B-69149, DEC 5, 1947

B-69149, DEC 5, 1947

PRECIS-UNAVAILABLE

THE HONORABLE, THE SECRETARY OF THE NAVY:

THERE HAS BEEN CONSIDERED YOUR LETTER OF AUGUST 26, 1947, REQUESTING A DECISION ON THE QUESTIONS STATED IN A LETTER DATED JULY 7, 1947, TRANSMITTED THEREWITH, FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS. THE QUESTIONS ARE STATED AS FOLLOWS:

"(A) WHETHER PAYMENTS OF INCREASED ALLOWANCES CREDITED ON THE PAY RECORD OF LIEUTENANT (JUNIOR GRADE) ROY CHANCEY, EITHER AS AN ENLISTED MAN OR AS AN OFFICER, FOR THE PERIOD FROM 17 OCTOBER 1940 TO AN INCLUDING 31 MAY 1942, DATE PRECEDING EFFECTIVE DATE OF REFERENCE (B), COME WITHIN THE PURVIEW OF REFERENCE (A); "(B) WHETHER THE LANGUAGE USED IN ENCLOSURES (B) AND (C), WHEN CONSIDERED IN CONJUNCTION WITH THE ALLEGATIONS CONTAINED IN ENCLOSURE (A), SHOWS THAT THE MARRIAGE OF ROY CHANCEY AND THELMA FRANCES CHANCEY WAS ENTERED INTO IN GOOD FAITH ON THE PART OF ROY CHANCEY, AS PROVIDED BY REFERENCE (A), SO AS TO ENTITLE HIM TO REFUND OF ALL OR ANY PORTION OF THE AMOUNT CREDITED IN HIS PAY RECORD AS INCREASED ALLOWANCES AS AN ENLISTED MAN OR OFFICER FOR THE PERIODS FROM 17 OCTOBER 1940 TO 31 MAY 1942 AND FROM 1 JUNE 1942 TO AND INCLUDING 21 JANUARY 1946."

THE REFERENCES AND ENCLOSURES WITH THE LETTER OF JULY 7, 1947, ARE LISTED THEREIN AS FOLLOWS:

"REF: (A) PUBLIC LAW 55, APPROVED MAY 15, 1947.

(B) PUBLIC LAW 872, APPROVED OCTOBER 17, 1940.

(C) SECTION 61, CIVIL CODE OF CALIFORNIA.

(D) SAND A MANUAL PAR 54102-3 (C).

"ENCLS: (A) CERTIFIED COPY OF COMPLAINT FOR ANNULMENT NO. 129931 FILED IN THE SUPERIOR COURT OF SAN DIEGO COUNTY, CALIFORNIA, ON 5 DECEMBER 1945 IN THE CASE OF ROY CHANCEY VS. THELMA FRANCES CHANCEY.

(B) CERTIFIED COPY OF JUDGEMENT OF ANNULMENT ENTERED ON 22 JANUARY 1946 PURSUANT TO ENCLOSURE (A).

(C) CERTIFIED COPY OF JUDGMENT OF ANNULMENT NO. 136915 ENTERED IN THE SUPERIOR COURT OF SAN DIEGO COUNTY, CALIFORNIA, ON 13 MARCH 1947."

THE ACT OF OCTOBER 17, 1940, 54 STAT. 1205, PROVIDES:

"THAT EACH ENLISTED MAN OF THE FIRST, SECOND, OR THIRD GRADE OF THE ARMY OF THE UNITED STATES IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES, HAVING A DEPENDENT AS DEFINED IN SECTIONS 8 AND 8A, TITLE 37, U.S.C. SHALL, UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, BE ENTITLED TO RECEIVE, FOR ANY PERIOD DURING WHICH PUBLIC QUARTERS ARE NOT PROVIDED AND AVAILABLE FOR HIS DEPENDENT, THE MONEY ALLOWANCE FOR QUARTERS AUTHORIZED BY LAW TO BE GRANTED TO EACH ENLISTED MAN NOT FURNISHED QUARTERS IN KIND."

SECTION 8, TITLE 37, U.S.C., IN EFFECT ON OCTOBER 17, 1940, (SECTION 4 OF THE ACT OF JUNE 10, 1922, 42 STAT. 627), WAS, IN PERTINENT PART, AS FOLLOWS:

"THAT THE TERM 'DEPENDENT' AS USED IN THE SUCCEEDING SECTIONS OF THIS ACT SHALL INCLUDE AT ALL TIMES AND IN ALL PLACES A LAWFUL WIFE ***."

