B-28900, JULY 30, 1943, 23 COMP. GEN. 71

B-28900, JULY 30, 1943, 23 COMP. GEN. 71

RENTAL AND SUBSISTENCE ALLOWANCES - CHILDREN - PROOF OF DEPENDENCY IN VIEW OF THE UNRESTRICTED LANGUAGE IN SECTION 4 OF THE PAY READJUSTMENT ACT OF 1942 DEFINING THE TERM "DEPENDENT" TO "INCLUDE AT ALL TIMES AND IN ALL PLACES * * * UNMARRIED CHILDREN UNDER TWENTY-ONE YEARS OF AGE," AN OFFICER CLAIMING INCREASED SUBSISTENCE AND RENTAL ALLOWANCES ON ACCOUNT OF LEGITIMATE UNMARRIED CHILDREN UNDER 21 YEARS OF AGE GENERALLY IS RELIEVED OF ANY BURDEN OF PROOF THAT THE CHILDREN ARE IN FACT DEPENDENT ON HIM. EXCEPT WHERE IT IS SHOWN THAT A DIVORCED OFFICER CLAIMING INCREASED SUBSISTENCE AND RENTAL ALLOWANCES UNDER THE PAY READJUSTMENT ACT OF 1942 ON ACCOUNT OF LEGITIMATE UNMARRIED CHILDREN UNDER 21 YEARS OF AGE HAS BEEN ABSOLVED FROM THE RESPONSIBILITY TO SUPPORT THE CHILDREN, OR THAT THEY HAVE BEEN EMANCIPATED, OR THAT THE OFFICER HAS REFUSED TO SUPPORT THEM, THIS OFFICE WILL NOT QUESTION OTHERWISE PROPER PAYMENTS OF INCREASED ALLOWANCES TO THE DIVORCED OFFICER ON THEIR ACCOUNT.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JULY 30, 1943:

THERE HAS BEEN RECEIVED YOUR LETTER OF JUNE 18, 1943, TRANSMITTING A LETTER FROM LIEUTENANT O. F. MCCLOW, U.S.C.G., WITH ENDORSEMENT THEREON FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS WITH RESPECT TO THE RIGHT OF LIEUTENANT (JG) JOHN R. HARRIS, U.S.C.G., TO INCREASED SUBSISTENCE AND RENTAL ALLOWANCES AS FOR AN OFFICER WITH DEPENDENT (MINOR CHILD IN CUSTODY OF FORMER WIFE). YOU REQUEST DECISION WHETHER THE RULING ANNOUNCED IN DECISION B-28900 DATED JANUARY 9, 1943, IS APPLICABLE IN DETERMINING THE RIGHT OF LIEUTENANT HARRIS TO INCREASED SUBSISTENCE AND RENTAL ALLOWANCES AS FOR AN OFFICER WITH DEPENDENT (MINOR CHILD IN THE CUSTODY OF HIS FORMER WIFE) ON AND AFTER JUNE 1, 1942, IN VIEW OF THE UNRESTRICTED LANGUAGE USED IN SECTION 4 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 361.

IT APPEARS THE OFFICER WAS DIVORCED BY A DECREE OF SUPERIOR COURT, STATE OF WASHINGTON, ON NOVEMBER 19, 1937, THE DECREE BECOMING FINAL MAY 25, 1938; THAT BY THE TERMS OF THE DECREE THE CUSTODY OF THE TWO MINOR CHILDREN OF THE MARRIAGE WAS AWARDED TO THE MOTHER AND THE OFFICER WAS REQUIRED TO PAY HIS FORMER WIFE FOR THEIR CARE AND SUPPORT THE SUM OF $125 PER MONTH TO AND INCLUDING JUNE 1, 1938, AND $80 PER MONTH THEREAFTER UNTIL THE YOUNGER OF THE SAID CHILDREN SHALL HAVE REACHED THE AGE OF MAJORITY. LIEUTENANT (JG) HARRIS CERTIFIES THAT HE HAS MADE THE PAYMENTS AS REQUIRED BY THE DECREE. IT APPEARS THAT THE OFFICER'S FORMER WIFE HAS REMARRIED LIEUTENANT C. W. BILZ, UNITED STATES COAST GUARD, AND THAT THE MINOR CHILDREN RESIDE IN THE HOUSEHOLD OF THE STEPFATHER, WHO, FOR THE PERIOD OF THE OFFICER'S CLAIM CONSIDERED IN B-28900, JANUARY 9, 1943, WAS NOT ASSIGNED GOVERNMENT QUARTERS.

SECTION 4 OF THE PAY READJUSTMENT ACT OF 1942 PROVIDES:

THE TERM "DEPENDENT" AS USED IN THE SUCCEEDING SECTION OF THIS ACT SHALL INCLUDE AT ALL TIMES AND IN ALL PLACES A LAWFUL WIFE AND UNMARRIED CHILDREN UNDER TWENTY-ONE YEARS OF AGE. IT SHALL ALSO INCLUDE THE FATHER OR MOTHER OF THE PERSON CONCERNED PROVIDED HE OR SHE IS IN FACT DEPENDENT ON SUCH PERSON FOR HIS OR HER CHIEF SUPPORT: PROVIDED, THAT THE TERM "CHILDREN" SHALL BE HELD TO INCLUDE STEPCHILDREN AND ADOPTED CHILDREN WHEN SUCH STEPCHILDREN OR ADOPTED CHILDREN ARE IN FACT DEPENDENT UPON THE PERSON CLAIMING DEPENDENCY ALLOWANCE.

