
    ANTON A. MEYER v. THE UNITED STATES
    [No. 157-56.
    Decided April 4, 1962]
    
      
      Pierson P. Brown for the plaintiff.
    
      Arthur E. Fay, with whom was Assistant A ttorney General William FI. Orrioh, Jr., for the defendant.
   Jones, Chief Judge,

delivered the following opinion and announced the judgment of the court:

Plaintiff, an officer in the United States Navy, seeks increased allowances for the years June 1, 1944, to December 31, 1955, on the ground that his mother during that period was dependent on him for her chief support.

The term “dependent” is defined in section 4 of the Act of June 16’, 1942, 56 Stat. 359, 361. It provides that the word “dependent” shall 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.”

For a part of the period claimed the Career Compensation Act of October 12,1949, 63 Stat. 802,804, is applicable. This latter act was modified by the Act of September 8, 1950, 64 Stat. 794. These provisions will be discussed later.

The facts are fully set out in the findings. They are in brief as follows:

Plaintiff’s father and mother were born in Germany. However, they came to this country and were married in Baltimore, Maryland, in 1898. They bought two small farms in Kansas which were taken in the father’s name. Plaintiff was the tenth child in a family of twelve. The property has at all times been under heavy mortgage and is “rundown.” The father is a heavy drinker and has not worked for many years. The mother is unable to speak or read the English language. Nine of the children never progressed beyond grade school. Plaintiff worked his way through college and obtained an engineering degree. He is the only child who has been able to contribute financially to the support of his parents. The father’s bank account for the years 1944 to 1955 shows that the balances maintained were very small and at no time exceeded $895.14. The account was frequently overdrawn, and the father at all times owed the bank on notes due. Several of the boys were drafted into the Army in the early part of World War II and never returned to the farm. Plaintiff was called to active duty as an officer on March 27, 1942. Only three brothers remained on the farm. One of them became dissatisfied and left in 1946 because he was not paid any wages. Of the two brothers who remained on the farm, one was mentally deficient and the other was an invalid as the result of polio and also as the result of an accident in connection with the operation of a harvester.

Plaintiff’s contributions to his parents began in May 1943. He made application for increased allowances as an officer with dependents and was paid increases for the period from June 1, 1944, to February 28, 1950. Some time during the years 1949 and 1950 the General Accounting Office reviewed the accounts of unmarried officers, including the plaintiff’s accounts. As a result the General Accounting Office decided that plaintiff was not entitled to claim that he had been and was the chief support of his mother. The main basis for this ruling was that the mother was entitled to one-half the income from the farm that stood in her husband’s name, notwithstanding that there were two handicapped children on the farm. The defendant recouped by consecutive deductions the amount of increased allowances that had been paid plaintiff. If the mother had been considered as being allotted one-fourth the income from the farm she would have been dependent on the plaintiff for her chief support during some of the years involved in the instant case.

There are three principal periods. For the period beginning October 1,1949, through July 31,1950, the Career Compensation Act of 1949, supra, was in operation. It required as a condition that the claimed dependent must have resided in the same household. Clearly plaintiff is not entitled to recover any increased allowances for this period.

For the period August 1, 1950, to December 31, 1955, the requirement that the residence be in the same house was repealed but an amendment was added which made the decision of the head of the Department final and not subject to any review except for fraud or gross negligence. There is some confusion in the record as to whether a direct decision was ever made by the Secretary of the Navy. At the same time the record does not disclose that the plaintiff ever filed the necessary additional papers. Whichever horn of the dilemma is taken we have no jurisdiction in the state of the record to make a determination as to this particular period. While for some of those years there is an indication that plaintiff may have been the chief support of his mother, that is a matter, with the exceptions noted, for the exclusive determination of the Secretary of the Navy. Counsel for the defendant indicated that proper application had never been made. It was disputed. At any rate, we have no choice but to dismiss the claim for this period, and it will be dismissed without prejudice.

This leaves for consideration the period of plaintiff’s claim covering the years June 1, 1944, to September 30, 1949. In considering this period we must exclude the year 1949 because in that year, which was evidently a good farm year, it seems apparent that the plaintiff was not the chief support of his mother.

For the years June 1, 1944, to December 31, 1948, we believe it is clearly shown that the plaintiff was the chief support of his mother. The question of whether a mother is dependent upon an officer for her chief support is a factual one and depends altogether on the facts of the individual case. Numerous cases have been cited by both parties, but the law is clear and the statute is clear, and each case must be decided upon the merits presented. Any regulations promulgated under the statute should or should not be applied depending on the circumstances and facts of the individual case and should not be a matter of arbitrary application.

Defendant earnestly insists that one-half the total proceeds of the farm should be allotted to the mother, and that this would preclude plaintiff from recovery. However, there is no exact yardstick that can be used for measurement of cases of this kind. Certainly an allotment of the full one-half would not be justified.

We further conclude, upon a reading of the entire record, that the mother actually received much less than even one-quarter, whatever the family farm income might have been. The two small farms stood in the father’s name, and he controlled the income. He was a heavy drinker. It cannot be reasonably presumed that the liquor was all presented to him. It cannot be presumed that no part of the funds would be used for the support of the two boys who remained on the farm. There is no direct evidence of any substantial portion of the farm income being used for the mother’s support.

One of the family (a married sister) wrote plaintiff on September 16,1945, in reference to plaintiff’s monthly check, “It is the only check that she [the mother] receives. She sure needs the money. She uses it to pay for groceries, medicine and fuel. She should have more medical care. * * * She tries to do too much.” Letters and papers through later years reflect the same story. (See exhibits.)

The mother made an affidavit in 1954 from which we quote: “For years I have had to depend * * * mostly on Anton for all the things I have had. He sends money regularly. * * * I don’t know what my husband did with his money, but I know we never had anything. * * * I don’t know how I would have gotten along without my son Anton. * * * Anton kept me alive.” (Defendant’s exhibit No. 5.) The mother at that time was 81 years of age.

The plaintiff testified that the family lived in poverty, had much sickness and were usually “broke,” that the facts indicate that the net income from the farm was very small, and that apparently a number of expenses that should have been claimed had not been taken as deductions. (Defendant’s exhibit No. 4.)

