¶1specially concurring.
¶2I can agree with the result reached by the court in this case. While the majority chooses to distinguish Wardle v. Wardle, 464 P.2d 854 (Wyo.1970), and that distinction may be justified in terms of a strict view of ratio decidendi, I am not persuaded that Wyoming lawyers, and perhaps our district judges, might not have made a different prediction based upon dictum in Wardle.
¶3In addition to that quoted by the majority, the following language from Wardle, 464 P.2d at 855-856, seems pertinent:
“Section 20-66, W.S.1957, provides that, after a divorce decree with allowance for the wife or children, the court may from time to time revise and alter such decree respecting the amount of the allowance. Specific authorization is contained in the section for the court to:
*1172“ ‘ … make any decree respecting any of said matters which such court might have made in the original action.’
“Counsel for both parties agree there are only five other states which have a statute similar to our § 20-66, with statutory authorization for the trial court to make any decree after divorce respecting allowances for the wife or children which it might have made in the original action.
“The annotation in 6 A.L.R.2d 1277, 1293 (§ 8), sets forth that four of the five other states which have wording in their statutes similar to the language we have quoted from § 20-66 (Massachusetts, Michigan, Minnesota and Wisconsin) follow the rule that a trial court may cancel arrearages. The remaining state (Nebraska) considers the law well settled in that state that installments of alimony become vested as they accrue; that past-due installments become final judgments; and that courts have no authority to cancel or reduce the amount of accrued payments. See Clark v. Clark, 139 Neb. 446, 297 N.W. 661, 663 [1941].
“We take the position that since August 1959 both Wardle and his former wife mutually consented and impliedly agreed that the wife would support the children and forego the benefit of child-support payments from Wardle and that he would forego the right to have custody of his children during summer months. Thus, the implied agreement of the parties, subsequent to the decree, prevented vested rights from accruing to either party (as far as the parties only are concerned). The case takes on a different complexion from one where only the husband is in default by failing to make monthly alimony or support payments. “Under equitable principles, it is within the prerogatives of a trial court to leave the parties where they are, as far as past payments are concerned — if the court considers it equitable and right to do so and if that can be done without jeopardizing the welfare of the children. If we were to apply appellant’s theory of a ‘vested’ right, the courts would be powerless to apply equity.
“In Urbach v. Urbach, 52 Wyo. 207, 73 P.2d 953, 960, 113 A.L.R. 889, [1937], Chief Justice Blume pointed out that our district courts administer all law — the common law, statutory law, and principles of equity. At 73 P.2d 961, he concluded the grant of statutory power to provide for the custody and care of children in connection with a divorce decree does not abrogate the equitable powers of the court existing independent thereof. It follows from this that the equitable powers of the court likewise exist in an action having to do with unpaid child-support installments.
“In Duffy v. Duffy, 19 N.J.Misc. 332, 19 A.2d 236, 237 [1941], where it was argued that arrearages became vested as they accrued, the court said, were this the law, the court would be powerless to apply equitable principles in the administration of its statutory jurisdiction over alimony and maintenance. It went on to say, if the court could not apply equitable principles, it would be obliged to act as a mere administrative agency, impotent to prevent is processes from being employed in the furtherance of inequity and injustice.”
It is fair to say that, in earlier years, given the paucity of appellate litigation in Wyoming, this court often articulated principles by way of dictum because the opportunity to structure the law through direct holdings was limited. It is also fair to note that the practice has not completely disappeared from the opinions of our court. Given the language quoted above, and the fact that the provision from § 20-66, W.S.1957, which the court relied upon, still appears in § 20-2-116, W.S.1977 (June 1987 Repl.), I am satisfied that there well may have been instances in which support payments were adjusted retrospectively. If that were true, it would make necessary the amendment to § 20-2-113, W.S.1977 (June 1987 Repl.), which is quoted in the first footnote of the majority opinion in order to adjust the law.
While I do concur in the disposition of this case, particularly in light of the amendment to § 20-2-113, W.S.1977 *1173(June 1987 Repl.), I believe that, in order to assure that any contrary orders remain undisturbed, it would be far better to declare that the effects of this decision are prospective only, and to specifically disavow the contrary dictum in Wardle.