delivered the opinion of the court:
Plаintiff sues for the difference between the rental and subsistence allowance paid to him from Sеptember 14, 1940 to July 20, 1941, and the amount to which he says he is entitled because of his dependent child, Gilbert Stuart Adams.
Plaintiff married Margaret Turnbull on June 28,1932. On August 81, 1940 he was divorced from her, and in the following month she married Captain Charles L. Andrews, with whom she lived until July 21,1941, when her marriage to him was dissolved. About two years later, to wit, on November 11, 1943, shе remarried the plaintiff.
The custody of the child of the marriage, Gilbert Stuart Adams, was awarded to the mоther and he lived with her in Government quarters furnished to Captain Andrews. Eental and subsistence allowance due an officer with dependents was withheld from plaintiff for this period. For this amount he sues.
Under the Act of June 10, 1922 (42 Stat. 625, 628), as amended by the Act of May 31,1924 (43 Stat. 250), an officer of the Army is “entitled at all times, in addition to his pаy, to a money allowance for subsistence,” and he is also “entitled at all times to a money allowance for rental of quarters,” unless the Government furnishes him the number of rooms to which he is entitled under the law. If he has dependents, he is entitled to a greater allowance for both subsistence аnd rental than he is if he has no dependents.
Plaintiff says he is entitled to the additional allowance bеcause his son was dependent upon him. He says he was dependent upon him notwithstanding his divorce frоm his wife and the award of the custody of the child to the mother. This is correct. The responsibility for the support and maintenance of a minor child is on the father, and in many cases it has been held that this оbligation continues notwithstanding a decree of divorce and the award of the custody of the сhild to the mother. Dunbar v. Dunbar,
In the case at bar plaintiff was directed to pay the sum of $75.00 per month for the child’s support.
Clearly, plaintiff’s child was a dependent as that word is used in the Act.
The Act of June 10, 1922, as amended, was designed to reimburse, in whole or in pаrt, an officer who was obliged to furnish food and shelter to his dependent child. Odell v. United States,
The law, however, provides for payment to an оfficer of a sum of money for rental allowance only when there has not been assigned to him “thе number of rooms provided by law for an officer of his rank * * It is not disputed that there was not assigned to this plaintiff the number of rooms to which an officer of his rank with dependents was entitled; but the defendant says that plaintiff’s son was housed in quarters provided by the Government to another officer who had succеeded plaintiff in his wife’s affections, and that this relieves the defendant of its obligation to plaintiff.
We сannot agree. In the first place, plaintiff has not been reimbursed for the money he has spent to provide food and shelter for his child. In the second place, the rooms furnished Captain Andrews were not furnished him because plaintiff’s son was dependent upon him. They were furnished to him because his wifе was dependent upon him. The number of rooms to which he was entitled was not
Plaintiff’s son was dependent upon him. He was a “dependent” as that wоrd is used in the Act, and an officer with a dependent was entitled to a greater subsistence and rentаl allowance than has been paid plaintiff. The defendant has not furnished plaintiff the number of roоms to which he was entitled as an officer with a dependent and, therefore, under the Act it is required to pay him in money the rental value of these rooms and the increased subsistence allowance on account of his son’s dependency.
This is not in conflict with our holding in Byrne v. United States,