According to plaintiff’s exhibits 25 to 30 and according to his sworn testimony, he furnished an average of much more than half his mother’s support for the years 1944 through 1948. He admitted it was less than half in the year 1949. He stated that after a question was raised he had made a further detailed study and investigation of the facts with the result as indicated; that amended income tax returns had been filed for the years 1944 to 1949 (plaintiff’s exhibits Nos. 31 to 36, inclusive) correcting numerous errors. They were admitted merely as indicating conditions on the farm. The Collector had ruled they were not timely filed.

Plaintiff stated specifically that the father primarily handled the receipts and that he almost completely excluded the members of his family.

There is no evidence in the record that the father shared the proceeds of the farm with the mother or used any considerable part for her support. All the facts and circumstances of record indicate that very little of this farm’s funds were used for this mother’s support, and certainly less than plaintiff contributed to that purpose during the years June 1, 1944, through December 31, 1948, inclusive.

Plaintiff had no attorney during the admission of the evidence. It was a difficult case for the trial commissioner.

Outside of the estimate based upon an assumption that the mother was entitled to one-half the proceeds of the farm, there is nothing in the record to show that any part of the funds was so used. This is not sufficient to offset the descriptive evidence to the contrary.

At any rate, Kansas is not a community property State. It is our understanding that the father controls the funds from the farms standing in his name. The fact that he paid no direct compensation to any of his sons who worked on the farms, and the mode of life that prevailed there indicate that he was not generous in dealings with his family and, along with other facts of record, justify the conclusion that for the years indicated plaintiff was the chief support of his mother.

The record indicates that the plaintiff contributed considerably more than he has been given credit for. In addition to the regular allotment, plaintiff bought other articles during the period, including a cooking range for $210, and gifts and cash for other items at different times. He even bought a tractor and a plow for the parents’ farm at a total cost of $3,264, but this purchase was made in 1951, which is after the period which is now under consideration.

To deny that plaintiff was the chief support of his mother for the period June 1,1944, to December 31,1948, in the circumstances unfolded bere is to run counter to the whole stream of human experience and ignore the basic facts of life.

Here was a case where the father was unable to work. The family lived on a farm in Kansas. The boys who were able to and had been running the farm were drafted into the armed forces or otherwise left and did not return to the farm. Of the three boys who remained on the farm, one was a victim of polio, one was a mental case, and one left in 1946 and did not return.

The returns from the farm according to the GAO report, ranged from a low of $895 to a high of $2,674 per annum, an average of $1,641 per year. This was for a family of four living on a mortgaged farm. The plaintiff contributed $773 per year plus other gifts amounting to an additional substantial amount per year. By the relentless rule of arithmetic defendant has calculated that the mother is entitled to one-half the total farm income, and since this amounts to slightly more than one-half the defendant’s estimate of the living expenses of the family unit, ergo, plaintiff is not the chief support of his mother. This assumes that the mother received one-half all the income from the farming operations, that she used her share of the meagre income from the farm for herself alone and used no part of it to satisfy the needs and hunger of her two unfortunate children, and that she turned her face the other way and refused to heed their acknowledged helplessness.

Shades of arithmetic!

Does any thinking person believe that this Kansas mother, who went down to the crumbling brink to bring these children into the world, would selfishly use all her meagre income for her own support and use no part of it for the care and sustenance of these two unfortunate children? Even the birds of the air and the beasts of the field share their food and protect their young. The lioness feeds her cub and the tiger fights for her offspring. Fancy trying to reason with or quoting arithmetic to one of them while trying to take away one of their young. Nature rears a relentless wall against any such procedure.

It is told that a small country schoolboy in the piney woods of east Texas was studying mathematics. His teacher asked how many in his father’s family. He replied, “Five children and my father and mother.” Then his teacher said, “If your mother cut up a pie and divided it among the family, what part would you get?” The boy replied, “One-sixth.” The teacher, “Why Johnny, you should know better than that. You would get only one-seventh.” The boy, “Teacher you may know your arithmetic, but I know my mother. She would say, ‘I don’t believe I care for any pie.’ ” That is the kind of a mother most of us know about.

We are persuaded to believe that those who made the decision in question were so busy in handling innumerable cases, that they did not have time to stop and face life’s realities, but treated this as a routine incident. That is one of the tragedies of a crowded life.

If this is not true, and they really took time to analyze the circumstances and still adhered to their decision, they need to take time out to lean against a haystack, chew a straw and indulge in a half hour of meditation and see if they cannot find some substance to the human equation which is always present in all the affairs of life.

We find that plaintiff is entitled to recover the additional allowances of an officer with a dependent mother for the period June 1,1944, to December 81,1948, but that he is not entitled to recover for the period from January 1, 1949, to July 31,1950, and as to that portion of his claim his petition will be dismissed. We further find that as to the period from August 1,1950, to December 31,1955, we have no jurisdiction, under the facts disclosed by the record, to determine whether there is merit in plaintiff’s claim for any part of this period; and that in any event the Secretary of the Navy is given authority — in the absence of a showing of fraud or gross negligence — to make a final determination under the law in effect during that time. As to the latter period, August 1,1950, to December 31, 1955, the claim is dismissed without prejudice.

Plaintiff is entitled to recover additional allowances for the period indicated. The amount of recovery will be determined pursuant to Rule 38 (c). Defendant’s counterclaim is dismissed.

It is so ordered.

Dureee, Judge, concurs.

Whitaker, Judge,

concurring:

I agree that the practice of the General Accounting Office of allotting to the wife one-half of the joint income should not be applied in this case. The Chief Judge allots one-fourth of it to her. Whether this much, or more, should be allotted to her, I do not know; I do not know what part should be allotted to her. All the cash income came into the hands of the husband. What he did with it, I do not know.

Nor has any account been taken of the fact that the husband furnished his wife a dwelling place; and, I think it fair to assume that a substantial part of the food for the family was grown on the farm. There is simply no basis for comparison between the amount contributed by the son and the amount from other sources that went toward the mother’s support.

Certainly I think it is unrealistic to treat one-half of the cash income from the farm as having been used for her support. It was on this basis that the General Accounting Office determined that the dependency allowance had been erroneously paid plaintiff and ordered the recoupment of it from his future pay. This was unjustified. Until some better reason was found, the General Accounting Office should have left the parties as it found them.

