B-52089, NOVEMBER 29, 1950, 30 COMP. GEN. 210

B-52089, NOVEMBER 29, 1950, 30 COMP. GEN. 210

RENTAL AND SUBSISTENCE ALLOWANCES - DEPENDENTS - FAILURE LEGALLY TO ADOPT MINOR DEPENDENT CHILD AN ARMY OFFICER WHO WAS GIVEN LEGAL CUSTODY AND CONTROL OF A MINOR CHILD WITHOUT EFFECTING ITS LEGAL ADOPTION THROUGH JUDICIAL PROCEEDINGS AS REQUIRED BY THE STATUTES OF THE STATE IN WHICH THE CHILD WAS DOMICILED IS NOT ENTITLED UNDER THE ACT OF JUNE 10, 1922, AS AMENDED, AND THE PAY READJUSTMENT ACT OF 1942, TO INCREASED RENTAL AND SUBSISTENCE ALLOWANCES AS FOR AN OFFICER WITH A DEPENDENT CHILD.

ASSISTANT COMPTROLLER GENERAL YATES TO MAJOR C. L. MCCANLESS, DEPARTMENT OF THE ARMY, NOVEMBER 29, 1950:

THERE WAS FORWARDED TO THIS OFFICE BY FIRST ENDORSEMENT DATED NOVEMBER 2, 1949, OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, YOUR LETTER DATED OCTOBER 12, 1949, WITH ENCLOSURES, IN WHICH YOU, AS CUSTODIAN OF THE RETAINED ACCOUNTS OF THE VARIOUS DISBURSING OFFICERS MENTIONED THEREIN, REQUEST REVIEW AND REVERSAL OF AUDIT EXCEPTIONS TAKEN TO CERTAIN RENTAL AND SUBSISTENCE ALLOWANCE PAYMENTS MADE TO MAJOR RICHARD O. FLINN, JR., O- 260011, CHC, ARMY OF THE UNITED STATES, FOR THE PERIOD MARCH 26, 1942, THROUGH APRIL 1945, AS FOR AN OFFICER WITH A DEPENDENT CHILD ( JACK WHEELER--- LEGAL WARD), THE EXCEPTIONS HAVING BEEN TAKEN FOR THE REASON THAT A "LEGAL WARD" IS NOT WITHIN THE MEANING OF THE TERM "DEPENDENT" AS USED IN THE STATUTES AUTHORIZING PAYMENT OF SUCH ALLOWANCES.

AMONG THE PAPERS ENCLOSED WITH YOUR LETTER ARE PHOTOSTATIC COPIES OF AN AFFIDAVIT AND A RELEASE, BOTH EXECUTED MAY 15, 1942, BY LILLIE MAE CAPES, MOTHER OF JACK WHEELER, AND COPIES OF EXPLANATORY LETTERS WRITTEN BY MAJOR FLINN ON MARCH 31, 1943, AND JUNE 26, 1945, THE ORIGINALS OR COPIES OF WHICH PREVIOUSLY WERE SUBMITTED TO ESTABLISH HIS RIGHT TO RETAIN THE AMOUNTS OF THE QUESTIONED PAYMENTS. LILLIE MAE CAPES' AFFIDAVIT IS TO THE EFFECT THAT PRIOR TO THE EARLY PART OF 1941, JACK WHEELER, THEN RESIDING WITH OTHERS IN CARROLL COUNTY, GEORGIA, GOT INTO TROUBLE AND WAS TAKEN BEFORE THE CITY COURT OF CARROLLTON, CARROLL COUNTY, GEORGIA; THAT HE WAS PAROLED BY THE COURT TO THE CUSTODY AND CONTROL OF THE REVEREND RICHARD O. FLINN, JR.: THAT SHE HAD NOT CONTRIBUTED TO THE SUPPORT OF JACK WHEELER AFTER THAT TIME OR FOR SOMETIME PRIOR THERETO; THAT SHE WAS AND HAD BEEN FOR SEVERAL YEARS UNABLE TO SUPPORT JACK WHEELER AND AFTER HE HAD BEEN PAROLED TO RICHARD O. FLINN, JR., SHE AGREED AND CONSENTED FOR THE SAID RICHARD O. FLINN, JR., TO HAVE THE CUSTODY AND CONTROL OF JACK WHEELER UNTIL HE BECAME 21 YEARS OLD; AND THAT SHE HAD THAT DAY EXECUTED A FORMAL RELEASE GIVING TO RICHARD O. FLINN, JR., FULL CUSTODY AND CONTROL OF JACK WHEELER AND RELINQUISHING ALL OF HER RIGHTS AS A PARENT TO HIM. THE SAID RELEASE READS AS FOLLOWS:

