(dissenting).
I regret that I cannot agree with the opinion of the fnajority. In this case the husband simply did not pay, after Decern-* ber 1, 1942, the instalments of alimony which the court had ordered him to pay. The wife’s misconduct may have justified this cessation had the husband taken proper steps to obtain relief because of it. He could have applied to the court at any time after December 1, 1942, for a modification of the order to relieve him from further payments because of his wife’s misbehavior. Instead of doing that, he took the law into his own hands and ceased to obey the court’s order. It necessarily follows that as each monthly instalment of maintenance became due after December 1, 1942, it became a fixed obligation which the court had no power to remit.
We definitely held in Caffrey v. Caffrey, 55 App.D.C. 285, 4 F.2d 952, 953, that Title 16, § 413, of the District Code,1 is prospective only and not retroactive. We said that *14its language “does no more than authorize the'court, as conditions change, to alter or modify its decree as to future payments, as was the effect of the ruling in Phillips v. Kepler.”2 This ruling was approved in Biscayne Trust Co. v. American Security & Trust Co., 57 App.D.C. 251, 20 F.2d 267, 269, where we said:
“ * * * It is now too late for the court to set aside or reduce these sums. Phillips v. Kepler, 47 App.D.C. 384. In Caffrey v. Caffrey, 55 App.D.C. 285, 4 F.2d 952, it was held by this court that sections 976 and 978, D.C.Code (now sections 411 and 413 of Title 16), authorizing the court’s allowance of permanent alimony, and providing that, after a decree of divorce in any case granting alimony, the case ‘shall still be considered open for any further orders in those respects,’ operates (sic) only prospectively, and not retroactively, and the court is without authority to remit overdue alimony on showing that default arose from personal injuries resulting in incapacity to work.”
This court reiterated the rule, in unequivocal fashion, in the recent case of Lockwood v. Lockwood, 82 U.S.App.D.C. 105, 160 F.2d 923. Further approval was indicated in the still more recent case of Cole v. Cole, 82 U.S.App.D.C. 155, 161 F.2d 883.
The Caffrey, Biscayne Trust and Lockwood cases do not merely “imply that the issuing court lacks authority to apply equitable principles when asked to enforce payment of accrued installments under its own order”; they expressly hold that the issuing court has no power to alter or remit unpaid and past-due instalments of alimony, even though such instalments accrued under the court’s own order. I think those decisions are sound and should not be overruled.
I suggest further that the District Court’s judgment was inconsistent in first refusing, on account of the wife’s misconduct, to award a money judgment for accumulated arrears, and in then ordering the husband to pay the appellant $25.00 a month, -beginning June 1, 1947, for maintenance of the daughter, who is still a minor and who is living with her mother. If the wife’s immorality justified the District Court in remitting past-due instalments, it also required that no future payments be made to her.
It is my view that the judgment of the District Court should be reversed.
The cited case is reported in 47 App.D.C. 384.