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STATUTES OF LIMITATIONS AND LACHES AS DEFENSES TO AN ACTION FOR CHILD SUPPORT ARREARAGES
© 1995 National Legal Research Group, Inc.
I. INTRODUCTION
Support obligors generally have been unsuccessful in alleging concealment as a defense. Rather, the courts tend to analogize concealment with denial of visitation, and have ruled that the two are independent considerations. Thus, even though a parent might conceal a child, such action does not forgive the support obligor from a duty to pay child support. Usually, only in the case of active concealment will a court forgive a child support arrearage and only then if the child will not be harmed by such a decision.
Similarly, in a case where a custodial parent has delayed in bringing an action for child support, the courts have generally ruled that such action does not preclude recovery of support. More specifically, where a support obligor has asserted the equitable defense of laches, the courts nevertheless have refused to grant him or her relief. The major rationale for allowing a tardy collection is the strong public policy encouraging child support obligors to fulfill their duty, in the best interests of the child.
The statute of limitations, by contrast, has generally been a more successful defense. Where the state in question has a specific statute of limitations for either child support enforcement or enforcement of judgment generally, courts have mostly applied the statutes as written. Even in this context, however, the courts have limited the effect of the statutes by treating each child support payment as an independent judgment, thus permitting the collection of installments which became due within the applicable limitations period.
This article will provide an overview of cases that have addressed the issue of time as a bar to collecting child support arrearages. First, we will examine the cases where a laches defense has been successful. Then, we will examine some of the cases denying the laches defense. In that section we will try to focus on cases with a variety of fact patterns, since the law is generally uniform. Finally, we will look at cases where a support obligor has raised the statute of limitations as a defense to an action to collect child support arrearages.
II. LACHES AS A VALID DEFENSE
Where a custodial parent has delayed in bringing a suit to collect child support arrearages, only occasionally has the obligor parent been successful in defending nonpayment. The reason obligors are so seldom successful is that, in order to successfully defend an action for child support arrearages, the obligor must prove that (1) the custodial parent's delay in bringing the suit was unreasonable, and (2) the obligor parent will be prejudiced in having to pay the arrearages. Rarely is an obligor parent successful in sustaining the burden of proof for both elements.
Nevertheless, in Taylor v. Taylor, 14 Va. App. 642, 418 S.E.2d 900 (1992), the obligor parent was successful in asserting a laches defense. The parties married in December 1946. Three children were born of the marriage. The parties separated in July 1963 and were granted a divorce in March 1964. In May 1968, a District of Columbia court ordered the husband to pay unitary support of $110 per month for the wife and child. He ceased payments in July 1972. The wife filed a URESA petition in Virginia. She then sought to collect arrearages of $660. The husband paid the arrearages, but he paid no more support. The URESA records were, meanwhile, destroyed.
In 1990, the wife sought to register the 1968 support order and filed for $24,420 in arrearages. The trial court denied the husband's motion to vacate registration, but, due to laches, it also denied the wife arrearages.
The appeals court affirmed. It noted that in Virginia laches may not be used as a defense in a proceeding to collect support arrearages. In this case, however, the District of Columbia laws were applicable, and in that jurisdiction laches may be interposed. The court emphasized that the wife had waited 15 years to file a claim under the 1968 order even though she knew the husband was a military retiree living in Virginia. The court said that the husband had remarried and had assumed other obligations, and thus it forgave his support obligation.
Ferree v. Sparks, 77 Ohio App. 3d 185, 601 N.E.2d 568 (1991), presents another example of the successful assertion of a laches defense. The parties married in 1964. They had one child before divorcing in 1968. The wife was granted custody of the child; the father was ordered to pay $17.50 per week in child support. In June 1968, the wife remarried. Her new husband was transferred to various locales throughout the country and abroad. In the meantime, the father filed several motions for a reduction in child support, for increased visitation, and for a change in custody. In September 1970, his child support obligation was reduced and visitation was modified so that he could have the child for two months during the summer. The wife never complied with the visitation order. The father stopped paying support in December 1970.
Eighteen years later, the wife filed a show cause motion for failure to pay. At a hearing in March 1990, the court agreed that the father had unilaterally stopped support. For equitable reasons, however, the wife was not entitled to arrearages.
