B-136555, AUGUST 14, 1958, 38 COMP. GEN. 124

B-136555, AUGUST 14, 1958, 38 COMP. GEN. 124

MILITARY PERSONNEL - INCOMPETENTS - GUARDIANS - CONFLICTING GUARDIANSHIPS - RETIRED PAY EVEN THOUGH COURTS OF DIFFERENT JURISDICTIONS APPOINTED DIFFERENT GUARDIANS TO ADMINISTER THE ESTATE OF AN INCOMPETENT RETIRED OFFICER OF THE UNIFORMED SERVICES WHO HAD PERSONAL PROPERTY IN BOTH JURISDICTIONS, THE DETERMINATION BY THE COURT IN THE STATE IN WHICH THE OFFICER AND HIS WIFE WERE LEGAL RESIDENTS AND WHERE ALL PARTIES IN INTEREST APPEARED IN THE GUARDIANSHIP PROCEEDINGS WAS A DEFINITIVE DETERMINATION OF RESIDENCY AND THE GUARDIAN APPOINTED BY THIS COURT MAY BE RECOGNIZED TO RECEIVE THE ACCRUED RETIRED PAY DUE THE INCOMPETENT.

TO LIEUTENANT COLONEL N. P. HANNA, DEPARTMENT OF THE ARMY, AUGUST 14, 1958:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 3, 1958, WITH ENCLOSURES, TRANSMITTED HERE BY FIRST ENDORSEMENT DATED JUNE 23, 1958, OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, REQUESTING DECISION WHETHER PAYMENT MAY BE MADE ON A VOUCHER IN THE AMOUNT OF $1,137.24, IN FAVOR OF THE SAN DIEGO TRUST AND SAVINGS BANK, GUARDIAN, REPRESENTING ACCRUED RETIRED PAY FOR THE PERIOD FEBRUARY 1 THROUGH APRIL 30, 1958, DUE COLONEL CHARLES M. DICKSON, AUS, RETIRED. YOUR REQUEST HAS BEEN ALLOCATED D.O. NO. 354 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT APPEARS THAT ON FEBRUARY 28, 1958, UPON THE PETITION OF COLONEL DICKSON'S WIFE, THE SUPERIOR COURT, SAN DIEGO COUNTY, CALIFORNIA, FOUND THAT COLONEL CHARLES M. DICKSON WAS MENTALLY INCOMPETENT AND UNABLE TO MANAGE HIS AFFAIRS; THAT COLONEL DICKSON AND HIS WIFE WERE LEGAL RESIDENTS OF SAN DIEGO, CALIFORNIA; AND THAT HE HAD AN ESTATE CONSISTING OF PERSONAL PROPERTY LOCATED IN CALIFORNIA AND IN TEXAS. THE COURT APPOINTED THE SAN DIEGO TRUST AND SAVINGS BANK AS GUARDIAN OF THE RETIRED OFFICER'S ESTATE, AND HIS WIFE AS GUARDIAN OF HIS PERSON.

IT FURTHER APPEARS THAT ON MARCH 4, 1958, ON THE APPLICATION OF FRANK L. DICKSON AND CARL G. JOCKUSCH, THE INCOMPETENT OFFICER'S SON AND SON-IN- LAW, RESPECTIVELY, THE COUNTY COURT OF BEXAR COUNTY, TEXAS, MADE A FINDING THAT HE WAS A PERMANENT RESIDENT OF SAN ANTONIO, TEXAS, AND APPOINTED CARL G. JOCKUSCH AS GUARDIAN OF HIS ESTATE.

IT IS SHOWN THAT IN THE CALIFORNIA PROCEEDINGS FRANK L. DICKSON AND CARL G. JOCKUSCH WERE REPRESENTED BY COUNSEL, THAT PERSONAL SERVICE WAS MADE ON COLONEL DICKSON, PRESUMABLY AT THE VETERANS ADMINISTRATION HOSPITAL AT LOS ANGELES, CALIFORNIA, BUT THAT HE WAS UNABLE TO ATTEND COURT BY REASON OF PHYSICAL INABILITY.

