Crenshaw v. Crenshaw

• Decision Date: 07 June 1947
• Docket Number: 8697.
• Citation: Crenshaw v. Crenshaw, 120 Mont. 190, 182 P.2d 477 (Mont. 1947)
• Parties: CRENSHAW v. CRENSHAW.
• Court: Montana Supreme Court

182 P.2d 477

120 Mont. 190

CRENSHAW v. CRENSHAW.

No. 8697.

Supreme Court of Montana

June 7, 1947

As Amended on Denial of Rehearing June 24, 1947.

Appeal from District Court, Sixth Judicial District; Gallatin County; Ben Harwood, Judge.

Action by Rose Crenshaw against Benton M. Crenshaw for separate maintenance wherein defendant by cross-complaint sought a decree of divorce and plaintiff by a so-called 'cross-complaint to defendant's cross-complaint' prayed for a decree either of separate maintenance or of divorce. Judgment for plaintiff and defendant appeals.

Reversed and cause remanded with directions.

E. F. Bunker, of Bozeman, for appellant.

Ernest A. Peterson, of Bozeman, for respondent.

ADAIR Chief Justice.

On August 11, 1944, the plaintiff Rose Crenshaw commenced this action against her husband, the defendant Benton M. Crenshaw for the purpose of obtaining a decree of separate maintenance.

The complaint does not state a cause of action for divorce nor does the prayer thereof seek a decree of divorce. The complaint which has never been amended, charges that the defendant did wilfully 'desert and abandon the plaintiff' thirteen days before suit was commenced and 'prays judgment for a decree of separate maintenance herein.'

Defendant answered, denying the charge of desertion and, by cross-complaint, sought a decree of divorce on the ground of extreme cruelty. By reply the plaintiff denied the allegations charging her with extreme cruelty and, by a so-called 'Cross-Complaint to Defendant's Cross-Complaint,' she charged the defendant with extreme cruelty and prayed for a decree either of separate maintenance or of divorce.

The cause was tried to the court without a jury and judgment and decree given and entered awarding the plaintiff, Rose Crenshaw, an absolute divorce and the sum of $12,000 'as an allowance and as an alimony out of the estate of the defendant, said sum to be paid in 96 monthly installments each in the sum of One Hundred and Twenty-five Dollars' and that defendant give and execute to the plaintiff a mortgage on his real and personal property to secure to her the payment of said principal sum of $12,000 and that defendant continue to pay $125 per month 'to plaintiff commencing January 15, 1946, and on or before the 15th day of each and every month thereafter until further order of this Court.'

From such judgment and decree the defendant has appealed.

The Facts. In 1929 the parties intermarried at Livingston, Montana. The husband, a building contractor, then owned five or six houses in Livingston on which there was a mortgage, while his wife's property consisted only of savings in the amount of $1,600.

In 1932 the parties moved to Bozeman, Montana, where the husband purchased a duplex house known as No. 908 South Grand street. Thereafter he built two houses on Tracy street in Bozeman, toward the cost of which his wife contributed about $1,000 from her aforesaid savings and the balance thereof, amounting to $500 or $600, she invested in stock in a building and loan company.

In 1937 the husband purchased from the county of Gallatin the Bozeman Y.M.C.A. building and property to which the county had acquired tax title. To obtain the money for this purchase Mr. Crenshaw borrowed $2,500 giving as security therefor a mortgage on the duplex house at No. 908 South Grand street, which mortgage was executed by both the husband and wife.

Mr. Crenshaw, with the assistance of a crew of men, remodeled the Y.M.C.A. building into an apartment house which he called The Crenshaw Apartments, financing the enterprise through a loan of $45,000 obtained from the Reconstruction Finance Corporation, a federal lending agency, to secure the payment of which he and his wife executed and delivered to the lending corporation an assignment of the rents and a real estate mortgage on the apartment building which, when remodeled, contained twenty-eight newly equipped, modern apartments capable of accommodating about a hundred persons.

In June, 1940, Crenshaw and his wife moved into the building, occupying apartment No. 13 thereof as both an office and living quarters. That year Mr. Crenshaw suffered a leg injury which incapacitated him for about six months during which time a man was hired to perform the miscellaneous tasks about the building, including the stoking of the furnace, while Mrs. Crenshaw acted as manager of the apartment house to March, 1941, at which time Mr. Crenshaw again took over its management.

