B-167533, AUGUST 22, 1969, 49 COMP. GEN. 116

B-167533, AUGUST 22, 1969, 49 COMP. GEN. 116

GRATUITIES -- SIX MONTHS' DEATH -- DIVORCE -- INVALID THE LEGAL STATUS OF THE SPOUSE OF AN OFFICER OF THE UNIFORMED SERVICES WHO HAD BEEN GRANTED A DIVORCE BY THE STATE OF NEVADA THAT WAS NOT RECOGNIZED BY THE WIFE'S MATRIMONIAL DOMICILE, THE STATE OF NORTH CAROLINA, IN COURT PROCEEDINGS IN WHICH SHE WAS ALSO GRANTED SUPPORT AND CUSTODY OF THE CHILD BORN OF THE MARRIAGE, AND AT WHICH THE HUSBAND WAS PRESENT AND CONSENTED TO THE DECREE, REMAINED THAT OF THE OFFICER'S WIFE. THEREFORE, UPON THE DEATH OF THE OFFICER, THE WIFE HAVING MAINTAINED HER STATUS AS LAWFUL SPOUSE IS ENTITLED TO THE PAYMENT OF THE 6 MONTHS' DEATH GRATUITY, AND THE FACT THAT THE OFFICER HAD CONSENTED TO THE DECREE OF THE NORTH CAROLINA COURT IS ASSURANCE THE GOVERNMENT WILL RECEIVE A GOOD ACQUITTANCE BY PAYMENT OF THE GRATUITY TO THE DECEASED OFFICER'S WIDOW.

TO MAJOR N. C. ALCOCK, DEPARTMENT OF THE AIR FORCE, AUGUST 22, 1969:

REFERENCE IS MADE TO YOUR LETTER OF JULY 29, 1969, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT ON ONE OF TWO VOUCHERS EACH IN THE AMOUNT OF $3,000 FOR 6 MONTH'S DEATH GRATUITY DUE IN THE CASE OF CAPTAIN JOHN M. THIGPEN, USAF, WHO DIED JUNE 26, 1969. ONE VOUCHER IS PREPARED IN FAVOR OF MRS. ANNE WILSON THIGPEN AS WIDOW OF THE DECEASED OFFICER AND THE OTHER IN HER CAPACITY AS GUARDIAN OF JOHN JEFFERSON THIGPEN, THE SURVIVING SON OF CAPTAIN AND ANNE THIGPEN.

YOUR LETTER WAS FORWARDED HERE UNDER DATE OF AUGUST 8, 1969, BY THE OFFICE OF THE DEPUTY COMPTROLLER FOR ACCOUNTING AND FINANCE, AND HAS BEEN ASSIGNED AIR FORCE REQUEST NO. DO-AF-1046 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU REFER TO A DECREE OF DIVORCE GRANTED CAPTAIN THIGPEN ON OCTOBER 4, 1968, BY THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTRY OF CLARK, IN THE CASE OF JOHN M. THIGPEN V ANNE CORRINE THIGPEN. YOU ALSO REFER TO AN ORDER DATED MARCH 21, 1969, IN THE GENERAL COURT OF JUSTICE, DISTRICT COURT DIVISION, WAYNE COUNTY, NORTH CAROLINA, IN THE CASE OF ANNE CORRINE THIGPEN V JOHN M. THIGPEN, WHEREIN IT IS ORDERED, ADJUDGED AND DECREED, THAT THE DECREE OF DIVORCE IN THE STATE OF NEVADA IS INVALID AND NOT ENTITLED TO FULL FAITH AND CONSIDERATION BY THE COURTS OF THE STATE OF NORTH CAROLINA.

IN THE LIGHT OF THE ACTION TAKEN BY THE NORTH CAROLINA COURT, YOU SAY THE QUESTION ARISES WHETHER ANNE THIGPEN WAS THE MEMBER'S LAWFUL SPOUSE FOR DEATH GRATUITY PAYMENT PURPOSES AT THE TIME OF THE OFFICER'S DEATH. PAYMENT IS DENIED MRS. THIGPEN AS LAWFUL SPOUSE, YOU ASK WHETHER PAYMENT TO HER AS LEGAL GUARDIAN OF THE DECEDENT'S MINOR CHILD WOULD BE AUTHORIZED.