When plaintiff filed his petition seeking the allowance for years subsequent to 1950, defendant filed a counterclaim, seeking to recover the payments made plaintiff for the years 1944 to 1950. To support this counterclaim, defendant would have had to show that plaintiff was not in fact Ms mother’s chief support. In my judgment the proof does not show whether he was or was not. Hence, defendant would not have been entitled to recover on its counterclaim. I do not think it can shift the burden of proof to plaintiff by deducting the amounts claimed in the counterclaim from the officer’s pay which accrued after the counterclaim was filed. When the counterclaim was filed the matter was put into the hands of the court for adjudication; it was then too late for defendant to arrogate to itself the right to determine the matter submitted to the court for adjudication. Under such circumstances, the defendant had no authority to deduct these amounts from plaintiff’s pay, and, since the proof is inadequate for us to determine whether the plaintiff was in fact his mother’s chief support, defendant would not be entitled to recover on its counterclaim, and its deductions from the officer’s pay of amounts claimed therein being beyond its authority, under the circumstances herein presented, I think plaintiff is entitled to reimbursement of them.

What has been said as to defendant’s right to recover on its counterclaim does not apply to the years 1949 and 1950, for the reasons stated in the opinion of the Chief Judge.

For these reasons, I concur.

Laramore, Judge,

dissenting:

I respectfully dissent on the grounds that, in my opinion, the majority opinion is contrary to the statute, regulations, the facts of record in this case, and the cases decided by this court as far'back as 1932.

Plaintiff’s claim for the period June 1, 1944 to October 1, 1949 is under the provisions of section 4 of the Act of June 16, 1942, 56 Stat. 359, 361. Section 4 defines “dependent,” as used in the Act, to include the mother of the person concerned, providing she is in fact dependent on such person for her chief support.

This court, in construing a similar definition as contained in section 4 of the Act of June 10,1922, 42 Stat. 625, 627, has held that “chief support” means more than one-half of the funds necessary for reasonable support. Geer v. United States, 76 Ct. Cl. 259; Whiting v. United States, 80 Ct. Cl. 662.

This court has also held that the language of section 4 of the 1942 Act, supra, and the Missing Persons Act of March 7, 1942, 56 Stat. 143, as amended by the Act of July 1, 1944, 58 Stat. 679, 680-681, required that the officer claiming the allowances on the basis of a dependent mother must establish that the mother was in fact dependent on him for her chief support during the period covered by the claim. Mills v. United States, 124 Ct. Cl. 782.

Correlating the 'Whiting and Mills cases to the Geer case, chief support would mean more than one-half of the funds necessary for reasonable support. Based on the facts of record in this case, I do not think the plaintiff has sustained the burden of proving that he contributed more than one-half of his mother’s reasonable support.

Furthermore, in the Whiting case, sufra, this court used the following language:

* * * This section of the statute has been construed by the court in many cases in which it has consistently been held that it is incumbent on the officer seeking the benefit of its provisions to establish (1) the reasonable and necessary living expenses of the mother whose dependency is claimed, * * *. [p. 665]

Bearing in mind that the court in the Whiting case, sufra, was construing a similar definition of the term “chief support” to the one contained in the statute here involved, the findings here show “plaintiff has offered no direct evidence of the amount of money actually required by his mother for her reasonable support for any period of the claim.” [finding 81]

The findings of the Commissioner, which are supported by the evidence, further show “there is not sufficient evidence in this case to establish with exactitude the amount of money actually required by the mother for her reasonable support for any period covered by the claim. The evidence does not establish that plaintiff’s mother was in fact dependent on plaintiff for more than one-half of her support for the period June 1,1944 to December 1, 1948.” [finding 27]

Therefore, under these findings, based on the case of Geer v. United States, supra; Whiting v. United States, supra; and Mills v. United States, supra, plaintiff cannot recover in this action.

This is not to say that one cannot generate great sympathy for this Kansas mother. However, the mother is not the plaintiff in this case. Plaintiff was an unmarried full Commander in the U.S. Naval Reserve and serving in that rank at the time of filing his petition in 1956.

FINDINGS OF FACT

The court, having considered the evidence, the report of Trial Commissioner Marion T. Bennett, and the briefs and argument of counsel, makes findings of fact as follows:

1. Plaintiff, while serving on active duty in the United States Navy, filed a voucher on December 2, 1944, for increased allowances for his dependent mother in which the following appeared:

1. I certify that I am entitled to the increased rental and subsistence allowances provided for an officer with dependents by reason of the dependency of the below-named person. (Show data for one dependent only.)
Mother — Wilhelmina H. Meyer
RFD #1, Tampa, Kansas
Certificate filed in accordance with Navy Dept. Ltr. L16-7 (2) (OB) (S&A) of 6 March 1943.
I certxfy that I have contributed to the support of my mother during the period since 1 June 1944 an average of $41 per month in cash or its equivalent, without any consideration in return, which contribution represents her chief source of support, * * *

2. On December 2, 1944, plaintiff also signed a certificate prescribed for use by officers claiming increased allowances on account of a dependent mother or father. This certificate included the following language:

For the purpose of obtaining payment of certain allowances from the Government, and in support of my contention that my mother (father) is in fact dependent on me for her (his) chief support, I hereby certify that the following statements of fact are true and correct and that I will immediately notify the disbursing officer carrying my accounts of any material change therein:
(1) That my mother is Mrs. Wilhelmina H. Meyer who lives at R.F.D. #1, Tampa, Kansas.
(2) That the amount required for my mother’s reasonable and proper living expenses is from $65.00 to $75.00 per month.
73) That for the period from 1 June 1944 to 1 Dec. 1944, I have contributed to the support of my mother without any consideration therefor or hope or expectation of return therefrom, the sum of $250.00.
(4) That the total gross income of my mother from all sources (including in such income any payment or contribution of others toward her proportionate share of household or living expenses) other than my contributions has not exceeded and does not exceed $25.00 per month or $300.00 per year for the period from 1 June 1944 to 1 Dec. 1944.
(5) That the living expenses actually incurred by my mother during the period from 1 June 1944 to 1 Dec. 1944 amount to from $65.00 to $75.00 each month.

3. On December 8,1944, plaintiff’s disbursing officer transmitted plaintiff’s voucher and certificate to the Comptroller General of the United States requesting a decision as to whether he was authorized to credit plaintiff with allowances for an officer with a dependent mother from June 1, 1944. The Comptroller General advised the disbursing officer in decision B-46211 dated January 1, 1945, in material part as follows:

It appears from the officer’s certificate of dependency dated December 2,1944, submitted with your letter, that his mother was in fact dependent on him for chief support during the period from June 1, 1944, to December 1,1944, the concluding date of said certificate. Accordingly, payment of allowances to Lieutenant Meyer as for an officer with dependents (mother) will be passed to credit, provided he is otherwise entitled thereto, for that period and thereafter so long as there is shown to be no material change in the dependency status of the mother.

