(dissenting).
I do not agree.
It makes little sense to me, for purposes of defining the boundaries of “head of the family” exemption from creditors’ claims, to distinguish between a divorced father who has contributed faithfully to the support of his family, Murray v. Zuke, 408 F.2d 483 (8th Cir. 1969), and a divorced father who, as in this case, has defaulted upon this same legal and moral obligation of providing support. The family in either case may need the protection afforded by the preservation of the pitifully few assets covered by the exemption. I, therefore, find no rational basis for granting the status necessary to the exemption in one case and not in the other.
Missouri law, regardless of the intervention of divorce, manifests a policy of preferring the wife and children over general creditors of the husband, or ex-husband, and father in terms of access to exempted assets. The relevant statute provides:
No property shall be exempt from attachment or execution in a proceeding instituted by a married woman for maintenance, nor from attachment or execution upon a judgment or order issued to enforce a decree for alimony or for the support and maintenance of children. * * * [Mo.Ann.Stat. § 452,140 (Supp.|972).]
Withholding “head of the family” status and thus the exemption from a divorced father who is bankrupt undermines Missouri policy. We recognized this in Murray, where we allowed “head of the family” status, when we said:
[A]s against general creditors, the property of the divorced husband should be preserved in order to protect the interests of the husband’s former wife and family. Exemption laws are benevolent in nature and must be liberally construed. [408 F.2d at 486.].
Here, the record discloses the bankrupt to be approximately $1100 in arrears on the child support payments of $50 per week awarded in the divorce decree. It seems likely, in these circumstances, that the bankrupt’s family needs the protection afforded by exemption just as much as, if not more than, the family in Murray. I would apply the reasoning of that case to the present one and allow the bankrupt to claim his exemption against general creditors for the benefit of his family.
While a bankrupt father’s failure to provide support should be deemed immaterial to allowing “head of the family” exemption, such default merits consideration in ensuring proper application of the exempt property. I would reverse and direct that the bankruptcy court grant the exemption, making certain in its order that the exempt assets are applied to the benefit of the bankrupt’s family as, I believe, is intended under Missouri law.