B-1961, JULY 14, 1939, 19 COMP. GEN. 56

B-1961, JULY 14, 1939, 19 COMP. GEN. 56

DIVORCE - REMARRIAGE WITHIN PROHIBITED PERIOD - VALIDITY OF REMARRIAGE - SIX MONTHS' DEATH GRATUITY PAYMENTS BY WEIGHT OF AUTHORITY, STATUTES PROHIBITING THE REMARRIAGE OF A DIVORCED PERSON DURING THE LIFETIME OF THE FORMER SPOUSE OR A SHORTER PERIOD, BEING PENAL, HAVE NO EXTRATERRITORIAL FORCE, UNLESS BY EXPRESS TERMS OR NECESSARY IMPLICATION SUCH EFFECT MUST BE GIVEN TO THEM. REMARRIAGE IN ANOTHER STATE OF A DIVORCED SOLDIER WITHIN THE PERIOD PROHIBITED BY THE STATUTE OF THE STATE WHERE THE DIVORCE WAS GRANTED, BEING RECOGNIZED AS VALID IN THE STATE WHERE THE DIVORCE WAS GRANTED, IF VALID UNDER THE LAWS OF THE STATE WHERE THE MARRIAGE WAS CELEBRATED, PAYMENT OF SIX MONTHS' DEATH GRATUITY, BECAUSE OF THE DEATH OF THE SOLDIER, TO THE WIFE BY THE SAID REMARRIAGE, IS AUTHORIZED.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO LT. COL. W. M. DIXON, UNITED STATES ARMY, JULY 14, 939:

THERE HAS BEEN RECEIVED THROUGH THE CHIEF OF FINANCE YOUR LETTER DATED FEBRUARY 28, 1939, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO PAY A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF MRS. MARY E. WYNNE,"LAWFUL WIDOW" OF WILLIAM H. WYNNE, NO. 6314516, DECEASED LATE CORPORAL, COMPANY E, FOURTH Q.M. REGIMENT ( DIV.), FOR $289.80, AN AMOUNT STATED AS EQUAL TO 6 MONTHS' PAY OF THE DECEASED AT THE RATE RECEIVED BY HIM AT DATE OF DEATH JANUARY 25, 1939. YOU STATE THAT DOUBT IS ENTERTAINED AS TO WHETHER PAYMENT OF THE GRATUITY MAY BE MADE TO MRS. MARY E. WYNNE IN VIEW OF A CLAIM FOR THE 6 MONTHS' GRATUITY, WHICH YOU ALSO FORWARD, SUBMITTED BY MRS. LILLIE WYNNE, THE FORMER WIFE OF THE SOLDIER.

MRS. LILLIE WYNNE STATES SHE MARRIED THE SOLDIER ON THE 26TH DAY OF DECEMBER 1928; THAT THEY LIVED TOGETHER AS MAN AND WIFE UNTIL AUGUST 10, 1934, WHEN HE ABANDONED HER; THAT ON JANUARY 9, 1936, THE SOLDIER FILED A BILL OF COMPLAINT IN THE CIRCUIT COURT OF CALHOUN COUNTY, ALA., ALLEGING THAT SHE HAD VOLUNTARILY ABANDONED HIM AND PRAYING FOR DIVORCE; THAT SHE WAS DULY SERVED AND ON JANUARY 20, 1936, SHE REPLIED TO SAID PROCEEDINGS WITH ANSWER AND CROSS BILL; THAT THE COURT DETERMINED THAT CROSS- RESPONDENT WILLIAM H. WYNNE AS COMPLAINANT IN THE ORIGINAL BILL WAS NOT ENTITLED TO THE RELIEF PRAYED FOR BY HIM AND GRANTED RELIEF TO HER, AWARDING ALIMONY AND CUSTODY OF THE CHILD. SHE STATES THAT ON JULY 9, 1936, THE SEPARATE MAINTENANCE ALLOTMENT WHICH SHE RECEIVED FROM THE SOLDIER WAS REDUCED TO $15 PER MONTH. SHE FURTHER STATES THAT "AT THE TIME OF THE SEPARATION, SHE AND THE SAID W. H. WYNNE WERE LIVING AT THE POST; THAT AT THE TIME OF THE SEPARATION SHE WENT TO THE HOME OF HER MOTHER, 29 A STREET, JACKSONVILLE, ALA., 6 MILES FROM FORT MCCLELLAN; SHE RESIDED AT THE HOME OF HER MOTHER UNTIL HER DEATH JUNE 103, 1937, WHEN SHE MOVED A BLOCK AWAY, 24 A STREET, JACKSONVILLE, ALA., WHERE SHE HAS SINCE CONTINUOUSLY RESIDED; THAT FROM THE TIME OF THE SEPARATION UNTIL THE DEATH OF THE SAID W. H. WYNNE, HE, AT ALL TIMES, KNEW HER PLACE OF RESIDENCE AND WAS FREQUENTLY AT HER HOME.' IT WOULD APPEAR THE MARITAL DOMICILE WAS IN THE STATE OF ALABAMA.

