Rubin Gertz

• Decision Date: 07 December 1965
• Docket Number: B-156453
• Parties: RUBIN GERTZ, ATTORNEY OF LAW
• Court: Comptroller General of the United States

RUBIN GERTZ, ATTORNEY OF LAW

No. B-156453

Comptroller General of the United States

December 7, 1965

Precis-unavailable

Reference is made to our conference of November 15, 1965, and to your letter of November 19, 1965, enclosing a supplemental memorandum of authorities relative to further consideration of the claim of your client, captain arthur B. Wiltshire, for basic allowance for quarters as an officer with a dependent (wife).

Such claim was disallowed by our decision of April 27, 1965, to an army disbursing officer, and the disallowance was sustained in our decision of September 23, 1965, addressed to captain wiltshire in your care. We took that action because of our doubt that captain wiltshire has established that Mrs. Vera wiltshire is his "spouse" within the meaning of the definition of "dependent" in 37 U.S.C. 401, for purposes of payment of increased quarters allowance.

At our conference you contended, and in your supplemental memorandum you continue to contend, that captain wiltshire should be granted the basic allowance for quarters authorized for married officers and in support of your contention you take the position that -

"*** captain arthur B. Wiltshire is legally and validly married to his present wife, vera J. Wiltshire, having been legally married under the laws of Maryland on June 20, 1964 in the city of baltimore, state of Maryland. The legality and validity of this Maryland marriage has not been attacked by either captain wiltshire, his wife, vera wiltshire, nor the state of Maryland, who are the only parties that can validly attack the said marriage. In further support of the validity of the present second marriage, no one who has a legal interest in the divorce of the first marriage has attacked the validity of the said divorce.

"It is our position that captain wiltshire's second marriage is valid under the cases and decisions of the various state and federal courts founded on the legal doctrines of estoppel, public policy, full faith and credit clause, comity and equity. ***"

We have carefully considered the arguments you have made and the precedents and authorities you have cited but for the reasons stated in our prior decisions, and hereinafter stated, we must hold that captain wiltshire's status as an officer with dependent (wife) is too doubtful to permit us to approve the payment to him of basic allowance for quarters as an officer with a dependent.

Most of the decisions you have cited have been offered to support the proposition that in the case of conflicting marriages of the same person the presumption or inference of validity operates in favor of the second (latest) marriage. We recognize that there are many authorities which support this proposition. The presumption, however, is not conclusive but May be rebutted and the decisions of the courts are not uniform as to the evidence necessary to rebut the presumption. For example in tatum v. Tatum (U.S.C. A. 9th Cir. 1957), 241 F.2d 401, it was said that under California law, despite the strength of the presumption of validity of the later marriage, it merely requires the advocate of a prior marriage to establish by competent evidence a prima facie case of regularly solemnized prior marriage and then with two presumptively valid marriages in existence, the ultimate burden rests on the party who advocates the second to prove the invalidity of the first. See, also, the discussion and cases cited in 23 Comp.Gen. 128 at page 129.

With respect to your contentions regarding the doctrine of estoppel, we are not satisfied that there is any general rule under which both parties to both of captain wiltshire's marriages would be estopped to deny the validity of the mexican divorce in his case. Regardless of that, however, as we held in 36 Comp.Gen. 121, 123 (citing petition of taffel 49 F.Supp. 109), the federal government of a state would not be estopped from challenging the validity of such a foreign divorce decree when their interests might be adversely affected.

In our decision of April 27, 1965, we cited 25 Comp.Gen. 821 and 36 Comp.Gen. 121 as examples of decisions of the comptroller general in which it was held, in effect, that where the validity of a second marriage is dependent upon the dissolution of the first marriage by a divorce decree of a mexican court which has not been recognized by a court of competent jurisdiction in the United States, the marital status of the parties is of too doubtful legality for us to approve payment of an allowance such as the one here involved.

A basic reason for this rule is that it appears that most courts in this country do not recognize mexican divorce decrees as valid under most circumstances. See, for example, the court cases cited in 36 Comp.Gen. 121 at page 123. See, also, the later case of warrender v. Warrender (new jersey, 1963), 190 A.2d 684, and the digests of the California cases of sohnlein v. Winchell (cal. App. 1964, 41 Cal.Rpts. 145), schotte v Schotte (cal. App. 1962, 21 Cal.Rpts. 220) and in re edgett's estate (cal. App. 1961, 10 Cal.Rpts. 552) which appear under "divorce" in west's general digest, third series: Vol. 27, page 588, key 352(1); Vol. 19 page 686, key 358; Vol. 15, page 699, key 359(3) respectively. You will note that the court in the warrender case said that the full faith and credit clause of the federal constitutiion (article IV, section 1) is not applicable to a judgment of a foreign country. To the same effect is the text of 27b C. J. S., divorce, ...