B-96686, OCTOBER 6, 1950, 30 COMP. GEN. 144

B-96686, OCTOBER 6, 1950, 30 COMP. GEN. 144

DEPENDENCY ALLOWANCES - STEPCHILDREN - DEATH OF BLOOD PARENT A STEPCHILD OF A MEMBER OF THE UNIFORMED SERVICES MAY BE REGARDED, AFTER THE DEATH OF THE CHILD'S BLOOD PARENT, AS A DEPENDENT WITHIN THE MEANING OF THAT TERM AS DEFINED IN SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949, SO AS TO AUTHORIZE THE PAYMENT OF INCREASED ALLOWANCES TO THE MEMBER ON ACCOUNT OF SUCH A DEPENDENT STEPCHILD.

ASSISTANT COMPTROLLER GENERAL YATES TO THE ADMINISTRATOR, FEDERAL SECURITY AGENCY, OCTOBER 6, 1950:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 3, 1950, REQUESTING A DECISION AS TO WHETHER UNDER THE PROVISIONS OF SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 804, 805, A STEPCHILD PROPERLY MAY BE REGARDED A DEPENDENT OF A MEMBER OF THE UNIFORMED SERVICES AFTER THE DEATH OF THE CHILD'S BLOOD PARENT.

IN DECISION OF DECEMBER 5, 1941, 21 COMP. GEN. 525, REFERRED TO IN YOUR LETTER, THERE WERE CONSIDERED THE QUESTIONS WHETHER A NAVY OFFICER WHO SUPPORTED THE CHILD OF HIS WIFE BY A FORMER MARRIAGE WAS ENTITLED, AFTER THE DEATH OF HIS WIFE, TO BE CREDITED WITH INCREASED RENTAL AND SUBSISTENCE ALLOWANCES AS FOR AN OFFICER WITH A DEPENDENT CHILD WITHIN THE MEANING OF SECTION 4 OF THE ACT OF JUNE 10, 1922, 42 STAT. 625, 627, AND WHETHER AN ENLISTED MAN SIMILARLY SITUATED WAS ENTITLED TO MONETARY ALLOWANCE IN LIEU OF QUARTERS WITHIN THE MEANING OF THE ACT OF OCTOBER 17, 1940, 54 STAT. 1205, AND EXECUTIVE ORDER NO. 8688, DATED FEBRUARY 19, 1941. IT WAS HELD THEREIN, QUOTING FROM THE SYLLABUS, THAT---

THE RELATION OF STEPPARENT AND STEPCHILD EXISTING BETWEEN A NAVY OFFICER AND THE CHILD OF HIS WIFE BY A FORMER MARRIAGE DOES NOT SURVIVE THE DEATH OF THE WIFE SO AS TO AUTHORIZE PAYMENT OF INCREASED RENTAL AND SUBSISTENCE ALLOWANCES ON ACCOUNT OF DEPENDENT CHILD AS DEFINED IN SECTION 4 OF THE ACT OF JUNE 10, 1922, AS AMENDED, EVEN THOUGH THE OFFICER CONTINUES TO MAINTAIN THE CHILD SOLELY FROM HIS OWN INCOME, AND THE SAME RULE IS APPLICABLE TO A SIMILARLY SITUATED ENLISTED MAN WITH RESPECT TO MONEY ALLOWANCE FOR QUARTERS FOR DEPENDENTS UNDER THE ACT OF OCTOBER 17, 1940.

