Opinion
16344.
OCTOBER 13, 1948.
Alimony. Before Judge Boykin. Coweta Superior Court. May 31, 1948.
Emory Robinson and Wheeler, Robinson Thurmond, for plaintiff.
Walter D. Sanders, Smith Stevens and Clifford A. Cranford, defendants.
Payments made by the United States Government under the Servicemen's Dependents Act (37 U.S.C.A., §§ 201-221) in excess of the amounts actually deducted from the serviceman's pay should be credited against a judgment liability for alimony against such serviceman for the support of minor children.
No. 16344. OCTOBER 13, 1948.
By the final decree rendered September 3, 1934, the plaintiff, Mrs. Effie Edna Brooks, was granted a total divorce, and the defendant, James C. Brooks, was ordered to pay $20 per month for the support of two minor children until they reached majority. By his answer to the contempt proceeding instituted by the wife, the defendant urged that, by crediting the total amount due under the judgment with the amounts allotted to his children under the Servicemen's Dependents Act while he was serving in the Armed Forces, there would be no balance due under the judgment. The record thus presents the sole question as to whether payments made by the United States Government under the Servicemen's Dependents Acts (37 U.S.C.A., §§ 201-221) in excess of the amounts deducted from the serviceman's pay are to be credited against the judgment liability for alimony against such serviceman for the support of minor children. An affirmative answer will necessarily affirm the judgment of the trial court, to which exception is here taken, since it was stipulated by the parties that, if the defendant was entitled to such credits, there would be no balance due under the judgment.
Title 37, Chapter 3, U.S.C.A., entitled "Wartime Allowances To Servicemen's Dependents [New]," deals with the pay of enlisted men serving in the Armed Forces, and that of the Government allotments to their dependents. Section 201 of the title provides: "The dependent or dependents of any enlisted man in the Army of the United States, the United States Navy, the Marine Corps, or the Coast Guard, including any and all retired and reserve components of such services shall be entitled to receive a monthly family allowance for any period during which such enlisted man is in the active military or naval service of the United States on or after June 1, 1942, (1) during the existence of any war declared by Congress and the six months immediately following the termination of any such war."
Section 202 provides that "The monthly family allowance payable under this chapter to the dependent or dependents of any such enlisted man shall consist of the Government's contribution to such allowance and the reduction in or charge to the pay of such enlisted man."
Section 205 provides that the amount of family allowance shall be for "a child but no wife. $42, with an additional $20 for each additional child."
Section 206 provides in part that, "For any month for which a monthly family allowance is paid under this chapter to the dependent or dependents of any such enlisted man, the monthly pay of such enlisted man shall be reduced by, or charged with, the amount of $22."
The two minor children of the defendant were entitled to receive, under the express terms of this act, irrespective of the alimony judgment, and did receive the sum of $62 per month as a "family allowance." Of this amount $22 was deducted from the service pay. The remaining $40 was paid by the Government. It seems to be clear that it was not the intention of the Congress that the $40 should be considered as a gift to the children simply because the father was serving in the Armed Forces, but that it was contributed toward their support in recognition of the fact that their father was still obligated to support them, and being in the enlisted ranks, his regular service pay was inadequate. By this act the Government undertook to help support the dependents of the servicemen at the time when the men themselves might have been unable to do so because their full time and energies were demanded in the defense of their homes and country The right to this additional allowance from the Government was wholly dependent on the fact that the father was serving in the Armed Forces, and as compared to the services actually rendered it was but an additional token of appreciation from a grateful nation.
To hold that only the amount actually deducted from the serviceman's pay could be applied toward liquidation of the alimony judgment, would seem to be in direct conflict with the intent and purpose of the act, and would work an unjust hardship on those under similar circumstances who have honorably served their country. See Hinton v. Hinton, 211 Ark. 159 ( 199 S.W.2d 591).
Judgment affirmed. All the Justices concur, except Bell, J., absent on account of illness.