B-22252, OCTOBER 6, 1942, 22 COMP. GEN. 316

B-22252, OCTOBER 6, 1942, 22 COMP. GEN. 316

MARRIAGE - ANNULMENT - EFFECT UPON PRIOR RENTAL AND SUBSISTENCE ALLOWANCE PAYMENTS A NAVY OFFICER WHOSE MARRIAGE WAS, UPON THE OFFICER'S OWN PETITION, ANNULLED AND DECREED VOID AB INITIO SHOULD BE REQUIRED TO MAKE RESTITUTION OF AMOUNTS PREVIOUSLY RECEIVED AS RENTAL AND SUBSISTENCE ALLOWANCES PURSUANT TO THE ACT OF JUNE 10, 1922, AS AMENDED, ON ACCOUNT OF A "LAWFUL WIFE.'

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, OCTOBER 6, 1942:

THERE HAS BEEN CONSIDERED YOUR LETTER OF NOVEMBER 29, 1941, REQUESTING DECISION OF A MATTER PRESENTED BY LIEUTENANT COMMANDER JOHN A. FIELDS (SC), U.S. NAVY, DISBURSING OFFICER, U.S. NAVAL AIR STATION, JACKSONVILLE, FLORIDA, AS FOLLOWS:

YOUR DECISION IS REQUESTED AS TO THE RIGHT OF LIEUTENANT FOLEY TO RETAIN PAYMENTS OF RENTAL AND SUBSISTENCE ALLOWANCES CREDITED TO HIM ON CURRENT ROLLS AS AN OFFICER WITH DEPENDENTS (LAWFUL WIFE) PRIOR TO OCTOBER 23, 1941, THE DATE OF THE FINAL DECREE OF ANNULMENT OF HIS PURPORTED MARRIAGE TO NANCY G. FOLEY BY THE CIRCUIT COURT OF FLORIDA IN AND FOR DUVAL COUNTY, FLORIDA.

U.S.C. TITLE 31, SECTION 74, WHICH DERIVES FROM SECTION 8 OF THE ACT OF JULY 31, 1894, 28 STAT. 207, 208, AS AMENDED BY SECTION 304 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921, 42 STAT. 24, PROVIDES THAT DISBURSING OFFICERS, OR THE HEAD OF AN EXECUTIVE DEPARTMENT, OR OTHER ESTABLISHMENT NOT IN OR UNDER ANY OF THE EXECUTIVE DEPARTMENTS, MAY APPLY FOR AND THE COMPTROLLER GENERAL SHALL RENDER HIS DECISION UPON ANY QUESTION INVOLVING A PAYMENT TO BE MADE BY THEM OR UNDER THEM, WHICH DECISION, WHEN RENDERED, SHALL GOVERN THE GENERAL ACCOUNTING OFFICE IN PASSING UPON THE ACCOUNT CONTAINING SAID DISBURSEMENT. THE QUESTION PRESENTED IN YOUR SUBMISSION DOES NOT INVOLVE A PAYMENT "TO BE MADE," BUT BEARS UPON THE LEGALITY OF PAYMENTS ALREADY MADE, AND THE RIGHT OF THE PAYEE TO RETAIN THE AMOUNT THEREOF, UPON THE BASIS OF THE REPRESENTATIONS AND FACTS IN AND WITH YOUR SUBMISSION. HENCE, THE MATTER HARDLY IS ONE FOR AN "ADVANCE DECISION," RATHER BEING PRIMARILY FOR ADMINISTRATIVE CONSIDERATION AND ACTION. IT IS UNDERSTOOD THAT, IN EFFECT, YOUR REQUEST IS FOR AN ADVANCE CONSIDERATION OF THE LEGAL QUESTION ARISING ON THE PAPERS, FOR THE PURPOSE OF PROTECTING THE DISBURSING OFFICER BY TIMELY COLLECTIONS IF IN THE AUDIT OF HIS ACCOUNTS OVERPAYMENTS SHOULD BE FOUND BECAUSE OF THE FACTS NOW APPEARING.

