¶1(concurring).
¶2I concur in the result, and generally with what is said in the opinion. But with •reference to relieving defendant from payment of alimony subsequent to remarriage of the plaintiff, I base my concurrence upon the ground that the court had power to modify its previous order with respect to past-due instalment, rather than upon the ground that we-should read into the statute or into the divorce decree a proviso that alimony should cease upon remarriage of plaintiff. I think a reconsideration of the doctrine announced in the case of Myers, v. Myers has been long overdue, but I think we should not now adopt a halfway course, and, by silence or otherwise, appear to give approval to the doctrine that the court has no power, under any circumstances, to change or modify retrospectively a decree requiring payment of alimony. The statute relating to-divorce, Sec. 30-3-5, U.C.A.1953, ‘.provides that “the court may make súch orders', in relation to the children, property and *61parties and the maintenance of the parties and children, as may be equitable”. Also, that “Such subsequent changes or new orders may be made by the court with respect to the disposal of the children or the distribution of property as shall be reasonable and proper.” In Buzzo v. Buzzo, 45 Utah 625, 148 P. 362, 363, in allowing a modification of a decree relating to alimony, this court said: “We are of the opinion, however, that every decree of divorce and alimony must be deemed to have been entered subject to the provisions of section 1212 [now 30-3-5], supra. All courts agree that, if it is provided in the decree itself that it may be modified or revised in case the circumstances and conditions of the parties have materially changed, the modification may then be made. Now, we think that under statutes like ours the provision therein contained, authorizing a change or modification, is as much a part of the decree as though it were written into it.” (Emphasis added.) That case did not deal with retrospective modification, but if what is here quoted from the opinion is true, is there any good reason to believe that it should not apply in case of an application for' relief from past-due instalments, where by reason of substantial change of circumstances it would be inequitable to compel payment? Certainly it is unjust to compel a husband to continue to support a divorced wife who has remarried and has adequate support from another husband. But other situations also come before the courts where it is inequitable to compel a divorced husband bo pay accrued instal-ments of alimony or of money for support of children in accordance with the terms of a divorce decree. If a divorced wife, who has been awarded custody of children and an allowance from the husband for their support, thereafter deserts the children and they are taken over and cared for by the husband, it is clearly desirable and equitable to relieve him of payment of support money from the date of such desertion. Why should it be held that the court has no power to do equity in such a situation? If it so happens, as it very often does, that the divorced husband fails to apply promptly to the court for modification of the decree, shall we say that he must therefore pay the instalments ordered to be paid up to the date of the order of modification, or, as some courts have said, up to the date of his application for modification? Should the court put such a penalty on lack of vigilance? I believe not.
¶3I believe that the statute should be taken according to its terms, and that the courts should not renounce nor abrogate the powers plainly intended to be conferred by it nor the inherent powers of courts of equity to meet situations in accordance with the demands of justice and good conscience.
¶4It should be remembered that a high percentage of divorce cases are not contefited and that decrees are written without the *62careful consideration and scrutiny which obtains in cases where both parties are represented by counsel. Very often the amount of alimony or support money ordered to be paid is based upon erroneous or false assumptions of the wife or her attorney as to the income or earning capacity of the husband, and without any serious expectation of collecting in full. Ofttimes, as every trial judge knows, months or years elapse without any' serious attempt to enforce payment. Sometimes the wife remarries. Sometimes the children are shifted to the husband for care and support. Sometimes there is an understanding or agreement that alimony may cease, in consideration of the children being cared for by the husband. Sometimes the husband, because of illness or poverty, is entirely incapable of meeting the requirements of the decree. Ofttimes, regardless of change of circumstances or •incapacity of the husband, there is no application to the court for modification of the decree. Then, if the husband remarries, the former wife sometimes resents it and seizes the opportunity to use the decree and the accumulation of unpaid in-stalments as a means of harassment. Occasionally after the death of the wife her heirs or representatives attempt to collect on the judgment. So too', after the death of the husband, claim is sometimes made against his estate. Shall we say in such situations that no matter what changes of circumstances have occurred, the court has no power to relieve from the accrued instalments ?
¶5But it is argued that a decree directing payment of alimony or support money becomes a judgment and that the court cannot annul a judgment or destroy vested right. Rule 7(b) (2) of the Rules of Civil Procedure (formerly Sec. 104-42-5 of the Civil Code) is cited to the effect that “an order-for the payment of money may be enforced by execution in the same manner as if it were a judgment.”
¶6Answering such argument, it is obvious that difficulties will arise if orders for future payments of alimony or support money are to be looked upon as automatically becoming judgments for the respective instalments upon arrival of the dates fixed for payment. Many divorce decrees do not require payments of alimony or support money to be made to the clerk. He will therefore have no record as to payment. Also, though payments are ordered to be made to the clerk, the parties frequently arrange for payment to be made directly to the divorced wife. Clerks therefore do not — or should not — issue execution until a judgment has been rendered by the court, establishing the amount of unpaid and accrued alimony or support money.. Furthermore, arrangements are frequently made between divorced persons (as was done in this case) for shifting of custody of children, with the understanding or agreement that while the husband is supporting the children he will be excused from payment *63to the wife of allowance made for support of such children. Having in mind these considerations it seems clear that an award made in a divorce decree for future support, either of the divorced wife or the children of the parties, ought not to. be looked upon as a judgment upon which execution should issue until there has been a judicial ascertainment of the amount accrued and owing. Some states have statutes, it seems, permitting execution to issue upon presentation of an affidavit as to the amount of alimony or support money accrued and unpaid. See Taylor v. Stowe, 218 Mass. 248, 105 N.E. 890. Utah has no such statutes nor any statute prescribing any special procedure in connection with issuance of execution under decrees providing for instalments of alimony or support money. It therefore appears proper to require application to the court for a judicial determination of the amount accrued and unpaid before the clerk issues execution. The opinion of this court in Beesley v. Badger, 66 Utah 194, 240 P. 458, appears to me to support this view.
