B-32761, AUGUST 24, 1943, 23 COMP. GEN. 128

B-32761, AUGUST 24, 1943, 23 COMP. GEN. 128

RENTAL AND SUBSISTENCE ALLOWANCES - DIVORCE AND REMARRIAGE WITHIN PROHIBITED PERIOD IN VIEW OF THE LAWS OF VIRGINIA, WHICH PROHIBIT REMARRIAGE TO ANOTHER WITHIN SIX MONTHS AFTER DIVORCE AND PROVIDE THAT THE MARRIAGE SHALL NOT BE DEEMED DISSOLVED AS RESPECTS A SUBSEQUENT MARRIAGE WITHIN THE SIX MONTH PERIOD, AN ARMY OFFICER WHO WAS DIVORCED IN VIRGINIA AND REMARRIED IN ANOTHER JURISDICTION WITHIN THE SIX-MONTH PERIOD MAY NOT BE PAID INCREASED RENTAL AND SUBSISTENCE ALLOWANCES, AUTHORIZED UNDER THE PAY READJUSTMENT ACT OF 1942 ON ACCOUNT OF A LAWFUL WIFE, ON THE BASIS OF THE SECOND MARRIAGE, IN THE ABSENCE OF A JUDICIAL DETERMINATION OF THE VALIDITY OF THAT MARRIAGE OR A SHOWING OF A CEREMONIAL OR VALID COMMON-LAW MARRIAGE AFTER THE EXPIRATION OF THE SIX MONTH PERIOD. INSOFAR AS 21 COMP. GEN. 1, IS INCONSISTENT HEREWITH, IT NO LONGER WILL BE FOLLOWED.

COMPTROLLER GENERAL WARREN TO LT. COL. CARL. J. MELNICK, U.S. ARMY, AUGUST 24, 1943:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF FEBRUARY 16, 1943, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO PAY A VOUCHER SUBMITTED THEREWITH, STATED IN FAVOR OF FIRST LIEUTENANT JOHN H. HINKLE, FA 310 FA ( ORC) O-314499, IN THE AMOUNT OF $247.80 FOR SUBSISTENCE AND RENTAL ALLOWANCES FOR THE PERIOD FROM NOVEMBER 14, 1942, TO JANUARY 31, 1943.

YOU STATE:

THE QUESTION AT ISSUE IN THIS CASE IS WHETHER THE CLAIMANT ACQUIRED A DEPENDENT AS OUTLINED IN SECTION 4, ACT OF CONGRESS ( PUBLIC LAW 607 -- 77TH CONGRESS.) ON NOVEMBER 14, 1942, IN VIEW OF THE PROHIBITIONS CONTAINED IN THE PENULTIMATE PARAGRAPH OF THE DECREE OF DIVORCE.

WITH YOUR SUBMISSION IS A CERTIFIED COPY OF A DECREE OF DIVORCE ENTERED IN THE CIRCUIT COURT OF CHESTERFIELD COUNTY, STATE OF VIRGINIA, ON NOVEMBER 6, 1942, IN THE CAUSE OF ESTHER W. HINKLE, PLAINTIFF V. JOHN HOMER HINKLE, JR., DEFENDANT. THE DIVORCE DECREE RECITED AMONG THE JURISDICTIONAL FACTS THAT THE DEFENDANT HAD BEEN DOMICILED IN CHESTERFIELD COUNTY, AND HAD BEEN A RESIDENT THEREOF FOR MORE THAN ONE YEAR NEXT PRECEDING THE COMMENCEMENT OF THE DIVORCE SUIT. ALSO, IT SET FORTH THAT THE DEFENDANT WAS A MEMBER OF THE ARMED FORCES OF THE UNITED STATES; WAS PROCEEDED AGAINST BY PROCESS OF PERSONAL SERVICE; AND THAT HE ENTERED HIS GENERAL APPEARANCE IN THE SUIT "WAIVING ANY RIGHTS WHICH HE MIGHT HAVE UNDER THE SO-CALLED SOLDIERS AND SAILORS RELIEF ACT.' THE DECREE PROVIDED IN RELEVANT PART AS FOLLOWS:

NOW, THEREFORE, THE COURT DOTH ADJUDGE, ORDER AND DECREE THAT THE PLAINTIFF, ESTHER W. HINKLE, BE AND SHE IS HEREBY AWARDED A DIVORCE FROM THE BOND OF MATRIMONY FROM THE DEFENDANT, JOHN HOMER HINKLE, JR., AS PRAYED FOR IN THE AMENDED AND SUPPLEMENTAL BILL OF COMPLAINT FILED BY THE PLAINTIFF, AND THAT THE MARRIAGE BETWEEN THE PLAINTIFF AND DEFENDANT BE, AND THE SAME IS HEREBY, DISSOLVED IN THE MANNER ALLOWED BY LAW.