The appeals court affirmed. It noted that the person asserting a laches defense must show both an unreasonable delay in filing suit and that the delay caused material prejudice. The court said that 18 years was an unreasonable delay, especially since the father never attempted to conceal his location and in fact remained in Ohio the entire period. Also, the court noted that the wife made no good-faith effort to collect. The court also held that the father had been materially prejudiced, having been denied a relationship with his child. Finally, there was no evidence of financial hardship on the part of the wife, whose new husband had held himself out as the child's father.
In Moffett v. Moffett, 570 So. 2d 691 (Ala. Civ. App. 1990), the parties were divorced by default in 1971, since the husband's whereabouts were unknown. Because of the lack of personal juris diction, the court could not issue an order against the husband for child support. The court did issue an order that, should the husband return to Alabama, an order for child support should be entered.
In September 1989, after the child was emancipated, the wife filed a motion, alleging that the husband had returned and requesting a determination of child support. The court refused.
The appeals court affirmed. It recognized the general rule that laches is not a defense to an order to pay child support. Here, however, no child support obligation had been established. Moreover, evidence suggested that the husband had been in Alabama during the child's minority and that his whereabouts were known even to the wife. The child was now 22 and married. The wife's delay in bringing suit precluded her from collecting child support.
In Parkinson v. Parkinson, 106 Nev. 481, 796 P.2d 229 (1990), the parties married in January 1978. In March 1978, the husband adopted the wife's son from a former marriage. In May 1982, the parties were divorced. They were granted joint legal custody of the child, with the wife being granted primary physical custody. The husband was ordered to pay $200 per month until the child reached majority or was otherwise emancipated. In January 1983, the husband stopped the payments. In May 1988, two weeks after the child turned 18, and five years and four months after the cessation of payments, the wife filed for arrearages of $12,800 plus interest. The husband asserted equitable defenses. The court denied the wife recovery.
The Nevada Supreme Court affirmed. The wife had repeated contact with the husband for several years, but she had made no demands of him nor had she pursued legal remedies. The court noted that the child was now an adult and thus would not be harmed by its order.
In the aforementioned cases, the support obligor was able to successfully defend a suit for child support due to the custodial parent's delay in bringing suit. Yet, these cases, by far, represent a minority. Most cases have not forgiven a support obligor when that party has asserted a laches defense. Even in some of the cases above there were other equitable reasons to excuse the obligor, such as estoppel or waiver. Thus, the party asserting such a defense must prove not only an unreasonable delay but must also have plenty of supportive evidence of material prejudice.
III. LACHES HELD NOT A DEFENSE
The majority of cases have refused to forgive a child support obligor where such party asserts a laches defense. Even if the custodial parent has delayed in bringing suit, the courts usually hold that the obligor has failed to meet the burden of proving both elements of laches. Moreover, some jurisdictions do not even recognize laches as a defense to a child support obligation (see, for example, the discussion of Taylor v. Taylor, 14 Va. App. 642, 418 S.E.2d 900 (1992), in Section II, noting that Virginia does not allow such a defense). Much more successful, if applicable, is the statute of limitations defense discussed in Section IV infra.
Jackman v. Pelusi, 379 Pa. Super. 361, 550 A.2d 199 (1988), proves exemplary. The parties divorced in May 1967. The husband was ordered to pay support of $80 per week for the parties' four children. The support obligation was increased in December 1973. After the modification, the husband paid no support. In August 1974, arrearages of $2,495 had accumulated. Throughout 1974, the wife tried to obtain enforcement of the judgment. Thereafter, she could not afford legal fees to continue filing actions. Several bench warrants were issued but not enforced. The case was put on inactive status in 1976. In 1985, some of the children contacted the father. Thereafter, he paid some of their college expenses, bought cars for them, and bought airline tickets for them. In February 1986, he was found to owe $46,000 in arrearages. The court recommended modification to $29,258 because some of those arrearages represented amounts accrued after the children had reached 18. Both parties filed exceptions. The arrearages were further reduced to $4,895, given all of the circumstances. The court rejected the husband's argument that the wife would be unduly enriched by enforcement of an obligation created 14 years ago and disregarded for 10, although it did cite her delay as a reason to forgive some of the debt.
The superior court reversed, holding that the proper amount of arrearages was $29,258. The husband had alleged he was in debt but had made no effort to prove such. Additionally, he argued he was excused because the wife had changed the children's names and so he thought his obligation had terminated. The appeals court rejected his arguments. It noted that the wife had delayed in bringing suit; it held, however, that the wife's fault did not rise to the level of terminating the right to child support. Moreover, given the husband's averment that he was in debt, the wife could have concluded that seeking enforcement would have been futile. The wife brought action after learning that the husband's financial condition had improved, as evidenced by his gifts to the children. Moreover, she had attempted to collect at an earlier point.