IN SUPPORT OF THAT HOLDING THERE WERE CITED DECISION OF THIS OFFICE DATED MAY 1, 1929, 8 COMP. GEN. 573, AND THE CASE OF BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINE MEN V. HOGAN, ET AL., 5 F.1SUPP. 598, WHEREIN THE COURT REACHED THE CONCLUSION THAT THE WEIGHT OF AUTHORITY CLEARLY WAS THAT THE RELATIONSHIP OF STEPPARENT AND STEPCHILD DOES NOT SURVIVE DISSOLUTION OF THE MARRIAGE BY WHICH IT WAS CREATED. IN DECISION OF OCTOBER 30, 1944, 24 COMP. GEN. 320, THE SAID RULE AGAIN WAS REFERRED TO IN THE FOLLOWING LANGUAGE---

THE GENERAL RULE APPEARS WELL ESTABLISHED THAT WHERE A MARRIAGE IS DISSOLVED BY DEATH OR DIVORCE ANY RELATIONSHIP BY AFFINITY WHICH WAS CREATED BY THE MARRIAGE WILL BE REGARDED AS TERMINATED UNLESS THERE IS SURVIVING ISSUE OF THE MARRIAGE. 2 C.J. 379, AND NUMEROUS CASES CITED IN STEELE V. SUWALSKI, 75 F.2D 885, AT PAGE 887; AND IN BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINE MEN V. HOGAN, 5 F.1SUPP. 598, AT PAGES 601 AND 602. THE GENERAL RULE HAS BEEN APPLIED BY THIS OFFICE IN RENTAL, SUBSISTENCE AND QUARTERS ALLOWANCE CASES. SEE 8 COMP. GEN. 573; 21 ID. 525. * * *

HOWEVER, IT WAS HELD THEREIN, INTER ALIA, QUOTING FROM THE SYLLABUS:

WHERE THE RELATIONSHIP BY AFFINITY BETWEEN AN OFFICER OR ENLISTED MAN AND A STEPCHILD OR OTHER RELATIVE BY AFFINITY WAS CREATED BY A MARRIAGE WHICH HAS BEEN TERMINATED BY DEATH--- AS DISTINGUISHED FROM DIVORCE--- SUBSEQUENT TO THE OFFICER'S OR ENLISTED MAN'S DESIGNATION OF SUCH A RELATIVE AS HIS BENEFICIARY TO RECEIVE THE SIX MONTHS' DEATH GRATUITY AUTHORIZED BY THE ACT OF DECEMBER 17, 1919, AS AMENDED, THE RELATIONSHIP, IN THE ABSENCE OF ANY EVIDENCE TO THE CONTRARY, MAY BE CONSIDERED AS CONTINUING, INSOFAR AS PAYMENT OF THE GRATUITY IS CONCERNED.

AS ORIGINALLY ENACTED, SECTION 4 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 361, DEFINED THE TERM "DEPENDENT" AS FOLLOWS:

THE TERM "DEPENDENT" AS USED IN THE SUCCEEDING SECTIONS OF THIS ACT SHALL INCLUDE AT ALL TIMES AND IN ALL PLACES A LAWFUL WIFE AND UNMARRIED CHILDREN UNDER TWENTY-ONE YEARS OF AGE. IT SHALL ALSO INCLUDE THE FATHER OR MOTHER OF THE PERSON CONCERNED PROVIDED HE OR SHE IS IN FACT DEPENDENT ON SUCH PERSON FOR HIS OR HER CHIEF SUPPORT: PROVIDED, THAT THE TERM "CHILDREN" SHALL BE HELD TO INCLUDE STEPCHILDREN AND ADOPTED CHILDREN WHEN SUCH STEPCHILDREN OR ADOPTED CHILDREN ARE IN FACT DEPENDENT UPON THE PERSON CLAIMING DEPENDENCY ALLOWANCE.

THE SAID SECTION WAS AMENDED BY THE ACT OF NOVEMBER 24, 1945, 59 STAT. 587, EFFECTIVE DECEMBER 1, 1945, BY ADDING THE FOLLOWING PARAGRAPH---

AS USED IN THIS SECTION, THE TERMS "FATHER," "MOTHER," "PARENT," AND "PARENTS" SHALL INCLUDE A STEPPARENT, A PARENT BY ADOPTION, AND ANY PERSON, INCLUDING A FORMER STEPPARENT, WHO HAS STOOD IN LOCO PARENTIS TO THE PERSON CONCERNED AT ANY TIME FOR A CONTINUOUS PERIOD OF NOT LESS THAN FIVE YEARS: PROVIDED, THAT A STEPPARENT-STEPCHILD RELATIONSHIP SHALL BE DEEMED TO BE TERMINATED BY THE STEPPARENT'S DIVORCE FROM THE BLOOD PARENT.