LIEUTENANT MCCLOW STATES THAT IN VIEW OF THE ABOVE-QUOTED PROVISION OF THE ACT, AND IN VIEW OF THE INTERPRETATION PLACED THEREON BY PARAGRAPH 21, COAST GUARD FINANCE CIRCULAR 74-42 DATED JUNE 17, 1942, HIS OFFICE HAS PAID LIEUTENANT HARRIS INCREASED ALLOWANCES ON ACCOUNT OF "DEPENDENT " CHILDREN FROM JUNE 1, 1942.

SECTION 4 OF THE ACT OF JUNE 10, 1922, 42 STAT. 627, PRIOR TO THE AMENDMENT THERETO OF FEBRUARY 21, 1929, STAT. 1254, READ IN PART AS FOLLOWS:

THAT THE TERM "DEPENDENT" AS USED IN THE SUCCEEDING SECTIONS OF THIS ACT SHALL INCLUDE AT ALL TIMES AND IN ALL PLACES A LAWFUL WIFE AND UNMARRIED CHILDREN UNDER TWENTY-ONE YEARS OF AGE. * * *

IN CONSTRUING THIS SECTION THE UNITED STATES COURT OF CLAIMS SAID IN ROBEY V. UNITED STATES, 71 C.1CLS. 561:

* * * THAT WHILE THE LANGUAGE OF SECTION 4 MAKES A "LAWFUL WIFE" A "DEPENDENT" "AT ALL TIMES AND IN ALL PLACES," AND RELIEVES THE PLAINTIFF FROM THE NECESSITY OF MAKING PROOF OF SUCH DEPENDENCY, HE, HAVING FAILED AND REFUSED TO CONTRIBUTE TO HIS WIFE'S SUPPORT, DOES NOT COME WITHIN THE INTENT AND MEANING OF THE STATUTE AND SHOULD NOT RECOVER.

IT HAS BEEN HELD THAT WHERE A MINOR ENTERS THE SERVICE OF THE ARMED FORCES OF THE UNITED STATES THAT SUCH AN ACT OPERATES AS AN EMANCIPATION AND THAT SUCH EMANCIPATION WORKS A SEVERANCE OF THE FILIAL RELATIONSHIP AS COMPLETELY AS IF THE CHILD WERE OF AGE. IROQUOIS IRON COMPANY V. INDUSTRIAL COMMISSION OF ILLINOIS, 128, N.E. 289, 12 A.L.R. 924. SEE, ALSO, 6 COMP. GEN. 288, AND UNITED STATES V. WILLIAMS, 302 U. S. 46, 51.

IN THE CONSTRUCTION OF SECTION 4 OF THE PAY READJUSTMENT ACT OF 1942 THERE IS FOR CONSIDERATION THE FACT THAT THE CONGRESS BY THE ACT OF JUNE 10, 1922, SUPRA, PROVIDED THAT THE TERM "DEPENDENT" SHOULD INCLUDE AT ALL TIMES AND IN ALL PLACES A LAWFUL WIFE AND UNMARRIED CHILDREN UNDER 21 YEARS OF AGE; THAT BY THE ACT OF FEBRUARY 21, 1929, 45 STAT. 1254,"LEGITIMATE CHILDREN, STEPCHILDREN, AND ADOPTED CHILDREN" WERE DEFINED AS DEPENDENT ONLY WHEN SUCH LEGITIMATE CHILDREN, STEPCHILDREN OR ADOPTED CHILDREN WERE "IN FACT DEPENDENT UPON THE PERSON CLAIMING DEPENDENCY ALLOWANCE; " AND THAT BY ITS LATEST ENACTMENT ON THE SUBJECT THE CONGRESS SPECIFIED A DEGREE OF DEPENDENCY ONLY IN THE CASE OF ADOPTED CHILDREN AND STEPCHILDREN. THIS STATUTORY CHANGE IN THE DEFINITION OF THE TERM ,DEPENDENT" MAKES INESCAPABLE THE CONCLUSION THAT IT WAS THE LEGISLATIVE INTENT GENERALLY TO RELIEVE AN OFFICER CLAIMING INCREASED SUBSISTENCE AND RENTAL ALLOWANCES ON BEHALF OF LEGITIMATE UNMARRIED CHILDREN UNDER 21 YEARS OF AGE OF ANY BURDEN OF PROOF THAT SAID CHILDREN ARE IN FACT DEPENDENT ON HIM. SEE STRAUSS V. UNITED STATES, 73 C.1CLS. 690, 693; RAWLINS V. UNITED STATES, 93 C.1CLS. 231, 236.

ACCORDINGLY, YOU ARE ADVISED THAT EXCEPT WHERE IT IS SHOWN THAT A DIVORCED OFFICER HAS BEEN ABSOLVED FROM THE RESPONSIBILITY TO SUPPORT HIS CHILD OR CHILDREN, OR THAT HIS CHILD OR CHILDREN HAS (HAVE) BEEN EMANCIPATED, OR THAT THE DIVORCED OFFICER HAS REFUSED TO SUPPORT HIS CHILD OR CHILDREN, THIS OFFICE WILL NOT, IN CASES OF DIVORCED OFFICERS QUESTION OTHERWISE PROPER PAYMENTS OF INCREASED ALLOWANCES UNDER THE PAY READJUSTMENT ACT OF JUNE 16, 1942, ON ACCOUNT OF LEGITIMATE UNMARRIED CHILDREN UNDER 21 YEARS OF AGE.