180 Iowa 710 | Iowa | 1917
The abstract' does not set out the evidence, but the court made a finding of facts, and certified that defendant was divorced from his wife in 1912, upon the application of his wife, who was granted the full care and custody of all the minor children, which were all the children de
I. The statute under which the court held the funds in the hands of the garnishee exempt from, execution is Code Section 4011, which makes the personal earnings of a debtor who is a resident head of a family, earned at any time within 90 days of the levy, exempt from liability for debt. The sole question presented on this appeal is whether or not the defendant at the time was the head of a family.
The authorities defining “family” and “head of a family” have been several times collected and reviewed by this court, and it is unnecessary to again extensively review the same. In Linton v. Crosby, 56 Iowa 386, a family is defined as “the collective body of persons who live in a house under one head or manager.” See also Emerson v.
The husband and father who resides with and supports his wife and children is uniformly held to be the head of a family. The wife, however, under some circumstances, may become the head of a family. In Linton v. Crosby, supra, the husband and wife had lived separate and apart for seven years, during which time he neither contributed nor was asked to contribute to her support. He lodged in his office and hoarded in the family of others. The court said:
“In the absence of a statute so providing, it is difficult to see why a person boarding in the family of others and lodging in his office for seven years can, at the expiration of that time, be regarded as a family, or the head of one. It is true a person may be a boarder and yet the head of a family. But in order to constitute him 'such, the boarding must be regarded as of a temporary character. * * * The mere fact he was liable for her support should not, we think, make him the head of a family. No family relation, as generally understood, existed between himself and wife. The policy and intent of the statute is to exempt certain property because the support of a family, great or small, is cast upon the head thereof. Such family must have an actual existence, as distinguished from one that exists theoretically only.”
In Emerson v. Leonard, supra, the court held that a widow who lived alone, supported herself and others, when 'they were dependent upon her, by dressmaking, was not the head of a family after there ceased to be anyone residing with and dependent upon her. The court said:
“There cannot be a head of a family when there is no*714 family. It is not material that there was once a family, if it has ceased to exist.”
The court, in Clemans v. Penfield, 111 Iowa 511, held that a divorced wife did not have a homestead right in the property used by her and her husband as a homestead, and which was conveyed to her by her husband, at the time the divorce was granted, in payment of alimony; that the property lost its homestead character at the time of the divorce, because of the dissolution of the family and the abandonment thereof by the divorced wife.
In Fullerton v. Sherrill, supra, where the question involved was the right of a homestead exemption, held that:
“For the benefit of the family, the law 'exempts the home of the family from the burden that rests upon all other property, of being appropriated to the debts of the OAvner. The immunity depends on two contingencies: First, occupancy as a home; second, that the OAvner shall have a family. When either ceases, the exemption is at an end. There can be no more reason for holding that a man who has lost his family shall continue to preserve an exempt homestead because he once had a family, than for saying the house which has once been exempt while occupied as a homestead shall continue to be exempt although totally abandoned as a residence.”
The remaining cases cited variously define the head of a family.
“Exemption laws are enacted to prevent the unfortunate citizen from having all the necessaries of life SAvept away, and to preserve for him certain things reasonably necessary to enable him to earn a livelihood for himself and family. The sole purpose of all such laws is to protect the citizens of the state from being reduced by financial misfortune to absolute want, and to encourage industry and thrift and the building up of homes by placing beyond the reach of creditors the homestead and such
In the case last cited, the right of the wife to claim a homestead right in the premises of her husband after her divorce was involved, and the court said:
“By the decree of divorce procured by the defendant, with the custody of the minor children decreed to her, they thereafter ceased to be a part of the family of Norman D. Sawyer. She, without remarriage, could never become his widow. The minor children, without a change in the decree, could never become or constitute a part of his family, over whom he could exercise parental control, or to whom he owed the duty of personal care and support.”
To the same effect, see Holcomb v. Holcomb, (N. D.) 120 N. W. 547; Wiggin v. Buzzell, 58 N. H. 329; Cooper v. Cooper, 24 Ohio St. 488. The Supreme Court of Nebraska, in Roberts v. Moudy, 30 Neb. 683, held to the contrary.
The Supreme Court of Missouri, in Caldwell v. Ryan, 108 S. W. 533, 537, referring to exemption laws, said:
“The statutes of exemption were conceived in mercy for the unfortunate debtor, and are to be construed in that spirit, but they are not to be construed to give him what in common honesty does not belong to him. * * * The statute of exemption was made to cover as with a shield what the unfortunate debtor has in his possession when the*716 officer comes with a writ to take it from him. It was not made to arm him as with a sword to levy contribution on his neighbor.”
The defendant in the case at bar did not reside with his wife or minor children; was separated from them by a decree of divorce. Under the decree, he was deprived of the right to exercise custody or control over them; he had conveyed his equity in his former homestead to the parents of his divorced wife, in consideration of which they agreed to maintain and support defendant’s minor children. All that appears in the record is that he occasionally visited the children, and voluntarily contributed clothing and paid for medical services rendered the children. He was in no sense the head of a family. The statute exempting personal earnings was never intended to aid an individual to avoid the payment of his honest debts, but, as above stated, to preserve a certain advantage in favor of the family dependent upon him for support. While exemption statutes are to be given a liberal construction in carrying out their purpose, they should never become a means of enabling an improvident debtor to avoid the payment of obligations arising after he has ceased to properly come within the purview of the statute.
It is our conclusion that the funds in the hands of the garnishee were not exempt to the defendant, and that the judgment of the lower court should be and is — Reversed.
