B-210542, AUG 23, 1983

B-210542, AUG 23, 1983

DIGEST: 1. ANNUITY PAYMENTS TO THE WIDOW OF A DECEASED MEMBER UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN WHICH WERE TERMINATED AT THE TIME OF THE WIDOW'S SUBSEQUENT MARRIAGE IN NEVADA IN OCTOBER 1963, MAY BE PAID FOR THE PERIOD RETROACTIVE TO SEPTEMBER 1977 WHEN PAYMENTS TO THE CONTINGENT BENEFICIARIES WERE DISCONTINUED SINCE A NEVADA COURT ENTERED A DECREE OF ANNULMENT IN DECEMBER 1963, AS A RESULT OF HER ALLEGATIONS OF FRAUD. UNDER NEVADA LAW THE MARRIAGE BECAME VOID AB INITIO WHEN THE DECREE OF ANNULMENT WAS ENTERED. 2. IN DETERMINING THE EFFECT OF A DECEMBER 27, 1963 ANNULMENT OF A MARRIAGE WE WILL FOLLOW THE DECISION IN THURBER V. UNITED STATES (W. D. WASH., N. D. OCTOBER 28, 1963) WHICH HELD THAT UNDER NEVADA LAW AN ANNULMENT OF A MARRIAGE BY A COURT OF COMPETENT JURISDICTION ON THE GROUNDS OF FRAUD ENTITLED THE PLAINTIFF THEREIN TO REINSTATEMENT OF AN ANNUITY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN.

ALICE S. BURDEN:

THIS ACTION IS IN RESPONSE TO A REQUEST FOR AN ADVANCE DECISION FROM LIEUTENANT COLONEL WILLIAM T. FLYNN, JR., ACCOUNTING AND FINANCE OFFICER, HEADQUARTERS, AIR FORCE ACCOUNTING AND FINANCE CENTER, AS TO WHETHER PAYMENT IN THE AMOUNT OF $20,882.84 REPRESENTING REINSTATEMENT OF AN ANNUITY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN MAY BE MADE TO MRS. ALICE S. BURDEN FOR THE PERIOD SEPTEMBER 1, 1977, THROUGH AUGUST 31, 1982. THE QUESTION RELATES TO THE EFFECT OF THE DECEMBER 27, 1963 ANNULMENT IN NEVADA OF MRS. BURDEN'S MARRIAGE IN THAT STATE AND WHETHER THE ANNULLED MARRIAGE SHOULD BE CONSIDERED VOID FROM ITS INCEPTION IN LIGHT OF CERTAIN COURT CASES AND DECISIONS OF THIS OFFICE. FOR THE REASONS SET FORTH BELOW, WE HOLD THAT THE REMARRIAGE BECAME VOID AB INITIO (FROM ITS INCEPTION) WHEN THE DECREE OF ANNULMENT WAS ENTERED BY THE NEVADA COURT. THUS, THE PAYMENT OF ANNUITY UNDER THE PLAN MAY BE MADE FROM THE EARLIEST DATE THAT A CONTINGENT BENEFICIARY CEASED RECEIVING THE ANNUITY.

THE SUBMISSION WAS FORWARDED TO THIS OFFICE BY THE OFFICE OF THE DEPUTY ASSISTANT COMPTROLLER FOR ACCOUNTING AND FINANCE AND HAS BEEN ASSIGNED AIR FORCE SUBMISSION NO. DO-AF-1412 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

