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An Air Force officer appealed his denied waiver of indebtedness for excess freight charges incident to his permanent change of station, contending that: (1) he received erroneous advice from a travel counselor concerning his shipping costs; and (2) the carrier artificially inflated the weight of his shipment. GAO held that: (1) it would not challenge the Air Force's determination of excess weight, since there was no evidence of clear error to rebut the carrier's weight certificates; (2) there was no evidence that the excess weight and costs were incurred due to an erroneous authorization; and (3) there was no evidence that the officer's misunderstanding of the shipping cost was based on erroneous information provided by the Air Force. Accordingly, the settlement was affirmed.

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B-199265 L/M, SEP 29, 1981

DIGEST: UNDER CALIFORNIA LAW, DIVORCE DECREE MAY BE SET ASIDE AFTER DEATH OF FORMER SPOUSE. IN ORDER TO DO SO, FORMER SPOUSE MUST EVIDENCE THAT THERE WAS EXTRINSIC FRAUD OR MISTAKE WHICH PREVENTED THE PERSON FROM PRESENTING HIS OR HER ARGUMENTS TO COURT. WHERE COURT ORDER, AMONG OTHER THINGS, DOES NOT INDICATE THAT COURT FOUND EVIDENCE OF EXTRINSIC FRAUD, REVOCATION OF DIVORCE DECREE IS INVALID ON ITS FACE. ACCORDINGLY, COURT ORDER WILL NOT BE CONSIDERED ADEQUATE PROOF OF FORMER SPOUSE'S STATUS AS WIDOW SO AS TO ENTITLE HER TO SURVIVOR BENEFIT PLAN ANNUITY.

THE COMPTROLLER GENERAL:

WE ARE FORWARDING THE FILE PERTAINING TO THE CLAIM OF MRS. ARIEL A. DUGGAN, AS WIDOW OF THOMAS F. DUGGAN, WHO DIED ON JANUARY 3, 1977. MRS. DUGGAN IS CLAIMING THE SURVIVOR BENEFIT PLAN (SBP) ANNUITY INCIDENT TO MR. DUGGAN'S ELECTION TO PARTICIPATE IN THAT PLAN ON SEPTEMBER 28, 1972.

AT THE TIME MR. DUGGAN ELECTED TO PARTICIPATE IN THE SBP, HE NAMED HIS WIFE, ARIEL A. DUGGAN, AS HIS DEPENDENT. HOWEVER, DURING MARCH 1975 THE DECEDENT AND HIS WIFE WERE GRANTED A FINAL DECREE DISSOLVING THEIR MARRIAGE. AFTER MR. DUGGAN'S DEATH MRS. DUGGAN BROUGHT ACTION TO HAVE THE DIVORCE SET ASIDE. ON OCTOBER 1, 1980, THE DIVORCE DECREE WAS ORDERED SET ASIDE BY THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, FOR THE COUNTY OF LOS ANGELES, AND THE ACTION VACATED.

ONE OF THE REQUIREMENTS FOR PAYMENT OF THE SBP ANNUITY IS THAT THE MEMBER AND HIS WIFE BE LEGALLY MARRIED AT THE TIME OF DEATH. BECAUSE THE DIVORCE WAS SET ASIDE AFTER THE MEMBER'S DEATH, THE QUESTION ARISES AS TO ITS APPLICABILITY TO THE BENEFITS IN QUESTION. IT IS NOT CLEAR WHETHER WE SHOULD REGARD THE PARTIES AS BEING LEGALLY MARRIED AT THE TIME OF HIS DEATH IN VIEW OF THE ACTION BY THE COURT IN VACATING THE DIVORCE.

THEREFORE, WE ARE SUBMITTING THE MATTER TO YOU FOR REVIEW AND INSTRUCTIONS. SENATORS ALAN CRANSTON AND S. I. HAYAKAWA ARE INTERESTED IN THIS MATTER.

THE ADJUDICATOR HANDLING THIS CASE IS HATTIE R. PURYEAR WHOSE EXTENSION IS 53218.

ASSOCIATE DIRECTOR, AFMD - CLAIMS GROUP (ROOM 5858)

RETURNED. WE MAY NOT AUTHORIZE PAYMENT OF THE SBP ANNUITY TO THE CLAIMANT, MRS. ARIEL A. DUGGAN, BECAUSE THE DECREE SETTING ASIDE THE DIVORCE APPEARS DEFECTIVE.