IT IS FURTHER ADJUDGED, ORDERED AND DECREED AS PROVIDED BY SECTION 5113 OF THE CODE OF VIRGINIA THAT NEITHER OF THE SAID PARTIES HERETO SHALL MARRY AGAIN WITH SIX (6) MONTHS FROM THE ENTRY OF THIS DECREE.

NOTHING FURTHER APPEARING TO BE DONE IN THIS CAUSE, IT IS ORDERED THAT THE SAME BE REMOVED FROM THE DOCKET AND THE PAPERS THEREOF SEALED AND FILED AMONG THE ENDED CAUSES OF THIS COURT.

ON THE FACE OF THE VOUCHER ( WAR DEPARTMENT FORM NO. 336) APPEARS A TYPEWRITTEN STATEMENT AS FOLLOWS:

DIVORCED NOV. 6, 1942 IN VA. FR ESTHER W. HINKLE, 4 CHEROKEE RD., RICHMOND, VA. ( REMARRIED NOV. 14, 1942 TO MARY L HINKLE, 212 N. PALMETTO, GAINESVILLE, FLA. ( OFFICER'S LEGAL MARRIAGE STATUS IN QUESTION.)

SECTIONS 5 AND 6 OF THE PAY READJUSTMENT ACT OF JUNE 16, 1942, 56 STAT. 359, 361, AUTHORIZE THE PAYMENT OF CERTAIN RENTAL AND SUBSISTENCE ALLOWANCES TO OFFICERS IN THE ARMED FORCES ON ACCOUNT OF DEPENDENTS AS DEFINED IN SECTION 4 OF THE ACT, AND SINCE SECTION 4 EXPRESSLY DESIGNATES A "LAWFUL WIFE" AS SUCH A DEPENDENT, NONE OTHER THAN A LAWFUL WIFE MEETS THE REQUIREMENTS OF THE STATUTE IN THAT RESPECT.

THE LAWFULNESS OF A MARRIAGE DEPENDS PRIMARILY UPON THE CAPACITY AND CONSENT OF THE PARTIES TO CONTRACT A VALID MARRIAGE, AND THEIR COMPLIANCE WITH THE LEGAL FORMALITIES OF THE JURISDICTION WHERE THE MARRIAGE IS UNDERTAKEN. "THE TWO ESSENTIALS OF A VALID MARRIAGE ARE CAPACITY AND SENT," VOORHEES V. VOORHEES' EXECUTOR ( N.J.E.), 19 ATL. 172, 173. SIMPLE MARRIAGE CEREMONY WILL NOT MAKE A MAN AND WOMAN HUSBAND AND WIFE. CAPACITY AND CONSENT ARE ABSOLUTELY ESSENTIAL, BUT CELEBRATION ONLY CONTINGENTLY SO," BROKE SHOULDER V. BROKE SHOULDER ( OKLA.) 34 A.L.R. 441, 453, QUOTING. THAT IS TO SAY THAT WHERE PARTIES IN GOOD FAITH ENTER INTO AN OTHERWISE FAILURE OR FLAW IN STRICT COMPLIANCE WITH LEGAL FORMALITIES OR STATUTORY REQUIREMENTS FOR THE CELEBRATION OF MARRIAGE WHICH DOES NOT GO TO THE REALITY OF THEIR CONSENT OR THE FACT OF THEIR CAPACITY, SUCH FAILURE OR FLAW WILL NOT NECESSARILY VITIATE THE CONTRACT. BUT IF, AT THE TIME THE MARRIAGE IS UNDERTAKEN, THERE EXISTS AN IMPEDIMENT WHICH PRECLUDES EITHER OR BOTH OF THE PARTIES FROM CONTRACTING A LEGAL MARRIAGE, MERE COMPLIANCE WITH PRESCRIBED CEREMONIES AND LEGAL FORMALITIES WILL NOT AVAIL TO ACCOMPLISH THE PURPOSE, AND NO VALID MARRIAGE ENSUES. A MERE SUBSEQUENT MARRIAGE DOES NOT AMOUNT TO A DIVORCE, AND WILL NOT PREVAIL OVER A FORMER ONE. SMITH V. FULLER ( IOWA) 16 L.R.A. ( NS) 98, 109; BROKE SHOULDER V. BROKE SHOULDER, SUPRA; WILSON V. COOK ( ILL.) 100 N.E. 222; ATKESON V. SOVEREIGN CAMP, W.O.W. ( OKLA.), 216 PAC. 467.

