90 F. Supp. 135 | Ct. Cl. | 1950
Lead Opinion
delivered the opinion of the court:
Plaintiff sues to recover certain sums which he claims became due him during the period from May 11, 1942, to March 7, 1946, representing monetary allowances in lieu of quarters on account of a dependent wife while plaintiff was
The statutory bases for plaintiff’s claims are found in sections 4, 5, 6, and 10 of the Act of June 16,1942 (66 Stat. 359) and in the amendment to section 4 contained in the Act of May 15,1947 (61 Stat. 92), as follows:
Seo. 4. The term “dependent” as used in the succeeding sections of this Act shall include at all times and in all places a lawful wife and unmarried children under twenty-one years of age. It shall also include the father or mother of the person concerned provided he or she is in fact dependent on such person for his or her chief support * * *
Sec. 5. Each commissioned officer on the active list, or on active duty, below the grade of brigadier general or its equivalent, in any of the services mentioned in the title of this Act, shall be entitled at all times, in addition to his pay, to a money allowance for subsistence. The value of one subsistence allowance is hereby fixed at 70 cents per day. To each officer of any of the said services receiving the base pay of the first, second, third or sixth period the amount of this allowance shall be equal to two subsistence allowances, and to each officer receiving the base pay of the fourth or fifth period the amount of this allowance shall be equal to three subsistence allowances: Provided!, That an officer with no dependents shall receive one subsistence allowance in lieu of the above allowances.
Seo. 6. Except as otherwise provided in this section, each commissioned officer below the grade of brigadier general or its equivalent, in any of the services mentioned in the title of this Act, while either on active duty or entitled to active-duty pay shall be entitled at all times to a money allowance for rental of quarters.
To an officer having a dependent, receiving the base pay of the first period the amount of said allowance shall be $60 per month, * * * Provided, That an officer although furnished with quarters shall be entitled to rental allowance as authorized in this section if by reason of orders of competent authority his dependents are prevented from occupying such quarters.
‡ $ % H* ❖
Sec. 10. * * *
Each enlisted man of the first, second, or third grade, in the active military, naval, or Coast Guard service of the United States having a dependent as defined in sec*644 tion 4 of this Act, 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 monthly allowance for quarters authorized by law to be granted to each enlisted man not furnished quarters in kind: Provided, That such enlisted man shall continue to be entitled to this allowance although receiving the allowance provided in the first paragraph of this section if by reason of orders of competent authority his dependent is prevented from dwelling with him.
The amendment to Section 4 reads as follows:
Payment 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.
The evidence in this case establishes certain facts relied on by plaintiff as substantiating his claim for allowances under the above-quoted statutes, and relied on equally by defendant as constituting a complete defense to plaintiff’s claim.
The evidence reveals that on January 22, 1941, Myrtle L. Perring filed a complaint in a divorce action against Orville P. Perring in the Superior Court of the State of California, Los Angeles County, and that a summons in that action was personally served on Orville R. Perring on that same day. On defendant’s failure to appear and answer, the court, on November 17, 1941, entered an interlocutory judgment of divorce by default in favor of Myrtle, approving a property settlement entered into between the parties, and providing that at the expiration of one year a final judgment would be entered if requested by one of the parties. Some six months later, on May 11, 1942, Myrtle Perring and Virgil Briggs, plaintiff in this action, were married in a religious ceremony in Yuma, Arizona, and received a marriage certificate issued
At the time of his marriage to Myrtle, plaintiff was a non-commissioned officer on active duty in the United States Navy. Apparently plaintiff and Myrtle lived together as husband and wife until July 1942 when plaintiff left the United States for duty in the Pacific Theater of Operations. Shortly after his marriage, plaintiff made an allotment to her at the rate of $175 per month which was paid to her from his funds for eleven months from June 1942 to April 1943. In April 1943, plaintiff terminated his allotment after receiving by mail, while overseas, a copy of a summons and complaint filed by Myrtle in the Superior Court of California, Los Angeles County, in which she sought to have her marriage to plaintiff dissolved either by divorce or annulment. Plaintiff did not sign the waiver accompanying the summons and made no appearance in this action, and on October 14,1943, the Superior Court entered a default “Judgment of Annulment of Void Marriage.” Subsequently plaintiff returned to the United States and appeared in the Superior Court, Los Angeles County, upon a motion to set aside and vacate his default in the above mentioned proceeding, and, after hearing argument by both parties, the court set aside and vacated plaintiff’s default and vacated and annulled the judgment of annulment of void marriage, granting Briggs until November 1, 1944, to file his answer in the reopened proceeding. After a rehearing with both parties represented, the court, on April 26, 1946, granted Myrtle an interlocutory decree of divorce from plaintiff.
