B-65775, OCTOBER 17, 1947, 27 COMP. GEN. 216

B-65775, OCTOBER 17, 1947, 27 COMP. GEN. 216

VALIDITY OF MARRIAGE BY TELEPHONE GENERALLY, IN THE ABSENCE OF A STATUTE OR A DECISION OF A PROPER COURT TO THE EFFECT THAT MARRIAGES BY TELEPHONE ARE AUTHORIZED OR RECOGNIZED IN A PARTICULAR JURISDICTION, SUCH A MARRIAGE WILL NOT BE RECOGNIZED BY THIS OFFICE AS ENTITLING AN OFFICER TO INCREASED RENTAL AND SUBSISTENCE ALLOWANCES ON ACCOUNT OF A "LAWFUL WIFE.'

COMPTROLLER GENERAL WARREN TO CAPT. S. C. HIRSCH, DEPARTMENT OF THE ARMY, OCTOBER 17, 1947:

BY FIRST ENDORSEMENT DATED APRIL 22, 1947, OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, THERE WAS FORWARDED TO THIS OFFICE YOUR LETTER DATED JULY 17, 1946, REQUESTING DECISION WHETHER PAYMENT IS LEGALLY AUTHORIZED ON A VOUCHER, TRANSMITTED THEREWITH, STATED IN FAVOR OF CAPTAIN CHARLES F. HOY, JR., O-757996, AC, AUS, COVERING INCREASED ALLOWANCES AS FOR AN OFFICER WITH DEPENDENTS (LAWFUL WIFE) FOR THE PERIOD FROM MAY 4 TO 31, 1946.

THERE WAS SUBMITTED WITH YOUR LETTER A CERTIFIED COPY OF A MARRIAGE LICENSE AS FOLLOWS:

CHARLES F. HOY, JR. BE IT REMEMBERED, THAT HERETO- WHERE BORN CHARLESTON, WEST VIRGINIA FORE, TO-WIT, ON THE 3RD WHEN BORN JANUARY 21, 1924 DAY OF MAY A.D., 1946,

TO THE FOLLOWING MARRIAGE

DORIS A. BATMAN LICENSE WAS ISSUED, WHERE BORN COVINGTON, KENTUCKY

TO-WIT: WHEN BORN AUGUST 8, 1923 STATE OF INDIANA, FOUNTAIN COUNTY, SS:

TO ALL WHO SHALL SEE THESE PRESENT, GREETINGS

KNOW YE, THAT ANY PERSONS EMPOWERED BY LAW TO SOLEMNIZE MARRIAGE IS HEREBY AUTHORIZED TO JOIN TOGETHER AS HUSBAND AND WIFE

CHARLES F. HOY, JR.

AND DORIS A. BATMAN AND FOR SO DOING, THIS SHALL BE YOUR SUFFICIENT AUTHORITY.

IN TESTIMONY WHEREOF, I, CHARLES F. FREY, CLERK OF THE FOUNTAIN CIRCUIT COURT, HEREUNTO SUBSCRIBE MY NAME AND AFFIX THE SEAL OF SAID COURT AT MY OFFICE IN COVINGTON, THIS 3RD DAY OF MAY, 1946.

( SEAL) (SIGNED) CHARLES F. FREY, CLERK.

BE IT FURTHER REMEMBERED, THAT AFTERWARDS, TO-WIT: ON THE 4TH DAY OF MAY 1946 THE FOLLOWING CERTIFICATE OF MARRIAGE WAS FILED IN MY OFFICE, TO-WIT: STATE OF INDIANA, FOUNTAIN COUNTY, SS:

THIS CERTIFIES, THAT I JOINED IN MARRIAGE AS HUSBAND AND WIFE,

CHARLES F. HOY, JR.

AND DORIS A. BATMAN ON THE 4TH DAY OF MAY, 1946

MORRIS J. MORGAN,

MINISTER, COVINGTON METHODIST CHURCH.

