1958); GLOSS V. RAILROAD RETIREMENT BOARD, 313 F.2D 568 (1962); AND SADOWITZ V. CELEBREZE, 226 F. SUPP. 430 (1964). SEE ALSO IN THIS REGARD, THE CALIFORNIA CASE OF IN RE GOSNELL'S ESTATE, 146 P.2D 42 (1944), UPON WHICH WE RELIED SIGNIFICANTLY IN ARRIVING AT OUR CONCLUSION IN 37 COMP. GEN. 188, SUPRA.

UNDER THE LAW OF THE STATE OF NEVADA, WHERE THE PURPORTED MARRIAGE TOOK PLACE, A MARRIAGE MAY BE ANNULLED ON THE GROUNDS OF FRAUD AND IF THE CONSENT OF EITHER PARTY WAS OBTAINED BY FRAUD AND THE FRAUD PROVED, THE MARRIAGE SHALL BE VOID FROM THE TIME ITS NULLITY SHALL BE DECLARED BY A COURT OF COMPETENT JURISDICTION. SECTIONS 125.300 AND 125.340, NEVADA REVISED STATUTES.

WHILE IT DOES NOT APPEAR THAT THE NEVADA COURTS HAVE EVER INTERPRETED SECTION 125.340, NEVADA REVISED STATUTES, THE UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF CALIFORNIA, SOUTHERN DIVISION, CONSIDERED IN THE CASE OF SANTUELLI V. FOLSOM, 165 F. SUPP. 224 (1958), A SITUATION WHERE A WIDOW'S SOCIAL SECURITY BENEFITS WERE TERMINATED BECAUSE OF HER REMARRIAGE IN NEVADA. ON THE QUESTION OF THE ANNULMENT OF THAT MARRIAGE IN CALIFORNIA, THE COURT DISTINGUISHED THE FACTS THEREIN FROM THOSE IN THE GOSNELL CASE, SUPRA, AND HELD THAT SINCE A VOID MARRIAGE IS A NULLITY UNDER NEVADA LAW FROM ITS INCEPTION, A VOIDABLE MARRIAGE BECOMES VOID AB INITIO WHEN "A COURT OF COMPETENT AUTHORITY" ENTERS ITS DECREE OF ANNULMENT. ALSO, IN THE CASE OF THURBER V. UNITED STATES, CIVIL ACTION NO. 5729, UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON, NORTHERN DIVISION (1963), INVOLVING THE ANNULMENT IN NEVADA ON THE GROUND OF FRAUD OF A MARRIAGE CELEBRATED IN HAWAII, THE COURT HELD CITING FOLSOM V. PEARSALL, SUPRA, THAT THE PLAINTIFF WAS ENTITLED TO REINSTATEMENT OF ANNUITY UNDER THE RSFPP, FROM THE TIME IT WAS DISCONTINUED, THUS CONCLUDING, IN EFFECT, THAT SHE HAD NOT REMARRIED WITHIN THE MEANING OF 10 U.S.C. 1434(A)(1). A SIMILAR CONCLUSION WAS REACHED IN HOLLAND V. RIBICOFF, 219 F. SUPP. 274 (1962), INVOLVING THE SOCIAL SECURITY LAWS.

IN THE CIRCUMSTANCES AND SINCE THE CALIFORNIA COURT IN THE PRESENT CASE ENTERED A JUDGMENT OF NULLITY AND DECLARED THAT THE PARTIES "BE RESTORED TO THE STATUS OF UNMARRIED PERSONS" THE DECREE MAY BE ACCEPTED AS ESTABLISHING THAT THE CLAIMANT REMAINS THE UNREMARRIED WIDOW OF THE LIEUTENANT COLONEL. SEE B-171355, JANUARY 13, 1971. CF. B-175226, MAY 15, 1972.

WITH REGARD TO THE DATE ON WHICH THE ANNUITY SHOULD BE REINSTATED, IN DECISION B-167960, DATED OCTOBER 23, 1969, WE CONSIDERED THE SITUATION WHERE A STATE COURT OF KANSAS, ON THE BASIS OF THE LAW IN KANSAS, ANNULLED A MARRIAGE WHICH HAD TAKEN PLACE IN NEVADA. WE HELD THAT THE WIDOW WAS ENTITLED TO REINSTATEMENT OF ANNUITY PAYMENTS FROM THE TIME THAT THEY WERE DISCONTINUED. OUR DECISION WAS BASED ON THURBER V. UNITED STATES, CIVIL ACTION NO. 5729 (W.D. WASH. 1963) THE HOLDING OF WHICH WAS THAT A WIDOW, WHO IS ENTITLED REINSTATEMENT OF AN RSFPP ANNUITY, IS ENTITLED TO REINSTATEMENT FROM THE TIME THAT IT WAS DISCONTINUED. IT APPEARS THAT ALL OF THE DECISIONS OF THIS OFFICE SINCE THE DECISION OF OCTOBER 23, 1969, SUPRA, HAVE CONSISTENTLY FOLLOWED THE HOLDING IN THURBER. SEE E.G., B- 171355, JANUARY 13, 1971; B-175226, MAY 15, 1972. OF COURSE, SUCH PAYMENTS MAY NOT BE MADE IF PAYMENT OF THE ANNUITY HAS BEEN MADE TO A CONTINGENT BENEFICIARY AFTER THE SUBSEQUENTLY VOIDED REMARRIAGE AND PRIOR TO THE ANNULMENT.

ACCORDINGLY, THE WIDOW IS ENTITLED TO HAVE HER ANNUITY REINSTATED AND PAID EFFECTIVE WITH THE MONTH OF AUGUST 1970, UNLESS PAID TO A CONTINGENT BENEFICIARY FOR ALL OR PART OF THAT PERIOD AND IF OTHERWISE PROPER. THE VOUCHER ENCLOSED WITH THE SUBMISSION WILL BE RETURNED FOR ACTION IN ACCORDANCE HEREWITH.