Later, during the year 1941, Mr. Crenshaw undertook a job in Park county, Montana which kept him away from home except during the week-ends which he spent with his wife.

From May, 1942, to December, 1942, Mr. Crenshaw was engaged in war work at Camp Farragut in the state of Idaho, except for three or four days in November when he returned to Bozeman and installed the storm windows on the apartment building. Upon the completion of his job at Camp Farragut Mr. Crenshaw returned to his home in Bozeman where he remained until August, 1943.

From August 10, 1943, to the end of the year Mr. Crenshaw engaged in war work at Kennewick, Washington.

During the time that Mr. Crenshaw's work kept him away from Bozeman his wife managed The Crenshaw Apartments, collecting the rentals therefrom and accounting for same to Mr. Charles H. Bell as agent for the assignee, Reconstruction Finance Corporation.

Upon the completion of his work in Kennewick the husband returned home and in July, 1944, proceeded to resume the management of his apartment building.

Authority of the Husband. The wife questioned the authority of her husband to resume the management of the property, the title of which then stood and still stands of record in his name. Not only did the wife question her husband's authority to manage the building wherein both resided, but she also vigorously contested his right to collect the rents due from the various tenants of the building. Confusion resulted from this contest--defendant's house became divided against itself--the tenants did not know to whom the rents should be paid--the rentals for July and August, 1944, were collected in part by the husband and in part by the wife. The contest over the right to receive the rental moneys was won by the husband and, since August, 1944, all of the rentals from the apartments have been collected by the husband alone and by him accounted for to the assignee, Reconstruction Finance Corporation.

It is the law that, 'The husband, unless incapacitated from executing the authority and performing the duty, is head of the family. This is so, not only at common law, but under the Married Women's Acts. It is not the purpose of these acts to depose the husband from the position given him by the common law as the head of the family. It is necessary to the unity and preservation of the family, which is regarded as the basis of the state, to have a single head with control and power, and the husband is made that head and, in return, is made responsible for the maintenance and, at common law, for the conduct of his wife. Such fundamental authority is necessary to his duty to protect and provide for his wife and children. The authority of the husband as the head of the family gives him the right, acting reasonably, to direct the family's affairs and to determine where and what the home of the family shall be, and thus, to establish the matrimonial and family domicile. * * * She [the wife] is under duty to submit to such reasonable goverance of the family by the husband.' 26 Am.Jur., 'Husband and Wife,' pp. 638, 639, sec. 10.

Family government is recognized by law as being as complete in itself as the state government is in itself. Every household has and must have a government of its own modeled to suit the temper and disposition of its inmates. State v. Rhodes, 61 N.C. 453, 98 Am.Dec. 78. Courts do not go behind the family curtain and scrutinize too nicely every family difference and disturbance in order to find that an assault has been committed.

When the defendant, Benton M. Crenshaw, in July, 1944, took over as the managing head of The Crenshaw Apartments, then also the home of himself and wife, he was but exercising a right which the law expressly recognizes that he possesses as the head of his family. 'The husband is the head of the family. He may choose any reasonable place or mode of living, and the wife must conform thereto.' Sec. 5783, Rev.Codes of Montana 1935. Emphasis ours.

The Complaint. The complaint recites the marriage and residence of the parties; that there is no living issue of the marriage; that the parties own The Crenshaw Apartments upon which there is an outstanding mortgage; that since 1940 'plaintiff has applied herself assiduousy to the management of said apartment house'; that the parties 'have maintained their home in apartment 13 on said premises, where they have lived and where plaintiff has maintained an office from which she has conducted the affairs of said apartment house'; that since the 29th day of July, 1944, 'defendant has wilfully prevented plaintiff from attending to her duties in connection with the operation of said apartment house'; that 'plaintiff has demanded of defendant that he cease to exclude her from her home and her place in the management of said property, but defendant has refused and still refuses such demand.' As ground for seeking a decree of separate maintenance the complaint alleges: 'IV. That on the 29th day of July, 1944, the defendant herein, disregarded the solemnity of his marriage vows and duties to the plaintiff as her husband, and wilfully and wrongfully and without any cause or provocation on the part of the plaintiff, did desert and abandon the plaintiff and at all times since said date ...