(dissenting).
I respectfully dissent.
When the defendant paid Mrs. Gulley $10,000 she did not release him from all of his support obligations. The defendant received only a receipt for that amount and an acknowledgement that it was paid on the account of his support obligations under the decree, for prepayment for a specified period. Defendant admits he was obligated to resume payments for support when that prepaid amount was exhausted in the late fall of 1976.
The State commenced action on June 28, 1976, claiming in its pleadings that defendant failed to provide support for the children as ordered in the divorce decree from November, 1972, through June, 1976, in the sum of $3,350, and claiming its right to reimbursement therefor as it is subrogated to the rights of Mrs. Gulley. The State makes no claim for monies expended by it to Mrs. Gulley and does not claim a right for reimbursement for necessities with respect to the children. It asks for support for the children as ordered in the decree. And to emphasize that the State predicated all of its pleadings and theory on non-compliance with the decree, rather than on necessities as stated in the majority opinion. It sought, in addition to reimbursement, a finding of contempt against the defendant for wilfully disobeying the order made by the District Court in the decree dated August 29, 1967.
The State contends that the father-obli-gor’s duty of support requires that he exercise a high standard of care to ensure that monies paid in lump sum amounts for child support are actually used for support of the children. The State cites no authority for this contention; and in the context of this matter particularly, I see no legal reason for establishing it as a new principle of law.
The State’s other contention is that a lump sum payment for future child support given without prior court approval is against public policy and therefore prohibited. As an abstract and usual proposition, court approval, of course, should be sought and the matter determined by the court in order to avoid a myriad of problems and *130uncertainties. But, again, we must consider the facts of this case. The State brought action to enforce the divorce decree, and therefore to grant it the relief it seeks would constitute not an enforcement of the decree but a retroactive modification of it. And that legal infirmity is aggravated and vivified because the State did not even commence this action for reimbursement until more than three and one-half years after Mrs. Gulley started to receive public assistance. The State did not pursue its statutory remedy1 to modify the decree, and failure to do so is, in my opinion, fatal to the State’s position. If a timely motion for modification had been commenced, then the District Court could have determined whether there was a basis for modification.
In conclusion, I believe that the State should be bound by its pleadings and further that Mecham v. Mecham, supra, controls on the matter of the State’s rights being no greater than the rights of Mrs. Gulley.
The District Court’s order dismissing the order to show cause should be affirmed.
MAUGHAN, Justice, concurs in the dissenting opinion of Mr. Justice WILKINS.. See Utah Code Ann., Sec. 78 — 45-9, 1953, as amended (enacted in 1957 and amended in 1975), under which statute the State brought its action herein. Also see Sec. 78-45b-3 (enacted 1975); and Mecham v. Mecham, Utah, 570 P.2d 123 (1977).