SECTION 4 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 361, INSOFAR AS HERE MATERIAL, DEFINES THE TERM "DEPENDENT" IN IDENTICAL LANGUAGE AS THAT USED IN THE ACT OF JUNE 10, 1922.

PUBLIC LAW 55, 61 STAT. 92, APPROVED MAY 15, 1947, READS--

"THAT THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, IS HEREBY AMENDED BY ADDING THE FOLLOWING PARAGRAPH AT THE END OF SECTION 4 THEREOF:

"PAYMENTS OF ALLOWANCES WHICH HAVE BEEN OR HEREAFTER MAY BE MADE UNDER THIS ACT BASED ON A PURPORTED MARRIAGE AND MADE PRIOR TO JUDICIAL ANNULMENT OR TERMINATION OF SUCH MARRIAGE ARE VALID: PROVIDED, THAT IT IS ADJUDGED OR DECREED BY A COURT OF COMPETENT JURISDICTION THAT THE MARRIAGE WAS ENTERED INTO IN GOOD FAITH ON THE PART OF THE SPOUSE IN MILITARY SERVICE OR THAT, IN THE ABSENCE OF SUCH A JUDGMENT OR DECREE, SUCH FINDING OF GOOD FAITH IS MADE BY THE HEAD OF THE DEPARTMENT CONCERNED OR BY SUCH OFFICER OF THE DEPARTMENT CONCERNED AS HE MAY DESIGNATE FOR THE PURPOSE.'"

YOUR SUBMISSION DISCLOSES THAT LIEUTENANT CHANCEY WAS CREDITED WITH ALLOWANCES AUTHORIZED ON ACCOUNT OF A LAWFUL WIFE FROM OCTOBER 17, 1940, TO JANUARY 22, 1946, AND THAT SUCH CREDITS, IN THE AMOUNT OF $3,530.55, WERE RECOVERED BY CHECKING AGAINST HIS ACCOUNT SUBSEQUENT TO THE ANNULMENT OF HIS MARRIAGE.

THE OFFICER'S COMPLAINT FOR ANNULMENT CONTAINS, AMONG OTHER ALLEGATIONS, THE FOLLOWING:

"II

"ON THE 18TH DAY OF MARCH, 1935, PLAINTIFF AND DEFENDANT WERE MARRIED IN SAN DIEGO, CALIFORNIA.

"III

"AT THE TIME OF SUCH MARRIAGE, THE DEFENDANT WAS THEN MARRIED, AND HER SAID MARRIAGE HAD NOT BEEN DISSOLVED.

"IV

"FOR STATISTICAL PURPOSES, PLAINTIFF AND DEFENDANT SEPARATED IN 1943; THE NUMBER OF YEARS FROM DATE OF MARRIAGE TO SEPARATION IS EIGHT YEARS AND THERE IS NO COMMUNITY PROPERTY, AND THERE ARE NO CHILDREN FROM THE SAID MARRIAGE.

"V

"DEFENDANT HAS BEEN GUILTY OF EXTREME CRUELTY TOWARD PLAINTIFF, AND HAS WRONGFULLY INFLICTED UPON HIM GRIEVOUS AND MENTAL SUFFERING.

"WHEREFORE, PLAINTIFF PRAYS FOR A DECREE THAT HIS MARRIAGE TO DEFENDANT WAS NULL, AND IN THE ALTERNATIVE, IF THAT PRAYER CANNOT BE GRANTED, DEFENDANT PRAYS THAT THE BONDS OF MATRIMONY BETWEEN THE PLAINTIFF AND DEFENDANT BE DISSOLVED."

THE GENERAL RULE IS THAT THE VALIDITY OF A MARRIAGE IS DETERMINED BY THE LAW OF THE PLACE WHERE IT IS CONTRACTED AND IF VALID THERE IT WILL BE HELD VALID EVERYWHERE IF NOT IN CONTRAVENTION OF POSITIVE LAW OR CONSIDERATIONS OF PUBLIC POLICY. CONVERSELY, A MARRIAGE INVALID BY THE LEX LOCI CONTRACTUS WILL BE HELD INVALID WHEREVER ITS VALIDITY IS QUESTIONED IN A PROPER COURT. RESTATEMENT, CONFLICT OF LAWS, SECTION 121 ET SEQ.; 38 C. J. 1276, 1277, AND NOTES. HENCE, THE VALIDITY OF THE MARRIAGE OF THE OFFICER AND THELMA FRANCES CHANCEY ON MARCH 18, 1935, AT SAN DIEGO, CALIFORNIA, IS FOR DETERMINATION UNDER THE LAWS OF THAT STATE.