YOU REFER TO THE DECISION OF MAY 9, 1932, 11 COMP. GEN. 418, WHEREIN IT WAS HELD, QUOTING THE SYLLABUS:

WHERE THERE ARE TWO GUARDIANS APPOINTED BY COURTS OF DIFFERENT JURISDICTIONS, EACH CLAIMING RETAINER PAY DUE AN INCOMPETENT, SUCH PAY WILL NOT BE PAID TO EITHER GUARDIAN UNTIL ONE OF THE CONFLICTING GUARDIANSHIPS IS SET ASIDE OR CLOSED BY THE COURT MAKING THE APPOINTMENT.

IN THE MATTER HERE CONSIDERED, THERE ARE PRESENT CIRCUMSTANCES WHICH DID NOT EXIST IN THE CITED CASE, NAMELY, THAT ALL PARTIES IN INTEREST APPEARED BEFORE THE CALIFORNIA COURT, THAT THEY WERE REPRESENTED BY COUNSEL, AND THAT THE TEXAS PARTIES ACTUALLY CONTESTED THE CALIFORNIA PROCEEDINGS. HENCE, IT MUST BE CONSIDERED THAT THE COURT'S DETERMINATION AS TO RESIDENCY IN CALIFORNIA IS DEFINITIVE AS TO THE PARTIES CONCERNED. THUS APPEARS THAT THE CALIFORNIA COURT APPOINTED GUARDIANS OF THE PERSON AND ESTATE OF A CALIFORNIA RESIDENT WHO WAS PHYSICALLY PRESENT IN THAT STATE AND THAT SUCH GUARDIANS, IN ADDITION TO THEIR OTHER DUTIES, WERE CHARGED WITH THE RESPONSIBILITY FOR MATTERS MORE PERSONAL THAN CONSERVATION AND ADMINISTRATION OF PROPERTY, SUCH AS THE CARE AND SUPPORT OF THE INCOMPETENT AND HIS DEPENDENT WIFE. HE APPEARS TO HAVE NO OTHER DEPENDENTS. WHILE THE PROPERTY OF THE INCOMPETENT IN TEXAS WOULD HAVE TO BE CONSERVED AND ADMINISTERED BY AUTHORITY OF AN APPOINTMENT IN TEXAS, THAT IS A MATTER OF MINOR CONCERN IN THE PRESENT CASE. IN THE CASE CONSIDERED IN THE DECISION OF MAY 9, 1932, THE INCOMPETENT WAS NOT A RESIDENT OF MASSACHUSETTS WHERE HE WAS CONFINED AND WHERE ONE GUARDIAN WAS APPOINTED. HIS RESIDENCE WAS IN TEXAS WHERE HIS CHILDREN LIVED AND WHERE THE GUARDIAN WAS APPOINTED. THE LATTER WAS AWARDED JUDGMENT FOR THE MONEY INVOLVED. SEE IN RE SPILLANE V. UNITED STATES, 87 C.1CLS. 733. IT IS NOT BELIEVED THAT THE PROCEDURES FOLLOWED IN THE DECISION OF MAY 9, 1932, ARE REQUIRED TO BE APPLIED IN THE PRESENT CASE IN ORDER TO PROTECT THE INTERESTS OF THE UNITED STATES AND THE INCOMPETENT.

IN VIEW OF ALL THE FACTS AND CIRCUMSTANCES AT PRESENT APPEARING, PAYMENT OF THE VOUCHER MAY BE MADE TO THE SAN DIEGO TRUST AND SAVINGS BANK, AS GUARDIAN OF THE ESTATE OF CHARLES MARTIN DICKSON, INCOMPETENT. COMPARE IN THIS CONNECTION, DECISIONS TO THE SECRETARY OF THE NAVY OF MARCH 8, 1935, A-60240, AND MAY 17, 1940 B-9399.