¶1 (concurring in the results).
¶2 I concur in the results.
¶3 Referring to the discussion under the second assignment of error, I cannot see what plaintiff’s belief as to the effect of punishing the defendant has to do with the nature of the contempt; nor do I think a stay of 48 hours is indicative of its being a civil rather than a criminal contempt. Even if the jail sentence were not conditional but absolute, a short stay might be given in order to allow the party to get his affairs in shape before the incarceration.
¶4 I think the purpose of the court in imposing the sentence was clearly to coerce the defendant to pay the support money to the children in full. The expression of the trial court on his ability to do so bears that out. I am unable to see how the court could accomplish a vindication of its authority and dignity if there was a flaunting of the same by the defendant and if the defendant were permitted to absolve himself from such a contempt by paying his back alimony. Hence, I think the clear purpose of the court was to enforce or coerce payment of support money, which purpose makes it a civil contempt under the peculiar nomenclature which has developed. I place my concurrence in respect to the overruling of this assignment of error on the grounds above stated.
¶5 I agree that Sec. 104-45-12, U. C. A. 1943, is not applicable. At first blush the statement reading
“and proof of the ability to perform at the time of the order to jail for contempt was not a necessary condition to imposing that order”
¶6*121 appears to me inconsistent with the statement earlier made reading
“under such circumstances a finding of the ability to pay when payments were due was required.’
¶7 But the reader will on close reading note that one pertains to the ability to pay at the time the payments were due whilst Section 104-45-12 refers to the defendant’s financial condition at the time the order was made.
¶8 As to the third assignment of error: I agree that under the circumstances of this case the court did not abuse its discretion in refusing to modify the amount of money payable for the support of the children, although the amount of $150 was probably stipulated on the assumption that the mother would stay home and care for them. However, I would not want my agreement to this part of the opinion to be construed to mean that a change in the mother’s financial condition for the better can never be a ground for relief of the divorced father from support money stipulated or imposed by the court after hearing. When one spouse has come into considerable money it may be justifiable to cast on him or her an obligation to assume some of the support of the children or to relieve the other of the obligation to pay the amount stipulated or imposed by the court, even though the financial circumstances of the latter have not changed for the worse. Each spouse owes a duty to support the children of the marriage; the father owes the primary duty. But in this case the mother would probably be required to pay a portion of her earnings for the care of the children. She did not come into a substantial inheritance. She may by using her abilities to increase her income have been in a better position to support herself and all the children than she would have been to rely simply on the support money he agreed to pay, even though she might be required to pay some one for tending the children. The trial court was in much the better position to judge this than are we.