¶1(dissenting in part).
¶2Too many questions posed by this appeal are left unanswered in the majority opinion.
¶3In this case issues were made and evidence was tendered and received as to the amount of payments made, the amounts claimed to be due, the arrangement for custody and the respective blame of the mother and father in the matter of the failure of the father to have actual custody of Bonita under the provisions of the court approved agreement. Findings of fact and conclusions of law on the points were requested by each of the parties. The trial court made no findings respecting the culpability of the parties as to the custody situation and did not pass upon the legal propositions.
¶4In my view, aside from the factual question as to the culpability of the parents, there are properly before this Court the following questions of law: What is the basis on which the default of the defendant is to be determined? Has the Washington decree spent its force with the approval of the agreement of the parties made subsequent thereto; or, upon default by the father upon the agreement, if such be found, is the Washington decree reinstated? Or is the monetary default of the father to be arrived at on the basis.of $25 per month for the summer months during which the mother was awarded custody under the approved agreement? And whaf about the months during the school years when the mother had actual . custody of, the child, but custody under the approved agreement was to be in the father? Could it be said there was a tacit agreement to accept the $25 per month set for the summer months as support during the winter of school months that the mother cared for Bonita, or should the mother recover on an alternative basis of quantum meruit, or recover nothing at all for such months ?
¶5None of these questions, except possibly by implication the one about the force of the Wáshington decree, have been answered.
¶6Not only were these matters litigated, but they formed the substantial issues of the trial. It is possible that a determination of the correct legal principles controlling these questions might disclose that culpability of the parents is not the decisive factor in determining liability for support, in which event this case perhaps could have been remanded only for the trial court to compute the arrearages, and that would be the end of it.
¶7As the trial court may make findings and conclusions objectionable to one side or the other, with no direction in these matters, and as the legal questions appear to me to be properly before us on this appeal, it seems wrong to direct the plaintiff and defendant to bring them back on a second appeal.
¶8I must, therefore, dissent from the refusal of the majority to pass upon these important questions.