IN THE LAST CITED CASE THE COURT SAID:

* * * AT COMMON LAW AND UNDER OUR MODERN STATUTES, THE RELATION OF MARRIAGE WAS AND HAS ALWAYS BEEN CONSIDERED AS A CIVIL CONTRACT, REQUIRING FOR ITS CONSUMMATION, AMONG OTHERS, THE LEGAL CAPACITY OF THE PERSONS TO CONTRACT. IT IS LIKEWISE AS WELL SETTLED THAT UNTIL PARTIES ARE FINALLY AND ABSOLUTELY DIVORCES--- THAT IS, THE LEGALLY EXISTING CONTRACT BETWEEN THEM IS LEGALLY AND ABSOLUTELY DISSOLVED--- THE PARTIES ARE INCAPABLE OF CONTRACTING MARRIAGE WITH ANY ONE. FOR THESE REASONS, WE ARE UNABLE TO CONCEIVE OF ANY SOUND REASON WHY, UNTIL THE PERIOD OF SIX MONTHS HAS TRANSPIRED A MARRIAGE CONTRACT ENTERED INTO IN VIOLATION OF THE STATUTE SHOULD BE HELD TO BE OTHER THAN A VOID CONTRACT, WHEREVER ENTERED INTO.

WHEN ONCE A VALID MARRIAGE IS CONSUMMATED, ITS BONDS CAN BE SEVERED ONLY BY DEATH OR DIVORCE. ,IT IS EVERYWHERE ASSERTED, AND NOWHERE DENIED, THAT NOTHING BUT DEATH OR DIVORCE WILL DISSOLVE THE MARRIAGE RELATION," SMITH V. FULLER, SUPRA. "THE MARRIAGE RELATION WAS NECESSARILY CONTINUING UNTIL DISSOLVED BY DEATH OR ACCORDING TO LAW," UNITED STATES V. SMITH, 14 PAC. 291, 293. SEE, ALSO, RANDALL V. KREIGER, 23 WALL. (90 U.S.) 137, 147.

AS TO MARRIAGE, IT MAY BE STATED GENERALLY THAT ITS VALIDITY DEPENDS UPON COMPLIANCE WITH THE LEX LOCI CONTRACTUS--- THE LAW OF JURISDICTION WHERE THE MARRIAGE IS CONSUMMATED--- AND THAT A MARRIAGE VALID WHERE CONTRACTED WILL BE RECOGNIZED AS VALID EVERYWHERE. MOREOVER, WHEN IT IS SHOWN THAT A MARRIAGE CEREMONY HAS BEEN PERFORMED IN CONFORMITY WITH THE LAWS OF THE STATE OF THE MARRIAGE, THERE IS A PRESUMPTION THAT SUCH MARRIAGE IS VALID, IN THE ABSENCE OF EXTRINSIC EVIDENCE EITHER WAY. BUT THAT PRESUMPTION IS NOT CONCLUSIVE, AND WILL NOT PREVAIL OVER ESTABLISHED FACTS TO THE CONTRARY. SMITH V. FULLER, SUPRA., BARBER V. PEOPLE ( ILL.) 68 N.E. 93. "PRESUMPTION MUST YIELD TO THE SUPERIOR FORCE OF DIRECT AND POSITIVE PROOF," CARTWRIGHT V. MCCOWN ( ILL.) 12 N.E. 737.'WHILE THE COURTS STATE THAT THE INCLINATION OF THE COURTS IS TO JEALOUSLY GUARD THE VALIDITY OF A MARRIAGE, AND STATE THAT THERE IS A STRONG PRESUMPTION IN FAVOR OF ITS LEGALITY, YET THEY NOWHERE HOLD THAT THESE PRESUMPTIONS ARE CONCLUSIVE, BUT HOLD THAT THEY ARE REBUTTABLE PRESUMPTIONS, AND ARE SUBJECT AT ALL TIMES TO BE OVERCOME BY EITHER NEGATIVE OR POSITIVE PROOF, OR BOTH.' BROKE SHOULDER V. BROKE SHOULDER, SUPRA. AND WHEN THE EVIDENCE TENDING TO IMPEACH THE VALIDITY OF THE PURPORTED SECOND MARRIAGE IS SUCH AS, IN THE ABSENCE OF ALL COUNTER EVIDENCE, AFFORDS REASONABLE GROUND FOR PRESUMING ITS INVALIDITY, THE ONUS PROBANDI--- THE BURDEN OF PROOF--- IS THROWN UPON THE PROPONENTS OF SUCH MARRIAGE TO ESTABLISH ITS LEGAL VALIDITY. COPELAND V. COPELAND ( OKLA.) 175 PAC. 764; SCHMISSEUR V. BEATRIE ( ILL.) 35 N.E. 525.

AS TO DIVORCE, THE RULE IS THAT ITS CHARACTER, EFFECT, FORCE AND VALIDITY ARE DEPENDENT UPON COMPLIANCE WITH THE LEX FORI--- THE LAW OF THE JURISDICTION IN WHICH THE DIVORCE PROCEEDINGS ARE HAD. THE RULE IS STATED GENERALLY IN 27 C.J.S. PAGE 527, WITH COPIOUS CITATIONS, AS FOLLOWS:

* * * EACH STATE, ACTING THROUGH ITS LEGISLATURE, HAS THE EXCLUSIVE RIGHT AND POWER TO REGULATE, CONTROL, AND PRESCRIBE AND CHANGE CONDITIONS FOR DIVORCE OF THOSE RESIDING WITHIN ITS TERRITORIAL LIMITS; AND, SINCE THERE IS NO COMMON LAW GOVERNING DIVORCE, IT IS A RULE OF GENERAL APPLICATION THAT DIVORCE RESTS WHOLLY UPON STATUTORY PROVISIONS. THUS A DIVORCE MAY BE SECURED ONLY IN A COURT HAVING PROPER STATUTORY JURISDICTION OF SUCH PROCEEDINGS, * * * UPON A GROUND PRESCRIBED BY STATUTE, * * * AND UPON COMPLIANCE WITH STATUTORY MODES AND FORMS OF PROCEEDINGS * * *.