ON JULY 21, 1960, LIEUTENANT COLONEL OLIVER D. BURDEN, USAF, ELECTED TO PARTICIPATE IN THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. SECS 1431-1446, AT ONE-HALF REDUCED RETIRED PAY TO PROVIDE AN ANNUITY TO HIS SPOUSE AND UPON HER DEATH OR REMARRIAGE TO HIS SURVIVING CHILDREN. THE MEMBER RETIRED ON OCTOBER 10, 1960, AND DIED ON OCTOBER 27, 1960. THE MEMBER'S WIDOW BEGAN RECEIVING A MONTHLY SURVIVOR ANNUITY PAYMENT IN OCTOBER 1960 WHICH CONTINUED UNTIL HER REMARRIAGE ON OCTOBER 9, 1963. THE ANNUITY WAS THEN PAID TO THE SURVIVING CHILDREN UNTIL THE YOUNGEST CHILD REACHED 18 YEARS OF AGE ON SEPTEMBER 8, 1977. IN RESPONSE TO THE SURVIVING WIDOW'S PETITION FOR ANNULMENT ON THE GROUNDS OF FRAUD HER REMARRIAGE IN NEVADA WAS DECLARED "NULL AND VOID" BY A NEVADA COURT ON DECEMBER 27, 1963. THUS, THE QUESTION WHICH ARISES IS WHETHER FOR THE PURPOSES OF THE PLAN, MRS. BURDEN WAS CONSIDERED AS HAVING REMARRIED.

UNDER THE LAW OF THE STATE OF NEVADA, WHERE THE MARRIAGE AND THE ANNULMENT 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 WE HAVE FOUND NO REPORTED CASE IN NEVADA COURTS INTERPRETING 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 MARRIAGE IN NEVADA. ON THE QUESTION OF THE ANNULMENT OF THAT MARRIAGE IN CALIFORNIA, THE COURT 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, THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON, NORTHERN DIVISION, DECIDED ON OCTOBER 28, 1963, THAT THE ANNULMENT IN NEVADA OF A MARRIAGE CELEBRATED IN HAWAII ON THE GROUNDS OF FRAUD ENTITLED THE PLAINTIFF TO REINSTATEMENT OF ANNUITY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, FROM THE TIME IT WAS DISCONTINUED. THUS, THE COURT, IN EFFECT, CONCLUDED THAT SHE HAD NOT REMARRIED WITHIN THE MEANING OF 10 U.S.C. SEC. 1434(A)(1). A SIMILAR CONCLUSION WAS REACHED IN HOLLAND V. RIBICOFF, 219 F.SUPP. 274 (D. OREGON 1962), INVOLVING THE SOCIAL SECURITY LAWS.

THE SANTUELLI AND THURBER CASES WERE FOLLOWED IN B-167960, OCTOBER 23, 1969, B-171355, JANUARY 13, 1971, AND 54 COMP.GEN. 600 (1975).

THE AIR FORCE ASKS WHETHER OUR DECISION IN 54 COMP.GEN. 600 (1975) AND OTHER DECISIONS DATING BACK TO 1969 WHICH CITED WITH APPROVAL THE THURBER CASE WOULD BE FOR APPLICATION WHERE THOSE DECISIONS WERE RENDERED SUBSEQUENT TO THE ANNULMENT OF MRS. BURDEN'S REMARRIAGE. THE AIR FORCE NOTES THAT ITS DENIAL OF MRS. BURDEN'S CLAIM FOR REINSTATEMENT OF HER ANNUITY WAS MADE SUBSEQUENT TO OUR DECISION AT 54 COMP.GEN. 600 (1975).

THE EARLIER VIEW OF THIS OFFICE WAS THAT UNDER NEVADA LAW AN ANNULMENT OF A MARRIAGE OPERATED PROSPECTIVELY ONLY AND DID NOT RENDER A MARRIAGE VOID AB INITIO. THIS VIEW WAS SET FORTH AT 37 COMP.GEN. 188 (1957) AND 40 COMP.GEN. 103 (1960). IN 40 COMP.GEN. 103, WE STATED THAT THE PRECEDENTS CONCERNING THE EFFECT OF AN ANNULMENT ON THE STATUS OF A MARRIAGE UNDER NEVADA LAW WERE NOT ENTIRELY UNIFORM. FURTHERMORE, THAT CASE CONCERNED THE CLAIM OF MRS. MURIEL S. THURBER FOR AN ANNUITY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN TO WHICH THE DISTRICT COURT RULED SHE WAS ENTITLED IN ITS OPINION OF OCTOBER 28, 1963.

