Robert Kenneth Conklin v. Edwin J. Gasaway, Trustee

Eighth Circuit

Robert Kenneth Conklin v. Edwin J. Gasaway, Trustee

468 F.2d 752

CourtCourt of Appeals for the Eighth Circuit

DecidedDecember 4, 1972

Docket71-1693

StatusPublished

Cited by4 cases

This text of 468 F.2d 752 (Robert Kenneth Conklin v. Edwin J. Gasaway, Trustee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Robert Kenneth Conklin v. Edwin J. Gasaway, Trustee, 468 F.2d 752 (8th Cir. 1972).

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PER CURIAM.

The matter before us involves, once again,¹ the “head of the family” concept. This case has to do with the exemption granted to such under Missouri law.² Here a trustee in bankruptcy is arrayed against a bankrupt-father who claims the exemption. Despite, however, the bankrupt’s claim that he was the head of the family, the District Court, under the facts found by the referee, held that he, living apart from his family, had neither recognized nor discharged his legal obligation under the divorce decree to support his children. Consequently, it was held that the bankrupt was not, at the date of bankruptcy, the “head of a family” and thus was not entitled to enjoy such exemptions.³

We have heretofore considered the problem. Murray v. Zuke, 408 F.2d 483 (8th Cir. 1969), involved a bankrupt father who likewise was not living with his family, but who was, contrary to the bankrupt-father in the case before us, fully complying with the support provisions of the divorce decree and was discharging his legal and moral obligation in supporting his children. He was held to be the head of the family despite his non-resident status. The court below relied upon the Murray case and sought to follow its teachings but distinguished the case upon the crucial facts hereinafter set forth. Appellant .argues that Murray was thus misconstrued. We cannot agree. The rationale of the Murray decision turned on the welfare of the family, the protection of their interests and the discharge of a father’s familial obligations, the opinion concluding “ * * * we think a divorced father who is discharging his legal and moral obligation in supporting his minor children, should, as against general creditors, be entitled to claim the status as head of a family under the Missouri exemption laws”, despite the fact that he was living separate and apart from them. Here, however, such discharge was not the fact. “Under the facts as found by the referee,” held, Judge Regan in In Re Conklin, 334 F.Supp. 203, 204 (E.D.Mo.1971), “the bankrupt-father neither recognized nor discharged his legal obligation under the divorce decree to support his children, and therefore the referee could find under the evidence as a whole that he should not be considered to be the head of the family.” Here, indeed, is the crucial factor distinguishing this case from those relied upon by appellant. Such do not involve the failure to “recognize or discharge” the claimant’s legal obligations. We [754]*754cannot agree that one who has been found so callous with respect to these obligations should nevertheless be permitted effectively to claim that he remains the “head” of the same family he has so neglected and thus enjoy the statutory exemptions granted to the head of a family.

The case of Biffle v. Pullam, 114 Mo. 50, 21 S.W. 450 (1893), does not demand a contrary result. That case involved a homestead claim. Although the “head of the family” concept is involved (with others) in Missouri homestead law,⁴ there was no need to define it in Biffle, since the question there was simply whether the homestead was still in existence. “Biffle can best be understood in light of the general rule followed by the Missouri courts both before and after Biffle, ‘once a homesteader, always a homesteader.’ Bushnell v. Loomis, 234 Mo. 371, 137 S.W. 257, 263, a decision of the Missouri Supreme Court, en banc.” [Footnote omitted.] In Re Conklin, supra.

We find no error below. Affirmed.

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PER CURIAM.

The matter before us involves, once again,¹ the “head of the family” concept. This case has to do with the exemption granted to such under Missouri law.² Here a trustee in bankruptcy is arrayed against a bankrupt-father who claims the exemption. Despite, however, the bankrupt’s claim that he was the head of the family, the District Court, under the facts found by the referee, held that he, living apart from his family, had neither recognized nor discharged his legal obligation under the divorce decree to support his children. Consequently, it was held that the bankrupt was not, at the date of bankruptcy, the “head of a family” and thus was not entitled to enjoy such exemptions.³

We have heretofore considered the problem. Murray v. Zuke, 408 F.2d 483 (8th Cir. 1969), involved a bankrupt father who likewise was not living with his family, but who was, contrary to the bankrupt-father in the case before us, fully complying with the support provisions of the divorce decree and was discharging his legal and moral obligation in supporting his children. He was held to be the head of the family despite his non-resident status. The court below relied upon the Murray case and sought to follow its teachings but distinguished the case upon the crucial facts hereinafter set forth. Appellant .argues that Murray was thus misconstrued. We cannot agree. The rationale of the Murray decision turned on the welfare of the family, the protection of their interests and the discharge of a father’s familial obligations, the opinion concluding “ * * * we think a divorced father who is discharging his legal and moral obligation in supporting his minor children, should, as against general creditors, be entitled to claim the status as head of a family under the Missouri exemption laws”, despite the fact that he was living separate and apart from them. Here, however, such discharge was not the fact. “Under the facts as found by the referee,” held, Judge Regan in In Re Conklin, 334 F.Supp. 203, 204 (E.D.Mo.1971), “the bankrupt-father neither recognized nor discharged his legal obligation under the divorce decree to support his children, and therefore the referee could find under the evidence as a whole that he should not be considered to be the head of the family.” Here, indeed, is the crucial factor distinguishing this case from those relied upon by appellant. Such do not involve the failure to “recognize or discharge” the claimant’s legal obligations. We [754]*754cannot agree that one who has been found so callous with respect to these obligations should nevertheless be permitted effectively to claim that he remains the “head” of the same family he has so neglected and thus enjoy the statutory exemptions granted to the head of a family.

The case of Biffle v. Pullam, 114 Mo. 50, 21 S.W. 450 (1893), does not demand a contrary result. That case involved a homestead claim. Although the “head of the family” concept is involved (with others) in Missouri homestead law,⁴ there was no need to define it in Biffle, since the question there was simply whether the homestead was still in existence. “Biffle can best be understood in light of the general rule followed by the Missouri courts both before and after Biffle, ‘once a homesteader, always a homesteader.’ Bushnell v. Loomis, 234 Mo. 371, 137 S.W. 257, 263, a decision of the Missouri Supreme Court, en banc.” [Footnote omitted.] In Re Conklin, supra.

We find no error below. Affirmed.

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