(dissenting):
Regrettably, I view the facts deducible from the record in a somewhat different light than they appear to my colleagues. This does not mean that I am unappreciative of the basis of the main opinion, nor of the difficulties involved where the payment under the decree had actually accrued. Neither do I disagree generally with the statement of the opinion that the provisions of a decree “cannot be avoided by a parent’s conduct or agreement” as applied to current and future obligations. But this statement does not seem to make allowance for the fact that after one parent has actually supported a child for a period of time, the right of reimbursement then belongs, not to the child, but to the one who has furnished the support. In that regard I reiterate my agreement with Larsen v. Larsen, 5 Utah 2d 224, 300 P.2d 596 as Justice Wade has called attention in his concurrence.
I share the sympathy and concern which is naturally engendered in most everyone for the mother and child. Moreover, I offer no apology for, nor propose any defense for, any father who wilfully fails to meet his honest obligations in that regard. That these rights be safeguarded and enforced is of the utmost importance both to the individuals involved and to society. For these reasons matters involving child custody and support are equitable, in fact as sometimes stated, are equitable in the highest degree. Nevertheless, it must be remembered that the equities are not always all on one side, and that each situation should be dealt with on its own facts and toward the obj ective which is fundamental to. all such proceedings, that of best serving the welfare of all concerned. When viewed in that light the circumstances may well be such as to justify the court invoking its equitable power and refusing to enforce immediate collection of a large accumulated debt.
*364The background out of which this marriage arose can be spared here. It is sufficient to say that the divorce shortly thereafter fixed the responsibility upon the defendant to pay $50 per month to the support of the child. Some salient facts subsequent to the decree are set forth in as brief a way as possible by excerpting portions of the findings of fact:
That the defendant diligently complied * * * and did pay the sum of $50 per month to the clerk * * * for approximately two years * * * that his last payment * * * was returned by said clerk to the defendant with the notation "no one known at above address and no forwarding address was left.”
* * * That the child has been claimed by the husband [the second husband, Mr. French] as his own child and had adopted his name * * * [and] received the allotments * * * granted by the government of the United States.
* * * That she [plaintiff] made no effort of any kind to inform the clerk * * * as to her whereabouts * * * and has continuously, since 1953, failed and neglected to ascertain the whereabouts of the defendant or his address.
* * * That the plaintiff has been dilatory and lax and was guilty of laches. ‡
* * * That the earning capacity of the "defendant has greatly decreased in the ensuing years.
It should be emphasized that the facts just recited do not relieve the defendant of his obligation to support his child, nor do they discharge the debt which has accumulated. They go only to the question of whether he is in contempt; and whether the large and insuperable judgment of $5,300 should be entered and made enforceable against him at this time.
For brevity and to spare repetition in our printed reports, I refer to my concurring opinion in Wallis v. Wallis, 9 Utah 2d 237, 342 P.2d 103, and authorities therein cited which sets forth my views as to the duty and prerogative of the trial court in such a case.
Upon the basis of my view of the law as expressed therein and the considerations hereinabove set forth, I am inclined to think that the action of the trial court in the instant case was well advised; and that in all likelihood in the long run it would be more beneficial to all concerned and particularly for the support and welfare of the child.
McDONOUGH, J., concurs in the dissenting opinion of CROCKETT, J.