IN ADJUDICATING A CASE OF THIS TYPE, THE INITIAL INQUIRY MUST BE WHETHER THE REVOCATION OF DIVORCE IS VALID UNDER THE LAWS OF THE JURISDICTION IN WHICH IT IS GRANTED AND WHAT IS THE EFFECT OF THE REVOCATION. SEE B-186676, OCTOBER 28, 1976, A CASE WHEREIN, BASED ON A FINDING OF PERJURED TESTIMONY, THE COURT SET ASIDE A DIVORCE ABOUT 10 MONTHS AFTER IT WAS GRANTED. THERE, WE HELD THAT THE REVOCATION OF THE DIVORCE DECREE AT THE REQUEST OF A WOMAN AFTER THE DEATH OF HER FORMER SPOUSE, A RETIRED MEMBER, ENTITLED HER TO QUALIFY AS HIS WIDOW AND RECEIVE AN SBP ANNUITY. OUR HOLDING RELIED PRIMARILY ON VARIOUS ASPECTS OF KANSAS LAW SINCE THE DIVORCE TOOK PLACE IN KANSAS. SEE ALSO 26 COMP.GEN. 327 (1946). COMPARE 16 COMP.GEN. 890 (1937) AND B-164969, SEPTEMBER 9, 1968.

THE CURRENT CASE CONCERNS CALIFORNIA LAW SINCE THIS IS WHERE THE DIVORCE AND REVOCATION OF DIVORCE TOOK PLACE. TO OUR KNOWLEDGE, UNDER CALIFORNIA LAW, THE ONLY WAY IN WHICH THE DIVORCE COULD BE SET ASIDE OVER 5 YEARS AFTER THE FINAL JUDGMENT WAS ENTERED IS BY A SUIT IN EQUITY ALLEGING THAT THERE WAS EXTRINSIC FRAUD OR MISTAKE. SEE LOPEZ V. LOPEZ, 408 P.2D 744, 745-746 (CAL. 1966). EXTRINSIC FRAUD OR MISTAKE ARISES WHEN THE CLAIMANT IS DEPRIVED OF AN OPPORTUNITY TO PRESENT HER CASE TO THE COURT. ID. AT 745.

THE COURT ORDER IN THE ACTION BROUGHT BY MRS. DUGGAN TO SET ASIDE THE DIVORCE REVEALS THAT THE PARTIES STIPULATED TO THE ORDER WHICH SET ASIDE THE DIVORCE. THE REASONS ARE NOT SET OUT IN THE ORDER OTHER THAN GENERAL LANGUAGE INDICATING THAT THE EVIDENCE REVEALED GOOD CAUSE FOR THE ACTION.

FINALLY, IT IS TO BE NOTED THAT THE COURT ORDER IS ALSO DEFECTIVE SINCE IT ESTABLISHES THAT THERE WAS NO ADVERSARY PROCEEDING. THE PETITIONER WAS ARIEL A. DUGGAN WHO WAS REPRESENTED BY HER COUNSEL. THE RESPONDENT WAS THE ESTATE OF THOMAS F. DUGGAN WHICH WAS REPRESENTED BY ARIEL A. DUGGAN. EFFECTIVELY, THIS MEANS THAT ARIEL A. DUGGAN IN HER PERSONAL CAPACITY SUED HERSELF IN A REPRESENTATIVE CAPACITY. A PERSON CANNOT BE BOTH PLAINTIFF AND DEFENDANT IN AN ACTION EVEN IF HE OR SHE SUES IN ONE CAPACITY AND DEFENDS IN ANOTHER. BUCKEYE REFINING CO. V. KELLY, 124 P. 536, 539 (CAL. 1912); SEE O'MORROW V. BORAD, 167 P.2D 483, 486 (CAL. 1946); AND PERKINS V. ROBERTSON, 295 P.2D 972, 976 (DIST.CT.APP.CAL. 1956).

THUS, ALTHOUGH THE COURT WHICH GRANTED THE SETTING ASIDE OF THE DIVORCE DECREE WAS THE APPROPRIATE FORUM, THE COURT ORDER IS DEFECTIVE ON ITS FACE. ACCORDINGLY, THE SITUATION IS TOO DOUBTFUL FOR OUR OFFICE TO AUTHORIZE PAYMENT TO MRS. DUGGAN AS THE DECEASED'S WIDOW. RATHER, IN THIS TYPE OF SITUATION THE CLAIMANT MUST BE LEFT TO PURSUE HER CLAIM IN THE COURT OF CLAIMS OR OTHER COURT OF COMPETENT JURISDICTION. SEE B-195250, JANUARY 23, 1980; AND B-164969, SEPTEMBER 9, 1968.