A-17922, APRIL 29, 1927, 6 COMP. GEN. 704

A-17922, APRIL 29, 1927, 6 COMP. GEN. 704

GRATUITIES, SIX MONTHS' DEATH - NAVY ENLISTED MAN DIVORCED THE SIX MONTHS' PAY AUTHORIZED BY THE ACT OF JUNE 4, 1920, 41 STAT. 824, TO BE PAID TO THE WIDOW OF AN ENLISTED MAN OF THE NAVY WHO DIED WHILE ON THE ACTIVE LIST, IS NOT BARRED WHERE THE ENLISTED MAN DIED AFTER THE GRANTING OF AN INTERLOCUTORY DECREE OF DIVORCE BUT BEFORE SIX MONTHS HAD EXPIRED, UNDER A STATE STATUTE WHICH PROVIDES IN SPECIFIC TERMS THAT DECREES OF DIVORCE SHALL NOT BECOME FINAL AND OPERATIVE UNTIL SIX MONTHS AFTER THE TRIAL AND DECISION.

DECISION BY COMPTROLLER GENERAL MCCARL, APRIL 29, 1927:

REQUEST HAS BEEN MADE FOR REVIEW OF SETTLEMENT NO. 0155494, DATED OCTOBER 9, 1926, WHEREIN WAS DISALLOWED THE CLAIM OF MRS. HAZEL E. HILTBOLD FOR SIX MONTHS' GRATUITY PAY, APPROVED FOR $907.20, IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF JUNE 4, 1920, 41 STAT. 824, AS WIDOW OF VALENTINE HILTBOLD, LATE CHIEF TORPEDOMAN, UNITED STATES NAVY, WHO DIED SEPTEMBER 25, 1925. THE CLAIM WAS DISALLOWED UPON THE THEORY THAT MRS. HILTBOLD WAS DIVORCED FROM THE DECEASED JUNE 2, 1925.

IT APPEARS THAT VALENTINE HILTBOLD AT DATE OF DEATH WAS SERVING AS CHIEF TORPEDOMAN IN THE UNITED STATES NAVY UNDER AN ENLISTMENT ENTERED INTO NOVEMBER 10, 1923, AND WAS ASSIGNED TO DUTY ON THE UNITED STATES SUBMARINE S-51. UPON DATE OF ENLISTMENT HE NAMED AS BENEFICIARIES UNDER ACT OF JUNE 4, 1920, 41 STAT. 824, CASE OF HIS DEATH HAZEL E. HILTBOLD, WIFE, NO. 21 BAYSIDE AVENUE, NEWPORT, R.I., RICHARD LLEWELLYN HILTBOLD AND ROBERT CHARLES HILTBOLD, MINOR CHILDREN, AT THE SAME ADDRESS.

ON MARCH 26, 1925, VALENTINE HILTBOLD FILED IN THE SUPREME COURT, NEWPORT, R.I., A PETITION FOR DIVORCE AGAINST HIS WIFE, HAZEL HILTBOLD. ON JUNE 2, 1925, A HEARING WAS HELD AND DECISION RENDERED FOR THE PETITIONER AND THE CUSTODY OF THE MINOR CHILDREN AWARDED TO THE PETITIONER, VALENTINE HILTBOLD.

THE SUBMARINE ON WHICH VALENTINE HILTBOLD SERVED MET WITH DISASTER AND WENT DOWN AT SEA IN COLLISION WITH THE CITY OF ROME, AND THIS PETTY OFFICER DIED WHILE ON THE ACTIVE LIST OF THE UNITED STATES NAVY AT BLOCK ISLAND ON OR ABOUT SEPTEMBER 25, 1925.

THE CLERK OF THE SUPERIOR COURT, NEWPORT, R.I., IN LETTER DATED JULY 10, 1926, ADVISED THE CHIEF, BUREAU OF NAVIGATION, AS FOLLOWS:

UNDER THE LAW OF THIS STATE IT IS THE PRACTICE TO ENTER THE DECISION AFTER HEARING, AND NOT TO ENTER A FINAL DECREE OF DIVORCE FROM THE BOND OF MARRIAGE UNTIL SIX MONTHS HAVE ELAPSED.

IN THIS CASE DECREE HAS NOT BEEN ENTERED.

THERE IS ALSO WITH THE PAPERS A DOCUMENT WHICH READS:

NEWPORT, AUGUST 3, 1926. DIV. 2459. VALENTINE HILTBOLD V. HAZEL ELIZABETH HILTBOLD. MAX LEVY.