4. Plaintiff’s mother was bom in Germany in 1873 and his father was born in Germany in 1875. The father came to the United States in 1892. He returned to Germany in 1898 to bring back a spouse and married her in Baltimore that year. They bought two farms in Kansas where they lived raising a family of 12 children. Plaintiff was the tenth child. The property has at all times been mortgaged and is “rundown.” The petition recites and plaintiff’s testimony supports the allegations that his father, a heavy drinker, has not worked for many years; that his mother is unable to speak, read, write or comprehend the English language; that nine of the children never progressed beyond grade school; that the other three, including plaintiff, received good educations; and that since about June 1,1944, plaintiff is the only child who has been able to contribute financially to help bis parents. Two adult brothers who have remained on the farm are mentally and physically handicapped. Most of the children were required by the father to work on the farms from early childhood and well into adulthood without any compensation. The father’s bank account for the years 1944-1955 reflects that the balances maintained were very small, at no time exceeding $895.14. The account was frequently overdrawn and he at all times owed the bank on notes due.

5. During the course of an examination of pay and allowance records of unmarried officers, the accounts of plaintiff were examined. Plaintiff was questioned for the purpose of verifying information compiled from pay records as well as to ascertain whether his mother was in fact dependent upon him. The investigation revealed, among other things, that the farm was in the name of plaintiff’s father and that, although plaintiff had been paid additional allowances because of the alleged dependency of his mother, she was not claimed by him as a dependent for income tax purposes but sire was so claimed by his father. It was determined that plaintiff’s mother derived her chief support from sources other than plaintiff and that the mother was not in fact dependent on him within the meaning of the pertinent statutes for the period covered by the investigation, June 1, 1944 to December 31, 1948. Plaintiff’s mother did not reside in his household. The report of the investigation contained the following summary statement:

1. The average monthly living expenses of the claimed dependent and spouse appear to have been as follows:
1944 (7 mos.)_ $277
1945_ 158
1946_ 246
1947_ 352
1948_ 253
2. The average monthly net income of the claimed dependent and spouse, exclusive of amount received from subject officer, appears to have been as follows:
1944 (7 mos.)_ $213
1945_ 91
1946_ 163
1947_ 282
1948_ 189
3. The average monthly contribution of the subject officer to his claimed dependent appears to have been as follows:
1944 (7 mos.)_ $64
1945_ 67
1946_ 83
1947_ 70
1948_ 64

6. On February 28, 1950, plaintiff requested that payment of increased quarters and subsistence allowances be discontinued after that date, pending a determination by the Comptroller General relative to the dependency status of his mother.

7. On May 18, 1951, the Assistant Comptroller General addressed a letter to the Secretary of the Navy sending two copies of the report of investigation referred to in finding 5 and stating that plaintiff had obtained increased rental and subsistence allowance payments by the submission of false certificates that his mother was dependent upon him for her chief support. Cooperation was requested of the Navy in effecting recovery of payments made for the period June 1, 1944 to December 31,1948. It was stated that a report covering dependency status for the period subsequent to December 31, 1948, would follow at a later date. This report is referred to in finding 9 hereafter.

8. On June 21, 1951, the Chief of Naval Personnel addressed a communication to plaintiff enclosing the report of the General Accounting Office, referred to in finding 5, and inviting plaintiff’s comments thereon.

9. On July 26, 1951, the Assistant Comptroller General addressed a letter to the Secretary of the Navy, referring to the letter of May 18,1951, transmitting copies of a report covering the dependency status of the claimed dependent for the period subsequent to December 1948, and requesting cooperation for the collection of improper payments for that period. The payments were made, it was stated, as a result of plaintiff’s false certificates that his mother was dependent upon him for her chief support. The report covered the period from January 1,1949 to February 28,1950, and stated in part:

It was observed that some farm buildings and equipment are in a rundown condition. However, Mr. Meyer, father of the subject officer, stated that his net income from farming operations in recent years, particularly for the years 1949 and 1950, was sufficient to cover the regular living expenses of himself, his spouse (the claimed dependent), and the two adult sons. This statement was substantiated through other reliable sources. He further explained that his income had been such that he reduced the mortgage on his property by $2,000 during the past three years, in addition to his regular repayments. The additional payment was made on August 24, 1948, as verified from records of the Federal Land Bank, Wichita, Kansas. Mr. Meyer also had records indicating that he had reduced another outstanding obligation by $200 in 1949 and $500 in 1950.
*****
Inasmuch as the officer’s mother and father lived together during the period the increased allowance payments were made, the family income is considered as a general fund for the support of both parents. The officer’s father had records and documents indicating that his net income for the years 1949 and 1950 was $6,018.56 and $3,664.81, respectively. Federal income taxes were paid on the above amounts accordingly, which were made on joint returns filed in the name of Gerhard, and Wilhelmina Meyer. The above income is exclusive of the officer’s contribution and the cost or value of milk, beef, pork, poultry, eggs and vegetables produced and consumed on the farm.
* * * Due to absence of records and lack of memory, Mr. Meyer was unable to explain fully the disposition of the difference between the monthly expenses and the average monthly income including the officer’s contribution. However, he did say that the proceeds of the officer’s allotment checks are used by Mrs. Meyer exclusively for paying doctor bills, purchasing medicine, clothing and other household items.
Officer's Dependency Certificates
Certificates of dependency submitted by the officer and considered in connection with this investigation set forth the basis for the officer’s claim as follows:
Date of certificates- 1/1/49 7/1/49
Periods covered- 1/1-6/30/49 7/1-12/31/49
Amount required per month From $85 for dependent’s living ex- To penses
Total income of dependent From $25 mo. for prior 6 months $25 mo.
Amount contributed by offi- From $60 mo. cer for prior 6 months To $60 mo.
Summary of Report
1. The average monthly living expenses of the claimed dependent and spouse appear to have been as follows:
1949_$300
1950 (2 months)- 300
2. The average monthly net income of the claimed dependent and spouse, exclusive of amount received from subject officer, appears to have been as follows:
1949_$501
1950 (2 months)_ 305
3. The average monthly contribution of the subject officer to his claimed dependent appears to have been as follows:
1949___$67
1950 (2 months)_ 60
On the basis of information developed, it appears that the claimed dependent derived her chief support from sources other than the subject officer and was not dependent on such officer within the meaning of pertinent statutes.