IT MAY BE OBSERVED AT THE OUTSET THAT THE PRESENTATION IS MEAGER, AND LEAVES SOMETHING TO BE DESIRED OF CLARITY AND DETAIL, THUS NECESSITATING SOME RESORT TO ASSUMPTION AND PRESUMPTION IN CONSIDERING THE QUESTION AT HAND. IT IS STATED THAT LIEUTENANT FOLEY WAS MARRIED TO NANCY OWEN AT WARRENTON, VIRGINIA, ON JANUARY 25, 1940, AND THAT ON JUNE 1, 1941, MORE THAN SIXTEEN MONTHS AFTER HIS PURPORTED MARRIAGE,"EVIDENCE OF HIS MARRIAGE WAS SUBMITTED TO THE DISBURSING OFFICER.' IT WILL BE ASSUMED FOR PRESENT PURPOSES THAT SAID EVIDENCE WAS DOCUMENTARY IN CHARACTER AND ADEQUATE TO ESTABLISH THAT A FORMAL MARRIAGE HAD BEEN CELEBRATED AT THE PLACE AND DATE SHOWN, IN CONFORMITY WITH THE LAWS OF VIRGINIA. IT APPEARS ELSEWHERE THAT ON VOUCHERS COVERING THE PERIOD FROM JUNE 1 TO SEPTEMBER 30, 1941, FOLEY GAVE HIS WIFE'S ADDRESS AS HIGHLAND APARTMENTS, 1914 CONNECTICUT AVENUE, WASHINGTON, D.C. IT IS FURTHER STATED THAT CREDIT FOR RENTAL AND SUBSISTENCE ALLOWANCE FOR A DEPENDENT WIFE WAS CONTINUED UNTIL OCTOBER 23, 1941,"WHEN LIEUTENANT FOLEY PRESENTED EVIDENCE OF AN ANNULMENT OF HIS MARRIAGE.' THIS WAS LESS THAN FIVE MONTHS AFTER HE FIRST CLAIMED DEPENDENCY ALLOWANCES.

THE QUESTION, AS STATED IN THE FINAL PARAGRAPH OF THE DISBURSING OFFICER'S LETTER IS WHETHER "IN VIEW OF THE LEGAL EFFECT OF THE ANNULMENT OF MARRIAGE," LIEUTENANT FOLEY IS ENTITLED "TO RETAIN THE ALLOWANCES PAID PRIOR TO NOTICE OF ANNULMENT.'

THE ACT OF JUNE 10, 1922, 42 STAT. 627 AS AMENDED BY THE ACT OF FEBRUARY 21, 1929, 45 STAT. 1254, AND RELATED STATUTES, PROVIDE FOR CERTAIN DEPENDENCY ALLOWANCES TO OFFICERS, UNDER PRESCRIBED CONDITIONS, AND SAID ACT PROVIDES IN PERTINENT SUBSTANCE THAT THE TERM DEPENDENT AS USED IN THE STATUTE "SHALL INCLUDE AT ALL TIMES AND IN ALL PLACES A LAWFUL WIFE.' ITALICS SUPPLIED.)

THE CONCRETE QUESTION FOR CONSIDERATION, THEREFORE, IS WHETHER LIEUTENANT FOLEY, DURING THE PERIOD FOR WHICH HE CLAIMED AND WAS CREDITED WITH DEPENDENCY ALLOWANCES ON HER ACCOUNT ACTUALLY HAD A LAWFUL WIFE, SINCE THE DEPENDENCY STATUTES MAKE THE POSSESSION OF A LAWFUL WIFE A PREREQUISITE TO THE RIGHT OF AN OFFICER TO ALLOWANCES ON ACCOUNT OF A WIFE.

THERE IS FORWARDED A COPY OF A " FINAL DECREE" ENTERED OCTOBER 23, 1941, IN THE CIRCUIT COURT OF FLORIDA IN AND FOR DUVAL COUNTY, FLORIDA, IN THE CAUSE OF FRANCIS D. FOLEY, PLAINTIFF V. NANCY G. FOLEY, DEFENDANT. THE DECREE, MERELY RECITES IN SUBSTANCE BY WAY OF PREAMBLE THAT THE CAUSE CAME ON TO BE HEARD UPON THE SPECIAL MASTER'S REPORT, THE EVIDENCE BEFORE THE SPECIAL MASTER HAVING BEEN TAKEN ORALLY, TRANSCRIPTION TO WRITING BEING WAIVED BY STIPULATION OF PLAINTIFF AND DEFENDANT, WHICH STIPULATION WAS CONFIRMED BY THE COURT, AND THAT COUNSEL FOR PLAINTIFF AND DEFENDANT WERE RESPECTIVELY PRESENT AT THE FINAL HEARING. BUT THE CONCLUSION OF THE DECREE IS CLEAR, EMPHATIC, AND UNEQUIVOCAL, AS FOLLOWS:

IT IS FURTHER CONSIDERED, ORDERED, AND DECREED THAT THE EQUITIES ARE WITH THE PLAINTIFF AND THAT THE PURPORTED MARRIAGE AS ALLEGED IN THE BILL OF COMPLAINT BE AND IS HEREBY DECLARED VOID AB INITIO AS IF THE SAME HAD NEVER BEEN ENTERED, AND THAT SAID MARRIAGE IS HEREBY ANNULLED. ( ITALICS SUPPLIED.)