From the date of his marriage, May 11, 1942, to June 30, 1943, plaintiff was paid the monetary allowance in lieu of quarters provided for a non-commissioned officer with a dependent wife, and from May 15,1943, to June 30,1944, plaintiff was paid the increased rental and subsistence allowance provided for an officer with a dependent wife in accordance with the statutory provisions set forth above. These payments, amounting to $1,440.40, were later checked from plain
Defendant advances three main contentions to defeat plaintiff’s claim, or part of it. First, defendant points out that the facts make no showing of actual dependency of Myrtle on plaintiff and that there is no evidence that plaintiff contributed anything to her support following April 1943 when he terminated her $175 a month allotment. From this, defendant concludes that plaintiff is not entitled, under the statute in question, to rental and subsistence allowances, citing Robey v. United States, 71 C. Cls. 561. In the Robey case, we found that plaintiff had deserted and refused to live with the wife he claimed as a dependent. The evidence affirmatively showed that Robey contributed nothing to his wife’s support and we held that since plaintiff had repudiated his moral and legal obligations to provide for his wife, he did not come within the spirit of the law in question and could not recover. In the later case of Strauss v. United States, 73 C. Cls. 690, we held that the dependency of a wife is presumed by law to exist where a lawful marriage is established and, in allowing plaintiff to recover, without a showing on his part that he contributed to his wife’s support, we distinguished the case from the Robey case where that presumption was rebutted by defendant’s proof of plaintiff’s abandonment of his wife and refusal to support her. Again in the case of Rawlins v. United States, 93 C. Cls. 231, plaintiff’s wife left him, against his wishes, to seek a divorce. She lost the first suit in which Rawlins appeared personally and defended, but in a subsequent action when Rawlins was on the West Coast and unable to appear at the trial and testify, Mrs. Rawlins succeeded in obtaining a divorce. During the time involved, Mrs. Rawlins refused plaintiff’s proffered support but put him to considerable expense as a result of her actions. We again held that the statute in ques
The court did not intend by the language there used to make dependence in fact the test of an officer’s right to an allowance for “dependents.” To do so would require a perpetual and universal inquisition into the family affairs of officers such as, for example, those whose wives have means of their own and are not at all or only partly supported by their husbands.
Assuming that Briggs had a lawful wife for the period in question, we may presume, on the basis of the above cases, that she was dependent on him for support. In addition to the presumption of dependency that arises in such a case, the plaintiff herein has shown that for eleven months following his marriage to Myrtle he paid her $175 per month. There is no evidence that Briggs abandoned Myrtle or refused to support her and it is quite likely that the legal actions instituted by Myrtle put plaintiff to considerable expense. Accordingly, we must conclude that plaintiff has brought himself fully within both the letter and spirit of the statute.