I, THE UNDERSIGNED, MOTHER OF SAID CHILD, BEING SOLICITOUS THAT MY CHILD, JACK WHEELER, BORN 14TH DAY OF MAY, 1942 (SIC) NOW 12 YEARS OF AGE, RECEIVE THE BENEFITS OF A CHRISTIAN HOME, AND RICHARD ORME FLINN, JR., BEING DESIROUS OF GIVING MY SAID CHILD THE BENEFITS OF A CHRISTIAN HOME, DO HEREBY SURRENDER THE SAID CHILD TO THE SAID RICHARD ORME FLINN, JR., AND PROMISE NOT TO INTERFERE IN THE MANAGEMENT, CUSTODY AND CONTROL OF THE SAID CHILD IN ANY RESPECT WHATEVER, OR TO VISIT SAID CHILD WITHOUT THE CONSENT OF THE SAID RICHARD ORME FLINN, JR., AND IN SAID CONSIDERATION OF THE SAID RICHARD ORME FLINN, JR., PROVIDING FOR SAID CHILD, I DO HEREBY RELINQUISH ALL RIGHTS, TITLE AND CLAIM TO THE SAID CHILD HEREIN NAMED, AND HIS SERVICE UNTIL HE BECOMES OF LEGAL AGE.

IN HIS LETTER OF MARCH 31, 1943, MAJOR FLINN STATES, IN PART, THAT IN MAY 1941 HE RECEIVED FROM THE COURTS OF CARROLLTON, CARROLL COUNTY, GEORGIA, THE FULL LEGAL CUSTODY OF JACK WHEELER WHO WAS AT THAT TIME 10 YEARS OF AGE; THAT THE WHEREABOUTS OF THE CHILD'S FATHER HAS BEEN UNKNOWN SINCE ITS BIRTH; THAT IN BINDING THE CHILD OVER TO HIM THE COURTS SECURED AFFIDAVITS OF ITS MOTHER (APPARENTLY THOSE HEREINBEFORE REFERRED TO), AND THAT SINCE RECEIVING THE CHILD HE HAS MAINTAINED A HOME AND PROVIDED FOR THE CHILD'S SUPPORT AND EDUCATION. IN HIS LETTER OF JUNE 26, 1945, HE STATES, IN PART

1. THERE HAS BEEN NO STATUTORY ADOPTION BY ME OF JACK WHEELER AND HENCE I CAN FURNISH NO DECREE OF THE COURT TO THIS EFFECT. NO STATUTORY PROCEEDINGS UNDER GEORGIA CODE, CHAPTER 74-4 WERE TAKEN OUT.

