DocketNumber: No. 12084. [fn*]
Citation Numbers: 9 S.W.2d 378
Judges: DUNKLIN, J.
Filed Date: 7/14/1928
Status: Precedential
Modified Date: 1/12/2023
The trial court filed the following findings of fact and conclusions of law, upon which the decree was based, to wit:
"I find:
"(1) That plaintiff and defendant, Stokeley Martin, are husband and wife, and have one child, Mary Frances, a girl 13 years of age.
"(2) That in the summer of 1927 defendant, Martin, separated from plaintiff of his own volition, and, aside from six weeks in the fall of 1927, he has not lived with her since.
"(3) Defendant contributed to the support of plaintiff until May 1, 1928, at which date he told her he would not contribute anything further to her for her support or that of their child.
"(4) Defendant has twice sued plaintiff for divorce, dismissing his first suit, and, upon a trial of the second, divorce was refused him.
"(5) Plaintiff herein does not desire a divorce or separation, and declares herself willing for him to live with her and their child, and that she wishes him to do so.
"(6) The parties own as community property a house and furnishings, which are unpaid for in part, and upon which there is due a monthly payment of $40.60, secured by respective liens upon the house and furnishings, and in which house the plaintiff and her daughter are living.
"(7) Since the abandonment of plaintiff by defendant, plaintiff has been taking a course in a business college, and has employment at $70 a month, which she does not know yet to be permanent.
"(8) The defendant is employed by the United States government in the Post Office Department at Fort Worth, Tex., and his salary at such place is $216 a month, out of which a payment is taken to cover a retirement fund, leaving him a net salary of $210 per month.
"(9) The defendant refuses to make any further payments on the house and furniture.
"(10) In addition to plaintiff's salary, it will require $105 per month for plaintiff and her child to support themselves and continue the payments on the house and furniture, and it is necessary that such payments be continued to prevent their losing the said house and furniture, and it is necessary that such payments be continued to prevent their losing the said house and furniture by foreclosure.
"(11) The United States Postal Department is not subject to suit in the state courts, and the plaintiff cannot collect by suit any part of her husband's earnings in the hands of the United States Post Office Department, nor will said department pay any of his salary to plaintiff without an order of court.
"(12) The plaintiff has been compelled to borrow from relatives and friends money to live on to supplement the contributions of her husband to her since he has abandoned her.
"(13) That defendant has no property subject to execution within this state.
"I conclude:
"(1) That it is necessary to the sustenance and maintenance of life and health by the plaintiff and her daughter that a portion of the earnings of the defendant be paid to the plaintiff.
"(2) I conclude that the sum which is reasonably necessary for such support is $105 plus the earnings of the plaintiff.
"(3) That a receiver is necessary in order to collect said funds, and it is agreed by the parties hereto that, if any order at all will lie in this cause to impound a portion of defendant's salary, a receiver is the appropriate procedure.
"(4) That, unless a receiver is appointed, the defendant will collect this salary and divert the same wholly to his own use, without paying anything to the plaintiff for her support or that of her daughter and without paying the notes upon the house and furniture."
From the judgment so rendered, Stokeley Martin has prosecuted this appeal.
The facts found by the trial judge were alleged in plaintiff's petition, and there was ample evidence to support the findings. In addition to the facts so found, we deem it proper to note that, upon cross-examination by plaintiff's attorney, the appellant testified in part as follows:
"It is a fact that since May 1st I have refused to pay anything to her support except what I state in that letter. You told me when I came to see you that I ought to send her half of my salary, and I wouldn't do it, and I told her I wouldn't do it, and I have maintained that attitude ever since. I told her I had made several propositions. The proposition had always at the bottom of it, if she would give me a divorce, I would do certain things. Otherwise I would refuse to do anything."
Article 4619, Rev. Statutes of 1925, provides that all property acquired by either the husband or wife during marriage, except that which is the separate property of either, shall be deemed the common property of the husband and wife, and during coverture may be disposed of by the husband only. Appellant insists that by reason of that statute the court is without authority to appoint a receiver to collect his salary and pay it over to appellee without his consent. It is also insisted that the order of court was erroneous, in that it was in violation of section 28 of article 16 of the State Constitution and subdivision 16 of article 3832, Rev. Statutes of 1925, which provide that all current wages for personal services shall be reserved to every family exempt from attachment or execution and every other species of forced sale for the payment of debts. Clearly, those provisions have no application here, since the suit is not for the collection of a debt. The point is further made by appellant that *Page 380 the only remedy given to appellee by law for the wrongs complained of in her petition is such relief as is available to her under the statutes applicable to suits for divorce. The record shows that appellant, with no grounds for a divorce, and having failed to procure one, is trying to compel appellee to procure one, against her wishes; and to sustain the contention last noted manifestly would not only be unjust to her, but would be contrary to public policy.
