McClure v. Dowell

392 P.2d 624, 15 Utah 2d 324, 1964 Utah LEXIS 259

• Court: Utah Supreme Court
• Decided: June 1, 1964
• Docket: 10042
• Status: Published

Opinions

HENRIOD, Chief Justice:

Appeal from a judgment for principal and interest on an Alabama divorce decree which awarded child support payments. Affirmed, except as to interest, which is reversed. No costs.

Plaintiff and defendant executed a pre-divorce agreement in which the former agreed not to remove the children beyond a certain area, with rights of visitation in defendant. Defendant made regular payments, but for two years could not make the payments solely because the plaintiff concealed herself and children, due partly to a trip to Europe. It is significant that she was paid the amounts so long as she disclosed her whereabouts. Defendant says he was relieved of such payments during her undisclosed absence, relying on Larsen v. Larsen,¹ which we think inapropos as applied to the facts of this case.

We think that the principles of Price v. Price,² and Riding v. Riding³ controlling here, and that Baker v. Baker,⁴ has no application and we so hold.

No question of full faith and credit is involved, since everyone agreed the payments under the Alabama decree had remained unpaid.

As to defendant’s claim he was relieved of child support commitments by plaintiff’s concealment, his relief, if any, would have been in the Alabama forum, which course he did not pursue.

As to interest on the money he owed but could not pay because plaintiff put it beyond his power, we think that in equity and good conscience, a man willing and able, but prevented from paying by a peripatetic judgment creditor, thrice-married, ex-spouse, should be relieved from the effects of vinegar interest poured in his wounds, by the application of an equitable, soothing lotion.

McDonough, crockett and WADE, JJ., concur.

1 . 5 Utah 2d 224, 300 P.2d 596 (1956).

2 . 4 Utah 2d 153, 289 P.2d 1044 (1955).

3 . 8 Utah 2d 136, 329 P.2d 878 (1958).

4 . 119 Utah 37, 224 P.2d 192 (1950).