STATE OF INDIANA, FOUNTAIN COUNTY, SS:

I, CHARLES F. FREY, CLERK OF THE CIRCUIT COURT WITHIN AND FOR THE COUNTY OF FOUNTAIN, AND STATE OF INDIANA, DO HEREBY CERTIFY THE FOREGOING TO BE TRUE AND CORRECT COPY OF THE MARRIAGE LICENSE ISSUED TO

CHARLES F. HOY, JR.

AND DORIS A. BATMAN TOGETHER WITH THE RETURN THERETO AS THE SAME APPEARS ON FILE IN MY OFFICE, AND OF RECORD IN VOLUME 33 PAGE 248 OF RECORD OF MARRIAGE NOW IN MY CUSTODY.

IN WITNESS WHEREOF, I HAVE HEREUNTO SUBSCRIBED MY NAME AND AFFIXED THE SEAL OF SAID COURT OF COVINGTON, INDIANA, ON THIS 4TH DAY OF MAY, 1946

( SIGNED) CHARLES F. FREY,

CLERK, FOUNTAIN CIRCUIT COURT.

ALSO SUBMITTED WITH YOUR LETTER WAS A CERTIFICATE DATED MAY 9, 1946, SIGNED BY THE OFFICER AND OTHER PERSONS, WHICH READS--- SUBJECT: MARRIAGE TO CAPTAIN HIRSCH, FINANCE OFFICER.

1. THIS IS TO CERTIFY THAT I, CHARLES F. HOY, JR., WAS JOINED IN HOLY MATRIMONY WITH MISS DORIS ADELE BATMAN ON 4 MAY 1946 BY TELEPHONE FROM NURNBERG, GERMANY, TO COVINGTON, INDIANA, AND IN ACCORDANCE WITH THE LAWS OF THE STATE OF INDIANA.

2. THE APPLICATION, LICENSE, AND COMPLETE LEGAL PROCEEDINGS FOR SAID MARRIAGE TOOK PLACE IN COVINGTON, INDIANA, WITH REV. MORRIS J. MORGAN OFFICIATING.

3. THE MARRIAGE TOOK PLACE AT APPROXIMATELY 1635 HOURS 4 MAY 1946 CENTRAL EUROPEAN SUMMER TIME OVER THE WIRES OF THE AMERICAN TELEPHONE AND TELEGRAPH COMPANY, OVERSEAS SERVICE LINES LOCATED IN NURNBERG, GERMANY.

4. I HAD WRITTEN PERMISSION TO BE MARRIED FROM COL. MARVIN S. ZIPP, COMMANDING OFFICER, 10TH RECONNAISSANCE GROUP.

5. CHAPLAIN BEN W. JACKSON OF THE 495TH AIR SERVICE GROUP WAS PRESENT AT THE NURNBERG OVERSEAS TELEPHONE SERVICE OFFICE, AND MY OTHER OFFICIAL WITNESSES WERE ST LT. FRANK D. FULTON AND 2ND LT. WILLIAM J. FORAKER.

6. THE MARRIAGE TOOK PLACE IN THE FOUNTAIN COUNTY SHERIFF'S OFFICE, COVINGTON, INDIANA, AND OFFICIAL RECORDS MAY BE FOUND THERE.

7. MY WIFE, MRS. DORIS A. HOY, IS RESIDING AT THE PRESENT TIME AT 905 BIGLEY AVENUE, CHARLESTON, WEST VIRGINIA.

8. I, THEREFORE, REQUEST RENTAL ALLOWANCES FOR MRS. DORIS HOY.

( SIGNED) CHARLES F. HOY, JR.

CHARLES F. HOY, JR.

CAPT., AIR CORPS

ASN O-757996

I CERTIFY THAT I WAS PRESENT AND WITNESSED THE MARRIAGE OF CAPT. CHARLES F. HOY, JR., AND MISS DORIS ADELE BATMAN ON 4 MAY 1946 VIA TELEPHONE FROM NURNBERG, GERMANY TO COVINGTON, INDIANA.

