Opinion
August 10, 1951.
Appeal from the Circuit Court, Hillsborough County, Harry N. Sandler, J.
James M. McEwen and William T. Fussell, Tampa, for appellant.
Macfarlane, Ferguson, Allison Kelly, Tampa, for appellee.
The appellant, judgment creditor of the appellee, caused a levy to be made upon the appellee's automobile whereupon the debtor claimed homestead exemption under Section 1 of Article X of the Constitution of Florida, F.S.A. Appraisers were appointed who fixed the value of all appellee's personal property at less than $1000 so the car was returned to him.
We are now to decide whether the appellee was "the head of a family residing in this State," hence entitled to the exemption. The qualification of residence seems conceded, but that of family headship is sharply disputed.
The appellee and his wife were divorced in North Carolina and the custody of their small son was awarded the mother with whom he lives in that state. The father was ordered to pay a certain amount each month "for the support, maintenance and education of said minor" and has scrupulously complied.
Meanwhile the appellee had established a residence in this state where the son has visited him on one occasion.
We think that the appellee because of his obligation to his young son is the head of a family as contemplated in the constitutional provision. The purpose of making a certain amount of personal property immune to process is to secure to impecunious or unfortunate persons the means of earning a livelihood for their dependents. The situation here illustrates the practical application of the provision and the need for it. The appellee is a traveling salesman and a car is well nigh indispensable to his maintaining the modest income he receives from that occupation. These earnings are the source of the periodic payments to his little son. Were his automobile to be seized, the minor would in all likelihood suffer.
The fact that the appellee is no longer married to his child's mother does not affect the availability of the exemption, when the real purpose of it is borne in mind. The father is as liable for the child's support and maintenance as if the divorce had never occurred and, as we said in Osceola Fertilizer Company v. Sauls, 98 Fla. 339, 123 So. 780, after all, the court may by simple order change the custody from mother to father any time the circumstances require that action, but wherever the custody of the child from time to time may be placed, the responsibility of the father persists.
The decree that the automobile was not subject to the judgment is
Affirmed.
SEBRING, C.J., and TERRELL and HOBSON, JJ., concur.