B-176962, MAR 8, 1974

B-176962, MAR 8, 1974

SUBSEQUENTLY REMARRIED WOMAN CLAIMS UNPAID RETIRED PAY AS LEGAL SURVIVING SPOUSE OF DECEASED MEMBER. CLAIM DISALLOWED UNDER 10 U.S.C. 2271(A) BECAUSE WOMAN NOT ABLE TO OVERCOME PRESUMPTION OF LEGALITY OF SUBSEQUENT MARRIAGE. SEE DECISIONS AND COURT CASES CITED.

TO MR. F. BOZEMAN DANIEL:

WE REFER TO YOUR LETTER OF JULY 14, 1973, REQUESTING FURTHER CONSIDERATION OF THE CLAIM OF MRS. MINNIE MOORE HEARD MITCHELL, AS SURVIVING SPOUSE, FOR THE UNPAID RETIRED PAY OF $139.67 DUE THE LATE SPECIALIST TAYLOR HEARD, UNITED STATES ARMY, RETIRED.

BY SETTLEMENT OF MAY 24, 1973, OF OUR TRANSPORTATION AND CLAIMS DIVISION, YOUR CLIENT'S CLAIM WAS DISALLOWED BECAUSE SHE WAS UNABLE TO SATISFACTORILY ESTABLISH THAT SHE WAS THE WIDOW OF SPECIALIST HEARD.

TAYLOR HEARD DESIGNATED HIS MOTHER, MRS. LILY HEARD, ON DA FORM 41 (RECORD OF EMERGENCY DATA), TO BE THE SOLE BENEFICIARY OF ANY UNPAID PAY WHICH MAY HAVE ACCRUED AT HIS DEATH. HOWEVER, HIS MOTHER DIED ON MARCH 4, 1970, PREDECEASING HIM BY TWO MONTHS. NO OTHER BENEFICIARY WAS DESIGNATED.

MRS. MINNIE MOORE HEARD MITCHELL HAS CLAIMED THE ARREARS OF PAY AS TAYLOR HEARD'S SURVIVING SPOUSE, HAVING SUBMITTED A CERTIFICATE SHOWING MARRIAGE TO HIM ON FEBRUARY 15, 1930. MRS. MITCHELL CONTENDS THAT ALTHOUGH SHE MARRIED GEORGE MITCHELL ON AUGUST 12, 1942, UNDER ALABAMA LAW SHE WAS LEGALLY MARRIED TO TAYLOR HEARD UNTIL THE DATE OF HIS DEATH, MAY 18, 1970, AND THAT SHE THEREFORE QUALIFIES AS HIS LEGAL WIDOW.

SUBSECTION 2771(A) OF TITLE 10, U.S. CODE, WHICH GOVERNS THE SETTLEMENT OF THE ACCOUNTS OF A DECEASED MEMBER OF THE ARMED FORCES WHO DIED AFTER DECEMBER 31, 1955, PROVIDES FOR PAYMENT OF AN AMOUNT DUE FROM THE ARMED FORCE OF WHICH HE WAS A MEMBER TO THE PERSON HIGHEST ON THE FOLLOWING LIST LIVING ON THE DATE OF DEATH:

"(1) BENEFICIARY DESIGNATED BY HIM IN WRITING TO RECEIVE SUCH AN AMOUNT, IF THE DESIGNATION IS RECEIVED, BEFORE THE DECEASED MEMBER'S DEATH, AT THE PLACE NAMED IN REGULATIONS TO BE PRESCRIBED BY THE SECRETARY CONCERNED.

"(2)SURVIVING SPOUSE.

"(3) CHILDREN AND THEIR DESCENDANTS, BY REPRESENTATION.

"(4) FATHER AND MOTHER IN EQUAL PARTS OR, IF EITHER IS DEAD, THE SURVIVOR.

"(5) LEGAL REPRESENTATIVE.

"(6) PERSON ENTITLED UNDER THE LAW OF THE DOMICILE OF THE DECEASED MEMBER."

IN THE INSTANT CASE, AS NOTED ABOVE, SPECIALIST HEARD'S SOLE DESIGNATED BENEFICIARY PREDECEASED HIM BY TWO MONTHS. THEREFORE, BECAUSE MRS. MITCHELL FAILED TO ESTABLISH THAT SHE WAS THE LEGAL WIDOW OF TAYLOR HEARD, AND THE RECORD INDICATED MR. HEARD HAD NO SURVIVING LINEAL HEIRS, THAT HIS PARENTS WERE DECEASED, AND THAT NO LEGAL REPRESENTATIVE WAS APPOINTED TO ADMINISTER HIS ESTATE, PURSUANT TO 10 U.S.C. 2771(A)(6) THE ARREARS OF RETIRED PAY WERE PAID TO THE PERSONS ENTITLED UNDER THE IOWA PROBATE CODE AS THE RECORD INDICATES THAT AT HIS DEATH THE DOMICILE OF TAYLOR HEARD WAS IN THE STATE OF IOWA.