THE PURPOSE OF THE AMENDMENT IS EXPLAINED IN HOUSE REPORT NO. 900, 79TH CONGRESS, ST SESSION, TO ACCOMPANY H.R. 2525, WHICH BECAME THE SAID ACT, IN PART AS FOLLOWS:

UNDER THE EXISTING PROVISIONS OF SECTION 4 OF THE PAY READJUSTMENT ACT, THE TERM "DEPENDENT" INCLUDES A PARENT WHO IS IN FACT DEPENDENT ON THE PERSON CONCERNED FOR HIS OR HER CHIEF SUPPORT. THESE PROVISIONS HAVE BEEN CONSTRUED TO BE APPLICABLE ONLY TO BLOOD PARENTS AND THE BILL IS DESIGNED TO CORRECT INEQUITIES RESULTING FROM THE EXCLUSION OF STEPPARENTS.

YOUR COMMITTEE BELIEVES THAT, IN FAIRNESS, STEPPARENTS SHOULD BE TREATED IN THE SAME MANNER AS BLOOD PARENTS. HOWEVER, IT BELIEVES THAT THERE IS EQUAL REASON TO MAKE SIMILAR PROVISION FOR PARENTS BY ADOPTION AND PERSONS WHO HAVE STOOD IN LOCO PARENTIS TO THE PERSONS CONCERNED FOR EXTENDED PERIODS OF TIME. ACCORDINGLY, IN THE BILL AS RECOMMENDED BY YOUR COMMITTEE, PROVISION IS MADE FOR THESE LATTER TYPES OF CASES, AS WELL AS STEPPARENTS. THE AMENDED BILL FURTHER PROVIDES THAT DIVORCE SHALL TERMINATE A STEPPARENT RELATIONSHIP. IT IS INTENDED THAT THE DEATH OF THE BLOOD PARENT SHALL NOT TERMINATE THE STEPPARENT RELATIONSHIP.

SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 804, 805, DEFINES THE TERM ,DEPENDENT," IN PERTINENT PART, AS FOLLOWS:

THE TERM "DEPENDENT" SHALL INCLUDE AT ALL TIMES AND IN ALL PLACES THE LAWFUL WIFE AND UNMARRIED LEGITIMATE CHILDREN, UNDER TWENTY-ONE YEARS OF AGE, OF ANY MEMBER OF THE UNIFORMED SERVICES, EXCEPT AS HEREINAFTER LIMITED IN THIS SUBSECTION. * * * PROVIDED, THAT THE TERM "CHILDREN" SHALL BE HELD TO INCLUDE STEPCHILDREN AND ADOPTED CHILDREN WHEN SUCH STEPCHILDREN OR ADOPTED CHILDREN ARE IN FACT DEPENDENT UPON SUCH MEMBER *

THE TERM "FATHER" OR "MOTHER," AS USED IN THIS SUBSECTION, SHALL INCLUDE A STEPPARENT, OR PARENT BY ADOPTION, AND ANY PERSON, INCLUDING A FORMER STEPPARENT, WHO HAS STOOD IN LOCO PARENTIS TO THE PERSON CONCERNED AT ANY TIME FOR A CONTINUOUS PERIOD OF NOT LESS THAN FIVE YEARS DURING THE MINORITY OF SUCH MEMBER: PROVIDED, THAT A STEPPARENT STEPCHILD RELATIONSHIP SHALL BE DEEMED TO BE TERMINATED BY THE STEPPARENT'S DIVORCE FROM THE BLOOD PARENT * * *.

