*1 any adverse incongruity upon Reflection will reveal the and effect ruling Suppose otherwise. impracticality already acquired by had been wealth or in- independent that because of Department during the time of the mar- mother, or collusion come of a riage up to the time of the divorce. As cause, or whatever should decree indicated, above it is of course different that proceeding in the divorce father granted after the divorce is pay only per year, or other ant no has any duty award, wife, of his or nominal wife. Suppose of his child. further that condi- On the basis of what has been said here- latter in hun- change tions and the in, it is my opinion that the trial court want; further, ger or improperly dismissed this action and that (or else) anyone provided support the defendant and the Department are enti- proved extent of amount to be to a tled trial on the issues as to whether necessary. reasonable and It is conceivable and how reasonably required much was anyone argue would the rescuer to furnish support to Mrs. Mecham when the extent only be reimbursed to of $1 the defendant was responsible sup- for her month, because it was so determined in e., port, marriage i. proceeding, a divorce to which the rescuer the entry of the divorce decree. party. not It is submitted I would remand for that purpose. answer only logic comfortable to justice proceed is that the rescuer could
expressly dissenting authorized under 78—45—9 concurs in the CROCKETT, to seek reimbursement for necessities it had opinion of J.
furnished. The defendant father would of appear
course be entitled to and defend and
would be liable for whatever was
shown to necessary. be reasonable and
There is the further aspect prob- of this
lem to be considered. If the rescuer who (in
has furnished necessities this instance Department) can have his affect- ed or cut off in the proceeding, divorce Utah, Leora M. and the State of GULLEY that will be done. likelihood is By Through Utah State The wife have no incentive to seek would Services, Appel- Plaintiffs and an money. award for past support She lants, rescuer, would supported by have been (the Department); any payments GULLEY, Defendant past support that she was to receive would Respondent. go to Department, reimburse the with no benefit to her. But since she have the No. 14789. support, to recover for such back she Supreme Court of Utah. could propose forego her claim to it in the divorce action in return for some other Sept. par- benefit. The result of this is that the ties department could cheat the out of its the De-
partment in, party represented having say about anything such collu-
sion.
What has been said above confirms the
reasoning that what happens
proceeding proper- should not and could not
Plaintiff Leora M. ant August, were divorced in custody cree awarded of four children to plaintiff, together with per month $50 support for each child and month as alimony. Defendant regular support made September until 1970. At that time he entered into a contract with his Gulley whereby agreed ex-wife Leora M. he pay to her to prepay- be obligations ment of all of his under the decree, in return for her release of those obligations. later,
A little years over two in Novem- ber, 1972, appears Leora to have financially distressed. applied She then to Department of Social Services and she was for and has approved received public assistance for the of herself time, and the four children since that in June, 1976,the initiated State Utah action under the provisions of 78- 45-9, U.C.A., 1953,1seeking reimbursement from the defendant for assistance it had provided to the extent defendant had been pay ordered to such under the de- defense, pleaded cree. As a performance agree- of the above-mentioned ment as a obligations. release of his There are two separate propositions to be A, dealt plaintiff may with: for reimbursement for necessities furnished B, Gulley; ex-wife Leora M. plaintiff’s right to nec- essities furnished to the children. A; As to at the time of the above-stated Hansen, Gen., Robert B. Atty. Stephen G. agreement Leora was no the wife of Schwendiman, Atty. Gen., Asst. Lake Salt Gulley; defendant M. and he had no City, plaintiffs appellants. her, except pay to legal duty to Fox, Norman O. Lake City, Salt for de- alimony awarded in the decree. She and fendant and respondent. liberty bargain her with husband were at her; respect obligations to his and their CROCKETT,Justice: respect made with thereto be- binding came the same as other con- of Social Services tract. appeals from the petition dismissal of its for reimbursement for support furnished to regard to B: the chil- the children and former wife of defendant entirely proposition. dren is an different Guy Gulley. Every parent has the [plaintiff wife, 1. That section does not restrict or diminish the or the or on its own children] permissive support against reimbursement. It is behalf to enforce that providing obligor [defendant husband]. may proceed obligee on behalf of the prepaid children he has into the amount was world.2 exhausted in late This is inalienable and he cannot rid fall of 1976. himself of it to transfer it purporting The State commenced action on June else, someone contract or otherwise.3 1976, claiming in its that defend- Moreover, the minor children who are the ant failed provide support for the chil- *3 beneficiaries of this were not parties dren as ordered in the decree from they to the could not be November, 1972, June, through 1976, in the thereby. bound Whether the by statute sum of claiming its hereinabove referred by common reimbursement therefor as it subrogated is just logical consequence of the rights Gulley. of Mrs. The State parents support of their children is makes no expended by claim for monies it if they are left in and a third need to Mrs. Gulley and does not claim a party provides necessities, them he is subro- for reimbursement for necessities with re- gated to the child’s obtain spect to the children. support It asks for therefor.4 Insofar as the for the children as ordered in the decree. order of purports dismissal prevent emphasize And to predicated from recovering for necessities all pleadings of its and theory on non-com- children, furnished to the the order is in pliance decree, with the rather than on nec- error. Accordingly necessary it is that that essities as majority opinion. stated in the order be vacated and this case remanded sought, It in addition to a
for
the district court
to determine the
finding
contempt against
of
amount which was
reasonably
necessar-
wilfully disobeying
for
by
order made
ily
support
furnished for the
of the chil-
the District
in the
Court
decree dated Au-
dren, up to the amount
of
month
29,
gust
1967.
