This is a proceeding'to obtain judgment for child support payments alleged to be past due and unpaid. The Chancery Court refused judgment, and this appeal ensued.
On February 5, 1942, the Pulaski Chancery: Court-awarded Mrs. Winnie Pence (the present appellant) a' divorce from her then husband, Royce Pencé- (the present appellee). In the divorce decree, Mrs.-Pence was awarded the custody of their infant child, Charles Royce Pence, and was awarded the sum of $2.50 per week for the maintenance of the said minor child. The decree gave1 Mrs. Pence the custody of the child, and made no provision for the father’s right of visitation, because such-visitation rights seem to have been mutually agreed upon outside of the decree. The child visited Mr. Pence over the week-ends until Mr. Pence entered the naval' service, on March 3, 1942. The maintenance payments -had been regularly made to that time.
Mr. Pence was in the United States Navy, and he made an allotment of $15.00 per month for the benefit' of his son, Charles Royce Pence, and this allotment was regularlj'- paid by the Navy until May, 1945. Even though these monthly allotments were in excess of the amount ordered by the Court, nevertheless, Mr. Pence claims no credit for such monthly overpayments. Loomis v. Loomis, 221 Ark. 743, 255 S. W. 2d 671.
In May, 1945, Mr. Pence stopped the allotment, and made no further monthly payments; and on September 18,1953, Mrs. Pence filed motion in the original proceedings in the Pulaski Chancery Court for $1,285.00 as the accumulated monthly payments at $2.50 per week. Mr. Pence resisted the motion for judgment; and the. evidence disclosed that Mr. Pence and his family had,been unable to locate the whereabouts of Mrs. Pence and the boy, Charles Royce Pence, from 1944 until the filing of this motion in September, 1953. The evidence showed that shortly after the divorce in 1942, Mrs. Pence married a Mr. Weaver, and divorced him in a few weeks; and then married her present husband, Mr. Nelson. We will continue to refer to her as Mrs. Pence.
In 1944, Mr. Pence was coming home from the Navy on a 30-day furlough, and he wrote his mother to ask Mrs. Pence to let him have the boy for a visit during the furlough. Mrs. Pence refused the request; and just before Mr. Pence reached Arkansas, Mrs. Pence wrote Mr. Pence’s mother a postcard from some Western State, saying: “We are on our way to the coast. Don’t know where we are going or when we will be back.” Mr. Pence’s mother sent telegrams trying to locate Mrs. Pence, and offered to send someone up to get the boy and to return him safely. Mrs. Pence had lived in Joplin, Missouri, but the Telegraph Company was unable to make any delivery. Mrs. Pence testified that after leaving Joplin, they lived for a time in Washington and Oregon, and then returned to Joplin, Missouri. It was not until 1950 that they finally returned to Arkansas to live. They have lived at Bauxite, Arkansas, since 1950.
The sum of $40.00 (from the Navy allotment money) remained in the registry of the Pulaski Chancery Court until June, 1947. When Mrs. Pence wrote for that money in 1947, a check was sent to her. She denies the receipt of this payment, but the cancelled check bears an endorsement strikingly similar to her admitted writing.
At the hearing in the Pulaski Chancery Court on October 29, 1953, the Court directed Mr. Pence to pay into the Registry of the Court $40.00 every two weeks thereafter for the future support of his son; and Mr. Pence raises no objection to that order. The Court refused to award Mrs. Pence judgment for the payments of $2.50 per week from 1945 to 1953, and she has appealed from such refusal. She claims that the case of Sage v. Sage, 219 Ark. 853, 245 S. W. 2d 398, is in point; that it requires that she have judgment for the unpaid and accumulated monthly payments. The issue in this case is whether the law and the facts in Sage v. Sage, supra, require Mrs. Pence to receive judgment for all the payments due and unpaid from 1945 to 1953.
In Sage v. Sage, it was held that accrued installments, decreed as support money, become fixed with rendition of the judgment and the court is without power to remit them. The opinion contains a citation from 27 C. J. S. 1238, in which it was stated that payments exacted by the original decree become vested. This Court’s opinion then said that in Minnesota it had been held that payment of accrued installments were only suspended “until the child” (for whose benefit the judgment was rendered) “was returned to the jurisdiction of the court.” In using the word “suspended” there was not an intention to say that the payments were extinguished during the period covered by contumacious conduct. But there is a distinction between cancellation of the indebtedness by court action, and a course of conduct by the child’s mother — conduct exemplified by circumstances showing that the amounts involved were supplied by the mother for her own convenience. Insofar as the child was concerned, it received payment. As to the mother, she waived the right to claim repayment for her own benefit.
We reach the conclusion that Mrs. Pence is entitled to judgment for payments of $2.50 per week from June 15, 1950, to October 29, 1953, which totals $425.00. But we conclude that she is not entitled to judgment for any unpaid amount prior to June 15,1950, because from 1944 until June 15, 1950, she had the boy outside the jurisdiction. of this Court, and thereby prevented visitation rights to Mr. Pence. We hold that the right of Mrs. Pence to enforce the payments was suspended until June, 1950, when she returned the child to this State. The rule is stated in Sage v. Sage, supra:
“There are a few states which hold that accrued installments may be remitted or modified. One such state is Minnesota from which appellee cites Eberhart v. Eberhart, 153 Minn. 66, 189 N. W. 592. In this case, however, we understand the holding to be that payment of accrued installments was only suspended until the child was returned to the jurisdiction of the court. We agree with this conclusion as we understand it.”
In the cited case of Eberhart v. Eberhart, the Minnesota Court said:
“ The plaintiff has taken the child from the jurisdiction of the court. So long as she keeps him without the jurisdiction, the defendant should be relieved from the payment of support money to accrue in the future and that already accrued should not be enforced against him. ’ ’
In 1944 Mrs. Pence, without permission of the Pulaski Chancery Court, deliberately decided to take the boy to the Pacific Northwest. Evidently she determined that the financial returns to herself would outweigh the $2.50 per week she would receive from the order of the Pulaski Chancery Court. Mr. Pence and his family continued to look for the child, but were unable to find him. Now, after a lapse of years, Mrs. Pence wants all of the accumulated payments, without having allowed Mr. Pence —in the intervening years — to have the pleasure of seeing his child. Equity cannot aid her in such a situation. In Antonacci v. Antonacci, 222 Ark. 881, 263 S. W. 2d 484, in a somewhat similar situation, the Chancery Court refused to render judgment for $500.00 for unpaid installments of maintenance, because the mother had kept the child in California during the time that such payments accumulated. The situation in that case points the way to our holding here.
The Chief Justice and Justice Millwee agree with the views herein expressed; Justice Robinson expresses his views in a separate opinion, and believes that Mrs. Pence is not entitled to as much as this opinion gives her. Justices Holt, George Rose Smith, and Ward, in their dissenting opinion, believe that Mrs. Pence is entitled to the full amount she claims. The effect of these various views results in the composite conclusion now made:The decree of the Chancery Court is reversed and the cause is remanded, with directions to enter judgment in favor of Mrs. Pence for $425.00 as the accumulated unsuspended and unpaid payments due up to October -29, 1953.