IT APPEARS FROM THE ENCLOSURES SUBMITTED WITH YOUR LETTER THAT ON JANUARY 28, 1961, JOHN AND ANNE CORRINE THIGPEN WERE MARRIED AT MT. OLIVE, NORTH CAROLINA, AND THAT A SON, JOHN JEFFERSON THIGPEN, WAS BORN OF THAT MARRIAGE ON OCTOBER 4, 1966. IT IS FURTHER STATED THAT DURING PART OF HIS TOUR OF ACTIVE DUTY, CAPTAIN AND MRS. THIGPEN RESIDED IN CLARK COUNTY, STATE OF NEVADA, FROM JANUARY 1965 TO JULY 1965, WHEN THE OFFICER WAS TRANSFERRED OVERSEAS. MRS. THIGPEN ACCOMPANIED HER HUSBAND OVERSEAS AND IN MAY 1966 SHE RETURNED TO HER MATRIMONIAL DOMICILE IN MT. OLIVE, NORTH CAROLINA, AND THEREAFTER THEIR SON WAS BORN. THE RECORD FURTHER INDICATES THAT UPON HIS RETURN FROM OVERSEAS IN JULY 1968, THE OFFICER WAS STATIONED AT AN AIR FORCE BASE IN ARIZONA, AND ON AUGUST 5, 1968, HE INSTITUTED AN ACTION FOR DIVORCE FROM MRS. THIGPEN IN THE NEVADA COURT. ON OCTOBER 4, 1968, THE COURT GRANTED CAPTAIN THIGPEN AN ABSOLUTE DIVORCE.

THE NEVADA DIVORCE DECREE RECITES, IN PART, THAT, "THE COURT HAS COMPLETE JURISDICTION IN THE PREMISES, AS TO THE SUBJECT MATTER THEREOF, THE PARTIES THERETO *** ." THE DECREE STATES THAT THE PLAINTIFF (CAPTAIN THIGPEN) IS A BONA FIDE RESIDENT OF CLARK COUNTY NEVADA, "AND HAS BEEN ACTUALLY DOMICILED THEREIN FOR MORE THAN SIX WEEKS IMMEDIATELY PRECEDING THE COMMENCEMENT OF THIS ACTION *** ." IN ADDITION, THE DECREE STATES THAT THE DEFENDANT (MRS. THIGPEN) "WAS PERSONALLY SERVED WITH SUMMONS IN THE COUNTY OF WAYNE, STATE OF NORTH CAROLINA *** ." THE DECREE DISSOLVED THE BONDS OF MATRIMONY BETWEEN THE PARTIES AND ORDERED THE OFFICER TO PAY MRS. THIGPEN THE SUM OF $50 A MONTH FOR THE MAINTENANCE AND SUPPORT OF THEIR MINOR CHILD. MRS. THIGPEN MADE NO APPEARANCE AT THIS PROCEEDING NOR WAS SHE REPRESENTED BY COUNSEL.

ON MARCH 21, 1969, IN THE GENERAL COURT OF JUSTICE, DISTRICT COURT DIVISION, WAYNE COUNTY, NORTH CAROLINA, IN THE CASE OF ANNE CORRINE THIGPEN V JOHN M. THIGPEN, IN AN ACTION FOR "ALIMONY, CHILD SUPPORT AND CUSTODY AND REASONABLE ATTORNEYS FEES," THE COURT, AFTER TAKING NOTE OF THE NEVADA DIVORCE DECREE AND AFTER HEARING ALL EVIDENCE AND EXHIBITS PRESENTED BY BOTH PARTIES, FOUND, IN PART:

1. THAT NEITHER OF THE PARTIES WERE RESIDENTS OF NOR WERE DOMICILED IN THE STATE OF NEVADA AT THE TIME OF THE INSTITUTION OF THE SUIT FOR DIVORCE AFOREMENTIONED;

2. THAT THE DEFENDANT WAS NEVER PERSONALLY SERVED IN THE AFOREMENTIONED SUIT FOR DIVORCE IN THE STATE OF NEVADA;

3. THAT THE DEFENDANT DID NOT APPEAR IN THE AFOREMENTIONED NEVADA PROCEEDINGS PERSONALLY, SPECIALLY, OR BY AND THROUGH COUNSEL;

4. THAT THE PLAINTIFF IS A FIT AND PROPER PERSON TO HAVE THE CUSTODY OF THE CHILD BORN OF THE MARRIAGE, TO-WIT; JOHN JEFFERSON THIGPEN;

5. THAT THE PLAINTIFF IS ENTITLED TO ALIMONY AND CHILD SUPPORT AND REASONABLE COUNSEL FEES; IN THE LIGHT OF THESE FINDINGS OF FACT, THE COURT ORDERED, ADJUDGED AND DECREED, IN PART:

1. THAT THE DECREE OF DIVORCE IN THE STATE OF NEVADA PLEADED BY THE DEFENDANT AS A BAR TO THIS ACTION IS INVALID AND NOT ENTITLED TO FULL FAITH AND CONSIDERATION BY THE COURTS OF THE STATE OF NORTH CAROLINA AND DOES NOT CONSTITUTE A BAR TO THE PLAINTIFF'S ACTION BEFORE THE COURT; CAPTAIN THIGPEN WAS PRESENT AT THE ABOVE PROCEEDINGS AND WAS REPRESENTED BY COUNSEL. FURTHERMORE, HE CONSENTED TO THE ORDER OF THAT COURT AS INDICATED BY HIS SIGNATURE ON THE LAST PAGE OF SAID ORDER.

