B-164063, MAY 3, 1968

B-164063, MAY 3, 1968

TO CHADEAYNE, WILKINSON AND TALLEY:

THIS IS IN REPLY TO THE LETTER OF YOUR ATTORNEY, MR. J. KINGSLEY CHADEAYNE, OF APRIL 3, 1968, APPEALING FROM OUR OFFICE SETTLEMENT OF MARCH 28, 1968, DENYING YOUR CLAIM AS THE GUARDIAN OF YOUR DAUGHTER, THE ILLEGITIMATE DAUGHTER OF A DECEASED EMPLOYEE FOR UNPAID COMPENSATION DUE THE DECEDENT AT THE DATE OF DEATH, OCTOBER 29, 1966, AS A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE ARMY.

YOUR CLAIM WAS DENIED ON THE GROUND THAT THE INTERLOCUTORY DECREE OF DIVORCE OBTAINED ON JUNE 29, 1959 BY THE DECEASED EMPLOYEE'S WIFE FROM DECEDENT HAD NOT BEEN FINALIZED AT THE TIME OF THE EMPLOYEE'S DEATH ON OCTOBER 29, 1966, AND THAT NOTWITHSTANDING AN ORDER OF THE COURT TO ENTER FINAL JUDGEMENT OF DIVORCE NUNC PRO TUNC THE RIGHTS OF SAID WIFE HAD BECOME VESTED AND THEREFORE COULD NOT BE DISTURBED. IT WAS ALSO POINTED OUT THAT THERE WAS NO ACKNOWLEDGMENT OF PATERNITY AS REQUIRED UNDER CALIFORNIA LAW. IN HIS LETTER MR. CHADEAYNE ENCLOSED A DECREE OF THE SUPERIOR COURT FOR SAN JOAQUIN COUNTY, CALIFORNIA, DATED JULY 20, 1960, ESTABLISHING PATERNITY AS WELL AS URGING THAT IT CONSTITUTES AN ACKNOWLEDGMENT OF PATERNITY ON THE PART OF THE DECEDENT WITH RESPECT TO THE DAUGHTER. THE RECORD INDICATES THAT THE DEFENDANT EMPLOYEE DID NOT APPEAR OR ANSWER THE COMPLAINT AND HIS DEFAULT WAS ENTERED.

MR. CHADEAYNE ALSO ASSERTS THAT UNDER THE LAWS OF THE STATE OF CALIFORNIA A NUNC PRO TUNC DECREE OF FINAL DIVORCE EFFECTIVELY ESTABLISHED THAT THE INDIVIDUAL WAS NOT THE WIFE AT THE TIME OF HIS DEATH EVEN THOUGH THE DECREE WAS NOT ENTERED UNTIL AFTER HIS DEATH.

THE RECORD INDICATES THAT NO BENEFICIARY WAS DESIGNATED BY THE EMPLOYEE TO RECEIVE UNPAID COMPENSATION. WITH RESPECT TO THE DESIGNATION OF A BENEFICIARY OR ORDER OF PRECEDENCE WHEN NONE IS NAMED 5 U.S.C. 5582 PROVIDES:

"/A) THE EMPLOYING AGENCY SHALL NOTIFY EACH EMPLOYEE OF HIS RIGHT TO DESIGNATE A BENEFICIARY OR BENEFICIARIES TO RECEIVE MONEY DUE, AND OF THE DISPOSITION OF MONEY DUE IF A BENEFICIARY IS NOT DESIGNATED. AN EMPLOYEE MAY CHANGE OR REVOKE A DESIGNATION AT ANY TIME UNDER SUCH REGULATIONS AS THE COMPTROLLER GENERAL OF THE UNITED STATES MAY PRESCRIBE.