( SIGNED) FRANK D. FULTON

FRANK D. FULTON

ST LT., AIR CORPS

( SIGNED) WILLIAM J. FORAKER L/T AC

WILLIAM J. FORAKER

2ND LT., AIR CORPS

( SIGNED) BEN W. JACKSON

BEN W. JACKSON

CAPT., AIR CORPS

CHAPLAIN

SINCE IT APPEARS THAT THE OFFICER'S PURPORTED MARRIAGE WAS PERFORMED BY TELEPHONE AT COVINGTON, INDIANA, ON MAY 4, 1946, WHILE HE WAS STATIONED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES ( NURNBERG, GERMANY), THE VALIDITY OF SAID MARRIAGE IS FOR DETERMINATION UNDER THE LAWS OF THE STATE OF INDIANA. THE STATUTES OF THE STATE OF INDIANA DO NOT EXPRESSLY AUTHORIZE MARRIAGE BY TELEPHONE AND IT DOES NOT APPEAR THAT THE COURTS OF THAT STATE HAVE RECOGNIZED SUCH A MARRIAGE. ALSO, IT DOES NOT APPEAR THAT THE LEGALITY OF SUCH A MARRIAGE HAS BEEN DETERMINED BY THE FEDERAL OR OTHER STATE COURTS. HOWEVER, THE QUESTION OF THE VALIDITY OF A MARRIAGE BY TELEPHONE HAS BEEN CONSIDERED BY TEXT WRITERS AND MEMBERS OF THE LEGAL PROFESSION. IN " KEEZER ON THE LAW OF MARRIAGE AND DIVORCE," THIRD EDITION (1946), SECTION 36, IT IS STATED:

* * * MARRIAGES BY TELEPHONE HAVE NOT BEEN APPROVED BY THE COURTS ALTHOUGH THEY HAVE BEEN ENTERED INTO ON VARIOUS OCCASIONS. IN COMMON LAW STATES SUCH MARRIAGES SHOULD BE LEGAL, IF COHABITATION IS NOT ESSENTIAL.

WHERE AT THE TIME OF SUCH MARRIAGES THE PARTIES ARE IN DIFFERENT STATES, THE CONTRACT IS THAT OF THE STATE FROM WHICH THE ACCEPTOR SPEAKS.

AND SCHOULER, SIXTH EDITION," MARRIAGE, DIVORCE, SEPARATION AND DOMESTIC RELATIONS," VOLUME 2, SECTION 1213, READS---

THE VALIDITY OF A MARRIAGE BY TELEPHONE HAS NEVER BEEN AUTHORITATIVELY SETTLED, BUT INSTANCES OF SUCH MARRIAGES ARE REPORTED DURING THE EXIGENCIES OF WAR TIMES. IF BOTH MAN AND WOMAN ARE AT THE TIME IN STATES WHERE A COMMON-LAW MARRIAGE IS RECOGNIZED, IT SEEMS THAT SUCH A MARRIAGE IS VALID AS A CONTRACT BY TELEPHONE IS VALID, AND NO GREATER CEREMONY SHOULD BE REQUIRED IN SUCH STATES FOR A MARRIAGE THAN FOR ANY OTHER CONTRACT. BUT IN STATES WHERE THE STATUTES REQUIRE CERTAIN CEREMONIES IT SEEMS VERY DOUBTFUL WHETHER SUCH A MARRIAGE WOULD BE SUSTAINED UNDER PRECEDENTS FROWNING ON OFFICIAL ACTS BY TELEPHONE * * *.

IN AN ARTICLE BY W. H. HOWERY, ENTITLED " MARRIAGE BY PROXY AND OTHER INFORMAL MARRIAGES," PUBLISHED IN 13 UNIVERSITY OF KANSAS CITY LAW REVIEW, 48-102 ( DECEMBER 1944--- FEBRUARY 1945), IT IS STATED, AT PAGE 64:

* * * INFORMAL MARRIAGES BY PROXY OR OTHERWISE HAVE TWO CHANCES TO BE UPHELD, AS A COMMON LAW MARRIAGE IN THOSE JURISDICTIONS WHICH STILL RECOGNIZE COMMON LAW MARRIAGES AND WHERE PRESENCE OF THE PARTIES IS DEEMED UNNECESSARY AT THE INCEPTION OF THE MARRIAGE AND WHERE COHABITATION SUBSEQUENT TO THE MARRIAGE CREATION IS NOT DECLARED TO BE AN ESSENTIAL FACTOR DETERMINING THE VALIDITY OF THE MARRIAGE.