YOUR DOUBT IN THE MATTER APPEARS TO ARISE BECAUSE THE PROVISO RELATING TO THE TERMINATION OF A STEPPARENT-STEPCHILD RELATIONSHIP IS CONTAINED IN THE SECOND PARAGRAPH QUOTED ABOVE AND THUS MIGHT NOT BE EFFECTIVE INSOFAR AS PAYMENTS ON ACCOUNT OF A STEPCHILD ARE CONCERNED.

IT IS EVIDENT FROM THE QUOTED PORTION OF THE REPORT ON THE BILL WHICH BECAME THE ACT OF NOVEMBER 24, 1945, THAT THE PURPOSE OF THE ACT WAS TWOFOLD, (1) TO CORRECT INEQUITIES RESULTING FROM THE EXCLUSION OF STEPPARENTS FROM THE DEFINITION OF THE TERM "DEPENDENT" AS USED IN THE PARENT ACT AND (2) TO CHANGE THE GENERAL RULE HEREINBEFORE REFERRED TO WITH REGARD TO THE TERMINATION OF A STEPPARENT-STEPCHILD RELATIONSHIP SO THAT ONLY DIVORCE OF THE STEPPARENT FROM THE BLOOD PARENT WOULD BE CONSIDERED AS TERMINATING SUCH RELATIONSHIP. THE STATUTORY PROVISIONS CONTAINED IN THE CAREER COMPENSATION ACT OF 1949 WITH RESPECT TO TERMINATION OF A STEPPARENT-STEPCHILD RELATIONSHIP SO THAT ONLY DIVORCE OF THE STEPPARENT FROM THE BLOOD PARENT WOULD BE CONSIDERED AS TERMINATING SUCH RELATIONSHIP. THE STATUTORY PROVISIONS CONTAINED IN THE CAREER COMPENSATION ACT OF 1949 WITH RESPECT TO TERMINATION OF A STEPPARENT- STEPCHILD RELATIONSHIP ARE A REENACTMENT OF PREVIOUS PROVISIONS AND, AS PRIOR TO THE SAID ACT, INCREASED ALLOWANCES ARE AUTHORIZED TO BE PAID--- UPON CERTAIN CONDITIONS BEING MET--- TO A MEMBER OF THE SERVICE WHO HAS A STEPPARENT OR TO A MEMBER OF THE SERVICE WHO HAS A STEPCHILD. THE STATUTE SEEMS TO BE CLEAR THAT INSOFAR AS A CASE INVOLVING A PAYMENT OF ALLOWANCES ON ACCOUNT OF A STEPPARENT IS CONCERNED THAT THE STEPCHILD-STEPPARENT RELATIONSHIP TERMINATES UPON THE DIVORCE OF THE BLOOD PARENT AND THE STEPPARENT BUT THAT SUCH RELATIONSHIP DOES NOT TERMINATE UPON THE DEATH OF THE BLOOD PARENT. THERE IS NO BASIS FOR ASSUMING THAT THE CONGRESS, IN ENACTING THE PROVISIONS RELATING TO THE TERMINATION OF THE STEPCHILD- STEPPARENT RELATIONSHIP, INTENDED THAT THAT RELATIONSHIP SHOULD NOT TERMINATE UPON THE DEATH OF THE BLOOD PARENT INSOFAR AS PAYMENT OF ALLOWANCES TO A MEMBER OF THE SERVICE ON ACCOUNT OF STEPPARENT IS CONCERNED AND THAT SUCH RELATIONSHIP WOULD TERMINATE UPON THE DEATH OF THE BLOOD PARENT IN CONNECTION WITH PAYMENT OF ALLOWANCES TO A MEMBER OF THE SERVICE ON ACCOUNT OF A STEPCHILD.

ACCORDINGLY, YOU ARE ADVISED THAT A STEPCHILD PROPERLY MAY BE REGARDED AS A "DEPENDENT" WITHIN THE MEANING OF THAT TERM AS DEFINED IN SECTION 102 (G) OF THE CAREER COMPENSATION ACT OF 1949, AFTER THE DEATH OF THE CHILD'S BLOOD PARENT. CF. 24 COMP. GEN. 320.