APPLYING THESE RULES TO THE CASE AT HAND, SECTION 5113 OF THE CODE OF VIRGINIA IS AS FOLLOWS:

DISSOLUTION OF BOND OF MATRIMONY; NEITHER PARTY TO MARRY FOR SIX MONTHS.- -- ON THE DISSOLUTION OF THE BOND OF MATRIMONY FOR ANY CAUSE ARISING SUBSEQUENT TO THE DATE OF THE MARRIAGE, NEITHER PARTY SHALL BE PERMITTED TO MARRY AGAIN FOR SIX MONTHS FROM THE DATE OF SUCH DECREE, AND SUCH BOND OF MATRIMONY SHALL NOT BE DEEMED TO BE DISSOLVED AS TO ANY MARRIAGE SUBSEQUENT TO SUCH DECREE, OR IN ANY PROSECUTION ON ACCOUNT THEREOF, UNTIL THE EXPIRATION OF SUCH SIX MONTHS. THE DIVORCE DECREE OF NOVEMBER 6, 1942, BY REFERENCE, MADE THIS STATUTE AS MUCH A PART THEREOF AS IF IT HAS BEEN EXPRESSLY INCORPORATED THEREIN. THE PROHIBITORY PROVISIONS OF THE STATUTE, THEREFORE, WERE INTEGRAL TO THE JUDGMENT OF DIVORCE AND AS BINDING ON THE PARTIES TO THE PROCEEDINGS AS ANY OTHER PROVISION OF THE DECREE. THE MEANING, FORCE AND OPERATION OF THE QUOTED STATUTE HAS BEEN DETERMINED BY THE SUPREME COURT OF APPEALS- - THE COURT OF LAST RESORT--- OF THE STATE OF VIRGINIA. THE LEADING CASE OF HEFLINGER V. HEFLINGER, 136 VA. 289, 118 S.E. 316, 32 A.L.R. 1088, INVOLVED A MAN DIVORCED IN VIRGINIA SUBJECT TO THE PROHIBITION OF THE STATUTE, WHO WENT TO MARYLAND AND WENT THROUGH A CEREMONY OF MARRIAGE WITH ANOTHER WOMAN--- IN CONFORMITY WITH THE FORMALITIES REQUIRED BY THE LAWS OF THAT STATE--- BUT WITHIN SIX MONTHS FROM THE ENTRY OF THE DIVORCE DECREE IN VIRGINIA. IN A CONTESTED SUIT INSTITUTED BY HEFLINGER TO ANNUL THE SECOND MARRIAGE ON THE SOLE GROUND THAT IT WAS NULL AND VOID BY REASON OF VIOLATION OF THE STATUTORY PROHIBITION AGAINST SUBSEQUENT MARRIAGE WITHIN SIX MONTHS, THE TRIAL COURT ENTERED A DECREE OF ANNULMENT IN HIS FAVOR. UPON APPEAL, THE SUPREME COURT OF APPEALS AFFIRMED THE JUDGMENT. IN A COMPREHENSIVE AND PAINSTAKING OPINION, HAVING RECOURSE TO NUMEROUS AUTHORITIES FROM OTHER JURISDICTIONS AND DIFFERENTIATING THE VIRGINIA STATUTE FROM STATUTES OF SOMEWHAT SIMILAR TENOR OF OTHER STATES, THE COURT HELD THAT HEFLINGER'S MARRIAGE IN MARYLAND WITHIN SIX MONTHS AFTER RENDITION OF THE DIVORCE DECREE IN THE VIRGINIA PROCEEDINGS WAS NULL AND VOID AB INITIO. THE COURT HELD, IN PERTINENT SUBSTANCE, THAT AS TO ANY SUBSEQUENT MARRIAGE THERE WAS NO DIVORCE; THAT THE BOND OF MATRIMONY CREATED BY HEFLINGER'S FIRST MARRIAGE WAS NOT DISSOLVED BY THE DIVORCE DECREE SO AS TO PERMIT ANOTHER MARRIAGE; THAT THE PARTIES TO THE FIRST MARRIAGE WERE ABSOLVED FROM MANY OF THE OBLIGATIONS IMPOSED BY SAID MARRIAGE, BUT NOT FROM THE OBLIGATION TO REFRAIN FROM MARRYING DURING THE SIX MONTHS; THAT AS TO THAT OBLIGATION THEY CONTINUED TO BE HUSBAND AND WIFE DURING THAT TIME AND NEITHER COULD LAWFULLY INTERMARRY WITH ANOTHER; THAT NO MATTER WHERE THE SUBSEQUENT MARRIAGE TOOK PLACE THE BOND OF MATRIMONY OF THE FIRST MARRIAGE WAS NOT DISSOLVED AS TO IT; THAT HEFLINGER WAS NOT AN UNMARRIED MAN WHEN HE MARRIED THE SECOND WOMAN "AND NEITHER IN MARYLAND NOR ELSEWHERE COULD HE TAKE UNTO HIMSELF A SECOND WIFE WITHIN THE SIX MONTHS. WHEN HE DID SO HE HAD A FORMER WIFE LIVING AND THE SECOND MARRIAGE WAS "ABSOLUTELY VOID.'" THE COURT SAID:

FURTHERMORE, ALL OF THE CASES ON THE SUBJECT OF THE EFFECT OF LOCAL LAWS ON FOREIGN MARRIAGES REQUIRE THAT THE FOREIGN MARRIAGE SHALL BE VALID ACCORDING TO THE LAW OF THE PLACE WHERE CELEBRATED. IN THE CASE IN JUDGMENT THE MARRIAGE IN CONTROVERSY WAS NOT VALID ACCORDING TO THE LAW OF MARYLAND BECAUSE THE APPELLEE ( HEFLINGER) HAD A WIFE LIVING FROM WHOM HE HAD NOT BEEN DIVORCED. THE TIME WHEN THE DIVORCE DECREE WAS TO BECOME OPERATIVE HAD NOT YET ARRIVED, AND UNTIL IT DID BECOME OPERATIVE THERE WAS NO DIVORCE THAT FULLY DISSOLVED THE BOND OF THE FORMER MARRIAGE. * * * UNDER THE STATUTE (SECTION 5113) THE DECREE OF DIVORCE IS NOT OPERATIVE AT ALL AS TO A SUBSEQUENT MARRIAGE UNTIL THE EXPIRATION OF SIX MONTHS FROM THE DATE OF THE DECREE. SUCH IS THE PLAIN LANGUAGE OF THE STATUTE, WHICH IS A LEGISLATIVE CONSTRUCTION OF THE MEANING AND EFFECT OF A DECREE FOR DIVORCE IN THIS STATE, AND WHICH IT WAS FULLY WITHIN THE POWER OF THE LEGISLATURE TO MAKE. THIS CONSTRUCTION OF THE DECREE FOR DIVORCE WHICH THE LEGISLATURE HAD AUTHORIZED THE COURTS TO MAKE IS AS MUCH A PART OF THE DECREE AS IF COPIED INTO THE DECREE ITSELF, AND IS ENTITLED TO FULL FAITH AND CREDIT IN EVERY OTHER STATE OF THE UNION UNDER THE PROVISIONS OF ARTICLE 4, SECTION 1, OF THE CONSTITUTION OF THE UNITED STATES. * * *

* * * IT IS SIMPLY A QUESTION OF THE EFFECT OF THAT DECREE IN VIEW OF THE STATUTE. THAT IT LEAVES THE FIRST MARRIAGE SO FAR UNDISSOLVED AS TO PROHIBIT A SECOND MARRIAGE SEEMS TOO PLAIN TO ADMIT OF ARGUMENT. THE STATUTE MEANS THAT, OR IT MEANS NOTHING. IT SAYS SO IN EXPLICIT LANGUAGE, AND DOES NOT LIMIT THE PLACE OF A SECOND OR SUBSEQUENT MARRIAGE. THE DECREE, BEING VALID, AND HAVING THIS MEANING AND EFFECT HERE, MUST BE GIVEN FULL FAITH AND CREDIT IN ALL OF THE OTHER STATES OF THE UNION. * * * "IF A JUDGMENT IS CONCLUSIVE TO THE STATE WHERE IT IS RENDERED, IT IS EQUALLY CONCLUSIVE EVERYWHERE," IN ALL THE COURTS IN THE UNITED STATES. * * THAT THE SAME VIEW OF THE MATTER WOULD BE TAKEN BY THE COURTS OF OTHER STATES IS EVIDENCED BY THE SUBSEQUENT DECISION OF THE SUPREME COURT OF APPEALS OF WEST VIRGINIA IN THE CASE OF JOHNSON V. STATE COMPENSATION COMMISSIONER, 179 S.E. 814, DECIDED APRIL 30, 1935. IN THAT CASE, THE MAN'S WIFE HAD OBTAINED A DIVORCE FROM HIM IN VIRGINIA UNDER A DECREE DATED FEBRUARY 29, 1928. BY A FORMAL MARRIAGE CEREMONY HE ATTEMPTED TO MARRY ANOTHER WOMAN IN WYOMING COUNTY, WEST VIRGINIA, ON JUNE 26, 1928--- THAT IS, WITHIN SIX MONTHS AFTER THE DIVORCE DECREE. SOME SIX YEARS LATER, ON MARCH 27, 1934, HE WAS KILLED IN WEST VIRGINIA, IN THE COURSE OF HIS EMPLOYMENT. IT WAS HELD THAT THE ATTEMPTED SECOND MARRIAGE WAS A NULLITY, AND THEREFORE, THAT THE WOMAN WAS NOT HIS WIDOW AND WAS NOT ENTITLED TO AN AWARD UNDER THE WORKMEN'S COMPENSATION ACT OF WEST VIRGINIA. THE COURT SAID:

* * * THE ATTEMPTED MARRIAGE OF WILLIAM AND LALA IN WYOMING COUNTY CANNOT BE SAID TO BE A LAWFUL MARRIAGE, BECAUSE THE BOND OF MATRIMONY BETWEEN WILLIAM AND HIS FORMER WIFE HAD NOT THEN BEEN COMPLETELY SEVERED. SUCH IS THE VIRGINIA LAW, AND WILLIAM'S STATUS MUST BE MEASURED THEREBY. THE STATUE OF THE STATE MUST BE READ INTO THE DIVORCE DECREE WHICH JOHNSON'S FORMER WIFE OBTAINED AGAINST HIM. IN RESPECT OF THE RIGHT OF REMARRIAGE, THE POSITION OF THE PARTIES TO THAT SUIT REMAINED FOR SIX MONTHS AS THOUGH NO DECREE OF DIVORCE HAD BEEN RENDERED; NEITHER OF THEM HAD ANY MORE RIGHT TO CONTRACT A MARRIAGE WITH A THIRD PARTY THAN IF THERE HAD BEEN NO DIVORCE. REFERRING TO THE VIRGINIA STATUTE HERE UNDER DISCUSSION THE COURT OF LAST RESORT OF THAT STATE SAID: "AS TO ANY SUBSEQUENT MARRIAGE, THERE WAS NO DIVORCE. THE "BOND OF MATRIMONY" CREATED BY THE FIRST MARRIAGE WAS NOT DISSOLVED SO AS TO PERMIT ANOTHER MARRIAGE. THE PARTIES TO THE FIRST MARRIAGE WERE ABSOLVED FROM MANY OF THE OBLIGATIONS IMPOSED BY THAT MARRIAGE BUT NOT FROM THE OBLIGATION TO REFRAIN FROM MARRYING ANOTHER DURING THE SIX MONTHS.' HEFLINGER V. HEFLINGER, 136 VA. 289. 118 S.E. 316, 321, 32 A.L.R. 1088. THERE ARE SIMILAR JUDICIAL INTERPRETATIONS OF ANALOGOUS STATUTORY PROVISIONS IN OTHER JURISDICTIONS: MCLENNAN V. MCLENNAN, 31 OR. 480, 50 P. 802, 38 L.R.A. 863, 65 AM. ST. REP. 835; WILHITE V. WILHITE, 41 KAN. 154, 21 P. 173; IN RE SMITH'S ESTATE, 4 WASH. 702, 30 P. 1059, 17 L.R.A. 573.

WILLIAM JOHNSON'S RIGHT TO REMARRIAGE DEPENDED UPON WHETHER HE WAS DIVORCED ABSOLUTELY FROM HIS FORMER WIFE. THE DIVORCE PROCEEDING HAVING BEEN IN VIRGINIA, THE LAW OF THAT STATE IS DETERMINATIVE OF THE EFFECT OF THE DECREE IN THE DIVORCE CASE. IN THE HEFLINGER CASE, SUPRA, THE SUPREME COURT OF APPEALS OF VIRGINIA UNEQUIVOCALLY DETERMINED THAT THE LANGUAGE OF THE STATUTE IS TO BE GIVEN ITS LITERAL MEANING. WE MUST BE GOVERNED ACCORDINGLY. IN THE INTERPRETATION OF A STATUTE OF ANOTHER STATE, THIS COURT WILL ADOPT THE CONSTRUCTION GIVEN IT BY THE HIGHEST JUDICIAL TRIBUNAL OF SUCH STATE, UNLESS THE SAME BE IN CONTRAVENTION OF THE CONSTITUTION OF THE UNITED STATES. NIMICK AND CO. V. IRON WORKS, 25 W.1VA. 184, SYL. 9.

HOWEVER INNOCENT AND WELL-MEANING THE CLAIMANT MAY HAVE BEEN IN PRESUMABLY CONTRACTING MARRIAGE WITH WILLIAM JOHNSON, THE CONTROLLING FACT IS THAT HE WAS NOT THEM IN POSITION TO ENTER INTO SUCH RELATIONSHIP WITH HER. THE ATTEMPTED MARRIAGE WAS A NULLITY.