Defendant’s next contention is that, assuming Myrtle was not plaintiff’s lawful wife during the period in question, plaintiff is not entitled to recover the $1,440.40 actually paid to plaintiff by the Navy and later checked from his accounts, because this court has no jurisdiction to make the requisite finding that plaintiff married Myrtle in good faith as required by the Act of May 15, 1946 (61 Stat. 92). This law amends Section 4 of the Act of June 16, 1942, and provides that payments made under the act on the basis of a purported marriage prior to a judicial determination that such marriage was void, are valid, provided, among other things, a court of competent jurisdiction decrees that the marriage was entered into in good faith on the part of the spouse in military service. Defendant asserts that the California Superior Court for Los Angeles County was the proper court to make such a determination and that this court is wholly without power to do so in this action. We cannot agree with this contention. The question of plaintiff’s good faith in marrying Myrtle was not an issue in any of the pro
Finally defendant contends that plaintiff is not entitled to recover on the balance of his claim representing the $1,679.85 not actually paid him and not covered by the above amendment to section 4 of the Act of June 16,1942, because his claimed dependent, Myrtle, was not his “lawful wife” as required by the unamended portion of section 4, asserting that she was still married to Perring at the time of her marriage to Briggs. We agree with defendant that the amendment to section 4 does not cover this portion of plaintiff’s claim since it involves moneys not actually paid to plaintiff. The question whether or not Myrtle was plaintiff’s “lawful wife” presents a much more troublesome problem.
In meeting this issue both parties have referred in a limited manner to the law of California which they seem to concede will have some bearing on the marital status of parties subject to that state’s jurisdiction, but they disagree on whether we must give full faith and credit to the California court’s decrees setting aside the annulment and granting the parties a divorce, thus presumably recognizing the validity of their marriage. Plaintiff, we believe, has stated
As to the conclusive effect of judgments of divorce or annulment on third parties, strangers to such actions, the California Civil Code provides (Section 86) that a judgment of nullity is conclusive only as against the parties to the action and those claiming under them. Price v. Price, 24 Cal. App. (2d) 462, 75 P. (2d) 655; In re Smith's Estate, 33 Cal. (2d) 279, 193 P. (2d) 90, 201 P. (2d) 539. Section 91 of the Civil Code provides that the effect of a judgment of divorce is to restore the parties to the status of unmarried persons. The question of whether or not there was a valid marriage is not the real issue before the court in a divorce proceeding and the California cases uniformly hold that a judgment of divorce is not binding on third parties (strangers to the action) as to the previous validity of the marriage. Blumenthal v. Blumenthal (1929) 97 Cal. App. 558, 275 P. 987. The defendant in the instant case was certainly a stranger to the actions resulting in the setting aside of the annulment and the granting of a divorce to Myrtle Briggs, and in a case such as this where plaintiff’s right to recover and the effectiveness of the Government’s defense depends on the validity of plaintiff’s marriage to Myrtle, the Government is not bound by the California court’s decree revoking the judgment of annulment even though the very subject matter of that action was the validity of the marriage in question and the court’s decree in effect holds the marriage to have been valid.
Our next question is, what evidence does the law consider sufficient to rebut this presumption of validity of a final, ceremonial marriage ? In general, one attacking the validity of a final marriage consummated in legal form on the ground that one of the parties to the marriage was incapacitated to contract such marriage by reason of an existing prior marriage, must show the validity of such former marriage, and that at the time of contracting the final marriage the former spouse was living and the former marriage had not been legally dissolved by divorce or annulment. Routledge v. Githens, 118 Or. 70, 245 P. 1012. If the party attacking the validity of the final marriage fails to discharge this burden of proof as to any one of those matters, the presumption of validity of the final marriage will prevail. In re DeForce's Estate, 119 Or. 556, 249 P. 632.
Finally, the courts of California have held that in support of the validity of a final marriage, the death of the alleged
In the instant case the defendant has shown that Myrtle’s prior husband was alive a year and three months prior to her marriage to plaintiff. No other facts or circumstances have been shown. Defendant’s evidence on this point does raise a presumption of the continuance of life of Perring but that alone is insufficient to rebut the stronger presumptions in favor of the validity of the second marriage and innocence of the crime of bigamy.