WHILE 37 COMP.GEN. 188 AND 40 COMP.GEN. 103 HAVE NEVER SPECIFICALLY BEEN OVERRULED, WE DID ACKNOWLEDGE IN DECISION B-142790, MAY 28, 1965, THAT 40 COMP.GEN. 103, MRS. THURBER'S CASE, WOULD NOT BE FOLLOWED IN LIGHT OF THE COURT'S DECISION. HOWEVER, IT IS OUR VIEW THAT THE LAW CONCERNING ANNULMENTS OF MARRIAGES GRANTED IN NEVADA BECAME SETTLED AT THE TIME THE COURT RULED IN THE THURBER CASE, OCTOBER 28, 1963. THIS IS THE CASE EVEN THOUGH THIS OFFICE DID NOT HAVE OCCASION TO CONSIDER AN ANNULMENT UNDER NEVADA LAW AGAIN UNTIL 1969 AND LATER. B-167960, OCTOBER 23, 1969; B-171355, JANUARY 13, 1971, AND 54 COMP.GEN. 600 (1975).

THUS, ALTHOUGH MRS. BURDEN'S ANNULMENT WAS GRANTED PRIOR TO A DECISION OF THIS OFFICE HOLDING THAT AN ANNULMENT IN NEVADA MAY RENDER A MARRIAGE VOID AB INITIO, HER ANNULMENT WAS GRANTED SUBSEQUENT TO THE THURBER RULING, AND THEREFORE IN OUR VIEW THE DISPOSITION OF HER CLAIM MUST BE IN ACCORD WITH THAT RULING.

IN OUR DECISIONS WE HAVE FOLLOWED THE HOLDING IN THURBER THAT THE WIDOW IS ENTITLED TO REINSTATEMENT OF THE ANNUITY FROM THE TIME THAT IT WAS DISCONTINUED. HOWEVER, MRS. BURDEN'S CLAIM WAS NOT PRESENTED TO THIS OFFICE UNTIL JANUARY 19, 1983. SECTION 3702(B) OF TITLE 31, UNITED STATES CODE, PROVIDES THAT A CLAIM COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE MUST BE RECEIVED 6 YEARS AFTER THE CLAIM ACCRUES. THUS, THAT PORTION OF THE CLAIM WHICH ACCRUED PRIOR TO JANUARY 19, 1977, IS BARRED FROM CONSIDERATION.

AS STATED ABOVE, THE AIR FORCE PAID THE ANNUITY TO THE SURVIVING CHILDREN AS CONTINGENT BENEFICIARIES UNTIL THE YOUNGEST CHILD REACHED 18 YEARS OF AGE IN SEPTEMBER 1977. MRS. BURDEN WOULD NOT BE ENTITLED TO RESUMPTION OF THE ANNUITY DURING THE PERIOD THAT PAYMENTS WERE MADE TO A CONTINGENT BENEFICIARY UNLESS THE AGENCY HAD ACTUAL NOTICE OF HER ANNULMENT PRIOR TO THAT DATE. SEE 43 COMP.GEN. 531 (1964) AND B-165627, JANUARY 16, 1969.

ACCORDINGLY, MRS. BURDEN SHOULD BE PAID ANNUITY PAYMENTS UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN FOR AT LEAST THE PERIOD BEGINNING SEPTEMBER 1977 UNLESS THE AIR FORCE RECEIVED NOTICE OF THE ANNULMENT PRIOR TO THAT DATE. IN NO EVENT MAY THE ANNUITY BE PAID FOR ANY PERIOD PRIOR TO JANUARY 19, 1977, EVEN IF THE AIR FORCE HAD NOTICE OF THE ANNULMENT SINCE THAT PORTION OF THE CLAIM IS BARRED.

PAYMENT SHOULD BE MADE TO MRS. BURDEN IN ACCORDANCE WITH THE ABOVE.