ALSO, SEE " MARRIAGE BY TELEPHONE," 21 LAW NOTES (1917), PAGES 142 AND 143, AND VOLUME 4, VIRGINIA LAW REGISTER, NEW SERIES (1918-1919), PAGE 636; " THE VALIDITY OF ABSENTEE MARRIAGE OF SERVICEMEN ( JUNE, 1946)," 55 YALE LAW JOURNAL, 735-753.

COMMON-LAW MARRIAGES ARE RECOGNIZED IN THE STATE OF INDIANA WHEN CONSUMMATED BY COHABITATION AS HUSBAND AND WIFE. IN RE LAMBERT'S ESTATE, 116 IND. APP. 293, 62 N.E.2D 871. IN THAT CONNECTION, IN RESPONSE TO AN INQUIRY FROM THE COMMONWEALTH'S ATTORNEY, PADUCAH, KENTUCKY, AS TO WHETHER THE STATUTES OF THE STATE OF INDIANA PERMIT A MARRIAGE BY PROXY OR LONG DISTANCE TELEPHONE, THE ASSISTANT ATTORNEY GENERAL OF INDIANA, IN AN UNOFFICIAL OPINION DATED JULY 13, 1943, STATED, IN PART---

INDIANA STATUTES REQUIRE A LICENSE TO BE OBTAINED FROM THE CLERK OF THE COUNTY IN WHICH THE FEMALE RESIDES AND THESE APPLICATIONS MUST BE SIGNED IN PERSON AND THE MARRIAGE CEREMONY PERFORMED BY A PERSON AUTHORIZED TO PERFORM MARRIAGE CEREMONIES, AND SUCH PERSON MUST ISSUE A CERTIFICATE THAT SUCH MARRIAGES CEREMONY HAD BEEN PERFORMED. UNDER THESE STATUTES I DO NOT SEE HOW THE CLERK COULD ISSUE A LICENSE BY PROXY WITHOUT VIOLATING THE CRIMINAL STATUTES OF INDIANA, AND THE PERSON PERFORMING THE CEREMONY WOULD ALSO BE GUILTY OF THE VIOLATION OF THE CRIMINAL STATUTES IF HE CERTIFIED THAT A MARRIAGE CEREMONY WAS PERFORMED BY HIM WHEN ONE OF THE CONTRACTING PARTIES WAS NOT ACTUALLY PRESENT.

INDIANA DOES RECOGNIZE A COMMON-LAW MARRIAGE, BUT IN ORDER TO ESTABLISH SUCH A COMMON-LAW MARRIAGE IT IS NECESSARY THAT THE PARTIES HOLD THEMSELVES OUT TO THE GENERAL PUBLIC AS HUSBAND AND WIFE AND THERE MUST BE ACTUAL COHABITATION IN ORDER TO ESTABLISH A COMMON-LAW MARRIAGE.

THEREFORE, IT IS OUR OPINION THAT UNTIL THIS QUESTION HAS BEEN DECIDED BY THE SUPREME COURT OF INDIANA, A MARRIAGE BY PROXY OR OVER THE LONG DISTANCE TELEPHONE IS INVALID UNDER THE LAWS OF THE STATE OF INDIANA.

THE VIEWS EXPRESSED IN THE SAID OPINION WERE ADHERED TO IN A LETTER DATED JULY 13, 1945, FROM THE DEPUTY ATTORNEY GENERAL OF INDIANA TO THE SOLICITOR, UNITED STATES VETERANS' ADMINISTRATION.