"/B) IN ORDER TO FACILITATE THE SETTLEMENT OF THE ACCOUNTS OF DECEASED EMPLOYEES, MONEY DUE AN EMPLOYEE AT THE TIME OF HIS DEATH SHALL BE PAID TO THE PERSON OR PERSONS SURVIVING AT THE DATE OF DEATH, IN THE FOLLOWING ORDER OF PRECEDENCE, AND THE PAYMENT BARS RECOVERY BY ANOTHER PERSON OF AMOUNTS SO PAID:

"FIRST, TO THE BENEFICIARY OR BENEFICIARIES DESIGNATED BY THE EMPLOYEE IN A WRITING RECEIVED IN THE EMPLOYING AGENCY BEFORE HIS DEATH.

"SECOND, IF THERE IS NO DESIGNATED BENEFICIARY, TO THE WIDOW OR WIDOWER OF THE EMPLOYEE.

"THIRD, IF NONE OF THE ABOVE, TO THE CHILD OR CHILDREN OF THE EMPLOYEE AND DESCENDANTS OF DECEASED CHILDREN BY REPRESENTATION.' IF UNDER THE LAWS OF CALIFORNIA THE INDIVIDUAL AND DECEDENT WERE HUSBAND AND WIFE AT THE TIME OF HIS DEATH SHE IS HIS "WIDOW" WITHIN THE MEANING OF THE ABOVE STATUTE.

IN THAT REGARD AN INTERLOCUTORY JUDGMENT OF DIVORCE DOES NOT SEVER THE MARRIAGE STATUS AND THE PARTIES ARE IN THE LEGAL RELATION OF HUSBAND AND WIFE UNTIL FINAL JUDGMENT OF DIVORCE. IN RE DARGIE'S ESTATE, 121 P. 320; LUIS V CAVIN, 198 P. 563. AND WHILE SECTIONS 132 AND 133 OF DEERING'S CIVIL CODE OF CALIFORNIA ARE TO BE CONSTRUED LIBERALLY AND WHEN READ TOGETHER HAVE BEEN HELD TO AUTHORIZE THE ENTRY OF A FOMA; DECREE PF DOVPRCE NUNC PRO TUNC FOLLOWING THE DEATH OF ONE PARTY AS OF THE DATE WHEN THE FINAL JUDGMENT COULD HAVE BEEN AUTHORIZED (IN RE HUGHES" ESTATE, 182 P. 2D 253), THEIR OPERATION MAY NOT DESTROY A VESTED RIGHT. SEE IN RE ADOPTION OF GRAHAM, 377 P. 2D 275. OUR OPINION IS THAT THE INDIVIDUAL WAS THE DECEDENT'S WIDOW AT THE MOMENT OF DEATH AND ENTITLED TO HIS UNPAID COMPENSATION. THE NUNC PRO TUNC ENTRY OF FINAL DECREE OF DIVORCE DID NOT OPERATE TO DIVEST HER OF THAT RIGHT.

MOREOVER, EVEN ASSUMING THAT THE NUNCPRO TUNC FINAL DECREE OF DIVORCE COULD OPERATE SO AS TO DISSOLVE THE MARRIAGE AS OF JUNE 29, 1960, SO THAT SHE WAS NOT HIS WIDOW AT THE TIME OF DEATH, THERE IS NO INDICATION THAT DECEDENT EVER ACKNOWLEDGED IN WRITING BEFORE A COMPETENT WITNESS THE DAUGHTER AS HIS CHILD AS REQUIRED BY SECTION 255 OF DEERING'S PROBATE CODE OF CALIFORNIA. AN ADJUDICATION OF PATERNITY BY DEFAULT IS NOT THE EQUIVALENT OF A WRITTEN ACKNOWLEDGMENT OF PATERNITY REQUIRED BY THE STATUTE TO GIVE AN ILLEGITIMATE CHILD THE RIGHT OF INHERITANCE. SEE IN RE KARGER'S ESTATE, 93 N.W. 2D 137. NOR HAS A DUTY TO SUPPORT AND MAINTAIN A CHILD BEEN CONSTRUED TO CONFER INHERITANCE RIGHTS. IBID.

FOR THE FOREGOING REASONS OUR PRIOR OFFICE SETTLEMENT DENYING YOUR CLAIM FOR UNPAID COMPENSATION IS AND MUST BE SUSTAINED.