2. THERE HAS BEEN A LEGAL ADOPTION OF JACK WHEELER, HOWEVER, UNDER THE LAWS OF GEORGIA, WHICH LAW WOULD CONTROL HIS STATUS. THERE ARE MANY DECIDED CASES WHICH HOLD THAT CONDUCT OF THE PARTIES ESTABLISHES A LEGAL OR VIRTUAL ADOPTION. ONE OF THE FIRST ATTRIBUTES OF ADOPTION IS THE RIGHT TO INHERIT THE ADOPTING PARENTS PROPERTY AND MOST OF THESE CASES ARISE UNDER THAT STATE OF FACTS. * * * AND CONCLUDES---

THERE IS NOTHING IN THE READJUSTED PAY AND ALLOWANCES ACT OF 1942 REQUIRING A STATUTORY ADOPTION. THE FACT OF DEPENDENCY IS THE CONTROLLING FEATURE * * *.

SECTION 4 OF THE ACT OF JUNE 10, 1922, 42 STAT. 627, AS AMENDED BY THE ACT OF FEBRUARY 21, 1929, 45 STAT. 1254, AND SECTION 4 OF THE PAY READJUSTMENT ACT OF 1942, APPROVED JUNE 16, 1942, 56 STAT. 361, UNDER WHICH ACTS THE PAYMENTS HERE INVOLVED WERE MADE, DEFINE THE TERM "DEPENDENT" AS INCLUDING "CHILDREN," AND PROVIDE THAT THE TERM "CHILDREN" SHALL BE HELD TO INCLUDE "ADOPTED CHILDREN" WHEN SUCH CHILDREN ARE IN FACT DEPENDENT UPON THE PERSON CLAIMING DEPENDENCY ALLOWANCE.

IN REPORT NO. 1359 OF THE COMMITTEE ON MILITARY AFFAIRS, UNITED STATES SENATE, 70TH CONGRESS, SECOND SESSION, ON H.R. 12449, WHICH LATER BECAME THE ACT OF FEBRUARY 21, 1929, SUPRA, AND WHICH ADDED THE WORDS "ADOPTED CHILDREN" TO THE DEFINITION OF THE TERM "CHILDREN" AS IT APPEARED IN THE PARENT ACT, IT WAS SAID AT PAGE 2---

THE CHANGES THAT WILL BE BROUGHT ABOUT BY THE PROPOSED LEGISLATION AND THE EFFECT OF SUCH CHANGES ARE THAT OFFICERS OF THE SERVICES CONCERNED LEGALLY ADOPTING MINOR CHILDREN WILL BE ENTITLED TO THE ALLOWANCES NOW PROVIDED BY LAW FOR OFFICERS HAVING NATURAL MINOR CHILDREN * * *.

IT IS EVIDENT THAT IT WAS THE INTENT OF CONGRESS TO INCLUDE SUCH CHILDREN IN THE ACTS REFERRED TO, AS SUCH ADOPTED CHILDREN ARE, TO ALL INTENTS AND PURPOSES, LEGITIMATE CHILDREN OF THE ADOPTING PARENT AND CONSTITUTE OBLIGATIONS TO SUCH PARENT EQUAL IN ALL RESPECTS TO NATURAL CHILDREN. (ITALICS SUPPLIED.)

THE WORDS "LEGAL" AND "LEGALLY" ARE DEFINED, RESPECTIVELY, IN BLACK'S LAW DICTIONARY, THIRD EDITION, AS---

CONFORMING TO LAW; ACCORDING TO LAW; REQUIRED OR PERMITTED BY LAW; NOT FORBIDDEN OR DISCOUNTENANCED BY LAW; GOOD AND EFFECTUAL IN LAW.

COGNIZABLE IN COURTS OF LAW, AS DISTINGUISHED FROM COURTS OF EQUITY; CONSTRUED OR GOVERNED BY THE RULES AND PRINCIPLES OF LAW, IN CONTRADISTINCTION TO RULES OF EQUITY; AND AS---

LAWFULLY; ACCORDING TO LAW.