The court also held there was no prejudice to the husband. In general, it rejected his equitable defense because the husband had unclean hands, having failed to pay support for all of those years without seeking a modification. It also said there would be no unjust enrichment; rather, the wife would merely be reimbursed for moneys spent on raising the children. The court refused to credit the husband for gifts made to the children, holding that gifts cannot be credited against an obligation to pay for necessities.
In Allen v. Allen, 62 Ohio App. 3d 621, 577 N.E.2d 126 (1990), the parties were divorced in March 1974. The husband was ordered to pay $35 per week to support their two children. He made regular payments in 1974. After that he made irregular payments. By July 1988, when the wife filed suit for a money judgment, arrearages had built up to $21,694. The trial court granted her judgment plus interest on the lump sum.
The appellate court affirmed the money judgment for the wife. The husband interjected a laches defense, but the court refused him relief. Rather, it believed the wife's evidence that she did not know where her former husband was for six years, that she did not have the finances to pursue the matter, that she feared securing a court order for support would endanger the children's relationship with their father, and that she thought legal action would be to no avail due to the husband's periodic employment and his drinking problem. The court held that there was no material prejudice. If the husband had limited funds he should have sought modification. The court reversed the judgment as to the award of interest, holding that the wife was entitled to interest on each payment as it became due. The court explained that each payment is a separate judgment and bears interest from the date it is due until payment is made.
In Florida Department of Health & Rehabilitative Services v. Lemaster, 596 So. 2d 1117 (Fla. Dist. Ct. App. 1992), the laches defense was unsuccessfully argued in a URESA action. In a 1976 divorce proceeding in Kentucky, the court established a child support obligation. In October 1989, the wife brought a URESA action for child support, alleging arrearages of $14,900. The trial court entered an order for arrearages reduced by $5,500 because it said the wife knew the husband's whereabouts since 1987.
The appeals court reversed and granted the wife the total amount of arrearages accrued. The husband argued laches, claiming that he had not heard from his former wife since January 1977 and that he was clearly prejudiced by the 12-year delay. He had been unable to exercise visitation and he had accumulated an intolerable lump sum. The court held that the husband had not fulfilled his burden of proving material prejudice. For one, visitation and child support are unrelated matters. For another, the husband could have set aside each payment as it became due so he would not be faced with an intolerable lump sum. The court said that the mere passage of time alone would not sustain a laches defense.
Wornkey v. Wornkey, 12 Kan. App. 2d 506, 749 P.2d 1045 (1988), also involved a claim for arrearages under URESA and illustrates a grant of arrearages where a subsequent order is made. The parties divorced in June 1972. The wife was granted custody of the parties' son, and the husband was ordered to pay child support of $125 per month or his dependency allotment while he was in military service, whichever was greater. In March 1975, the husband was eight months behind in his payments. The wife instituted an intrastate URESA proceeding. At the hearing in April, the court found the husband to owe $1,000. It reduced his support obligation to $75 per month, $50 representing support and $25 representing arrearage payments. Once the arrearages were paid, the court order provided that the husband's support obligation would be $75. In May 1986, the wife filed an action to enforce support payments to which the child was entitled under the first proceedings. The husband, in the interim, had been paying according to the order of the second proceeding. The court granted the wife summary judgment for arrearages of $11,158, representing the difference between the first order and the second order.
The award was affirmed in part and reversed in part. The court held that the second order was not a modification of the first order but was a separate order altogether. It did not render null and void the first order. The court held that the wife was not barred by laches; rather, a parent may bring an action to enforce a child support award any time during the child's minority. Nevertheless, the court found error in the compilation of the amount of arrearages due and thus remanded.
In Roszko v. Roszko, 146 Ariz. 274, 705 P.2d 951 (Ct. App. 1985), the parties divorced in April 1974. Pursuant to a property settlement agreement, merged into a divorce decree, the husband was to pay $150 per month for each of three children until each reached 18, plus 40% of his net monthly raises in salary. For one year the husband kept current with his payments. Then he encountered financial difficulties and, consequently, often fell behind in his payments. Subsequently, however, he did receive salary increases. While the wife did not attempt to claim a portion of the salary increases as child support, she did constantly remind the husband that he was overdue on the minimal support obligation. In 1983, she began litigation to collect arrearages and to initiate garnishment. At a hearing held later in 1983, the court found the husband in arrears. It said he was not responsible for support of the one child in his custody, but he was responsible for support of the other two children. This included the 40% salary increases and interest, for a total of $49,680.