SPECIFICALLY, IOWA CODE ANNOTATED SECTION 633.219 (1964), PROVIDES FOR THE PAYMENT OF DEBTS AND CHARGES PRIOR TO DISTRIBUTION TO THE CLASSES OF PERSONS NAMED THEREIN. THEREFORE, ON MAY 24, 1973, PAYMENT OF THE UNPAID RETIRED PAY WAS AUTHORIZED IN APPROXIMATELY EQUAL SHARES TO EACH OF MR. HEARD'S FOUR BROTHERS AND A SISTER IN PROPORTION TO THE SHARE OF TAYLOR HEARD'S FUNERAL EXPENSES PAID BY EACH OF THEM.

AS YOU REQUESTED, WE HAVE REVIEWED THE ENTIRE MATTER. WE NOTE THAT IN CASES WHERE THERE IS SUBSTANTIAL DOUBT THAT THE WOMAN CLAIMING AS THE WIDOW IS PROPERLY ENTITLED TO PAYMENT, IT IS THE ESTABLISHED RULE OF THIS OFFICE THAT NO PAYMENT WILL BE MADE TO HER UNLESS SUCH DOUBT IS RESOLVED. SEE DECISION B-148471, APRIL 12, 1962, COPY ENCLOSED. CONSEQUENTLY, OUR TRANSPORTATION AND CLAIMS DIVISION BY LETTER OF JANUARY 15, 1973, REQUESTED MRS. MITCHELL TO FURNISH US WITH CERTIFICATES FROM APPROPRIATE COURT OFFICIALS EVIDENCING THAT THE RECORDS OF THE COURTS HAVING JURISDICTION OVER THE DOMICILES OF MRS. MITCHELL AND TAYLOR HEARD DO NOT SHOW THE GRANTING OF A DIVORCE SUBSEQUENT TO MRS. MITCHELL'S REPORTED ABANDONMENT BY SPECIALIST HEARD. IN HER LETTER OF JANUARY 22, 1973, MRS. MITCHELL INDICATED THAT SHE WAS UNABLE TO FURNISH SUCH EVIDENCE.

AS NOTED IN THE SETTLEMENT CERTIFICATE, UNDER THE LAWS OF THE STATE OF ALABAMA IT IS NECESSARY FOR MRS. MITCHELL TO OVERCOME THE PRESUMPTION THAT HER SECOND MARRIAGE IS VALID AND THAT THERE WAS A DISSOLUTION OF HER MARRIAGE TO TAYLOR HEARD, BY DIVORCE. JONES V. CASE, 97 SO. 2D 816, 817 (1957). AS FURTHER NOTED, THE ALABAMA COURTS REFUSE TO ACCEPT UNCORROBORATED TESTIMONY OF ONE OF THE PARTIES TO THE PRIOR MARRIAGE, AS IS BEING OFFERED BY MRS. MITCHELL, THAT THE FIRST MARRIAGE HAD NEVER BEEN DISSOLVED BY DIVORCE. JORDAN V. COPELAND, 131 SO. 2D 696, 699 (1961).

IN ADDITION TO REQUESTING A REVIEW OF THIS MATTER, YOUR LETTER ASKS US TO WAIVE THE EVIDENCE MANDATED BY JORDAN V. COPELAND, SUPRA. THIS WOULD BE TANTAMOUNT TO ACCEPTING THE UNCORROBORATED TESTIMONY OF ONE OF THE PARTIES TO THE MARRIAGE. IN JORDAN V. COPELAND, SUPRA, AT PAGE 699, THE COURT STATES THE FOLLOWING:

"THIS COURT HAS REFUSED TO ACCEPT THE UNCORROBORATED TESTIMONY OF ONE OF THE PARTIES TO THE PRIOR MARRIAGE, TO THE EFFECT THAT THE PRIOR MARRIAGE HAD NEVER BEEN DISSOLVED BY DIVORCE, AS BEING SUFFICIENT PROOF TO ESTABLISH THE DISSOLUTION OF THE PRIOR MARRIAGE WHEN THE EVIDENCE DID NOT SHOW AN EXAMINATION OF THE RECORDS OF THE DIVORCE COURTS OF THE COUNTIES IN WHICH THE PARTIES HAD LIVED. ***"

THEREFORE, BASED ON THE FOREGOING AND BECAUSE THE ALABAMA LAW SEEMS TO BE WELL SETTLED ON THIS POINT, OUR REVIEW INDICATES THAT A CORRECT SETTLEMENT WAS REACHED IN THIS CASE.

IF YOU STILL DESIRE INFORMATION CONCERNING TAYLOR HEARD'S DUTY STATIONS, WE WOULD RECOMMEND THAT AN INQUIRY BE DIRECTED TO THE UNITED STATES ARMY FINANCE SUPPORT AGENCY, INDIANAPOLIS, INDIANA 46249.