IT IS UNQUESTIONED THAT THE VIRGINIA DIVORCE DECREE WITH ALL ITS PROVISIONS--- THE JUDGMENT OF DIVORCE--- IN THE INSTANT CASE WAS VALID IN VIRGINIA. MAYNARD V. HILL, 125 U.S. 190. BEING VALID IN VIRGINIA, IT WAS VALID EVERYWHERE. DAVIS V. DAVIS, 305 U.S. 32; WILLIAMS ET AL. V. NORTH CAROLINA, 317 U.S. 287; HAMPTON V. MCCONEL, 3 WHEAT. (16 U.S.) 234, 235. IN THE WILLIAMS CASE THE COURT SAID:

* * * THIS COURT ONLY RECENTLY STATED THAT ART. IV. SEC. 1 ( UNITED STATES CONSTITUTION) AND THE ACT OF MAY 26, 1790 (28 U.S.C. 687) REQUIRED THAT "NOT SOME, BUT FULL" FAITH AND CREDIT BE GIVEN JUDGMENTS OF A STATE COURT * * *.

AND MR. JUSTICE FRANKFURTER, CONCURRING, SAID:

* * * AS THE COURT'S OPINION SHOWS, IT IS CLEARLY SETTLED THAT IF A JUDGMENT IS BINDING IN THE STATE WHERE IT WAS RENDERED, IT IS EQUALLY BINDING IN EVERY OTHER STATE * * *.

ALSO, SEE IN THIS CONNECTION GIVENS V. GIVENS ( FLA.) 163 SO. 574, 576, WHERE THE FLORIDA SUPREME COURT SAID:

WE THINK THAT THE MERE FACT THAT IN FLORIDA A DIVORCE A MENSA ET THORO CANNOT BE OBTAINED DOES NOT PRECLUDE FLORIDA FROM BEING BOUND BY THE FEDERAL CONSTITUTION, ARTICLE 4, SEC. 1, AND THAT, THEREFORE, FOLLOWING THE MANDATES OF THAT PROVISION OF THE CONSTITUTION, FULL FAITH AND CREDIT MUST BE GIVEN IN FLORIDA TO THE PUBLIC ACTS, RECORDS, AND JUDICIAL PROCEEDINGS IN THE STATE OF VIRGINIA. THERE IS NO REASON TO SUPPOSE THAT THE RULE THUS STATED BY THE SUPREME COURT OF FLORIDA WOULD NOT BE APPLIED WITH EQUAL FORCE TO A JUDGMENT OF A DIVORCE A VINCULO MATRIMONII CONDITIONED AS IN THE PRESENT CASE.

IT IS, UNDOUBTEDLY, THE GENERAL RULE OF LAW THAT A MARRIAGE VALID WHERE IT IS CELEBRATED IS VALID EVERYWHERE, BUT THERE IS A WELL RECOGNIZED EXCEPTION, VIZ, WHERE THE MARRIAGE IS DECLARED BY POSITIVE LAW TO HAVE NO VALIDITY. * * * BY THE LAWS OF WISCONSIN, A DECREE OF DIVORCE IS NOT EFFECTIVE UNTIL THE EXPIRATION OF ONE YEAR FROM THE DATE OF THE GRANTING OF SUCH DECREE, AND IF A PARTY TO AN ACTION FOR DIVORCE MARRIES BEFORE THE EXPIRATION OF ONE YEAR FROM THE DATE OF THE GRANTING OF THE DIVORCE, SUCH MARRIAGE IS NULL AND VOID, AND SUCH PERSON CANNOT EVADE THE FORCE OF THESE LAWS BY MARRYING IN ANOTHER STATE OR COUNTRY. EX PARTE SOUCEK, 101 F.2D. 405.

* * * UNTIL THE EXPIRATION OF THE STATUTORY PERIOD (SIX MONTHS) AGAINST REMARRIAGE HAD EXPIRED, THE DEFENDANT DID NOT HAVE CAPACITY TO ENTER INTO A CONTRACT OF MARRIAGE. IN CONTEMPLATION OF LAW HER SOCIAL STATUS WAS THE SAME AS IF NO DECREE HAS BEEN MADE. AT THE TIME OF HER ALLEGED MARRIAGE AT VICTORIA ( BRITISH COLUMBIA) SHE HAD A HUSBAND LIVING. THIS MARRIAGE AT THE TIME OF ITS INCEPTION WAS THEREFORE POLYGAMOUS IN CHARACTER. WHEN PERSONS ENTER INTO A CONTRACT OF MARRIAGE, EITHER PURSUANT TO STATUTE OR COMMON LAW, IT IS ESSENTIAL TO THE VALIDITY OF THE SAME THAT THEY HAVE CAPACITY AND ARE COMPETENT SO TO CONTRACT. HUARD. V. MCTEIGH ( ORE.) 232 PAC. 658, 660.