THERE IS SUBMITTED A CERTIFIED COPY OF AN ORIGINAL DECREE RENDERED BY THE JUDGE OF THE CIRCUIT COURT OF ETOWAH COUNTY, STATE OF ALABAMA, FEBRUARY 4, 1937, IN THE CASE OF WILLIAM H. WYNNE V. LILLIE MAE WYNNE, WHICH DECREE PROVIDES IN PART:

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED BY THE COURT THAT THE BONDS OF MATRIMONY HERETOFORE EXISTING BETWEEN THE COMPLAINANT AND DEFENDANT BE AND THE SAME ARE HEREBY DISSOLVED, AND THE SAID WILLIAM H. WYNNE IS FOREVER DIVORCED FROM THE SAID LILLIE MAE WYNNE FOR AND ON ACCOUNT OF VOLUNTARY ABANDONMENT OF COMPLAINANT'S BED AND BOARD BY THE DEFENDANT, FOR MORE THAN TWO YEARS NEXT BEFORE THE FILING OF THIS BILL OF COMPLAINT.

IT IS FURTHER ORDERED THAT THE SAID WILLIAM H. WYNNE AND LILLIEMAE WYNNE BE AND THEY ARE HEREBY PERMITTED TO AGAIN CONTRACT MARRIAGE UPON CONDITION PRECEDENT, HOWEVER, THAT THE COSTS OF SUIT BE FIRST PAID: PROVIDED, THAT NEITHER PARTY SHALL AGAIN MARRY, EXCEPT TO EACH OTHER, UNTIL SIXTY DAYS AFTER DECREE RENDERED, AND THAT IF AN APPEAL IS TAKEN WITHIN SIXTY DAYS, NEITHER PARTY SHALL AGAIN MARRY, EXCEPT TO EACH OTHER, DURING THE PENDENCY OF SAID APPEAL.

MRS. LILLIE WYNNE AVERS THAT SHE WAS NOT SERVED WITH ANY NOTICE OF THE PROCEEDINGS AND THAT IF NOTICE WAS MADE BY PUBLICATION, NO SUCH NOTICE REACHED HER. ALTHOUGH SHE RESIDED BUT 6 MILES FROM FORT MCCLELLAN, ALA., WHERE THE SOLDIER WAS STATIONED AND APPARENTLY KNEW OF THE DIVORCE, IT IS NOT SHOWN THAT SHE CHALLENGED THE VALIDITY OF THE DIVORCE DECREE WHILE HER FORMER HUSBAND WAS LIVING.

SECTION 7425, CODE OF ALABAMA, 1923, PROVIDES:

WHEN A DECREE HAS BEEN RENDERED GRANTING A DIVORCE IN THIS STATE, THE COURT SHALL DECREE THAT NEITHER PARTY SHALL AGAIN MARRY EXCEPT TO EACH OTHER UNTIL SIXTY DAYS AFTER DECREE RENDERED, AND THAT IF AN APPEAL IS TAKEN WITHIN SIXTY DAYS, NEITHER PARTY SHALL AGAIN MARRY EXCEPT TO EACH OTHER DURING THE PENDENCY OF SAID APPEAL.

YOU SUBMIT A COPY OF A MARRIAGE CERTIFICATE, CERTIFYING THAT WILLIAM H. WYNNE AND MARY E. JACKSON WERE UNITED IN MARRIAGE ON THE 13TH DAY OF FEBRUARY 1937 IN HARALSON COUNTY, GA. THE RIGHT OF THE CLAIMANT MARY E. WYNNE TO PAYMENT OF THE 6 MONTH'S GRATUITY PAY IS DEPENDENT ON WHETHER OR NOT THIS MARRIAGE IN THE STATE OF GEORGIA AND WITHIN 60 DAYS FROM THE DATE OF THE DECREE DISSOLVING THE MARRIAGE OF WILLIAM H. WYNNE AND LILLIE WYNNE IS A VALID MARRIAGE.