IN LEGAL CONTEMPLATION, ADOPTION IS THE ACT BY WHICH THE PARTIES THERETO ESTABLISH THE RELATIONSHIP OF PARENT AND CHILD BETWEEN PERSONS NOT SO RELATED BY NATURE. ADOPTION OF CHILDREN WAS UNKNOWN TO THE COMMON LAW; IT IS PURELY STATUTORY; DOES NOT DEPEND UPON EQUITABLE PRINCIPLES; AND CAN BE ACCOMPLISHED ONLY IN ACCORDANCE WITH THE CONTROLLING STATUTE, GENERALLY BY A JUDICIAL PROCEEDING IN A COURT OF COMPETENT JURISDICTION. 2 C.J.S., ADOPTION OF CHILDREN, SECS. 1 AND 2; 1 AM.JUR., ADOPTION OF CHILDREN. SECS. 2 AND 3. THUS, CONSIDERING THE LEGISLATIVE INTENT AS SET FORTH IN THE COMMITTEE REPORT, SUPRA, THE LEGAL DEFINITIONS OF THE WORDS "LEGAL" AND "LEGALLY," AND THE HISTORY AND STATUTORY STATUS OF ADOPTION PROCEEDINGS, IT SEEMS CLEAR THAT, IN ORDER TO BE ENTITLED TO THE INCREASED ALLOWANCES AUTHORIZED TO BE PAID TO AN OFFICER ON ACCOUNT OF "ADOPTED CHILDREN," THERE MUST BE SHOWN A LEGAL ADOPTION, THAT IS, ONE ACCOMPLISHED ACCORDING TO STATUTE. SEE BUTLER V. UNITED STATES, 74 C.1CLS. 672, AND GROS V. MILLERS' INDEMNITY UNDERWRITERS, 153 LA. 257, 95 SO. 709, IN THE LATTER OF WHICH CASES IT WAS STATED, IN PART, ON PAGE 710:

* * * THE WORKMEN'S COMPENSATION ACT DOES NOT, EITHER IN LETTER OR SPIRIT, PROVIDE A METHOD FOR THE ADOPTION OF CHILDREN. IT MERELY DECLARES THAT THE TERMS "CHILD" OR "CHILDREN" SHALL INCLUDE, AMONG OTHERS, ADOPTED CHILDREN; THAT IS TO SAY, CHILDREN WHO HAVE BEEN LEGALLY ADOPTED. "ADOPTION" IS A STATUS CREATED BY SPECIAL LAWS, THE REQUIREMENTS OF WHICH MUST BE STRICTLY COMPLIED WITH UNDER PENALTY OF NULLITY OF THE PROCEEDINGS. * * *

THE LAWS GOVERNING THE ADOPTION OF CHILDREN IN THE STATE OF GEORGIA ARE CONTAINED IN CHAPTER 74-4, CODE OF GEORGIA, ANNOTATED ( ACTS 1933, AND SUBSEQUENT ACTS), AND PROVIDE FOR ADOPTION ONLY BY JUDICIAL PROCEEDING IN THE SUPERIOR COURT OF THE COUNTY IN WHICH THE CHILD MAY BE DOMICILED. CONSTRUING SUCH LAWS, IN THE CASE OF RAHN V. HAMILTON, 144 GA. 644, 87 S.E. 1061, IT IS STATED, IN A SYLLABUS BY THE COURT,"THERE CAN BE NO LEGAL ADOPTION OF A MINOR CHILD (OR ADULT PERSON) IN THIS STATE, EXCEPT AS PROVIDED IN THE CIVIL CODE OF 1910, SECTION 3016 ET SEQ.; " AND IN ALLEN V. MORGAN, 44 S.E.2D 500 (1947), INVOLVING A LATER SIMILAR CODE PROVISION ( ACTS 1941, GA. CODE ANN. SUPP., SECTION 74-403), THE COURT STATED AT PAGE 506---

