(concurring) :
I concur in the main opinion’s conclusion that this court cannot accept the decision of the lower court in determining in effect, apparently, that a female is a minor until she is 21, as to the right of support, simply because a male has been considered such by our legislative agencies ever since this writer’s memory runs to the contrary not. I agree also, that the mandate of the U.S. Supreme Court may be well intended but is somewhat wanting in specificity, apparently inviting this court to set an age to determine when support for children ends in divorce cases. This, in my opinion, is not the luxury of this court, but that of the legislative branch, — nor that of the common law, since by that law there appears to have been more than one age for adulthood, with respect to males, females, criminals (of either sex), for being raped, statutorily or otherwise, etc.
Because this court upheld an award for support of a female child until she became 18, but not thereafter, certainly is no matter of res judicata as to the fact, therefore, that a male (who is not particeps here), is entitled to support, in a divorce, only until *115he is 18, — or that a female is entitled to support until she is 21, because he is so entitled.
The mandate of the U. S. Supreme Court is evidenced by its wording that
The appellee claims that any unconstitutional inequity between males and females is to be remedied by treating males as- adults at age 18, rather than by withholding the privileges of adulthood from women until they reach 21. This is an issue of state law to be resolved by the Utah courts on remand The appellant, although prevailing here on the federal constitution issue, may or may not ultimately win her lawsuit.
Logic would seem to require that if this be the issue, it is just as much an issue, so far as constitutionality is concerned, to say that inequality “is to be remedied by treating males as adults at age 19.5, rather than by withholding the privileges of adulthood from women until they reach 19.5.”
The courts of Utah did not set the ages of 21 and 18 respectively for males and females. A statute did that, and the remand mandate that the age of these people “is an issue of state law to be resolved by the Utah courts,” historically has not been considered as an acceptable legal concept by our State judiciary. Our Utah legislature has tried to satisfy the mandate of the U. S. Supreme Court by setting an age certain for both sexes as pointed out in the main opinion, and I am of the opinion that if this court literally carried out the Supreme Court’s remand “for further proceedings in conformity with the opinion of this court,” we could set the date of adulthood, and therefore that up to which support would be obligatory at 15, 19.5, or 26, — and thus fly in the teeth of our own legislature’s already enacted legislative interdiction.
CROCKETT, Justice(concurring):
I concur, adding the following comments :
What seems to have been almost lost sight of here is that we are dealing primarily with a controversy between two parties: the plaintiff and the defendant; and only incidentally with a universality of law.
Focusing attention directly upon the rights of the parties as they are involved in this lawsuit, there are certain principles which should be considered and applied. In the first place, as has many times been said, matters relating to the family and the support of children are equitable.1 Wherefore, the defendant, against whom this judgment is sought, is entitled to have the considerations of equity and good conscience examined and applied in his behalf.
At the time of the entry of the decree, which ordered the defendant to pay $100 per month for each of the minor children of the.parties, our statute Section 15-2-1, U.C.A.1953, provided:
The period of minority extends in males to the age of twenty-one years and in females to that of eighteen years.
It could not be plainer that under both the statutory and decisional law of this State as it existed at the time the decree was entered, and therefore as was necessarily in the contemplation of the parties, and of the trial court, the only obligation it imposed upon the defendant was that he pay the $100 per month until his daughter Sherri was 18. Further, it is not shown that there has been any substantial change in facts upon which to justify changing the decree as so made intended.
Other important facts in the total picture are: that the defendant has fulfilled the duties required of him by the decree; and that the effect of this decree is to impose an added burden upon him which he had no obligation to anticipate or plan for. It does not now confer any benefit upon his daughter, but requires him to reimburse the plaintiff for three years’ additional support at $100 per month, total $3,600,-plus interest thereon. This is not consistent with the objective of an award of support money. Its purpose is to provide for the current and ongoing necessities of life *116for the dependent children; and it is not to provide a means for the accumulation of a burdensome debt upon one charged with that duty. Indeed under circumstances where the interests of justice dictate that it would be unfair or unconscionable to do so, the court may restrain the enforcement of such an accumulated debt. See Mason v. Mason, 148 Or. 34, 34 P.2d 328; Franklin v. Franklin, 83 U.S.App.D.C. 385, 171 F.2d 12; Wassung v. Wassung, 136 Neb. 440, 286 N.W. 340; Parenti v. Parenti, 71 R.I. 18, 41 A.2d 313. For the above stated reasons it is even more true that the court should not retroactively place such a burden upon the defendant.
Considering only the rights as between the plaintiff and defendant, in my judgment it is discordant to principles of equity and justice to add such a substantial burden upon the defendant by an ex post facto change of the rules during the game. For these reasons, in addition to those stated in the main opinion and in the concurrence of Chief Justice Henriod, I join in the decision reversing the judgment.
. Sec. 30-3-5, U.C.A.1953; Walton v. Coffman, 110 Utah 1, 167 P.2d 97.