10. Plaintiff took exception to the findings of the General Accounting Office as set forth by the Assistant Comptroller General above. He made comments thereon to the Chief of Naval Personnel who transmitted them on March 25, 1952, to the Comptroller General and the latter responded by letter to the Secretary of the Navy on June 3,1953, in pertinent part as follows:

By letters dated May 18 and July 26,1951, there were transmitted to you copies of reports of two investigations made by representatives of this Office in the case of Commander Meyer showing that during the period involved his mother and father, and at least two adult brothers, lived on a farm near Tampa, Kansas, and indicating that the mother was not in fact dependent on the officer for chief support.
At the time of the first investigation the officer requested and was granted permission to submit such evidence as was available in support of his contention that his mother was dependent on him, and now has submitted the statements enclosed with the aforesaid letter of March 25,1952. The officer originally argued, in substance, that the initial credit in his account was made only after authorization by this Office in decision B-46211, dated January 1, 1945; that the father furnished the mother only the bare necessities of life, hence, the need for his contributions and that the parents’ annual net income was less than that disclosed by the investigations, which it was proposed to establish by filing amended income tax returns for the years involved claiming a greater depreciation on the farm in an effort to show a reduced annual net income. Also, that the amount of his contributions was greater than that indicated, since in addition to the amount of an allotment from his pay, he had made substantial contributions for the benefit of his parents, including the amounts of checks which he explained were drawn to meet mortgage payments and a check which is described as having been deposited as a trust fund for emergency use in case of death or hospitalization of his parents and three of his brothers then living and working on the farm. The officer’s latest contention is to the effect that during the period he was credited with increased allowances the parents had no income inasmuch as the farm actually was operated at a loss in view of an unpaid obligation of $67,500, representing back wages due his brothers for work performed on the farm without compensation, that the amount of the family living expenses were overestimated at the time of the investigations, and that since the amount of his contribution was in excess of one-quarter of the family living expenses, the mother was in fact dependent on him for chief support.
With regard to the officer’s contention respecting the decision of January 1, 1945, said decision was rendered on the basis of his unsupported ese parte representations, which representations upon subsequent investigation were found to have been incorrect, consequently, the said decision may not be treated as conclusive of his rights in the matter. As to the officer’s other contentions, since his mother and father lived together during the period increased allowance payments were made, the mother’s dependency status must be considered on the basis of the family unit and the family income must be considered as a general fund for the support of both parents. Hence, while an officer may claim increased allowances on account of either, or both, parents, neither may be considered as in fact dependent on the officer for chief support where the family income is more than one-half of the living expenses of the family unit, and any contribution received by the mother from the officer in such cases must be considered as a contribution for purposes other than as a contribution for chief support. Under the said rules, and assuming that the parents expended
all of tbeir income for living expenses, including tbe amount of the officer’s contributions, less the amounts of the above-described checks, which may not be viewed as contributions for current support, and giving him the benefit of other alleged check contributions but not the depreciation claimed or to be claimed as an income tax deduction, or the alleged unpaid obligation of his father for back wages due his brothers — since such items in no way affected funds available and actually used for support purposes — the following would appear to reflect the family situation:
It will be noted from the foregoing tabulation that during the entire period involved the family cash income available for support was more than one-half of the family living expenses — including the living expenses of the officer’s brothers living at home and working on the farm, but exclusive of the value of such subsistence as the family may have obtained directly from the farm. Hence, the conclusion appears required that the mother was not in fact dependent on the officer for chief support during the period the increased allowance payments were made to the officer, regardless of the amount of his contributions.
Accordingly, further consideration by the Department of the Navy with a view toward recovery of the full amount of the increased allowance payments made to Commander Meyer on account of his mother for the period in question, and information as to the amount collected, will foe appreciated.

11. On November 30,1954, plaintiff requested the Chief of Naval Personnel to appeal to the Comptroller General to reconsider his adverse decisions in plaintiff’s case, submitted in support thereof 12 typed pages, single spaced, of a justification of his position, and attached numerous supporting exhibits illustrating conditions on his parent’s farm. Plaintiff requested, also, that the Navy Department make an investigation of his case and determine his right to allowances for a dependent parent. No such investigation was made. The Navy informed plaintiff that it was without adequate facilities to do so.

12. In paragraphs 8 and 9 of his communication of November 30,1954, plaintiff made reference again to the unpaid services of his adult brothers on the farm as an indication that there was actually less money available to his parents than the defendant represented. He said in part:

8. Further, it must be obvious that the two or three brothers who always lived at home and worked on the farm during the period in question and who had no outside income, no real property, no other wealth, nor hardly any money of their own, must have had something to eat and clothes to wear, which was derived from the income of the farm. Consequently, without any doubt whatsoever, there was far less money available for the livelihood of my parents than that set forth in the General Accounting Office reports. Attention is invited to the fact that my brothers never have had the good fortune to have to file income tax returns despite being single and their long hours of hard work on the said farm, with its obsolete equipment and deteriorated buildings. * * *
9. Obviously if the brothers who worked at home for wages they did not receive had not been there, my father then would have had to hire farm hands which he would have had to pay, but which he would not have been able to fully pay at the average prevailing wage rates; or if he paid such farm hands all of the money available from the farm to partly meet the normal compensation usual for such occupation which is a farm expense and which would be deducted from the farm’s income, then there would have been no money at all available for my parents’ limi/ng expenses nor for that normally required and consumed off the farm income by such farm hands who also would have had to be fed solely for the convenience of their employer. In my opinion the living expenses consumed by the brothers for their livelihood represents a direct cost of the operation of the farm. As evidenced by the enclosures hereto, I feel that it can be considered that the brothers at home represented nothing more than “powered machinery requiring fuel and oil and protection from the weather in order to operate properlyor, that they represented “workhorses requiring hay and oats and shelter in order to be able to work.” From the two analogies just mentioned it can be considered that the money spent on the brothers for their livelihood, maintenance, etc., represented nothing more than farm operating expenses which are normally deducted from or offset against the income of the farm, leaving a proportional less amount of money available for my parents’ living expenses for each such additional member at home. The foregoing is precisely the manner in which my brothers were performing their labor at home. * * * [Emphasis supplied by plaintiff.]

