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.