I, SYDNEY D. HARVEY, CLERK OF THE SUPERIOR COURT, DO HEREBY CERTIFY THAT IN THE ABOVE-ENTITLED PETITION FOR DIVORCE, A HEARING WAS HELD ON THE 2D DAY OF JUNE, A.D., 1925, AND DECISION WAS RENDERED FOR THE PETITIONER ON THE GROUND OF ADULTERY AND CUSTODY OF MINOR CHILDREN AWARDED SAID PETITIONER.

I FURTHER CERTIFY THAT UP TO THE PRESENT DATE FINAL DECREE HAS NOT BEEN ENTERED.

IN TESTIMONY WHEREOF, I HAVE HEREUNTO SET MY HAND AND AFFIXED THE SEAL OF SAID COURT AT NEWPORT THIS 3D DAY OF AUGUST, A.D. 1926.

(SIGNED)SYDNEY D. HARVEY, CLERK.

IT APPEARS THAT THE CHILDREN ARE NOW AND HAVE FOR SOME TIME PAST BEEN WITH THEIR MOTHER, THE CLAIMANT IN THIS CASE.

THE GENERAL LAWS OF RHODE ISLAND, 1923, PAGE 1254 (4230), PROVIDE:

SEC. 19. * * * BUT NO DECREE FOR SUCH DIVORCE SHALL BECOME FINAL AND OPERATIVE UNTIL SIX MONTHS AFTER THE TRIAL AND DECISION.

IN PASSING UPON A PETITION FOR WRIT OF PROHIBITION, MCLAUGHLIN V. MCLAUGHLIN, DIVORCE, FINAL DECREE, IT WAS HELD TO 44 R.I. REPORT 430 433, THAT---

IT IS ERROR TO ENTER A FINAL DECREE FOR DIVORCE AGAINST THE WISH OF THE PETITIONER IN WHOSE FAVOR A DECISION HAS BEEN GIVEN.

AFTER EVIDENCE WARRANTING A DECISION IN FAVOR OF THE PETITIONER THE COURT MAY NOT ENTER A FINAL DECREE UNTIL SIX MONTHS AFTER THE DECISION. THERE ARE A NUMBER OF APPARENT CAUSES FOR THIS EXTENDED DELAY, AMONG WHICH SOME COURTS, WITH REASON, HAVE SEEN A PURPOSE TO GIVE FURTHER OPPORTUNITY FOR CONDONATION AND FOR RECONCILIATION.

IT IS A GENERAL RULE THAT IN CASE OF INTERLOCUTORY DECREE THE PROPERTY RIGHTS OF THE PARTIES REMAIN THE SAME, EXCEPT WHERE UNDER AUTHORITY OF STATUTE THE DECREE EXPRESSLY PROVIDES FOR THE DISPOSITION OF THE PROPERTY OF THE PARTIES. 53 ALA.REP. 558; 36 MD.REP. 511. MOREOVER, WHERE ONE OF THE PARTIES DIES AFTER A DECREE NISI HAS BEEN ENTERED AND BEFORE THE ENTRY OF A FINAL DECREE, SUCH DEATH PUT AN END TO THE SUIT AND PREVENTS THE ENTRY OF A DECREE ABSOLUTE. 46 MICH. 511; 60 MD.REP. 185.

THE ACT OF JUNE 4, 1920, 41 STAT. 824, PROVIDES:

THAT HEREAFTER, IMMEDIATELY UPON OFFICIAL NOTIFICATION OF THE DEATH FROM WOUNDS OR DISEASE, NOT THE RESULT OF HIS OR HER OWN MISCONDUCT, OF ANY OFFICER, ENLISTED MAN, OR NURSE ON THE ACTIVE LIST OF THE REGULAR NAVY OR REGULAR MARINE CORPS, OR ON THE RETIRED LIST WHEN ON ACTIVE DUTY, THE PAYMASTER GENERAL OF THE NAVY SHALL CAUSE TO BE PAID TO THE WIDOW, AND IF THERE BE NO WIDOW TO THE CHILD OR CHILDREN, AND IF THERE BE NO WIDOW OR CHILD, TO ANY OTHER DEPENDENT RELATIVE OF SUCH OFFICER, ENLISTED MAN, OR NURSE PREVIOUSLY DESIGNATED BY HIM OR HER, AN AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE RECEIVED BY SUCH OFFICER, ENLISTED MAN, OR NURSE AT THE DATE OF HIS OR HER DEATH. * * *

BASED UPON THE PLAIN PROVISION OF THE RHODE ISLAND STATUTE RELATIVE TO DIVORCE, THE CLAIMANT WAS THE LAWFUL WIFE OF VALENTINE HILTBOLD AT THE TIME OF HIS DEATH, AND UNDER THE ACT OF JUNE 4, 1920, IS ENTITLED TO THE AMOUNT EQUAL TO SIX MONTHS' PAY AT THE RATE RECEIVED BY THE DECEASED AT DATE OF DEATH.