THE DIFFERENCE BETWEEN DIVORCE FROM A MARRIAGE AND ANNULMENT OF A MARRIAGE IS DISTINCT AND WELL RECOGNIZED. BROADLY SPEAKING, A DIVORCE DISSOLVES AND TERMINATES A LAWFUL MATRIMONIAL RELATION, LEGAL IN ITS INCEPTION, CONSUMMATION AND CONTINUANCE, AND IS GRANTED FOR SOME SUPERVENIENT CAUSE, THAT IS, SOME CAUSE ARISING SUBSEQUENT TO THE MARRIAGE, WHICH IS RECOGNIZED BY THE LAW OF THE JURISDICTION WHERE THE DIVORCE IS GRANTED AS SUFFICIENT TO JUSTIFY THE DISSOLUTION OF THE BOND. A DIVORCE PRESUPPOSES AND IS PREDICATED UPON THE EXISTENCE OF A MARRIAGE RELATION LEGAL IN ALL ITS ASPECTS. THE DIVORCE DECREE IS WHOLLY PRESENT AND PROSPECTIVE IN ITS OPERATION AND EFFECTIVE ONLY FROM THE DATE OF ITS FINALITY, WITHOUT AFFECTING THE LEGALITY OF THE PRIOR MARITAL STATUS OF THE PARTIES. ON THE OTHER HAND, THE ANNULMENT OF A MARRIAGE IS GRANTED ONLY UPON A SHOWING THAT SOME PREEXISTING IMPEDIMENT AS TO EITHER OR BOTH THE PERSONS PRECLUDED THE CONTRACTION OF A LEGAL MARRIAGE BETWEEN THE PARTIES INVOLVED, AND THAT FOR THAT REASON NO VALID MARRIAGE BETWEEN THEM ACTUALLY WAS CONSUMMATED. A DECREE OF ANNULMENT, UNLIKE ONE FOR DIVORCE, IS RETROACTIVE IN ITS EFFECT AND OPERATION TO AND FROM THE INCEPTION OF THE SO-CALLED MARRIAGE, AND SERVES TO STRIP THE MANTLE OF LEGAL SANCTION FROM A RELATION OSTENSIBLY LAWFUL BUT ACTUALLY SPURIOUS. RIDGELY V. RIDGELY, 79 MARYLAND 298, 25 L.R.A., 800; MILLAR V. MILLAR, 175 CALIFORNIA 797, 167 PACIFIC 394. IN THE LATTER CASE THE COURT SAID:

* * * STRICTLY SPEAKING THE WORD "DIVORCE" MEANS A DISSOLUTION OF THE BONDS OF MATRIMONY, BASED UPON THE THEORY OF A VALID MARRIAGE, FOR SOME CAUSE ARISING AFTER THE MARRIAGE, WHILE AN ANNULMENT PROCEEDING IS MAINTAINED UPON THE THEORY THAT, FOR SOME CAUSE EXISTING AT THE TIME OF MARRIAGE, NO VALID MARRIAGE EVER EXISTED. THIS IS TRUE EVEN THOUGH THE MARRIAGE BE ONLY VOIDABLE AT THE INSTANCE OF THE INJURED PARTY, OR * * * "CAPABLE OF BEING ANNULLED.'

AND THE DECREE OF NULLITY IN SUCH A PROCEEDING DETERMINES THAT NO VALID MARRIAGE EVER EXISTED. AND WHERE THE REMEDY OF DIVORCE IS AVAILABLE TO PLAINTIFF ON THE GROUNDS ALLEGED IN AN ACTION FOR ANNULMENT, THE COURTS ORDINARILY WILL NOT ASSUME JURISDICTION OF THE CAUSE FOR ANNULMENT, BUT WILL LEAVE THE PLAINTIFF TO THE OTHER REMEDY. SELBY V. SELBY, 27 R.I. 172, 61 ATL. 142.

