Martin v. Martin

DUNKDIN, J.

This suit was instituted by the appellee against appellant to procure the appointment of a receiver to collect any salary which he might earn, or which may be due him already as an employee in the post office in Fort Worth, or in any other service, and for a decree directing the receiver to turn over to her such portions of such salary as may be necessary to support herself and child. Upon a hearing of that application, evidence was introduced, and, upon the conclusion thereof, the court appointed Charles Reno as receiver, and fixed the amount of bond which he was to execute. The decree further ordered and empowered the receiver to receive and collect from the United States Post Office Department, or any other employer of Stokeley Martin, the sum of $105 a month out of his salary. The receiver was further ordered and directed to turn over to the plaintiff, Mrs. Martin, the salary so collected, and that he continue to make such collections and distributions until further order of the court.

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 Prances, 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 Port 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 plain.tiff.

“(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 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, 10 Tex. 130, 60 Am. Dec. 200; Zimpleman v. Robb, 63 Tex. 274; Heidenheimer v. Thomas, 63 Tex. 287. The duty of the husband to provide his family with such support is a necessary incident to the authority given him by statute to control and dispose of community property, and he cannot be heard to claim that statutory right and at the same time refuse the performance of such duty. He cannot in equity claim the right which has been given to him by reason of the marital relation and at the same time repudiate that relation. If by his willful wrongs the wife is deprived of the protection he owes to her under the law, then under the plainest principles of equity she is freed from the ban placed on her by the statute which vests in him the exclusive control and disposition of the community property which is in law chargeable for her support, and in which she owns an undivided half interest, in her own right. Appellee has the legal right to a support for herself and child out of the salary of her husband, and, since her husband, without just cause, has willfully, wrongfully, and ruthlessly denied her that right, and since, without the aid of the court, she is powerless to enforce it, the court clearly has authority to give her relief in the manner decreed, in order to accomplish that result, which was the only method available to the court.

Accordingly, the order of the trial court is in all things affirmed, and the judgment will be certified below for observance.