THE RECORD FURTHER INDICATES THAT ON OCTOBER 11, 1968, THE OFFICER EXECUTED AF FORM 246, RECORD OF EMERGENCY DATA, WHEREIN HE DESIGNATED HIS MOTHER, LUCILLE FLOWERS THIGPEN, MT. OLIVE, NORTH CAROLINA, TO RECEIVE THE 6 MONTHS' DEATH GRATUITY--IF NO SURVIVING SPOUSE OR CHILD- AND HE DESIGNATED HIS SON TO RECEIVE HIS UNPAID PAY AND ALLOWANCES. IT APPEARS THAT THE OFFICER WAS KILLED IN AN AIRPLANE CRASH ON JUNE 26, 1969.

ALSO ACCOMPANYING YOUR SUBMISSION ARE LETTERS OF GUARDIANSHIP ISSUED ON JULY 1, 1969, BY THE CLERK OF THE SUPERIOR COURT, STATE OF NORTH CAROLINA, COUNTY OF WAYNE, IN THE MATTER OF THE ESTATE OF JOHN JEFFERSON THIGPEN, WHEREIN ANNE THIGPEN IS APPOINTED GUARDIAN OF HER SON'S ESTATE AUTHORIZING HER TO RECEIVE AND ADMINISTER ALL OF THE ASSETS BELONGING TO THAT ESTATE.

IN 26 COMP. GEN. 327 (1946), CITED BY YOU, THE MONTANA DIVORCE DECREE GRANTED AN ARMY OFFICER WAS SET ASIDE BY A COURT OF THE SAME STATE SUBSEQUENT TO HIS DEATH BECAUSE OF FRAUD AND LACK OF JURISDICTION. IT WAS HELD IN THAT DECISION THAT SINCE THE DECREE HAD BEEN DECLARED VOID, THE OFFICER'S WIFE (THE DEFENDANT IN THE DIVORCE PROCEEDINGS) MAINTAINED HER STATUS AS LAWFUL SPOUSE AND UPON HIS DEATH SHE BECAME HIS WIDOW AND HENCE ENTITLED TO THE 6 MONTHS' DEATH GRATUITY.

IT IS STATED IN 24 AM JUR 2D, DIVORCE AND SEPARATION, SECTION 955, THAT THE COURTS ARE AGREED THAT IF NEITHER PARTY HAD A DOMICILE OR RESIDENCE IN THE DIVORCE STATE, SO THAT THE COURT DID NOT HAVE JURISDICTION OF THE SUBJECT MATTER, THE DECREE IS NOT ENTITLED TO FULL FAITH AND CREDIT AND MAY BE ATTACKED IN ANOTHER JURISDICTION, ESPECIALLY WHERE THE DEFENDANT WAS NOT SERVED IN THE DIVORCE STATE AND DID NOT APPEAR IN THE ACTION. NUMEROUS COURT CASES AND AUTHORITIES ARE THERE CITED, INCLUDING THE CASE OF WILLIAMS V UNITED STATES, 325 U.S. 226 (1945). IN THE WILLIAMS CASE, MAN AND WOMAN LEFT NORTH CAROLINA FOR THE PURPOSE OF GETTING DIVORCES FROM THEIR RESPECTIVE SPOUSES IN NEVADA AND AS SOON AS THAT WAS DONE AND THEY HAD MARRIED EACH OTHER THEY LEFT NEVADA AND RETURNED TO NORTH CAROLINA TO LIVE THERE TOGETHER AS MAN AND WIFE.

