dissenting.
I respectfully dissent from part I of the majority opinion. In my view, the majority has misconstrued the law and has improperly placed the burden for obtaining child support on the children rather than on the one obligated to pay. Accordingly, I would affirm the trial court’s order.
The needs of the children are of paramount importance in determining child support obligations. Wright v. Wright, 182 Colo. 425, 514 P.2d 73 (1973). See also § 14-10-115, C.R.S. (1987 Repl.Vol. 6B). Thus, the provisions of a child support order may not be altered by agreement of the parties, Wright v. Wright, supra, or by willful violation of a custody decree by the custodial parent. County of Clearwater v. Petrash, 198 Colo. 231, 598 P.2d 138 (1979).
Past due child support payments in themselves constitute a debt, Colorado State Bank v. Utt, 622 P.2d 584 (Colo.App.1980), and may not be modified retroactively. Section 14-10-122(1)(a), C.R.S. (1987 Repl. Vol. 6B). Because the father here took no action to modify or to terminate his child support payments, each installment became a final money judgment when due. Section 14-10-122(l)(c), C.R.S. (1987 Repl.Vol. 6B). Consequently, those monthly debts continued to accrue following the mother’s death to a total of $4,200 for each child.
In my view, the father cannot now seek retroactive modification of the payments on the basis that the recipient named in the decree has died. Because child support payments are for the sole benefit of a child, the recipient of those payments acts in the nature of a trustee with the duty to use the payments for the child’s needs. Just as a trust does not fail for want of a trustee, a child support order should not lose its vitality on the death of the adult recipient who was designated to receive and expend the money on the child’s behalf. The obligor’s duty to support and the children’s needs continue unabated. See § 14-10-122(3), C.R.S. (1987 Repl.Vol. 6B); In re Marriage of Icke, 189 Colo. 319, 540 P.2d 1076 (1975).
I believe that the minor children should not be burdened with the obligation to obtain counsel, to ask the court to determine their custodial status, and to enforce their father’s unquestioned duty of support. If, when the mother died, the father had wished to obtain custody, or had wished to modify his support obligation, he was free to request the court to make such a change. Instead, he merely took the children into his home for a period of approximately five weeks, and when that arrangement proved to be mutually unsatisfactory, farmed them out to friends who, without any legal duty to do so, were willing to supply them with the necessities of life. He should not now be able to escape his support obligation by contending that his minor children were required to take legal action to ensure that he fulfilled his duty to them.
The majority permits a parent ordered to pay child support to evade this obligation and, as a result, frustrates the purposes of the Uniform Dissolution of Marriage Act, one of which is “to mitigate the potential harm to ... children caused by the process of legal dissolution of marriage.” Section 14-10-102(2)(b), C.R.S. (1987 Repl.Vol. 6B).
Consequently, I would affirm the trial court’s order.