holding statute providing “obligee may enforce his right of support against the obligor [is] permissive and not mandatory and does not foreclose the right of a person to enforce the duty of support set forth in the act by any other means provided by law”
How later courts described this case
- holding statute providing “obligee may enforce his right of support against the obligor [is] permissive and not mandatory and does not foreclose the right of a person to enforce the duty of support set forth in the act by any other means provided by law”
- providing that permissive language in a statute "does not foreclose the right of a person" to pursue a remedy "by any other means provided by law" (emphasis added)
- defining “children” to include incapacitated children and noting the highly equitable nature of divorce proceedings
Written by the judges who cited it.
The opinion
TUCKETT, Justice
(concurring and dissenting) .
I concur in that portion of the majority opinion which deals with alimony. I cannot agree with the majority’s ruling that the former plaintiff may be ordered to support the children of the marriage even after they have reached the age of majority. It should be noted that the word “children” as used in Section 30-3-5, U.C.A. 1953, which is set forth in the majority opinion, uses the word without regard to the mental age of the children or the capacity of the children mentally or physically. Had the legislature intended to go beyond the ordinary meaning of the word “children,” it could have easily made that distinction. Prior decisions 1 of this court have construed the word “children” as those persons under the age of majority as defined by Section 15-2-1, U.C.A.1953. The Uniform Civil Liability for Support Act which is discussed in the majority opinion is a statutory scheme providing for the support of dependents. The act provides for a separate cause of action to enforce the duty of support by parents, but no provision is made which would permit enforcement under the divorce laws. It is further noted that the Uniform Support Act designates who may become parties and those designated are not necessarily a husband and wife. I do not think the *530 court should commingle the provisions of that act with Section 30-3-5, U.C.A.1953, which deals with the support of minor children in a divorce proceeding.
I would remand for a new trial on all issues.
HENRIOD, C. J., concurs in the views expressed in the opinion of TUCKETT, J.
. Anderson v. Anderson, 110 Utah 300 , 172 P.2d 132 ; Stanton v. Stanton, 30 Utah 2d 315 , 517 P.2d 1010 .