LUCILE A. ANDERSON, A FREE DEALER, APPELLANT,
v.
HARRY D. GARBER AND HELEN E. GARBER, HIS WIFE, APPELLEES
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Mrs. Anderson, a married woman and sole property owner, executed a mortgage without her husband's joinder. She appealed a foreclosure judgment, arguing the mortgage was void because she was the head of family and homestead protection required her husband's consent. The court affirmed, holding that despite her support obligations, the presumption that a husband is head of family was not overcome.
Mrs. Anderson was not the head of family. Although a married woman may be head of family, there is a presumption that the husband is the head, and this presumption is not displaced merely by the wife's support of the children or the husband's prolonged absence, so long as the primary relationship of husband and wife remains intact.
“For the purposes of Article X, Section 1, Florida Constitution, F.S.A., there can only be one head of a family. While it is true that the head of a family may be a married woman, there is a presumption that the husband is the head.”
Establishes the legal framework: only one head of family is possible, married women may qualify, but husband is presumed to be head.
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Join FLexlaw to unlock all legal intelligenceMrs. Anderson was a free dealer who owned property and operated a plant nursery. She married James Anderson in July 1960, and they lived together on t…
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This is an appeal by the defendant, Lu-che A. Anderson, from a final decree in favor of the plaintiffs in a mortgage foreclosure suit.
The defendant contended that the mortgage was void because it covered the homestead and the mortgagor was at the time the head of a family and could not execute such a mortgage in which her husband did not join.
The sole question presented on appeal is whether or not the mortgagor, Mrs. Anderson, was the head of a family at the time she executed the mortgage.
It is not disputed that Mrs. Anderson was a free dealer when she executed the mortgage, to secure a loan, on property of which she is the sole owner. In July, 1960, she married James Anderson after which she, her husband and her three children by a previous marriage resided on the property. The mortgage was executed in November, 1962. Although the marriage was not terminated, Mrs. Anderson claims that at some point between July, 1960, and November, 1962, her husband abandoned his position as head of the family. Then, since she had an obligation and did, in fact, support her children she became the head of the family.
Mrs. Anderson testified that after three weeks of marriage, her husband began to stay away nights. This became a habit, and he stayed away for months at a time. Mrs. Anderson owned a plant nursery and during the periods her husband was home he worked there. She stated that her husband was able-bodied and very talented in the nursery business. Mr. Anderson worked in another nursery for a period of time in 1960 or 1961 for a salary of between $75 and $85 per week. However, Mrs. Anderson asserts that her husband has neither supported her nor her children since their marriage.
For the purposes of Article X, Section 1, Florida Constitution, F.S.A., there can only be one head of a family. While it is true that the head of a family may be a married woman, there is a presumption that the husband is the head. It is not necessary that the parties live together so long as the primary relationship of husband and wife remains intact with all the attendant duties and obligations thereby imposed upon him under our law.1
*695Whether or not the wife is the "head of the family is a question of fact. The chancellor concluded that Mrs. Ander-son was not the head of the family and we have found nothing to disturb that finding.
Accordingly, the order appealed from is •affirmed.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Anderson v. Garber, 188 So. 2d 820 (Fla. 1966)…Certiorari denied without opinion. 183 So. 2d 693.…
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Nationwide Fin. Corp. of Colo. v. Thompson, 400 So. 2d 559 (Fla. 1st DCA 1981)…. We cannot assume that he was the “head of the family.” It is a factual question. The courts have long held that under the Florida constitution there can be only one head of a family. Solomon v. Davis, 100 So. 2d 177 (Fla.1958); Anderson v. Garber, 183 So. 2d 693 (Fla. 3d DCA), cert. denied, 188 So. 2d 820 (Fla.1966). Since the homestead exemption for the “head of a family” has been a part of the constitution, however, separate living arrangements, dissolutions and single parentage have become a much more fr…
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Cory v. Parks, 386 So. 2d 292 (Fla. 2d DCA 1980)…gal Chameleon, 2 Fla.L.Rev. 24; Beck v. Wylie, Fla. 1952, 60 So. 2d 190; 16 Fla. Jur., Homestead, section 27, page 290. For homestead purposes there can be only one head of a family. Solomon v. Davis, 100 So. 2d 177 (Fla. 1958); Anderson v. Garber, 183 So. 2d 693 (Fla. 3d DCA), cert. denied, 188 So. 2d 820 (Fla. 1966). The determination of family headship has always involved a factual inquiry, In re Estate of Wilder, 240 So. 2d 514 (Fla. 1st DCA 1970); see Beck v. Wylie, 60 So. 2d 190 (Fla. 1952), and cases…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Waymon Solomon v. Davis, 100 So. 2d 177 (Fla. 1958)
- Jones v. Fed. Farm Mortg. Corp., 138 Fla. 65 (Fla. 1939)
- In re Est. of Anna Z. Kionka v. Hebbard, 113 So. 2d 603 (Fla. 2d DCA 1959)
- In re Neil's Estate, 39 So. 2d 801 (Fla. 1949)
- Barnett v. PAN Am. Sur. Co., 139 So. 2d 192 (Fla. 3d DCA 1962)