The appellate court affirmed. It showed little sympathy for the husband's argument that the garnishment would have a devastating effect on his ability to provide for his second wife and children by that marriage, noting that he had caused his own financial difficulties. Moreover, the court rejected his laches defense. The wife had repeatedly attempted to collect the support due. The husband was not current in the basic $450 per month obligation, so it was certain that he would not be able to pay the 40% increases as well.
In Baker v. Baker, 193 Ill. App. 3d 294, 549 N.E.2d 954, appeal denied, 553 N.E.2d 393 (Ill. 1990), the parties married in June 1965 and had two children before divorcing in May 1970. The wife was granted custody. The husband was ordered to pay child support of $20 per week while he was in college, to be increased to $130 per month when he graduated. In 1974, the amount was raised to $150 per month. Subsequently, custody of the elder child was changed to the father, allegedly because of sexual abuse by her stepfather. The husband ceased support at that time. In March 1988, the wife filed a show cause motion alleging the husband was in arrears. The court entered judgment for the wife of $10,469 representing past due child support of $6,600 and $2,549 interest, plus a special assessment of $1,320, representing 20% of the unpaid balance.
The appeals court affirmed in part and reversed in part. It rejected several equitable defenses raised by the father. For one, he said the wife had agreed to waive support once the informal change in custody occurred. The wife countered with the argument that even when that child was emancipated, the husband had not resumed payments for the other child. Additionally, evidence disproved waiver, since the wife had written letters to the husband that he was behind in his payments. The court added that any agreement by the parties to modify an order for child support must be approved by the court to be valid.
The court rejected the husband's laches defense as well. He said he was materially prejudiced by the wife's delay of eight years in bringing suit since he had to pay for psychological counseling for the elder child during that time, expenses for which the wife would have been responsible. The court held that the husband's acceptance of responsibility for one child did not relieve him of the responsibility to the other. The court further held that it was no error to award interest. It was, however, error to assess the husband with the 20% penalty since a recipient must be on public welfare for that penalty to apply.
In Hunter v. Hunter, 52 Wash. App. 265, 758 P.2d 1019 (1988), the parties divorced in July 1977. The wife was awarded custody of their daughter. The husband was ordered to pay $240 per month in child support. He stopped paying in April 1979 after quitting his job and starting a series of different jobs. In March 1983, he enrolled in a brokerage training course and began earning a steady income. Consequently, he resumed support payments in October 1985. In the interim, the parties had several discussions about support. The wife made requests but allegedly backed off because the husband threatened to take his life. In 1979, an attorney told her that due to the husband's lack of income, legal action would be fruitless. The husband, on the other hand, contended that the wife had agreed to excuse payments. In March 1986, the wife initiated proceedings to collect the arrearages. An order was entered for $30,543. In August 1986, the court revised the order to $10,000, finding that the $30,543 award would be "unduly burdensome."
The appeals court reversed. It held that the trial court's revision constituted retroactive modification. A trial court does not have unfettered discretion to retroactively modify a child support order in the absence of an equitable principle justifying such. The court further said that the wife's claim was not barred by laches. It said that the seven-year delay was not unreasonable given that an attorney advised the wife that legal action would be fruitless. Additionally, there was no prejudice to the husband in having to fulfill a legal obligation. To prove material prejudice he must demonstrate a change of position showing the inequity of the decision.
While not as exemplary, since it involved a suit against an executor of an obligor's estate, Conin v. Bailey, 15 Ohio St. 3d 34, 472 N.E.2d 328 (1984), has strong language as to why laches is a poor defense to a support obligation. The husband and wife were married in 1929. They had two children before divorcing in 1934. The husband was ordered to pay $3 per week per child as support and $100 per week as alimony. In February 1982, the husband died testate. The wife presented the executor with a claim for unpaid child support and alimony plus interest. The executor denied the claim. The wife then filed suit against the executor for arrearages and interest of $28,305. The court entered judgment for the estate. It found that the 35-year delay in filing suit barred the wife from recovery.