SECTION 61, DEERING'S CIVIL CODE OF THE STATE OF CALIFORNIA, PROVIDES, IN PERTINENT PART:

"SEC. 61. (SUBSEQUENT MARRIAGE VOID: EXCEPTIONS: *** MARRIAGE VALID UNTIL ANNULMENT WHEN FORMER SPOUSE ABSENT.) A SUBSEQUENT MARRIAGE CONTRACTED BY ANY PERSON DURING THE LIFE OF A FORMER HUSBAND OR WIFE OF SUCH PERSON, WITH ANY PERSON OTHER THAN SUCH FORMER HUSBAND OR WIFE, IS ILLEGAL AND VOID FROM THE BEGINNING, UNLESS:

"1.THE FORMER MARRIAGE HAS BEEN ANNULLED OR DISSOLVED. ***

"2. UNLESS SUCH FORMER HUSBAND OR WIFE IS ABSENT, AND NOT KNOWN TO SUCH PERSON TO BE LIVING FOR THE SPACE OF FIVE SUCCESSIVE YEARS IMMEDIATELY PRECEDING SUCH SUBSEQUENT MARRIAGE, OR IS GENERALLY REPUTED OR BELIEVED BY SUCH PERSON TO BE DEAD AT THE TIME SUCH SUBSEQUENT MARRIAGE WAS CONTRACTED. IN EITHER OF WHICH CASES THE SUBSEQUENT MARRIAGE IS VALID UNTIL ITS NULLITY IS ADJUDGED BY A COMPETENT TRIBUNAL."

THE JUDGEMENT OF ANNULMENT ISSUED IN THE PRESENT CASE RECITES THAT THE COURT FOUND ALL OF THE ALLEGATIONS IN THE COMPLAINT TO BE TRUE AND ON THAT BASIS DECLARED THE MARRIAGE WHOLLY NULL AND VOID FROM THE DATE OF THAT JUDGMENT. THUS, IT APPEARS THAT THE COURT FOUND THAT A VALID MARRIAGE EXISTED FROM ITS INCEPTION TO THE DATE OF THAT JUDGMENT, AND THE COURT SPECIFICALLY FOUND SUCH TO BE THE CASE IN THE SUBSEQUENT DECLARATORY JUDGMENT.

WHEN THE EVIDENCE IN A PARTICULAR CASE ESTABLISHES THAT THE MARRIAGE WAS ANNULLED ON THE BASIS THAT FOR SOME PROPER REASON IT WAS VOIDABLE, THIS OFFICE HAS HELD THAT THE OFFICER OR ENLISTED MAN IS NOT REQUIRED TO REFUND OTHERWISE PROPER PAYMENTS OF INCREASED ALLOWANCES MADE TO HIM ON ACCOUNT OF A WIFE PRIOR TO THE DATE ON WHICH THE MARRIAGE WAS ANNULLED. SEE 23 COMP.GEN. 107; B-51256, SEPTEMBER 7, 1945; B-48769, MAY 8, 1945.

IN A DECISION DATED SEPTEMBER 25, 1946, B-59042, THERE WAS CONSIDERED THE RIGHT OF AN OFFICER TO REFUND OF AMOUNTS CHECKED IN HIS ACCOUNT REPRESENTING INCREASED ALLOWANCES CREDITED HIM ON ACCOUNT OF DEPENDENT (LAWFUL WIFE), PRIOR TO ANNULMENT OF HIS MARRIAGE PURSUANT TO THE PROVISIONS OF SECTION 61, SUBDIVISION 2 OF THE CIVIL CODE OF CALIFORNIA, SUPRA. IN THAT DECISION IT WAS CONCLUDED THAT THE OFFICER HAD A DEPENDENT (LAWFUL WIFE) PRIOR TO THE DATE OF THE DECREE OF ANNULMENT, WITHIN THE MEANING OF SECTION 4 OF THE PAY READJUSTMENT ACT OF 1942, AND THEREFORE, WHILE NOT ENTITLED TO PAYMENT OF INCREASED ALLOWANCES NOT ACTUALLY CREDITED TO HIS ACCOUNT PRIOR TO THE ANNUALMENT, HE WAS ENTITLED TO REFUND OF THE AMOUNT CHECKED IN HIS ACCOUNT REPRESENTING SUCH INCREASED ALLOWANCES OTHERWISE PROPERLY CREDITED PRIOR TO THE DATE OF THE ANNULMENT DECREE. ALSO, SEE 23 COMP.GEN. 107.