13. On May 20, 1955, the Comptroller General, having considered plaintiff’s letter and supporting documents of November 30, 1954, referred to above, advised the Secretary of Navy in part as follows:

* * * His [plaintiff’s] one material allegation, however, that for each of the years involved his father reported for income tax purposes a net income substantially in excess of his actual net income, is not supported by any competent evidence, except copies of refund notices for 1949 and 1950, and for those two years it is not shown that the father’s actual net income was less than the officer’s contributions. The matter has been carefully considered but no reason is found to change the conclusion reached in the decision of June 3,1953. Accordingly, a debt settlement will be issued by our Claims Division certifying the amount of Commander Meyer’s indebtedness to the United States on account of the increased allowances paid to him during the period June 1, 1944, to February 28, 1950, because of the claimed dependency of his mother. A copy of the debt settlement will be sent to you, and the assistance of your Department in effecting recovery of these illegal payments will be appreciated.

14. On January 16, 1956, a certificate of indebtedness of plaintiff to the United States was issued by the Comptroller General which read in pertinent part as follows:

I certify that I have examined and settled the claim(s) of the United States against you and find there is due the United States the sum of $8,142.30, representing erroneous payment of increased rental ($6,382.50) and subsistence _ ($1,759.80) allowances, incident to service as a commissioned officer, U.S. Naval Keserve, service No. 144860.
On the basis of certificates of dependency executed by you, that your mother was dependent upon you for her chief support, you were paid increased allowances as an officer with dependent, during the period June 10,1944 through February 28, 1950, in accordance with the provisions of the Pay Readjustment Act of 1942, dated June 16,1942, 56 Stat. 859, effective June 1, 1942, as amended 37 TT.S.C. 105, 106 (1946 ed.), and of the Career Compensation Act of 1949, dated October 12, 1949, 63 Stat. 802, effective October 1, 1949, as amended.
It is determined that you were not the chief support of your mother, since dependency status is considered on the basis of the family unit and' the family cash income available for support was more than one-half of the maximum family living expenses. Based on the financial data furnished, it is established that your mother was not, in fact, dependent upon you for the major portion of her support, in accordance with the requirements of the cited acts.

15. A copy of the certificate of indebtedness was transmitted to the Secretary of the Navy by the Comptroller General. On May 21,1956, the certificate was transmitted by the Comptroller of the Navy to plaintiff’s commanding officer with the advice that under the provisions of Public Law 497 the debt could be liquidated in an amount not to exceed two-thirds of plaintiff’s pay and that the $8,142.30 could be paid in monthly installments of not less than $150. Such collection started on June 1,1956, and the debt was fully collected on July 1,1960, in the sum of $7,626.75. A credit of $515.55 had been allowed plaintiff for reasons not material here. The recoupment was for the period June 1,1944 to February 28,1950. The recoupment, not having been completed at the time defendant filed its answer, was made the subject of a counterclaim.

16. On April 10, 1956, plaintiff filed his petition in this case under the provisions of the Career Compensation Act of 1949, seeking the recovery of increased allowances for quarters and subsistence, because of a dependent mother, for the period March 1,1950 to April 10, 1956. During the course of the trial plaintiff specified that he would claim from March 1, 1950 through December 31, 1955. Thereafter he asked leave to amend to claim for the entire period June 1, 1944 through December 31,1955. Plaintiff was permitted to offer proof on the basis of the latter period but has not complied with rule 18(e). Defendant’s answer denies the material allegations of the claim and asserts affirmative defenses of laches, the statute of limitations, failure to exhaust administrative remedies and makes a counterclaim for the sum since recouped from plaintiff’s pay, as noted above in finding 15.

17. At no time material herein did plaintiff’s mother actually reside in plaintiff’s household.

18. In a letter dated May 25, 1956, the Chief of Naval Personnel stated in part:

Ref: * * *
(b) Dep. Assistance Act of 1950, Public Law 771, 81st Congress
(c) NavCompt Manual 044038-lb (8)
# fN # * *
3. It is noted that the period during which Commander Meyer alleges his mother was dependent upon him for over one-half her support is 1 March 1950 to 10 April 1956. The records of the Bureau of Naval Personnel reveal that Commander Meyer has never applied to the Chief of Naval Personnel for increased subsistence and quarters allowances as for an officer with a dependent mother for the period covered by his petition. Inasmuch as references (b) and _(c) authorize the Navy Department to determine the eligibility of its members to receive increased allowances on the basis of dependent parents and describe the procedures for requesting such increased payments, it would appear that subject officer has never availed himself of the administrative procedures required to obtain a determination from the Navy Department of his entitlement to increased allowances on the basis of a dependent mother.

Plaintiff relies upon his statement in his communication of November 30, 1954, to the Chief of Naval Personnel, referred to above, wherein he asks that the Navy investigate his claim and pay him for the support of his alleged dependent. It has been previously found that on February 28, 1950, plaintiff requested that the payments be stopped pending a determination by the Comptroller General on disallowance of payments made to that date. Plaintiff, however, has at all times insisted that the dependency has continued, although technical compliance with the law and regulations cited above is sought to be satisfied only by the communication of November 30,1954, which, was on. the general issue of dependency and specifically for the period prior to February 28, 1950. No dependency certificate as specified by Navy regulations has been filed by plaintiff for any subsequent period.

19. Prior to August 1, 1950, the effective date of the Dependents Assistance Act of 1950,64 Stat. 795, the Comptroller General uniformly applied the so-called “family-unit rule” in determining the dependency status of claimed dependents, where, as herein, the mother and father resided in the same household. The rule, as stated in certified copies of unpublished decisions of the Comptroller General received in evidence in this case, is as follows:

Where, as here, the mother and father reside in a common household, the dependency status of the mother or father is for determination on the basis of a family unit, and the family income ordinarily must be considered as a general fund for the support of the parents.