IN THE LIGHT OF THE DECISIONS HEREINBEFORE CITED, AND IN THE ABSENCE OF A JUDICIAL DETERMINATION BY A COURT OF COMPETENT JURISDICTION TO THE CONTRARY, THE VALIDITY OF LIEUTENANT HINKLE'S MARRIAGE IN FLORIDA ON NOVEMBER 14, 1942, WITHIN SIX MONTHS FOLLOWING THE VIRGINIA DIVORCE DECREE OF NOVEMBER 6, 1942, IS NOT SO FREE FROM DOUBT AS TO JUSTIFY THIS OFFICE IN APPROVING THE PAYMENT OF RENTAL AND SUBSISTENCE ALLOWANCES TO HIM ON THE BASIS OF THAT MARRIAGE. COMPARE DECISION OF JUNE 30, 1943, 22 COMP. GEN. 1145, TO THE SECRETARY OF THE NAVY, INVOLVING A SIMILAR SITUATION UNDER CALIFORNIA STATUTES. ACCORDINGLY, THE QUESTION PRESENTED BY YOU IS ANSWERED IN THE NEGATIVE AND THE VOUCHER SUBMITTED WILL BE RETAINED IN THIS OFFICE. TO THE EXTENT THAT THE DECISIONS OF DECEMBER 1, 1937, A- 897772, AND JULY 3, 1941, 21 COMP. GEN. 1, ARE INCONSISTENT WITH THE CONCLUSION HERE REACHED, THEY NO LONGER WILL BE FOLLOWED.

WHILE THE QUESTION IS NOT RAISED BY YOUR SUBMISSION, THERE IS A SUGGESTION IN CORRESPONDENCE WITH THE FILE THAT, IN ANY EVENT, THE FLORIDA MARRIAGE BECAME VALID AT THE EXPIRATION OF SIX MONTHS AFTER THE VIRGINIA DIVORCE DECREE AND THAT PAYMENT OF THE INCREASED ALLOWANCES THEREAFTER WOULD BE AUTHORIZED. AS TO THIS IT MAY BE SAID THE GENERAL RULE APPEARS TO BE IN SOME STATES WHICH RECOGNIZE COMMON LAW MARRIAGES- - BUT NOT IN STATES WHICH DO NOT--- THAT IF PARTIES DESIRE MARRIAGE AND DO WHAT THEY CAN TO RENDER THEIR UNION MATRIMONIAL, BUT ONE OF THEM IS UNDER A DISABILITY, THEIR COHABITATION THUS MATRIMONIALLY MEANT, AND CONTINUED AFTER THE DISABILITY IS REMOVED, WILL, IN LAW, RIPEN INTO A VALID COMMON LAW MARRIAGE AND MAKE THEM HUSBAND AND WIFE FROM THE MOMENT THAT THE DISABILITY NO LONGER EXISTS, ALTHOUGH THERE ARE NO SPECIAL CIRCUMSTANCES TO INDICATE THAT THE PARTIES EXPRESSLY RENEWED THEIR CONSENT OR CHANGED THEIR MODE OF LIVING AFTER THE REMOVAL OF THE IMPEDIMENT. 104 A.L.R. 12, CITING NUMEROUS CASES IN AN ANNOTATION TO JONES V. JONES, 119 FLA. 824, 161 SO. 836, 104 A.L.R. 1, WHERE SUCH RULE APPEARS TO HAVE BEEN RECOGNIZED AS APPLYING IN FLORIDA. SEE, ALSO, DECISION OF JUNE 30, 1943, 22 COMP. GEN. 1145, REFERRED TO ABOVE. HOWEVER, IN THE PRESENT CASE, IT IS NOT SHOWN THAT THE PARTIES TO THE ATTEMPTED FLORIDA MARRIAGE CONTINUED TO LIVE IN FLORIDA AS HUSBAND AND WIFE AFTER THE VIRGINIA DIVORCE OF THE OFFICER BECAME FINAL ON MAY 6, 1943, OR THAT THEY LIVED IN ANY OTHER STATE WHERE SUCH RULE IS RECOGNIZED. ON THE CONTRARY, THE RECORD INDICATES THAT THE OFFICER IS NOW STATIONED IN TENNESSEE AND THAT BOTH PARTIES HAVE BEEN FOR SOME TIME, POSSIBLY FOR SEVERAL MONTHS, IN THAT STATE. AS COMMON LAW MARRIAGES ARE NOT RECOGNIZED IN TENNESSEE, IT WOULD FOLLOW THAT COHABITATION THERE AFTER REMOVAL OF THE IMPEDIMENT TO MARRIAGE WOULD NOT BE REGARDED AS HAVING RIPENED THE ATTEMPTED FLORIDA MARRIAGE INTO A VALID COMMON LAW MARRIAGE UNDER THE RULE STATED. IN THE ABSENCE OF A CEREMONIAL MARRIAGE OR A RECOGNIZED COMMON LAW MARRIAGE, SUBSEQUENT TO THE DATE THE VIRGINIA DIVORCE BECAME FINAL, THE PAYMENT OF INCREASED ALLOWANCES TO THE OFFICER ON ACCOUNT OF A LAWFUL WIFE IS NOT AUTHORIZED.