¶7A further consideration for believing that we should not say that alimony ipso facto ceases upon remarriage of the divorced wife, is that in some circumstances that will not be just or equitable. Alimony is sometimes awarded as a part of a property settlement — with the intention that it shall continue throughout the life of the wife. If it is granted upon consideration of property received by the husband it should not be treated the same as if it-had been awarded in consideration of the duty of support owed by a husband to the wife. Also, other circumstances may arise wherein it will not be equitable to relieve the husband from the payment of alimony despite the remarriage of the wife. The divorced husband may be a man of great wealth and while the divorced wife remains unmarried she may be receiving a considerable award of alimony. If she marries a man who has little or no income she may be deprived of support to which she is equitably entitled to receive' from-the first partner. It therefore seems to me better to leave it to the discretion of the court to act in each case in accordance with justice and equity than to adopt a rule as the Myers case does which robs the court of that power. If a trial court in a given case errs in the exercise of the power, there is a right of appeal. But, if this, court declares that the trial courts have no power in any circumstances to cancel past-due instalments of alimony or support money, there is then no right of appeal — regardless of hardship or injustice in a particular case. It is well said by the Supreme Court of Maryland in Winkel v. Winkel, 1940, 178 Md. 489, 15 A.2d 914, 919, “The reasons in support of the modification of future instalments of alimony are only less in degree in reference to the instal-ments which have accrued due. There may have been error in the amount fixed' because of mistake in the husband’s facul*64ties. The capacity to pay may be materially reduced either by unforeseen diminution in estate or of failure in earnings through incapacity, loss of position or of employment. When the failure to pay is attributable to such a cause, it is equitable to make a conformable modification in alimony which has accrued due. To deny a court of chancery such a power prevents the rectification of an obligation which would not have been created had the chancellor been able to anticipate the later faculties of the husband, and defeats the rule that the maintenance afforded the separated wife through alimony is not to be greater than what she would have enjoyed in cohabitation. On reason the power of the court of equity to adapt its remedial relief to existing conditions and circumstances should not be curtailed. The flexible quality of its procedure is oppressively limited by the denial of redress for the chancellor’s unforeseeably mistaken estimate of future faculties which the husband, without fault on his part, has not possessed in such a measure as to enable him to comply with the payment of the alimony imposed.”
¶8It is true that, in a number of states it has been held, that under their particular statutes, power to cancel accrued instal-ments of alimony or support money has not been conferred. See annotation in 6 A.L.R.2d at page 1284. But in a considerable number of other jurisdictions such power has been held to exist. Id., at page 1283. In the same annotation at page 1289 it is pointed out that “The decision in Sistare v. Sistare, 1910, 218 U.S. 1, 30 S.Ct. 682, 686, 54 L.Ed. 905, 28 L.R.A.,N.S., 1068, may be guilty of ‘undue influence’ upon decisions of other courts. It said that a statute authorizing a court to ‘vary or modify’ a judgment for alimony did not expressly authorize the cancelation of arrears and that the court must resort to every reasonable implication against the existence of such a power. Many state decisions have cited and followed it almost as though it announced a principle of constitutional law. However, this case merely involved the construction of a New York statute, and the New York courts do not accept that construction, so that the Sistare case is incorrect so far as New York lawyers are concerned, and it may be incorrect as a general pronouncement of principles of statutory construction.” This comment is particularly pertinent to the study of the question here under discussion, since this court, in its decision in Myers v. Myers, relied very largely upon the opinion in Sistare v. Sistare. It should also be noted that in, Sistare v. Sistare, the United States Supreme Court was considering whether a decree for alimony to be paid in future instalments is a debt of record and as such protected by the full faith and credit clause of the U. S. Constitution, and that in discussing this it said: “This general rule [that alimony is a debt of record the same as an ordinary *65money judgment], however, does not obtain where, by the law of the state in which a judgment for future alimony is rendered, the right to demand and receive such future alimony is discretionary with the court which rendered the decree, to such an extent that no absolute or vested right attaches to receive the instalments ordered by the decree to be paid, even although no application to annul or modify the decree in respect to alimony had been made prior to the instalments becoming due.” That statement clearly shows that the Federal Supreme Court recognized the fact that the power of the divorce court to remit or cancel accrued instalments of alimony depend upon state law and not upon any Federal constitutional provision.
¶9I believe that it is wrong, under a statute such as ours, which permits change or modification as to alimony or support money, to consider that alimony awarded for future support of a divorced wife, (not given in consideration of a property settlement) becomes a debt of record with the arrival of dates fixed for payment of the respective instalments. Experience as a trial judge convinces me that cases frequently arise where it would be inequitable to treat accrued instalments of alimony or support money, as “judgments.” But if the rule is adopted that before treating accrued instalments as a judgment or debt of record, the court should, upon proper application, ascertain the amount owing and unpaid, and then enter an order or judgment for that amount, we will establish an orderly and equitable procedure instead of a system which will promote confusion and frequent injustice.