The regulation cited in the Navy Comptroller Manual, paragraph 044038-lb(8), referred to in finding 18, reads in part:

* * * When the father and mother of an officer are living together, the dependency status of the mother and/or father is determined on the basis of a family unit, and the gross family income from all sources must be considered as a general fund for the support of the parent claimed as a dependent. * * *

As noted in finding 10, the Comptroller General advised the Secretary of the Navy that “while an officer may claim increased allowances on account of either, or both, parents, neither may be considered as in fact dependent on the officer for chief support where the family income is more than one-half of the living expenses of the family unit * *

It is provided in section 102(g) of the Career Compensation Act of 1949, 63 Stat. 802, that the “term ‘dependent’ * * * shall include the father or mother of such member provided he or she is in fact dependent on such member for over half of his or her support.” The family-unit rule is not expressly provided in the statute. It is a matter of regulation. Such a regulation should or should not be applied depending on the circumstances and facts of the individual case and should not be a matter of arbitrary application.

20. In the year 1944 the net audited income of the Meyer farm was $2,191.08. If the amounts used for the mother’s subsistence during that year were calculated as representing one-fourth of the total farm income, this share would have amounted to $548.63. One-half of that sum, representing Mrs. Meyer’s share under the family-unit rule, was $1,095.54. This does not allow anything under such application of the rule for salaries to the two adult children who were working on the farm at the time. No salaries were paid them for their work which contributed to the farm income. Further, plaintiff’s contributions were not included in the figure of $2,191.08.

It is found that plaintiff’s contributions to the support of his mother for the applicable period in 1944 did not exceed her share of income available under the “family-unit rule” for her support. But if the amount so used for her subsistence was materially less than half the total income from the farm, then plaintiff’s contributions for the period June 1, 1944, to the end of the year, as shown by the Comptroller General’s report, would amount to more than the actual sums otherwise used for her support.

21. In the year 1945 the net farm audited income of Mr. and Mrs. Meyer was $395.05. Their joint Federal income tax return listed total net income of $391.05. The figure of $395.05 is agreed upon by the parties. Under the family-unit rule Mrs. Meyer’s share of the income was $197.53. Under this allocation nothing is allowed for any adult children living on the farm. They received no wages. For 1945 there are in evidence canceled checks to cash and to his father in the total sum of $666.76 which plaintiff says were for his mother. Plaintiff claims he made an additional contribution of $100 in cash in 1945.

It appears from the evidence that in 1945 plaintiff contributed more than one-half of the family-unit net income from the farm.

22. In January 1946 plaintiff made an allotment of his pay to his mother in the amount of $60 per month. In addition to this allotment in the total amount of $720 for 1946, plaintiff purchased for his mother an electric range costing $210.76 and an oil heater costing $67.90. Excluding them and making no allowance for the adult brothers on the farm, the family net income of $1,958.82 exceeded one-half the estimated family expenses for 1946. Plaintiff’s allotment of $720 was less than the mother’s one-half share of the family-unit income or expenses. These are the income and expense figures developed by the General Accounting Office investigations reported in findings 5 and 10. However, the schedules filed by the parties in this case reveal that the family net farm income for 1946 was $1,338.54 of which the mother’s one-half under the family-unit rule would be $669.27. Plaintiff’s contribution by allotment slightly exceeded the mother’s share of family-unit income and on this basis was 52 percent of the total income.

23. In 1947, in addition to the contribution of $720 by allotment from plaintiff’s pay, he contributed $120 for the support of his mother, for a total of $840. The agreed-upon family net income from the farm that year was $2,674.49. The mother’s share of this income under the family-unit rule, again excluding the adult children who were paid no wages although living on the farm, was $1,337.25. Plaintiff’s contribution to the mother’s income was 38.6 percent of the total of $2,177.25 which she received or which was available to her under the rule. Assuming the family living expenses in 1947 were $4,218.76, as shown by the GAO report, the family income was more than one-half thereof.

24. In the year 1948 plaintiff’s allotment to his mother was $720 to which he added $50 by check. The net farm audited income that year was $2,206.34. Under the family-unit rule the mother’s share of the income from the farm was $1,103.17. This allocation again excludes the two adult sons living on the farm as is done throughout these findings and reference to which will not hereafter be repeated. They were paid no wages. There is no evidence they had any wage contract. It will be noted that according to the report of the GAO, as set out in finding 10, the family expended each year from 1944 to 1949 substantially more than the total farm income.

Plaintiff, in a letter dated February 29,1952, to the Chief of Naval Personnel, stated, among other things, that “heretofore I have not claimed credit for numerous gifts of cash and living essentials which I made to my mother, from time to time.” The Government failed to take into account numerous unpaid bills that existed every year during the period of the claim.

25. In the year 1949, in addition to the contribution of $720 by allotment, plaintiff also contributed $100 by check payable to cash for the support of his parents and a check for $1,000 made payable to his brother George to be used in behalf of the parents in event of sickness or death. The agreed, audited, net farm income for 1949 was $5,539.97, of which the mother’s share under the family-unit rule was $2,769.99. The parents’ total living expenses in 1949 were $6,838.56. Thus, the family income exceeded one-half of the expenses. Plaintiff’s contribution, excluding the $1,000 which was not for current support and which is not shown to have been expended, was less than one-half of the income or expenses.

26. In the year 1950 plaintiff contributed $500 to his father in addition to his allotment of $720 to his mother. The net farm income in 1950 was $2,659.29. Of this sum, the mother’s share under the family-unit rule was $1,329.65. The parents’ living expenses in 1950 were shown to be $730.80 for the first 2 months, or $365.40 per month. Projected over 12 months, the expenses would be $4,384.80. The joint Federal income tax return of the parents in 1950 lists expenses of $4,790.88, not counting $222.50 in depreciation. As shown in finding 9, the GAO investigation determined the monthly family living expenses in 1950 to be $300 per month, or $3,600 for the year. Thus, the family income exceeded one-half of the total living expenses under any of the three estimates accepted. Plaintiff’s contribution of $1,220 was less than the allocable portion of the living expenses of the mother.

27. There is not sufficient evidence in this case to establish with exactitude the amount of money actually required by the mother for her reasonable support for any period covered by the claim. The evidence does establish that plaintiff’s mother was in fact dependent on plaintiff for more than one-half her support for the period June 1,1944, to December 31, 1948.

28. Defendant’s investigation by the General Accounting Office reveals an estimate based upon information furnished by plaintiff’s father indicating that in 1949 and until August 1950 the average monthly expenses of the family of four, exclusive of an amount for food produced and consumed on the farm, was $300 per month. Using the 1950 Federal income tax return, the average expense would be approximately $400 per month. For the period March 1,1950 (after which plaintiff asked that allotments be suspended) to August 1,1950 (effective date of the Dependents Assistance Act of 1950), the income available for support of both parents exceeded one-half of the living expenses of the family unit for that period, using either monthly estimate of expenses. The evidence does not establish that plaintiff’s mother was in fact dependent on plaintiff for more than one-half of her reasonable support for said period nor did she live in his household.

