BNUMBER:  B-260688
DATE:  October 23, 1995
TITLE:  Stephen P. Atkinson-Relocation Expenses-Household
Goods Moving Expenses-Common-Law Spouse

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Matter of:Stephen P. Atkinson-Relocation Expenses-Household Goods 
          Moving Expenses-Common-Law Spouse

File:     B-260688

Date:     October 23, 1995

DIGEST

1.  An agency authorized the shipment of a transferring employee's 
household goods (HHG) by the actual expense, or government 
bill-of-lading (GBL) method, under which the government assumes the 
responsibility of making the arrangements to ship the employee's HHG.  
However, the employee chose to ship his HHG himself and subsequently 
submitted a claim for reimbursement based on the commuted rate method, 
under which employees who ship their own HHG are reimbursed according 
to the commuted rate allowances prescribed in a schedule published by 
the General Services Administration.  The applicable regulation 
provides that when an agency authorizes the shipment of an employee's 
HHG by the GBL method and the employee then chooses to make his own 
arrangements for the shipment of his HHG, the employee's reimbursement 
is limited to his out-of-pocket expenses.  41 C.F.R.  101-40.203-2 
(1994).  See also John S. Phillips, 62 Comp. Gen. 375 (1983).

2.  For the purpose of claiming relocation allowances incident to his 
transfer, an employee asserts that a woman and her three children are 
members of his immediate family by virtue of his common-law marriage 
to the woman.  Issues of marital status are determined by state law.  
In this case, the applicable state law (Colorado) requires clear, 
consistent and convincing evidence of conduct that manifests the 
parties' intent to establish a marital relationship.  The record in 
this case is insufficient to meet this test since the only evidence 
purporting to show the couple's marital relationship is a copy of a 
Federal income tax form they filed jointly as a married couple and two 
health insurance forms showing that the employee's insurance company 
paid a bill for the woman and a bill for one child under the 
employee's account.

DECISION

An authorized certifying officer requests an advance decision 
concerning certain relocation claims submitted by Mr. Stephen P. 
Atkinson, an employee of the Bureau of Reclamation, U.S. Department of 
the Interior, incident to his permanent change-of-station transfer in 
October 1994 from Denver, Colorado, to Red Bluff, California.  The 
certifying officer asks two separate questions.  First, what is the 
proper method of reimbursement to Mr. Atkinson who was authorized 
shipment of his household goods by the actual expense method via a 
government bill of lading (GBL) but chose to personally move his 
household goods?  Second, the agency asks whether Mr. Atkinson's 
putative common-law wife and her children may be considered members of 
his immediate family for the purpose of relocation allowances.

Reimbursement for household goods moving expenses

Generally, the shipment of an employee's household goods is 
accomplished by either of two methods.  Under the so-called actual 
expense or GBL system, the government assumes the responsibility of 
making the arrangements for the transportation of the employee's 
household goods under a GBL and pays the carrier directly.  Federal 
Travel Regulation (FTR) 41 C.F.R.  302-8.3(b).  Under the commuted 
rate system, the employee arranges his own transportation and is 
reimbursed according to the commuted rate allowances prescribed in the 
Commuted Rate Schedule published by the General Services 
Administration (GSA).  FTR  302-8.3(a).

In the present case, the agency states that, in accordance with 
applicable regulations, it has limited Mr. Atkinson's reimbursement 
for moving his household goods to his actual out-of-pocket costs.  
However, it asks whether this is correct in view of earlier decisions 
of this Office that held that employees who moved their own household 
goods were entitled to the full commuted rate allowance.  See William 
K. Melanize, B-181156, Nov. 19, 1974, which is cited by the agency.  
However, effective December 30, 1980, GSA adopted regulations 
providing that when the agency determines that the GBL method is to be 
used to ship an employee's household goods, if the employee 
subsequently chooses to move the household goods by some other means, 
his reimbursement is limited to his out-of-pocket expenses, not to 
exceed the maximum amount the government would have incurred had the 
goods been moved via the GBL.  Those regulations remain in effect.  41 
C.F.R.  101-40.203-2.  In John S. Phillips, 62 Comp. Gen. 375 (1983), 
we announced that decisions following the contrary rule issued before 
the effective date of this regulation (such as Melanize, supra) would 
no longer be followed.

Accordingly, the agency was correct in limiting Mr. Atkinson's 
reimbursement for moving his household goods to his out-of-pocket 
expenses, not to exceed the amount the agency would have incurred had 
the goods been moved via GBL.

Status of Mr. Atkinson's putative spouse and her children

Mr. Atkinson claimed a spouse and her three minor children as his 
immediate family members on his travel vouchers for travel and 
temporary quarters subsistence expenses reimbursement based on his 
assertion that he and the woman have a common-law marriage.  Pursuant 
to 5 U.S.C.  5724 and 5724a, such allowances are payable for the 
expenses of a transferred employee's immediate family, who are defined 
in FTR  302-1.4(f), to include the employee's spouse and children of 
his spouse who are members of the employee's household at the time he 
reports for duty at the new duty station.