We conclude that defendant’s evidence has not enabled it to meet the burden of proof imposed on it by this case, i. e., that of showing a prior valid marriage, that such marriage was not dissolved by annulment or divorce (which might have been procured by Perring), or by the death of Perring sometime between January 22,1941, and May 11,1942.
It is so ordered.
We cannot agree with plaintiff’s statement that under California law a void marriage is only void from the date of the decree of nullity, citing In re Gosnell's Estate, 146 P. (2d) 42. In that case the California court applied the law of Nevada where the marriage sought to be annulled took place, and, since the Nevada statute provided that a decree of nullity renders the marriage void only from the date of the court decree, the California appellate court reversed the trial court’s decree making the marriage void from the beginning. The Briggs marriage took place in the state of Arizona and, in the absence of proof of the law of that state, we assume it to be the same as California law which provides in section 61 of the Civil Code that a marriage contracted by a person during the life of that person's former undivorced spouse, is void from the beginning.
In this respect the law of California is at variance with the majority of states in the United States. In general, the courts of other states hold that a judgment of annulment of a void marriage is conclusive as .to .everyone with
Advanced California Appellate Reports.
In spite of the fact that we are not bound on the question of the validity of plaintiff’s marriage by the action of the California court in setting aside the annulment and granting a divorce, we find it hard to believe that the California court did not consider carefully the question of the validity of the marriage and if the faots had warranted the granting of an annulment, the court would have done so. Defendant has suggested that the California court may have been motivated by the fact that the California statutes vest no property rights in either of the parties to a void marriage and that out of sympathy for plaintiff, who may have given Myrtle considerable property during his marriage to her, the court decided to revoke the annulment and grant a divorce thus permitting the application of the statute relating to the division of community property in a divorce case, we call defendant’s attention to the
Dissenting Opinion
dissenting in part:
I cannot agree that the plaintiff is entitled to recover allowances for a dependent after the time the Government discontinued payments to him therefor. In order to do so, he must show that he had a lawful wife. The statute says a man is entitled to certain allowances if he had a lawful wife. The burden is on him to show that he had one. The Government is not under the burden of showing that he did not have one.
The proof shows that plaintiff’s alleged wife had formerly married Orville E. Perring, and that on January 22, 1941, she filed a divorce action against him. On November 17, 1941, the court entered an interlocutory judgment of divorce, providing that at the expiration of one year a final judgment would be entered if requested by one of the parties. Prior
Plaintiff has introduced no proof to show that Perring was dead. If she was Perring’s wife at the time of her marriage to Briggs, then her marriage to him was void, and she did not become Briggs’ lawful life. In order to bring himself within the statute, plaintiff had to show that he had a lawful wife, and it was, therefore, necessary for him to show that Perring was dead at the time he married Mrs. Perring. The burden is not on the defendant to show that Perring was not dead.
It is, of course, true, as the majority opinion says, that the marriage between Briggs and Myrtle L. Perring is presumed to have been a valid marriage, but this presumption, it seems to me, is rebutted by the fact that prior to the expiration of the one-year period, before which final judgment of divorce from Perring could not have been entered, the marriage between Myrtle Perring and Briggs took place. Presumptively this made Briggs’ marriage to her void. In order to rebut this presumption, the burden was on Briggs to show that Perring was dead.
It having been proven that Perring was living on January 22.1941, it is to be presumed that he was still living on May 11.1942, and plaintiff has introduced no proof to rebut this presumption. Presumably Perring was living when his wife married Briggs. If he was, then she did not become Briggs’ “lawful wife.”
The burden was not on the defendant to show that the marriage between Myrtle L. Perring and Virgil O. Briggs was invalid. The burden is on the plaintiff to show that it was valid in order to show that he had a lawful wife, and this burden I do not think he has carried until he has shown Orville B. Perring was dead at the time he married Mrs. Perring.
I must, therefore, respectfully dissent from that part of the opinion of the majority which holds that plaintiff is entitled to recover the allowance for a dependent from June
Chief Judge JoNes concurs in the foregoing opinion.