29. The evidence establishes the following with reference to the years shown:

30.In addition to the above contributions via allotment direct to his mother, plaintiff testified that he made certain other contributions. His testimony is that he contributed $100 in cash in each of the years 1950 through 1954. In 1951 he bought a tractor and plow for use on the parents’ farm and this cost plaintiff $3,264. While not for current support, he has allocated $330 of this cost annually to each of the subsequent years as support money. In 1953 he wrote a check to his father for $350. Plaintiff gave two checks for $500 each to his father in. 1955 and $200 in cash. In 1955 he also bought a television set for his parents, costing $153.38, and a TY antenna for $70. There is no evidence to show exactly how the cash or funds given by check to his father were spent or what portion of the same was used for the mother’s support.

31. The evidence in the record as to the actual living expenses of the mother and the sum required for her reasonable support is meager. The GAO investigation, as heretofore noted, estimated, on the basis of data furnished by plaintiff’s father, that the average family monthly expenses were $300, exclusive of food produced and consumed on the farm. Defendant would allow a cost-of-living increase of 20 percent for the period August 1, 1950 to December 31, 1955. This would aggregate $23,400 for the period at the rate of $4,320 per year. One-half of these sums, representing the mother’s share, would be $11,700 and $2,160, respectively. As shown in finding 29, the net farm income for the same period was $11,816.52, which is an average of $2,181.60 per each 12 months of the 65-month period. On this basis, it is clear that the family income is more than one-half of the living expenses under the family-unit rule and that contributions received by the mother from plaintiff in such a situation must be considered as a contribution for purposes other than for chief support. Assuming plaintiff’s allotment of $3,900 (finding 29) plus $1,800, which is one-half of the alleged contribution in finding 30, all went to the mother’s support, for a total of $5,700, this would be less than one-half ($5,850) of the mother’s one-half ($11,700) of the best available estimate of $23,400 for total living expenses for the period in question.

Plaintiff has offered no direct evidence of the amount of money actually required by his mother for her reasonable support for any period of the claim. On the basis of the weight of the evidence, it is found that while plaintiff was generous to and considerate of the welfare of his parents, his mother was not, in fact, dependent upon plaintiff for more than one-half of her support for the period August 1, 1950 to December 31,1955. Further, the family income was more than one-half of the living expenses of the family unit.

32. For convenience, the following table will serve to illustrate, in summary, the total picture of net farm income as stipulated by the parties for the years in 1944 to 1948, as well as the projected shares of the alleged dependent’s part of that income and living expenses and plaintiff’s contributions direct to his mother. Other contributions which were not direct to his mother, but from which she undoubtedly had some benefit, are described elsewhere in the findings. It will be seen that under defendant’s application of the family-unit rule the total family farm income exceeded one-half the defendant’s own estimate of total family living expenses of the family of four. Other applications of the figures achieve different results. For example, plaintiff’s contribution in each of the years substantially exceeded one-fourth the family income and in two of the years exceeded the total family income.

The above table is based upon defendant’s own reports and computations. It is significant to note that the farm was in the father’s name, and that he controlled the income. Further, there is no direct evidence that any substantial portion of that income was used for the mother’s support. A reading of the entire record compels the conclusion that the mother received less than even one-quarter of whatever the actual farm income may have been.

CONCLUSION 03? LAW

Upon the foregoing findings of fact which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is entitled to recover the allowances claimed for the period June 1, 1944, to December 31, 1948, and judgment will be entered to that effect, with the amount of recovery to be determined pursuant to Rule 38(c).

It is further concluded that plaintiff is not entitled to recover for the period from January 1,1949, to July 31,1950, and his petition as to that portion of his claim is dismissed.

It is still further concluded that plaintiff is also not entitled to recover for the period from August 1,1950, through and including December 31, 1955, and his petition as to that portion of his claim is dismissed without prejudice. Defendant’s counterclaim is dismissed.

In accordance with the opinion of the court and on a memorandum report of the commissioner as to the amount due thereunder, it was ordered on June 15, 1962, that judgment for plaintiff be entered for $6,107.50. 
      
       For the period June 1, 1944, to July 31, 1950, plaintiff had applied for and had been paid increased allowances on the ground that he was the chief support of his mother.
      He filed suit in 1956 for the period from August 1, 1950, through 1955 as a continuing claim. When the defendant filed an answer on January 15, 1957, in which liability was denied, it included a counterclaim In which it asked judgment against plaintiff for sums already paid for the period June 1, 1944, to August 1, 1950. The plaintiff filed a reply denying that the payments for tlie period covered by tbe counterclaim were erroneous. Thus, the issue was joined as to liability for the entire period June 1, 1944, to December 31, 1955.
      During the testimony which was taken beginning July 6, 1960, it was revealed that the defendant had deducted $150 per month from plaintiff’s salary for a sufficient time to completely recoup the entire amount that had been paid. Some question was raised as to the state of the pleading, but it was agreed to continue the taking of testimony for the entire period and if any additional pleadings became necessary they could be filed later.
      The testimony was taken. Both sides requested findings for the entire period. The trial commissioner made findings for the entire period. The plaintiff filed a brief in which he requested that the pleadings be treated as amended. The defendant filed a reply brief in which it was stated that the issue was for recovery for the entire time June 1, 1944, to December 31, 1955. All the purposes of pleadings have been served. The only reason a question is presented is the action of the defendant in withholding the sums which were otherwise acknowledged to be due the plaintiff for the purpose of recouping the sums sought in its counterclaim.
      The issues have thus been clearly made, the evidence has been taken, no one has been misled and the issue is ripe for decision. We are, therefore, treating the pleadings as complete in accordance with the actions taken by all parties.
     
      
       Dependent mother: Clarvoe v. United States, 112 Ct. Cl. 330; Reis v. United, States, 112 Ct. Cl. 36; Russell v. United States, 108 Ct. Cl. 363 ; Mogan v. United States, 100 Ct. Cl. 393; Mumma v. United States, 99 Ct. Cl. 261; Thorlin v. United States, 92 Ct. Cl. 61.
     