THERE APPEARS NO VALID BASIS FOR RAISING A QUESTION AS TO THE CORRECTNESS OF THE JUDGMENT OF THE COURT IN THE PRESENT CASE AND HENCE, IT IS CONCLUDED THAT LIEUTENANT CHANCEY HAD A LAWFUL WIFE FROM THE DATE OF HIS MARRIAGE TO THE DATE OF THE DECREE OF ANNULMENT, WITHIN THE CONTEMPLATION OF THE ACT OF JUNE 10, 1922, 42 STAT. 625, THE ACT OF OCTOBER 17, 1940, 54 STAT. 1205, AND THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 359. THEREFORE HE IS ENTITLED TO INCREASED ALLOWANCES ON ACCOUNT OF DEPENDENT (LAWFUL WIFE) ACTUALLY CREDITED TO HIS ACCOUNT PRIOR TO THE DATE OF THE DECREE OF ANNULMENT, AND IS ENTITLED TO REFUND OF THE AMOUNT CHECKED IN HIS ACCOUNT REPRESENTING SUCH ALLOWANCES, IF SUCH ALLOWANCES WERE OTHERWISE PROPERLY CREDITED TO HIM PRIOR TO THE DECREE OF ANNULMENT.

SINCE THE PURPOSE OF THE ACT OF MAY 15, 1947, SUPRA, AS STATED IN SENATE REPORT NO. 129, DATED APRIL 24, 1947, WAS TO "ELIMINATE THE REQUIRED REPAYMENT TO THE GOVERNMENT OF INCREASED ALLOWANCES PAID TO SERVICE PERSONNEL BY REASON OF A DEPENDENT SPOUSE IN CASES WHERE A MARRIAGE IN GOOD FAITH IS SUBSEQUENTLY ANNULLED OR SET ASIDE FROM ITS INCEPTION," IT IS APPARENT THAT THE SAID ACT HAS NO APPLICATION IN THE CASE OF LIEUTENANT CHANCEY. THUS, IT DOES NOT APPEAR THAT AN ANSWER TO YOUR SECOND QUESTION WOULD SERVE ANY USEFUL PURPOSE. HOWEVER, SINCE YOUR FIRST QUESTION APPEARS TO INVOLVE A GENERAL INTERPRETATION OF PUBLIC LAW 55, SUPRA, INSOFAR AS IT RELATES TO THE ACT OF JUNE 10, 1922, 42 STAT. 625, AND THE ACT OF OCTOBER 17, 1940, 54 STAT. 1205, IT WILL BE CONSIDERED ON THAT BASIS.

THE PAY READJUSTMENT ACT OF 1942 IS MADE EFFECTIVE ON JUNE 1, 1942. PUBLIC LAW 55, SUPRA, BY ITS TERMS IS AN AMENDMENT TO THE SAID PAY READJUSTMENT ACT AND RELATES ONLY TO, "PAYMENT OF ALLOWANCES WHICH HAVE BEEN OR HEREAFTER MAY BE MADE UNDER THIS ACT BASED ON A PURPORTED MARRIAGE."

HENCE, WHILE THE SAID PUBLIC LAW 55 IS RETROACTIVE TO THE EFFECTIVE DATE OF THE PAY READJUSTMENT ACT OF 1942, IT IS APPARENT THAT IT IS LIMITED IN ITS EFFECT TO PAYMENTS MADE UNDER THE SAID PAY READJUSTMENT ACT OF 1942. ACCORDINGLY, IT IS CONCLUDED THAT THE ACT OF MAY 15, 1947, PUBLIC LAW 55, 61 STAT. 92, HAS NO APPLICATION TO PAYMENTS MADE PURSUANT TO THE ACT OF JUNE 10, 1922, AS AMENDED, OR THE ACT OF OCTOBER 17, 1940.

THE PAPERS RECEIVED WITH YOUR LETTER ARE RETAINED IN THIS OFFICE.