B-103120, JUL 30, 1951

B-103120, JUL 30, 1951

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL J.F. WHITTON, JR., F.C., DISBURSING OFFICER:

THERE HAS BEEN RECEIVED BY INDORSEMENT OF APRIL 30, 1951, FROM THE CHIEF OF FINANCE OF THE ARMY, YOUR LETTER OF MARCH 26, 1951, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER, TRANSMITTED THEREWITH, COVERING THE SIX MONTHS' DEATH GRATUITY IN THE CASE OF THE LATE PAUL E. SCHICK, SECOND LIEUTENANT, INFANTRY. THE VOUCHER IS STATED IN FAVOR OF MRS. THERESA L. SCHICK, 9 EDISON ROAD, MANCHESTER, CONNECTICUT, AS "NON-DESIGNATED WIDOW."

SUBMITTED WITH YOUR LETTER WAS A CERTIFIED COPY OF A MARRIAGE LICENSE REFLECTING THE MARRIAGE ON MARCH 24, 1950, AT KANSAS CITY, KANSAS, OF PAUL E. SCHICK OF EAST ROCHESTER, NEW YORK, AND THERESA LOUISE SULLIVAN OF HARTFORD, CONNECTICUT. ALSO, THERE WAS SUBMITTED A CERTIFIED COPY OF AN INSTRUMENT ENTITLED "MARRIAGE BY PROXY," WHICH SHOWS THAT THE SAID MARRIAGE CEREMONY WAS PERFORMED BY THE PROBATE JUDGE PROTEM OF WYANDOTTE COUNTY, KANSAS, THERESA LOUISE SULLIVAN HAVING BEEN PERSONNALLY PRESENT AT THE CEREMONY, PAUL E. SCHICK, HOWEVER, HAVING BEEN REPRESENTED BY A PROXY. IN THIS RESPECT THERE IS NO SHOWING OF ANY INPEDIMENT TO THE RIGHT OF EITHER OF THE SAID PARTIES TO CONTRACT A VALID MARRIAGE AT THE TIME OF SUCH PROXY MARRIAGE.

IN DECISION OF FEBRUARY 7, 1945, B-46242, 24 COMP. GEN. 595, IT WAS HELD QUOTING THE SYLLABUS:

"GENERALLY, IN THE ABSENCE OF A STATUTE OR DECISION OF A PROPER COURT TO THE EFFECT THAT MARRIAGES BY PROXY 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.'"

SUBSEQUENT DECISIONS OF THIS OFFICE HAVE BEEN TO THE SAME EFFECT. FOR EXAMPLE, THE MARRIAGES BY PROXY CONSIDERED IN DECISIONS OF JUNE 13, 1945, B-49442; NOVEMBER 2, 1945, B-51263, 25 COMP. GEN. 369; AND NOVEMBER 26, 1945, B-52248, WERE NOT RECOGNIZED AS CREATING A VALID MARITAL STATUS, IT APPEARING IN EACH OF THOSE CASES THAT THE PERSONS CONCERNED WERE DOMICILED IN THE UNITED STATES AND THAT MARRIAGES BY PROXY HAD NOT BEEN RECOGNIZED BY STATUTE OR JUDICIAL DECISION IN THE PARTICULAR JURISDICTION INVOLVED. IN B-55582, FEBRUARY 2, 1946, THE MARRIAGE OF AN ARMY OFFICER TO A RESIDENT OF PUERTO RICO BY PROXY IN PUERTO RICO - WHERE PROXY MARRIAGE IS AUTHORIZED BY STATUTE - WAS RECOGNIZED AS VALID; AND IN B-54600, JUNE 21, 1949, IT WAS CONCLUDED THAT THE PROXY MARRIAGE THERE INVOLVED, WHICH WAS PERFORMED IN KANSAS, WAS VALID BECAUSE A PROBATE COURT IN ILLINOIS, THE DOMICILE OF A DECEASED OFFICER, HAD GRANTED LETTERS OF ADMINISTRATION TO THE WIDOW NOTWITHSTANDING THE FACT THAT THE OFFICER HAD BEEN REPRESENTED BY PROXY AT THEIR MARRIAGE CEREMONY.