To support his assertion that he and his spouse are married by common 
law, Mr. Atkinson states that in June 1994 he checked with a clerk of 
the court's office and an attorney in Colorado, where he then resided, 
who told him that if he presents himself as married, he is considered 
married in Colorado, and other states would then be obligated to 
recognize the marriage also.  Mr. Atkinson has provided a copy of a 
joint 1994 Federal income tax return he and his putative spouse filed 
as husband and wife and on which the three children are listed as his 
step-children.  He also included copies of health insurance forms 
showing that his health insurance paid the expenses incurred for 
medical care provided to the spouse on July 2 and 5, 1994, in 
Colorado, and on December 2, 1994, in California, and to one of the 
children on August 21, 1994, in Colorado.  These forms, however, do 
not state Mr. Atkinson's relationship to the woman or the child.

Issues of marital status are determined by state law.  Connie P. 
Isaac, B-247541, June 19, 1992.  Although California, the location of 
Mr. Atkinson's new duty station, has abolished the contracting of 
common-law marriages, it does recognize common-law marriages legally 
contracted in other states.  Elden v. Sheldon et al., 758 P.2d 582 
(Cal. Sup. Ct. 1988).  The issue in Mr. Atkinson's case, then, is 
whether he contracted a valid common-law marriage in Colorado prior to 
reporting for duty in California so that his putative wife and  her 
children qualified as members of his immediate family for the 
relocation expenses he claims on this basis.  The burden of proof is 
on the claimant, Mr. Atkinson, to establish his entitlement to the 
benefits he claims.  4 C.F.R.  31.7.

In Colorado, a couple may establish a common-law marriage by mutual 
consent or agreement to be husband and wife, followed by mutual and 
open assumption of a marital relationship.  People v. Lucero, 747 P.2d 
660 (Colo. Sup. Ct. 1987).  Conduct in a form of mutual public 
acknowledgement of the marital relationship is essential to the 
establishment of a common-law marriage.  Id.  The Colorado courts have 
held that the two factors that most clearly show an intention to be 
married are cohabitation and a general understanding or reputation 
among persons in the community that the parties hold themselves out as 
husband and wife.  Id.  Although any evidence that openly manifests 
the intention of the parties to establish a marital relationship is 
relevant, the types of behavior that may be considered include 
maintenance of joint banking and credit accounts, purchase and joint 
ownership of property, the use of the man's surname by the spouse and 
the filing of joint tax returns.  Id.  This evidence "should be clear, 
consistent and convincing."  Id. at 664 n.6, quoting Employer's Mutual 
Liability Insurance Co. of Wisconsin v. Industrial Commission, 234 
P.2d 901, 903 (Colo. Sup. Ct. 1951).

The record before us does not meet these requirements.  There is no 
"clear, convincing and consistent" evidence of a mutual and open 
assumption of a marital relationship in Colorado by Mr. Atkinson and 
his putative spouse.  The record contains only Mr. Atkinson's 
statement that in June 1994 he was told that in Colorado if he 
presents himself as married, he is married.  There is no showing that 
Mr. Atkinson and his putative spouse mutually agreed to be husband and 
wife and mutually and publicly held themselves out as husband and wife 
while living in Colorado.

Mr. Atkinson's documentary evidence in support of his claim shows that 
his health insurance company paid a claim under his account for one 
instance of medical service provided to one of his putative spouse's 
children in Colorado (prior to his relocation), and that it paid 
claims for medical service provided to his putative spouse twice in 
Colorado and once in California (after his relocation).  The insurance 
payments for the three instances of care in Colorado provide only 
limited evidence secondarily related to Mr. Atkinson's marital status 
while in Colorado.  The latter payment relates to an instance of care 
provided in California, several months after he had moved from 
Colorado.  The copy of the joint 1994 Federal income tax return, filed 
in February 1995, shows that Mr. Atkinson and his putative spouse 
filed as a married couple, but that is evidence only that Mr. Atkinson 
filed his return jointly and not that he has established the validity 
of the marriage.

In addition, no information is provided as to the status of any 
previous marriages by either party.  Dissolution of any previous 
marriage, prior to the contracting of the common-law marriage, would 
be necessary to establish that the party was eligible to enter into 
the subsequent marriage.

Therefore, we find that the evidence of record is insufficient to 
clearly establish the existence of the marriage on which Mr. Atkinson 
bases his claims for the travel and temporary quarters expenses of his 
putative spouse and her children.  Accordingly, on the present record, 
we may not approve payment of those claims.[1]

/s/Seymour Efros
for Robert P. Murphy
General Counsel

1. Where there is substantial doubt as to the factual basis for a 
claim, it is the longstanding rule of the accounting officers of the 
government to deny the claim and leave the claimant to pursue the 
matter in a court of competent jurisdiction which is better equipped 
to resolve such factual questions.  See John C. Eastman, B-246538.4, 
Mar. 18, 1994, and decisions cited therein.