IN THE CASE OF LOUGHRAN V. LOUGHRAN, 292 U.S. 216, 230, 78 L.ED. 1219, THERE ARE SET FORTH THE GENERAL PRINCIPLES THAT---

MARRIAGES NOT POLYGAMOUS OR INCESTUOUS, OR OTHERWISE DECLARED VOID BY STATUTE, WILL, IF VALID BY THE LAW OF THE STATE WHERE ENTERED INTO, BE RECOGNIZED AS VALID IN EVERY OTHER JURISDICTION. CITED IN SUPPORT THEREOF ARE THE CASES OF MEISTER V. MOORE, 96 U.S. 76, 24 L.ED. 826; AND TRAVERS V. REINHARDT, 205 U.S. 423, 440, 51 L.1ED. 865, 873.

IN THE CASE OF PONSFORD V. JOHNSON (1847) 2 BLATCHF. 51, FED CAS. NO. 11266, WHERE THE NEW YORK STATUTE DECLARED IT SHOULD NOT BE LAWFUL FOR A DEFENDANT CONVICTED OF ADULTERY TO MARRY AGAIN UNTIL THE COMPLAINANT SHOULD BE ACTUALLY DEAD, THE COURT SAID.

2. WE REGARD THE DECREE OF DIVORCE PRONOUNCED BY THE COURT OF CHANCERY OF THE STATE OF NEW YORK TO BE, IN ITS PURPORT AND BY FORCE OF THE STATUTE OF THE STATE, AN ABSOLUTE DISSOLUTION OF THE MARRIAGE CONTRACT AS TO BOTH PARTIES, AND THAT THE DISQUALIFICATION OR DISABILITY TO MARRY DECLARED BY THE STATUTE, ATTACHED TO PONSFORD, BY WAY OF PENALTY, ONLY WITHIN THE STATE OF NEW YORK, AND DID NOT INCAPACITATE HIM FROM CONTRACTING A SOUND AND VALID MARRIAGE IN THE STATE OF NEW JERSEY, WHERE THE SAME DISABILITY DID NOT EXIST.

3. WE THINK THAT THE VALIDITY OF THE MARRIAGE IN NEW JERSEY WOULD NOT HAVE BEEN AFFECTED IF BOTH PARTIES HAD RESORTED THERE TO EVADE THE PROHIBITORY LAW OF NEW YORK. * * *

THE DECREE OF FEBRUARY 4, 1937, ORDERED, ADJUDGED, AND DECREED THAT THE BONDS OF MATRIMONY ,HERETOFORE EXISTING BETWEEN THE COMPLAINANT AND DEFENDANT BE AND THE SAME ARE HEREBY DISSOLVED.' THIS PROVISION OF THE DECREE EFFECTUALLY DISSOLVED THE MARRIAGE CONTRACT AS OF THAT DATE. THE MARRIAGE OF THE COMPLAINANT WITHIN 60 DAYS FROM THE DATE THE DECREE WAS RENDERED WAS IN DEFIANCE TO THE PROHIBITION CONTAINED IN THE DECREE. WEIGHT OF AUTHORITY, STATUTES OF THE FORMER SPOUSE OR A SHORTER PERIOD, BEING PENAL, HAVE NO EXTRATERRITORIAL FORCE, UNLESS BY EXPRESS TERMS OR NECESSARY IMPLICATION SUCH EFFECT MUST BE GIVEN TO THEM AND, HENCE, THE REMARRIAGE IN ANOTHER STATE OF A DIVORCED PERSON WITHIN THE PERIOD PROHIBITED BY THE LAWS OF THE STATE WHERE THE MARRIAGE WAS CELEBRATED, WILL BE RECOGNIZED AS VALID IN THE STATE WHERE THE DIVORCE WAS GRANTED. 19 C.J. 183. UPON THE EVIDENCE SUBMITTED, YOU ARE AUTHORIZED TO PAY THE VOUCHER IN FAVOR OF MRS. MARY E. WYNNE, RETURNED HEREWITH. THE SUBMISSION OF MRS. LILLIE WYNNE IS TREATED AS A CLAIM WHICH WILL BE SETTLED IN THIS OFFICE.