child,
decree,5
for
provided
each
as
The State contends that
the father-obli-
minority;6
their
and to enter judg-
gor’s duty of
he exer-
support requires that
ment in favor of the plaintiff accordingly.
cise a
care to ensure
standard of
No costs awarded.
paid
lump
monies
sum amounts for child
actually
are
used for
of the
HALL, J.,
concur.
children. The
for
authority
State cites no
WILKINS, Justice (dissenting).
contention;
and in the context of this
I respectfully
particularly,
legal
dissent.
matter
I see no
reason
establishing
principle
for
it as a new
of law.
paid
Gulley
When the defendant
Mrs.
$10,000 she did not release him from all of
The
State’s other contention is
his
re-
support obligations.
lump
payment
The defendant
sum
for future child
receipt
given
approval
ceived
for that amount and
court
is
an acknowledgement
paid
against public policy
prohibit-
it was
on
and therefore
the account of his support obligations
proposition,
under
ed. As an abstract and usual
course,
for prepayment
specified
approval,
sought
for a
of
should be
period.
obligated
Defendant admits he was
and the matter determined
the court in
to resume
when that
myriad
problems
order to avoid a
of
193,
Hulse,
2. See Hulse v.
111 Utah
176 P.2d
5. This limitation is because the
875;
30-2-9, U.C.A.1953,
also See Sec.
which
Social Services sues herein to enforce the de-
responsible
cree,
makes both husband and wife
distinguished
bringing
from
an action
expenses
family
and Sec. 78^45-3
for reimbursement.
Division of Fami-
Cf. State
provides
Every
al.,
that:
man shall
(1976),
554 P.2d
v. Clark et
Utah
his wife and his child.
1310.
Price,
153,
3. See Price v.
4 Utah 2d
P.2d
ages
6. Due to the
of the children some will
1044.
majority
age
have attained their
at
Field,
338;
4.Stafford
v.
70 Idaho
218 P.2d
Barrett,
Barrett v.
44 Ariz.
uncertainties. its and fur- be bound this case. the facts of sider Mecham, supra, con- ther that Mecham enforce the divorce brought action trols on the matter of State’s relief grant it the cree, and therefore greater no of Mrs. than enforcement not an constitute seeks would Gulley. modification retroactive of the decree but aggrava- infirmity is legal of it. And that dismissing order The District Court’s did not the State ted and vivified because affirmed. order show cause should be reimburse- action for commence this even and one-half than three ment until more Justice, MAUGHAN, in the dis- concurs to receive started years after Mrs. Mr. senting opinion Justice WILKINS. pursue The State did not public assistance. *4 remedy1 modify its statutory is, opinion, fatal my do so
and failure to timely motion If a position.
to the State’s commenced, then had been
for modification determined
the District Court for modification. was a basis
whether there
45-9, 1953,
(en-
Ann.,
Also see
its action herein.
Sec. 78-45b-3
1. See Utah Code
Sec. 78—
Mecham, Utah,
1975);
(enacted
acted
and Mecham
in 1957 and amended in
amended
(1977).
1975),