dissenting:
I write to underscore the point of Chief Justice Zimmerman’s dissenting opinion, which I join, that the majority has mischarac-terized the nature of the monies sought in this case. The majority asserts that the children in this case were “well cared for and not left in need.” But the dissent accurately notes that the child support guidelines in Utah account for the standard of living available to children based on the financial capacities of both their parents. It is obvious that the total amount of a custodial parent’s income will determine lifestyle and standard of living. When the child support contributions of a noncustodial parent are missing, the children may indeed be “adequately” fed, clothed, and housed and may avoid the public welfare rolls. However, their standard of living may be greatly below that which they should be able to enjoy with both parents supporting them. The neighborhood they live in, the comfort and safety of their transportation arrangements, the schools they attend, the educational enrichment opportunities (music, dance, art, and sports lessons) they have, the travel and recreational aspects of their lives, the medical and dental services they need — all of these things are dependent on the total amount of income available for their support. A custodial parent who is doing without contributory support payments has very limited options: (1) The children do without the level and quality of life they are otherwise entitled to expect; (2) the custodial parent goes into debt to provide that quality of life, thus jeopardizing future financial well-being and educational opportunities; or (3) in rare circumstances the custodial parent may have independent sources (e.g., family money or independent wealth) to fill the gap. In the first two cases, the children have suffered either a past or a future detriment and fairness requires the noncustodial spouse to cure it with the payment of back-due amounts. The third scenario is so rare as to seem almost irrelevant, but even where the children have not done without and the custodial parent has not incurred legal debt, it is hard to see why a parent should be relieved of any of the burdens of child-rearing costs by virtue of not having contributed to them in a timely manner. It is simply unrealistic to suggest, as the majority opinion does, that the money in question here is now the custodial parent’s money, not the children’s. The children’s household is their custodial parent’s household; her lifestyle is their lifestyle, and her gains and losses are theirs.
ZIMMERMAN, C.J., concurs in Justice DURHAM’S dissenting opinion.