* * * THE RULES IN ADOPTION CASES ARE QUITE DIFFERENT FROM THOSE INVOLVING CUSTODY ALONE AND FROM CASES INVOLVING VIRTUAL ADOPTION. * * * PERSONS ARE PRESUMED TO KNOW THE LAW AND PARTIES CONTRACTING TO ADOPT CHILDREN IN GEORGIA ARE BOUND TO KNOW THAT ADOPTION CAN ONLY BE ACTUALLY ACCOMPLISHED BY JUDICIAL ACTION UNDER EXISTING LAW. * * *

AS STATED HEREINBEFORE, MAJOR FLINN ADMITS IN HIS LETTER OF JUNE 26, 1945, THAT THERE HAS BEEN NO "STATUTORY ADOPTION" BY HIM OF JACK WHEELER; HOWEVER, HE CONTENDS THAT, UNDER THE LAWS OF GEORGIA, THE DOCUMENTS HEREINBEFORE REFERRED TO, INCLUDING HIS CERTIFICATES AS TO SUPPORT, MAINTENANCE, ETC., OF JACK WHEELER, SHOW A "LEGAL" OR "VIRTUAL" ADOPTION. SINCE, AS STATED BY THE SUPREME COURT OF THE STATE OF GEORGIA, THERE CAN BE NO LEGAL ADOPTION IN THAT STATE EXCEPT IN THE MANNER PROVIDED BY STATUTE, AND SINCE THERE HAS BEEN NO SUCH PROCEEDING BY MAJOR FLINN, IT IS CLEAR THAT THE DOCUMENTS REFERRED TO BY HIM DID NOT BRING ABOUT A "LEGAL" ADOPTION BY HIM OF JACK WHEELER. THERE HAVING BEEN NO LEGAL ADOPTION OF JACK WHEELER WITHIN THE MEANING OF THE ACTS OF JUNE 10, 1922, AS AMENDED, AND JUNE 16, 1942, SUPRA, THE FURTHER CONTENTION THAT THE SAID DOCUMENTS WOULD BE CONSIDERED AS HAVING ACCOMPLISHED A "VIRTUAL" ADOPTION, UNDER THE LAWS OF GEORGIA, NEED NOT BE CONSIDERED. HOWEVER, A FEW MATTERS RELATED THERETO AND COMING IMMEDIATELY TO HAND WILL BE REFERRED TO BRIEFLY.

WHILE THE COURTS OF GEORGIA, IN EQUITY PROCEEDINGS, HAVE RECOGNIZED THE DOCTRINE OF "VIRTUAL ADOPTION" SO AS TO ADJUDGE A CHILD NOT "LEGALLY" ADOPTED ENTITLED TO A NATURAL CHILD'S SHARE IN THE PROPERTY OF A DECEDENT WHO HAS NOT DISPOSED OF HIS PROPERTY BY WILL, AND HAVE HELD THAT THE SPECIFIC WORD "ADOPT" IS NOT NECESSARY BEFORE A CONTRACT IS ENFORCEABLE UNDER THAT DOCTRINE, SAID COURTS HAVE HELD THAT THERE MUST BE A PROVISION IN THE CONTRACT OR AGREEMENT FOR THE ADOPTION OF THE CHILD AND THE CONTRACT OR AGREEMENT MUST COMPREHEND AND INTEND A LEGAL ADOPTION ACCORDING TO STATUTE. TOLER V. GOODIN (1946), 200 GA. 527, 37 S.E.2D 609, 617, AND JONES V. O-NEAL, 194 GA. 49, 20 S.E.2D 585. IN THE PRESENT CASE THERE HAS BEEN SHOWN NO CONTRACT OR AGREEMENT BY MAJOR FLINN TO ADOPT THE SAID JACK WHEELER; RATHER IT IS SHOWN BY THE PAY VOUCHERS ON WHICH HE ( FLINN) CLAIMED THE RENTAL AND SUBSISTENCE ALLOWANCES ON ACCOUNT OF WHEELER THAT MAJOR FLINN REFERRED TO HIM DURING THE ENTIRE PERIOD FROM MARCH 26, 1942, TO APRIL 30, 1945, BY THE NAME " JACK WHEELER," AND AS HIS ,LEGAL WARD," ADOPTION OF THE SAID JACK WHEELER APPARENTLY NOT HAVING BEEN ALLEGED BY FLINN UNTIL THE PAID ALLOWANCES WERE SUBSEQUENTLY QUESTIONED.