It cannot be doubted that the salary earned by appellant is community property, and that appellee owns a one-half interest therein. If it be true that appellant can ruthlessly deprive appellee of her interest in such earnings in the manner and under the circumstances found by the trial court, then the ancient maxim that "equity will not suffer a wrong to be without a remedy" is but an empty phrase.
The statute which gives a husband the right of control and disposition of the community property was intended to apply to a husband in fact and not to a husband in name only, and that too upon the assumption that he is better qualified to manage such property than his wife, and that he will manage and dispose of it for the best interest of himself and his family. As appears from the facts found by the trial court, appellant has repudiated his marital and parental obligations to his wife and child. For a long time it has been the rule of decisions in this state that, when a husband abandons his wife and leaves her no means of support, then, notwithstanding the statutory provision noted above, she is empowered to dispose of community property in order to realize means necessary for the maintenance of herself and children, to the same extent as if she were a feme sole. Wright v. Hays,
Accordingly, the order of the trial court is in all things affirmed, and the judgment will be certified below for observance.
In Gonzales v. Gonzales,
The foregoing authorities are stressed by appellant as being in conflict with the decision of this court in the present suit and as showing the conclusions we reached upon original hearing were erroneous.
It is our conclusion that the asserted conflict of decisions does not exist. In the present suit, plaintiff did not seek an order of court, requiring her husband to support her; nor was the suit for a debt claimed to be due her by her husband for money expended by her for her support; nor was the suit one for divorce with prayer for alimony during its pendency, and for settlement of their property rights if the divorce should be granted. The character of her suit was entirely different and distinct from any of those involved in the authorities cited. It was a proceeding in equity to subject one-half of certain community property of herself and husband, to wit, one-half of the wages he was earning, for use in meeting the necessary living expenses of herself and child, after her husband had wrongfully and willfully deserted her and had refused to contribute anything to her support, leaving her and her child entirely dependent for living expenses upon the charity of others. The facts alleged and proven show that the salary which the defendant is earning is community property of himself and plaintiff, and the plaintiff is entitled to one-half thereof, under and by virtue *Page 381
of the statutes of this state. Since the husband was under the legal duty to support his wife and child out of his separate estate as well as but of community funds, it follows necessarily that in equity he holds at least one-half of such community property in trust for his wife, and, after he had repudiated the trust and all the duties to his wife and child incident thereto, the suit was instituted to subject the wife's half of such community property, to wit, personal earnings of the defendant, to the support of the plaintiff and their child. In other words, the suit was one in equity, and not a suit at law, as were the suits cited by appellant. The same principles of equity were involved in it as those involved and determined in the case of Dority v. Dority, decided by our Supreme Court and reported in
"And if it be true, as held in Trevino v. Trevino, supra, that the wife cannot maintain an action against him to require him to support her, this only strengthens the position that she is entitled to get her support by the proper management of her separate property. Married women may also contract for necessaries and bind their separate property for the prices of them, but why should they be forced, out of respect for supposed rights of husbands, to thus consume the corpus of their estates, when their revenues, properly applied, would supply all needs? The answer is deducible from the decisions that, when the husband totally fails in the discharge of his duty, and so diverts the fruits of the wife's property as to deprive her of the benefits which the law entitles her to receive therefrom through his management, the right and power which the law gives him to enable him the better to discharge the duty is not an obstacle to the granting of such relief as the nature of the case may require. That these rights of the wife may be asserted by herself under some circumstances, without action in the courts, although the marriage is not dissolved, is settled by many decisions of this court. Wright v. Hays, supra; Cheek v. Bellows,
While it is true that what was said in that decision had reference to rents and revenues arising from the separate property of the wife, in principle it applies with equal force to the interest which the wife legally owns in community property, since every element necessary to constitute the trust relation occupied by the husband towards such property exists in both instances alike. Furthermore, under the statutes in force at the time that decision was rendered, the rents and revenues arising from land belonging to the separate estate of the wife constituted community property of herself and husband, although under the Acts of 1913 (chapter 32), passed after that decision was rendered, such rents and revenues were made the separate property of the wife. See Hayden v. McMillan,
Accordingly, appellant's motion for rehearing is overruled.