MARRIAGE BY TELEPHONE IS AN IRREGULAR CEREMONIAL MARRIAGE, IN THAT AN ATTEMPT IS MADE TO CREATE A VALID CEREMONIAL MARRIAGE WITHOUT FULLY COMPLYING WITH THE STATUTORY REQUIREMENTS PREREQUISITE THERETO, AND, AS SUCH, IS ANALOGOUS TO A MARRIAGE BY PROXY. IN CONSIDERING THE QUESTION WHETHER A MARRIAGE BY PROXY WOULD BE RECOGNIZED BY THIS OFFICE AS ESTABLISHING AN OFFICER'S RIGHT TO INCREASED ALLOWANCES ON ACCOUNT OF A DEPENDENT (LAWFUL WIFE), IT WAS STATED IN A DECISION OF THIS OFFICE DATED FEBRUARY 7, 1945, 24 COMP. GEN. 595, 598---

THUS, WHILE TEXT WRITERS SEEM TO BE OF THE OPINION THAT THE COURTS COULD BE EXPECTED TO HOLD THAT A MARRIAGE BY PROXY IS VALID--- UNLESS EXPRESSLY PROHIBITED BY STATUTE--- IN STATES WHEREIN COMMON LAW MARRIAGES ARE RECOGNIZED, THE ABSENCE OF DECISIONS OF COURTS OF COMPETENT JURISDICTION AS TO THE VALIDITY OF SUCH MARRIAGES AND THE ABSENCE OF STATUTES WITH RESPECT THERETO, LEAVE THE MATTER IN DOUBT. FOR THIS OFFICE TO RECOGNIZE A MARRIAGE BY PROXY AS ESTABLISHING A RELATIONSHIP ENTITLING AN OFFICER OF THE NAVY TO INCREASED ALLOWANCES AS AUTHORIZED FOR AN OFFICER WHO HAS A ,LAWFUL WIFE," WOULD BE A RECOGNITION OF THE VALIDITY OF MARRIAGES BY PROXY WITHOUT THE SUPPORT OF EITHER EXPRESS STATUTORY PROVISIONS OR WOULD BE OF SUCH DOUBTFUL CHARACTER THAT I AM CONSTRAINED TO HOLD THAT, GENERALLY, IN THE ABSENCE OF A STATUTE OR DECISION OF A PROPER COURT TO THE EFFECT THAT SUCH MARRIAGES ARE RECOGNIZED OR AUTHORIZED IN A PARTICULAR JURISDICTION, SUCH MARRIAGES WILL NOT BE RECOGNIZED BY THIS OFFICE AS ESTABLISHING AN OFFICER'S RIGHT TO INCREASED ALLOWANCES ON ACCOUNT OF A "LAWFUL WIFE.'

WHILE THE ABOVE-STATED GENERAL RULE WAS PROMULGATED WITH REFERENCE TO PROXY MARRIAGES, IT IS EQUALLY APPLICABLE TO MARRIAGES BY TELEPHONE. STATED ABOVE, IT DOES NOT APPEAR THAT THE VALIDITY OF SUCH A MARRIAGE HAS BEEN DETERMINED BY THE FEDERAL OR STATE COURTS; AND, IN THE ABSENCE OF DECISIONS BY SUCH COURTS WITH RESPECT THERETO, THE MATTER ADMITS OF TOO MUCH DOUBT FOR THIS OFFICE TO APPROVE PAYMENT OF INCREASED ALLOWANCES TO AN OFFICER ON ACCOUNT OF A DEPENDENT (WIFE) BY REASON OF SUCH A MARRIAGE. ACCORDINGLY, YOU ARE ADVISED THAT, ON THE BASIS OF THE PRESENT RECORD, CAPTAIN HOY IS NOT ENTITLED TO INCREASED ALLOWANCES AS AUTHORIZED FOR AN OFFICER WITH DEPENDENTS (LAWFUL WIFE), AND YOU ARE NOT AUTHORIZED TO MAKE PAYMENT ON THE VOUCHER WHICH, TOGETHER WITH THE OTHER PAPERS SUBMITTED WITH YOUR LETTER, WILL BE RETAINED IN THIS OFFICE.