dissenting. I dissent to that part of the majority opinion that awards the appellant a judgment for $1500 and attorney fees. That issue was raised for the first time on appeal. In her petition in the trial court appellant made the following prayer:
“WHEREFORE, Petitioner prays that the original contract and property settlement agreement be reinstated, for her arrearages to date since the Defendant stopped paying alimony, in the sum of:
1967 $2,100.00
1968 $2,400.00
1969 $2,400.00
1970 $2,400.00
1971 $1,600.00 (August inclusive)
for a total of $10,900.00 arrearages, for attorney’s fees and court costs, for a provision that support payments and alimony payments be made through the Office of the Master in Chancery, for setting aside of the order of August 4, 1966, for an increase in the support payments due the minor children in the sum of $200.00 per child per month or provision be made that a trust fund or other adequate insurance policy be taken out to insure the enforcement of this decree, for proof that the insurance policies that were ordered to be maintained until the college education was completed are still in force and for all other proper and equitable relief to which she may be entitled.”
At the hearing on the merits the trial court asked for opening statements. Appellant at that time concluded her opening statement with this statement:
“Therefore, at this time, Shirley Jackson is asking that the motion and order be set aside and the original agreement be reinstated, that she receive all her back alimony payments, that she receive the back child support payments, which she hasn’t received, that the defendant and respondent, Edwin Jackson, continue to pay medical bills for the children, that the support payments be raised in keeping with Mr. Jackson’s income, > standard of living and ability to pay, that she receive an attorney’s fee, costs, interests on all money that hasn’t been paid to this date, for the insurance policies which was ordered to be maintained by the Court to be reinstated or a provision made for adequate coverage for the children and for any other relief that the Court sees fit.”
As can be seen from both the prayer and opening statement, appellant did not ask for any relief under the August 4, 1966 order. Her only request was for relief under the original divorce decree and in her testimony before the court she only testified as to what she should recover under the original divorce decree. Consequently, I submit that the $1500 judgment here awarded by the majority was raised for the first time on appeal and at that time the five year statute of limitations had run.
While the majority seem to think that appellant’s January 13, 1967, letter to the effect that his $150 per month obligation was “retired with the February 1, payment” is not to be taken as a waiver or estoppel, I point out that no demand was made on appellee until the brief herein was filed in October 1972. Furthermore, it appears to me that the present Mrs. Jackson and her two children by appellee would have a right to rely upon the written waiver — for they, too, no doubt, rely upon appellee for support and financial assistance.
For the reasons stated, I respectfully dissent.