APPLYING THE PRINCIPLE AND DISTINCTION THUS STATED TO THE RECORD HERE PRESENTED, IT IMMEDIATELY IS APPARENT THAT LIEUTENANT FOLEY, HAVING GONE THROUGH A FORM OR CEREMONY OF MARRIAGE WITH NANCY OWEN, WENT INTO THE FLORIDA COURT, OF HIS OWN MOTION (HE WAS PLAINTIFF IN THE CAUSE) AND PETITIONED SAID COURT, NOT FOR DIVORCE FROM HIS WIFE BUT FOR THE ANNULMENT OF HIS PURPORTED MARRIAGE TO NANCY OWEN. BOTH PARTIES WERE REPRESENTED BY COUNSEL AND PRESUMABLY BOTH PARTIES INTRODUCED EVIDENCE BEFORE THE SPECIAL MASTER BEARING UPON THE ACTUAL STATUS OF LEGALITY OF THE ALLEGED MARRIAGE RELATION THERETOFORE ENTERED INTO BETWEEN THEM. THE SPECIAL MASTER MADE HIS REPORT TO THE COURT, BASED UPON THAT EVIDENCE,"AND THE SAME HAVING BEEN DULY CONSIDERED" THE COURT CONSIDERED, ORDERED AND DECREED "THAT THE EQUITIES ARE WITH THE PLAINTIFF" AND THAT THE "PURPORTED MARRIAGE AS ALLEGED IN THE BILL OF COMPLAINT" WAS "VOID AB INITIO AS IF THE SAME HAD NEVER BEEN ENTERED.' THE IMPORT OF THIS LANGUAGE IS CONCLUSIVE AND INESCAPABLE. ITS SIMPLE MEANING IS THAT THE PURPORTED MARRIAGE BETWEEN FRANCIS D. FOLEY AND NANCY OWEN WHICH HAD BEEN ENTERED INTO IN WARRENTON, VIRGINIA, ON JANUARY 25, 1940, WAS NOT A VALID MARRIAGE AND THAT NANCY OWEN HAD NOT THEREBY BECOME FOLEY'S LAWFUL WIFE, NOR HE HER LAWFUL HUSBAND. THE EVIDENCE BEFORE THE COURT IS NOT BEFORE THIS OFFICE, BUT IT MAY BE PRESUMED THAT IT WAS CONVINCING AND SUFFICIENT TO SUPPORT THE JUDGMENT AND DECREE OF THE COURT. AND, SINCE FOLEY HIMSELF INSTITUTED THE ACTION FOR ANNULMENT THE INFERENCE IS THAT HE PRESENTED ADEQUATE EVIDENCE THAT BY REASON OF SOME PREEXISTING IMPEDIMENT, NANCY OWEN WAS NOT CAPABLE, AT THE TIME OF THE PURPORTED MARRIAGE, OF CONTRACTING A LEGALLY VALID MARRIAGE WITH HIM. BUT, HOWEVER THAT MAY BE, THE EFFECT OF THE COURT'S DECREE OF ANNULMENT WAS TO HOLD THAT NANCY OWEN WAS NOT AND NEVER HAD BEEN LIEUTENANT FOLEY'S LAWFUL WIFE.

AS SAID ABOVE, THE DEPENDENCY STATUTES REQUIRE THE EXISTENCE OF A LAWFUL WIFE TO ENTITLE AN OFFICER TO DEPENDENCY ALLOWANCES, AND IT FOLLOWS FROM THE FOREGOING THAT SINCE LIEUTENANT FOLEY AT NO TIME HAD A LAWFUL WIFE, HE WAS NOT ENTITLED TO BE PAID SUCH ALLOWANCES ON ACCOUNT OF ONE DURING THE PERIOD INVOLVED, AND SUCH PAYMENTS TO HIM WERE THEREFORE ERRONEOUS AND UNAUTHORIZED. SUCH BEING THE CASE, LIEUTENANT FOLEY SHOULD BE REQUIRED TO MAKE RESTITUTION OF THE AMOUNT SO PAID, BEING EX AEQUO ET BONO LIABLE TO REFUND THEM. HEIDT V. UNITED STATES, 56 F. (2D) 559; WISCONSIN CENTRAL RAILROAD V. UNITED STATES, 164 U.S. 190, 212; UNITED STATES V. WURTS, 303 U.S. 414, 415; UNITED STATES V. BURCHARD, 125 U.S. 176, 180-181. ACCORDINGLY, A CHARGE WILL BE RAISED IN THE GENERAL ACCOUNTING OFFICE FOR THE AMOUNT PAID HIM ON THIS ACCOUNT AND THE ASSISTANCE OF THE NAVY DEPARTMENT IN SECURING THE REFUNDMENT OF THE MONEY WILL BE APPRECIATED.