dissenting.
I respectfully dissent. The majority opinion reaches a result which I do not believe is legally correct and overlooks the justice of the matter. The trial court held that Darrell Jacobson was liable for arrear-ages. It calculated those arrearages by proportionately reducing his support obligation according to the size of Margaret Jacobson’s dependent family. The trial court made the proportionate reduction using what I believe are two sound legal considerations.
The trial court applied the practice of the fifth judicial district in 1962 to reduce proportionately child support obligations as the children become emancipated. The majority opinion characterizes this action as a retroactive reduction of Darrell Jacobson’s obligation and as an improper use of judicial notice. I disagree with both characterizations. By employing the proportionate reduction practice, the trial court only clarified the extent of Jacobson’s enforceable obligation under the original 1962 order. The trial court’s recognition that in 1962 it followed the proportionate reduction practice is not judicial notice limited under Minn.R.Evid. 201 since it does not involve an adjudicative fact.1 In effect, then, the majority’s opinion modifies Jacobson’s obligation as originally contemplated by the parties in their divorce settlement, and this without any determination of Jacobson’s ability to pay.
The second basis for the trial court’s decision is equitable principles.2 The court held that Faribault County acquiesced in the Nevada court orders. The Nevada orders also applied a proportionate reduction rule.3 Faribault County was notified of the orders, but took no action to contest or to clarify the effect of the orders. Moreover, Faribault County knew at all times the whereabouts of Jacobson and yet did not commence any proceedings to collect the alleged arrearages until 1979, or thirteen years after Faribault County alleged Jacobson was in arrears. Although the record is not entirely clear, it establishes only that Faribault County indicated its intent in December 1977 to seek arrearages beyond those due under the Nevada orders. That was about six months before Jacobson’s support obligation to the youngest of the four children terminated but over three years after Faribault County agreed to accept payments in accordance with the Nevada orders. Viewing the evidence in favor of the trial court’s decision, I would affirm and hold that fundamental fairness only permits Faribault County to seek ar-rearages calculated by proportionately reducing Jacobson’s support obligation.
. The trial judge in this case is the senior district court judge in Minnesota. His long and distinguished tenure in the fifth judicial district began in 1955. I for one will not challenge his familiarity with the practice in that district in 1962.
. The majority opinion relies upon Ryan v. Ryan, 300 Minn. at 251, n. 2, 219 N.W.2d at 916, n. 2 which stated that equitable defenses are not available in an action for unpaid alimony. The Ryan court, however, evidently did not apply the rule since it relied on cases referring to the doctrine of "unclean hands.” I believe the court improperly extends that questionable rule to apply to this action. This case is not an action by one former spouse against another where acrimony and equity are difficult to distinguish. It is an action by a county government agency under a statute designed to create a uniform and fair method of enforcement of child support obligations.
.A recent decision reflects the common judicial acceptance of this practice. McClelland v. McClelland, 359 N.W.2d 7 (Minn.1984) (reversing a fixed figure child support award until the youngest child turns 18 and remanding for the trial court to "establish a schedule for its automatic reduction as each of the children becomes emancipated.” Id. at 11).