SINCE THE DECISION OF FEBRUARY 7, 1945, THE STATUS OF PROXY MARRIAGES HAS BEEN THE SUBJECT OF JUDICIAL DECISION IN SEVERAL STATE AND FEDERAL COURTS. THE ILLINOIS PROBATE COURT CASE JUST ABOVE REFERRED TO IS ONE; SOME OTHERS ARE UNITED STATES V. LAYTON, 68 F. SUPP. 247 (FLORIDA 1946. MARRIAGE IN FLORIDA BETWEEN A WOMAN IN FLORIDA AND A SOLDIER IN SCOTLAND.); FERRARO V. FERRARO, 77 N.Y.S. 2ND 246, AFFIRMED AS FERNANDES V. FERNANDES, 87 N.Y.S. 2ND 707 (NEW YORK 1948. MARRIAGE IN THE DISTRICT OF COLUMBIA BETWEEN A WOMAN IN THE DISTRICT OF COLUMBIA AND A SOLDIER IN THE EUROPEAN THEATER.); HARDIN V. DAVIS, 16 OHIO SUPP. 19 (OHIO 1945. MARRIAGE IN MEXICO WHERE BOTH PARTIES TO THE MARRIAGE WERE REPRESENTED BY PROXIES.); RESPOLE V. RESPOLE, 70 N.E.2D 465, 170 A.L.R. 943 (OHIO 1946. MARRIAGE IN WEST VIRGINIA BETWEEN A WOMAN IN WEST VIRGINIA AND A SOLDIER IN BURMA.); AND UNITED STATES V. BARRONS, 91 F. SUPP. 319 (CALIFORNIA 1950. PROXY MARRIAGE IN NEVADA BETWEEN A WOMAN IN NEVADA AND A SOLDIER IN SARDINIA.). ALSO SEE THE ANNOTATION AT 170 A.L.R. 947.

IN THE BARRONS CASE, SUPRA, THE UNITED STATES BROUGHT SUIT AGAINST THE FATHER OF A DECEASED ARMY OFFICER AND THE WOMAN SUCH OFFICER HAD MARRIED ON JULY 20, 1944, IN RENO, NEVADA, A REPRESENTATIVE OF THE AMERICAN RED CROSS ACTING AS HIS PROXY, TO ASCERTAIN WHICH OF THE DEFENDANTS WAS ENTITLED TO THE PROCEEDS OF HIS NATIONAL SERVICE LIFE INSURANCE POLICY. THE COURT HELD THAT THE MARRIAGE WAS VALID, AND IN THE COURSE OF ITS OPINION STATED (PAGE 321):

"IN DETERMINING WHETHER THE WIDOW OF WILLIAM J. BARRONS IS ENTITLED TO RECEIVE INSURANCE PROCEEDS AS THE NAMED BENEFICIARY OF HER HUSBAND, THE COURT SHOULD BE GUIDED, WHERE POSSIBLE, BY PRINCIPLES WHICH WILL ESTABLISH FEDERAL UNIFORMITY. *** IN THIS INSTANCE, THE LAW OF NEVADA NO LONGER AUTHORIZES COMMON LAW MARRIAGES BUT IT IS SILENT AS TO THE STATUS OF PROXY MARRIAGES. SUCH MARRIAGES ARE DIFFERENT FROM COMMON LAW COHABITATION; PROXY MARRIAGES HAVE LEGAL SANCTITY ATTACHED TO THEM BY REASON OF THE FORMALITY AND SOLEMNITY OF THE PROCEEDINGS WHICH ARE PERFORMED BY A PUBLIC OFFICIAL."

"IT IS PUBLIC POLICY TO SUSTAIN MARRIAGES WHICH ARE ENTERED INTO IN GOOD FAITH. RESPOLE V. RESPOLE, OHIO COM. P., 70 N.E. 2D 465, 170 A.L.R. 943.

SUCH RECENT JUDICIAL DECISIONS TEND TO CLARIFY THE STATUS OF MARRIAGE BY PROXY OF INDIVIDUALS DOMICILED IN THE UNITED STATES AND INDICATE THAT SUCH MARRIAGES MIGHT BE HELD TO BE VALID IF PERFORMED IN A JURISDICTION WHICH RECOGNIZES COMMON-LAW MARRIAGE, UNLESS, OF COURSE, SUCH MARRIAGE IS PROHIBITED BY STATUTE OR HAS BEEN HELD TO BE INVALID BY JUDICIAL DECISION.

IT IS UNDERSTOOD THAT WHILE PROXY MARRIAGE IS NOT EXPRESSLY AUTHORIZED BY THE STATUTES OF KANSAS, SUCH A MARRIAGE IS NOT PROHIBITED BY THE STATUTES OF THAT JURISDICTION OR HELD TO BE INVALID BY JUDICIAL DECISION. ON THE OTHER HAND, COMMON-LAW MARRIAGE IS RECOGNIZED IN KANSAS, STATE V. WALKER, 35 KAN. 297, 13 P. 279, AND THIS OFFICE HAS RECOGNIZED A PROXY MARRIAGE PERFORMED IN KANSAS AS CREATING A VALID MARRIAGE RELATIONSHIP. B-54600, SUPRA. ACCORDINGLY, IT IS CONCLUDED THAT THE MARRIAGE BETWEEN LIEUTENANT SCHICK AND THERESA LOUISE SULLIVAN WAS VALID AND THAT SHE IS HIS WIDOW. AS SUCH SHE IS ENTITLED TO THE SIX MONTHS' DEATH GRATUITY PAYMENT AUTHORIZED BY THE ACT OF DECEMBER 17, 1919, 41 STAT. 367, AS AMENDED, 10 U.S.C. 903.

IF PROPER IN OTHER RESPECTS, PAYMENT ON THE SUBMITTED VOUCHER, WHICH IS RETURNED HEREWITH, IS AUTHORIZED.