420, 508

DECISIONS

OF THE

COMPTROLLER GENERAL OF THE UNITED STATES

(B-17414)

QUARTERS ALLOWANCE—DIVORCE AND REMARRIAGE WITHIN PROHIBITED PERIOD

*

A Navy enlisted man divorced in Virginia under a decree providing that the bonds of matrimony "shall not be deemed to be dissolved as to any marriage contracted by either party until the expiration of six months from the date of the entry of this decree *," who remarries in another jurisdiction prior to the expiration of the six months, may be paid the quarters allowance authorized by the act of October 17, 1940, as for a lawful wife, to include the date of the divorce decree, and, in the absence of fraud against the United States in the second marriage or a determination of its invalidity in a proper forum, from the date of the remarriage.

Assistant Comptroller General Elliott to the Secretary of the Navy, July 3, 1941:

There has been considered your letter dated May 28, 1941, as follows:

There is forwarded herewith for your consideration a letter dated May 1, 1941, with accompanying correspondence, from Lieutenant (j. g.) S. M. Trott, Supply Corps, U. S. Navy, U. S. S. Hannibal, requesting advance decision as to the right of Edward Stankiewicz, chief machinist's mate, U. S. Navy, to payment of the money allowance for quarters for dependents under the conditions stated in the enclosure.

Your decision is requested as to whether Stankiewicz is entitled to quarters allowance on account of dependent wife, Nattie Stankiewicz, from October 17, 1940, to January 29, 1941, for any period during which he was not entitled to money allowance for quarters in his own right under the provisions of section 11 of the act of June 10, 1922 (42 Stat. 630; 37 U. S. Code 19), and public quarters were not provided and available for such dependent.

Your further decision is requested as to whether Stankiewicz is entitled to quarters allowance for his second wife, Pearl Louise Stankiewicz, from and after February 8, 1941, the date of his remarriage, in view of the prohibition in the divorce decree against remarriage by either party until the expiration of six months from the date of the entry of said decree and removal of the cause from the docket of the court.

The record discloses that Edward Stankiewicz, who is now a chief machinist's mate, (PA), United States Navy, and Nattie Stankiewicz were married on October 17, 1937, and that they were divorced by decree dated January 29, 1941, in the circuit court of the city of Portsmouth, Va. It is disclosed also that Stankiewicz married Pearl L. Murphy in North Carolina on February 8, 1941. Certified copy of his marriage certificate is as follows:

I, J. G. Etheridge, a justice of the peace, united in matrimony Edward Stankiewicz and Pearl L. Murphy the parties above licensed, on the 8th day of

1

February, 1941, at South Mills, North Carolina, in South Mills Township, in said county, according to law.

By the decree of divorce the court adjudged, ordered, and decreed

that the said Edward Stankiewicz be divorced from the said Nattie Stankiewicz from the bonds of matrimony created by the aforesaid marriage, and said marriage is dissolved, provided, however, that the bonds of matrimony created by the said marriage shall not be deemed to be dissolved as to any marriage contracted by either party until the expiration of six months from the date of the entry of this decree and this cause is removed from the docket.

Apparently the proviso quoted above with reference to remarriage was included in the decree pursuant to section 5113 of the Virginia code. This section has been considered by the courts of Virginia and it has been held-Heflinger v. Heflinger, 136 Va. 289-that the effect of such section was to dissolve a marriage for all purposes except remarriage. Thus, Stankiewicz appears to have had a lawful wife up to and including the date of the decree. If he was not entitled to a money allowance for quarters in a nontravel status under the provisions of section 11 of the act of June 10, 1922, 42 Stat. 630, and nothing otherwise appearing in the record, he is entitled to quarters allowance on account of a lawful wife as authorized in the act of October 17, 1940, 54 Stat. 1205, for any time during the period October 17, 1940, to January 29, 1941, during which public quarters were not provided or available for his dependent.

Your second question concerns Stankiewicz's right to allowance for quarters under the act of October 17, 1940, supra, on account of a dependent wife after his remarriage. In A-89772, dated December 1, 1937, which considered the case of an officer who was divorced in Virginia and who remarried in another jurisdiction within the first 6 months after the date of his divorce, it is stated:

It would appear that under the statute of Virginia as construed by these courts there may be a question as to the validity of the marriage of August 7, 1937. However, the parties had gone through a marriage ceremony in another jurisdiction, presumably are living together as man and wife, and in the absence of fraud against the United States, this office will accept these circumstances as prima facie establishing the marriage relationship for the payment of rental and subsistence allowances unless and until the validity of the marriage is determined adversely in a proper forum.

The rule expressed above is for application in the present case. If Stankiewicz is not entitled to a money allowance for quarters in a nontravel status under the provisions of section 11 of the act of June 10, 1922, supra, he is entitled to quarters allowance on account of a lawful wife as authorized in the act of October 17, 1940, from and after February 8, 1941, the date of his remarriage, and so long