French v. Johnson

401 P.2d 315, 16 Utah 2d 360, 1965 Utah LEXIS 560

• Court: Utah Supreme Court
• Decided: April 23, 1965
• Docket: 10147
• Status: Published

Opinions

HENRIOD, Chief Justice:

Appeal from an order releasing defendant from support money decreed for his children.

On March 18, 1954, Johnson was ordered to pay support money to his former wife for their child. He defaulted, and in February, 1964, 10 years later, plaintiff brought proceedings against him. She asks $5,300 for the 106 months’ default. Defendant has resumed monthly support payments.

The district court relieved defendant of past payments because the plaintiff had been dilatory in requesting payments and producing her forwarding addresses to defendant.

Johnson defends by asserting estoppel or laches. Defendant relied on his wife’s silence.¹

The facts show no representations, either explicit or implicit, by plaintiff to defendant with respect to discontinuation of payments, and it is doubtful if such circumstance would be of prime importance. Mere silence over a period of time will not raise an estoppel where there is no legal or moral duty to speak.² The court did not condition the payments upon a request for such by plaintiff.

Both contestants rely heavily upon Larsen v. Larsen.³ In that case this court sent the case back for findings of fact by the court with respect to future obligations. It has no application to the facts of this case.

Secondly, a decree awarding child support payments cannot be avoided by parent’s conduct or agreement.⁴ Support decrees are awarded and protected by the state for its interest in children of severed marriages.

That plaintiff’s present husband was claiming defendant’s child as a dependent in the Navy is inapropos here and cannot he the basis for reneging on a judicial decree and moral obligation. The claiming of a dependent does not affect the efficacy of tlie district court’s support decree.

For the above reasons the judgment of the district court is reversed, with costs to plaintiff.

CALLISTER, J., concurs.

1 . She may have been dead and very silent, but a marker establishing her last resting place hardly could be a monument to absolution from paternal responsibility.

2 . “The * * * child support decree did justice between the parties. The extent of the duty of the appellee to support his minor children was definitively settled by that decree until altered or amended. There is no possibility of the original decree being obscured by the passage of time ...” Morgan v. Morgan, 275 Ala. 461, 156 So.2d 147; Openshaw v. Openshaw, 105 Utah 574, 144 P.2d 528; Engling v. Edmondson, 175 Kan. 883, 267 P.2d 487.

3 . 5 Utah 2d 224, 300 P.2d 596.

4 . Defendant’s “argument . overlooks well settled legal principles to the effect that appellant’s duty to support his minor children, and the amounts of such support, were imposed by a final decree of a court having full jurisdiction in the premises. The parents are without any warrant in law to later nullify such decree by mutual agreement between themselves so as to deprive the minor children of the support to which they are entitled under the decree of a court of competent jurisdiction. Such agreements are without consideration, and void as a matter of public policy.” Morgan v. Morgan, 275 Ala. 461, 156 So.2d 147 and cases cited therein.

“A parent may not by any act, conduct, or arrangement of whatever sort shift from his shoulders the legal responsibility and moral duty to support his minor child. It is an absolute, inalienable right enjoyed by the child which no form of contract between the parents, nor change of the domestic status or either of them, may effect”; Smith v. Smith, 125 Cal.App.2d 154, 270 P.2d 613, and cases cited therein. Also see Riding v. Riding, 8 Utah 2d 136, 329 P.2d 878.