IN 27B, C.J.S., DIVORCE, SECTION 337 (DOMICILE OF ONE SPOUSE), IT IS STATED THAT THE RULE ANNOUNCED IN THE FIRST WILLIAMS CASE (WILLIAMS V NORTH CAROLINA, 317 U.S. 287 (1942)) WAS AMENDED IN THE SECOND WILLIAMS CASE (WILLIAMS V NORTH CAROLINA, 325 U.S. 226 (1945)), SO THAT, AT LEAST IN THE CASE OF AN "EX PARTE" PROCEEDING, THAT IS, ONE IN WHICH DEFENDANT WAS NEITHER PERSONALLY SERVED NOR APPEARED, A SISTER STATE IS FREE TO INQUIRE INTO AND TO DETERMINE FOR ITSELF WHETHER THERE WAS THE REQUISITE DOMICILE AS TO GIVE THE COURT JURISDICTION TO ENTER THE DECREE. IT IS FURTHER STATED THAT THE SECOND STATE IS FREE TO ARRIVE AT ITS OWN DETERMINATION AS TO DOMICILE IN DETERMINING PROPERTY RIGHTS, EVEN THOUGH IT MAY BE REQUIRED, UNDER THE WILLIAMS CASE, TO RECOGNIZE THE DIVORCE JUDGMENT INSOFAR AS THE MARITAL STATUS OF THE PARTIES IS CONCERNED. SEE COLLECTION OF CASES IN VOLUME 3, ALR 2D, SUPPLEMENTARY 19-31, BEGINNING WITH PAGE 1089, ON RECOGNITION AS TO MARITAL STATUS OF FOREIGN DIVORCE DECREES ATTACKED ON GROUND OF LACK OF DOMICILE SINCE WILLIAMS DECISION.

WHILE THE QUESTION MIGHT BE RAISED IN THE INSTANT CASE THAT SINCE THE NORTH CAROLINA COURT AWARDED MRS. THIGPEN, AMONG OTHER THINGS, "ALIMONY" THE COURT COULD BE CONSIDERED AS RECOGNIZING THE TERMINATION OF THE MARITAL STATUS BY THE NEVADA DECREE. HOWEVER, THIS WOULD NOT SEEM TO BE THE CASE SINCE CHAPTER 50, SECTION 50-16, DIVORCE AND ALIMONY, VOLUME 2A, GENERAL STATUTES OF NORTH CAROLINA, VESTS IN THE COURT THE AUTHORITY TO ORDER PAYMENT OF ALIMONY WITHOUT DIVORCE, CUSTODY OF CHILDREN AND COUNSEL FEES.

IN THE LIGHT OF THE FINDINGS IN THE NORTH CAROLINA COURT, QUOTED ABOVE, AND SINCE THAT COURT DECLARED THAT THE DECREE OF DIVORCE IN THE STATE OF NEVADA "IS INVALID AND NOT SUBJECT TO FULL FAITH AND CONSIDERATION BY THE COURTS OF THE STATE OF NORTH CAROLINA," WE FIND NO BASIS TO CONCLUDE THAT ANNE THIGPEN WAS NOT THE LAWFUL SPOUSE OF CAPTAIN THIGPEN ON THE DATE OF HIS DEATH ON JUNE 26, 1969. IT APPEARS THAT THE NORTH CAROLINA DECREE RECOGNIZED A CONTINUING MARITAL STATUS BETWEEN THE PARTIES WHICH WAS NOT TERMINATED BY THE NEVADA DECREE. SEE THE CASE OF VIOLA RICHARDS HOWELL V WILLIAM R. HOWELL, 125 S.E. 2D, 448(1962), WHERE AN ALABAMA DIVORCE DECREE WAS HELD TO BE NULL AND VOID FOR LACK OF JURISDICTION AND NOT ENTITLED TO FULL FAITH AND CREDIT IN NORTH CAROLINA WHERE HUSBAND AND WIFE PERPETRATED GROSS FRAUD ON THE ALABAMA COURT IN REPRESENTING THAT THE WIFE WAS AN ALABAMA RESIDENT FOR THE REQUIRED PERIOD. COMPARE, ALSO, VANDERBILT V VANDERBILT, 135 N.E., 2D 553, 153 N.Y.S. 2D 1 (1956), AFF., 354 US 416 (1957); ESTIN V ESTIN, 296 N.Y. 308, 73 N.E. 2D, 113 (1947), AFFIRMED 334 U.S. 541 (1948), AND LYNN V LYNN, 302 N. Y. 193, 97 N.E. 2D 748 (1951), CERT. DEN. 342 US 849 (1951).

IN VIEW OF THE CONCLUSION REACHED BY THE NORTH CAROLINA COURT AND THE FACT THAT THE OFFICER CONSENTED TO ITS DECREE IT IS BELIEVED THAT THE GOVERNMENT WOULD RECEIVE A GOOD ACQUITANCE BY PAYMENT OF THE 6 MONTHS' DEATH GRATUITY TO MRS. ANNE THIGPEN IN HER CAPACITY AS SURVIVING SPOUSE OF CAPTAIN THIGPEN AND THE VOUCHER AND SUPPORTING PAPERS COVERING PAYMENT IN THAT CAPACITY ARE RETURNED HEREWITH. THE VOUCHER IN FAVOR OF MRS. THIGPEN AS LEGAL GUARDIAN OF HER SON WILL BE ..END :