ALSO, IT IS NOTED THAT THE MOTHER'S AFFIDAVIT AND RELEASE RELINQUISHED THE CUSTODY, CONTROL, C., OF HER SON, THE SAID JACK WHEELER, ONLY UNTIL "HE BECOMES OF LEGAL AGE.' HENCE, THERE IS DOUBT THAT THERE COULD ARISE UNDER SUCH AN AGREEMENT A STATUS CONSISTENT WITH COMPLETE ADOPTION WITH RIGHTS OF INHERITANCE, SINCE, IF FULLY ADOPTED, THAT RELATIONSHIP WOULD CONTINUE UNTIL DEATH. IN RE KIRBY'S ESTATE (1932), 145 MISC. 756, 261 N.Y.S. 71. BESIDES, THE DOCTRINE OF "VIRTUAL DOPTION" IS INCIDENT TO AN ACTION TO ENFORCE PROPERTY CLAIMS AGAINST A DECEDENT'S ESTATE, AND, EVEN IN UPHOLDING SUCH A REMEDY, THE COURTS DO NOT UNDERTAKE TO CHANGE THE STATUS OF EITHER PARTY, BUT MERELY ENFORCE A CONTRACT WHICH HAS BEEN FULLY PERFORMED ON ONE SIDE, SINCE EQUITY IS NOT CONSIDERED AS HAVING THE POWER TO DECREE AN ADOPTION, ALTHOUGH IT DOES HAVE POWER TO ENFORCE A CONTRACT FULLY PERFORMED ON ONE SIDE. 2 C.J.S., ADOPTION OF CHILDREN, SEC. 27; ALSO CAULFIELD V. NOONAN (1940), 229 IOWA 955, 295 N.W. 466, 472.

WHATEVER MAY BE THE RELATIONSHIP ARISING BETWEEN MAJOR FLINN AND JACK WHEELER UNDER THE ABOVE-DESCRIBED CIRCUMSTANCES, IT IS CLEAR FROM WHAT HAS BEEN SAID HEREINBEFORE THAT THERE RESULTED NO "LEGAL" ADOPTION. THERE HAVING BEEN NO "LEGAL" ADOPTION, IT MAY NOT BE CONSIDERED THAT DURING THE PERIOD THE ALLOWANCES WERE PAID MAJOR FLINN HAD AN "ADOPTED CHILD" WITHIN THE MEANING OF THE ACTS OF JUNE 10, 1922, AS AMENDED, AND JUNE 16, 1942, SUPRA. HENCE, THE AUDIT ACTION IN WITHHOLDING CREDIT FOR THE PAYMENTS SO MADE WAS CORRECT. HOWEVER, THOSE PAYMENTS NOW HAVE BEEN PASSED TO CREDIT IN THE ACCOUNTS OF THE DISBURSING OFFICERS CONCERNED PURSUANT TO THE PROVISIONS OF THE ACT OF JULY 26, 1947, 61 STAT. 493. SINCE, HOWEVER, SUCH PAYMENTS WERE ILLEGAL AS TO THE PAYEE, THE TOTAL AMOUNT THEREOF SHOULD BE REFUNDED TO THE UNITED STATES. ACCORDINGLY, A CHARGE WILL BE RAISED BY THE CLAIMS DIVISION OF THIS OFFICE AGAINST MAJOR FLINN FOR THE AMOUNT OF THE ALLOWANCES SO PAID, AND SUCH STEPS WILL BE TAKEN AS MAY BE NECESSARY TO ENFORCE COLLECTION THEREOF FROM HIM.