Larsen v. Larsen

• Decision Date: 31 July 1956
• Docket Number: No. 8481,8481
• Citation: 5 Utah 2d 224,300 P.2d 596
• Parties: d 224 Darwin W. LARSEN, Plaintiff and Appellant, v. VaLene P. LARSEN, Defendant and Respondent.
• Court: Utah Supreme Court

Page 596

300 P.2d 596

5 Utah 2d 224

Darwin W. LARSEN, Plaintiff and Appellant, v. VaLene P. LARSEN, Defendant and Respondent.

No. 8481.

Supreme Court of Utah.

July 31, 1956.

Harvey A. Sjostrom, Logan, for appellant.

L. Delos Daines, Salt Lake City, for respondent.

WADE, Justice.

In September, 1946, Darwin W. Larsen, appellant herein, obtained a divorce from his wife, VaLene P. Larsen, defendant in that suit and respondent herein. Respondent was granted custody of their minor child and awarded $35 per month for the support of the child while in the care of respondent. In July, 1955, respondent filed an affidavit for an order to show cause why a judgment should not be entered against appellant for failure to make the monthly payments for the support of the child since June, 1947. Appellant's return to said order to show cause alleged that his failure to make payments as ordered in the divorce decree was due to respondent's refusal to accept such payments from him, and her telling him that a third party, whom she married, was supporting such child, and that all she wanted from appellant is that he should refrain from trying to see her or the child. Because of such representations by respondent, appellant alleged he has now remarried and taken on other obligations which he would not have undertaken had he known she would demand all monies which were payable under the decree. He further alleged that respondent had informed him that she and her present husband would support the child if he would stay away and not interfere in their lives, and that the husband of respondent has supported such child of his own free will and not of necessity and had not given such support in contemplation of being repaid therefor.

At the trial appellant testified that he had made payments for the support of his child in accordance with the divorce decree to respondent's mother, who was taking care of the child at respondent's request until respondent took the child. It was about this time that appellant had been asked by the Bishop of his church if he would go on a mission if called. He discussed this with respondent who told him that she would not require him to pay for the child's support. He further testified that he telephoned her a few years later as soon as he returned from his mission and again discussed their child with her, and asked what he could do for her, but was told that the only thing respondent wanted was to have no interference from him in her life. Respondent denied that she had refused any payments for the support of the child and testified that none had been offered to her by appellant, although she admitted she never asked for or tried to collect any of the payments. The evidence also disclosed that the child had taken the name of her stepfather when she attended school.

The court found that appellant had not made the payments as ordered by the divorce decree since June, 1947, until June, 1955, and that respondent was entitled to a judgment for amounts due for that period for the use and benefit of the child. The court ordered that if appellant would pay the amount found due within ten days to the Clerk of the Court, the Clerk would hold that money for thirty days within which time appellant could petition the court to direct how the money should be used. If further ruled that estoppel was not available as a defense for nonpayment of accrued support money for a minor child. This appeal is from the judgment in favor of respondent in conformance with the court's conclusions.

Appellant contends the court erred in granting the judgment and in failing to make findings on the issues of estoppel and that the support of the child by a third person was voluntary, and that a finding of those issues in favor of appellant would be complete defenses to this suit to recover for accrued support money due under the divorce decree. In support of his contention appellant cites, among other cases, McKee v. McKee, 154 Kan. 340, 118 P.2d 544, 137 A.L.R. 880 and the annotation thereto commencing on page 884, and the cases cited therein in subdivisions 11(a) and (d) commencing on pages 886 and 897. It is stated on page 886 of 137 A.L.R.:

'It would seem, from a perusal of the cases, that it is recognized by at least a majority of the courts that circumstances may be such as to enable a husband to avoid payment of permanent alimony or support and maintenance of children allowed by decree or order of court, or at any rate payment of past-due instalments thereof, on the ground of laches or acquiescence on the part of the wife. However, as intimated, the question as to whether such defense is available in a particular case depends upon the circumstances present therein. * * *'

A reading of the cases cited in support of the above quoted statement discloses that relief to the father of a minor from such support money judgment depends on the view of the court determining the case as to what is equitable under the circumstances. We conclude that the evidence is sufficient from which the trial court could reasonably find facts which would support a holding that the respondent is barred from recovering a part of this judgment for back support money on the grounds which the above quotation calls laches or acquiescence but which actually appear to rest on equitable estoppel. ¹ We are sending the case back to make findings on those issues for we conclude the evidence is sufficient to support findings either way. The court may make such findings from the evidence already received or the court in its discretion may allow the parties to reopen the case and introduce additional evidence on such questions.

In Price v. Price, ² we held that because the state is interested in the child's welfare the parents cannot effectively release future payments of support money by agreeing with the other to that effect. However, this does not mean that a mother may not by her actions or representations, or both, preclude herself from recovering past due installments of support money to reimburse her for the money which she has spent for the support of the child. Where the father's failure to make such payments was induced by her representations or actions and where as a result of such representations or actions the father has been lulled into failing to make such payments and into changing his position which he would not have done but for such representations, and that as a result of such failure to pay and change in his conditions it will cause him great hardship and injustice if she is allowed to enforce the payment of such back installments, she may be thereby estopped from enforcing the payment of such back installments. So in this case if the trial court finds from the evidence that appellant would not have left his job and gone on a mission for his church but for such representations that she would not require him to pay such installments if he would just leave her and the child alone, and that appellant in reliance upon...