The reviewing court reversed. It held that the lengthy delay alone was not sufficient to bar recovery. Actually, the wife had sought enforcement of the support orders until 1946. At that time, the court had found the husband to be $2,052 in arrears and had held him in contempt, although the wife ended up not receiving the moneys. The wife said she did not pursue collection proceedings any further because such was a waste of time and money. Indeed, the court recognized a good-faith effort on her part to recover support. The court also held there was no material prejudice to the estate. It refused the executor's claim that important records showing payments had disappeared, especially since the executor never made an effort to show the existence of such records.
The court also cited strong policy reasons for its decision. It quoted its previous holding in Smith v. Smith, 168 Ohio St. 447, 156 N.E.2d 113, 120 (1959):
- "Defendant [father] was instrumental in bringing into the world the child for whom the benefit of the support money was intended, and he assumed, in addition to the natural duties of a parent, a statutory duty to support the child until emancipation or majority. The weekly support order merely put a price tag on the statutory duty already existent. The defendant knew of the existence of his obligation of support * * * and the extent of such obligation was fixed by * * * the judgment of divorce. The mere fact that he failed to meet such obligation does not mean that he was excused therefrom; it simply means that someone assumed his duty of support, for, in the absence of evidence to the contrary, the court will presume that the child was clothed, fed and generally accorded the necessities of life, the payment for which the weekly support money was intended."
Thurn v. Thurn, 310 N.W.2d 539 (Iowa Ct. App. 1981), similarly involved a claim against an estate. There the parties divorced in 1958. At that time the husband was earning $90 per month; otherwise he had no assets. By decree, the husband was to pay child support of $17.50 per week for their two children until the children turned 21 or married. He failed to provide support. The wife did not take legal action until 1980, at which time she sought general execution of $35,385. The previous year the husband had inherited $437,837. The court entered an order for execution. The executrix of the husband's estate attempted to quash the order.
The appeals court affirmed. It rejected the executrix's contention that laches barred the wife's claim. The wife had a vested interest in the payments. She did not attempt to execute on the judgment for 22 years because she knew the precarious state of the husband's finances. She sought execution almost immediately upon learning of his inheritance. The court said there was no prejudice to the estate. See also Larsen v. Sedberry, 54 N.C. App. 166, 282 S.E.2d 551 (1981), cert. denied, 304 N.C. 728, 288 S.E.2d 381 (1982) (ordering estate of deceased husband to pay $7,530 in child support arrearages despite wife's 14-year delay in attempting to collect on the obligation; court cited North Carolina family law expert who said that laches is never a successful defense to an action for familial support obligations).
In re Miller, 17 B.R. 717 (W.D. Wis. 1982), departs from the usual case in that it involved a claim posed in bankruptcy court. The parties divorced in April 1960. The husband was ordered to pay support until the youngest child reached 18. Several times he was found in contempt for failure to pay. In March 1978, the youngest child turned 18. In July 1979, the wife commenced an action in circuit court to collect arrearages of $2,148. The husband filed for bankruptcy under Chapter 7 in 1981. The circuit court stayed its proceedings until completion of the bankruptcy action. In the bankruptcy proceeding the wife sought an order that the arrearages were nondischargeable. The husband asserted several defenses, including that he should be credited for gifts as well as the defenses of nonpaternity, laches, and the statute of limitations. He sought dismissal of the wife's plea.
The bankruptcy court denied the husband's motion for dismissal. The court held, inter alia, that the wife was not barred by laches. Child support arrearages were still child support even though a child might have reached majority. In determining dischargeability of arrearages in bankruptcy, the court must look at the present circumstances of the person to whom and on whose behalf support was ordered. If support is necessary beyond the date of filing in bankruptcy, then the obligation is not dischargeable.
Boucher v. Shomber, 65 Md. App. 470, 501 A.2d 97 (1985), presents a slightly different fact scenario in that the issue there was whether laches barred collection of college expenses for the parties' children. The parties married in 1955 and had four daughters. They entered into a voluntary separation agreement in December 1972 and were divorced in July 1973. Pursuant to the agreement, the husband was obligated to pay the girls' college expenses. In June 1977, the wife and daughters moved to Florida. The eldest daughter attended community college and then the University of Florida. In May 1979, the wife sued for unpaid college expenses. The court ordered payment of $2,619. The daughter continued on at the University of Florida, graduating in May 1983. The husband paid either little or no support. The wife subsequently filed a motion for contempt, contending that education expenses were analogous to child support. The court ordered the husband to pay $16,085.
On appeal, the order was affirmed. The husband asserted laches, contending that the wife had failed to immediately bring suit to force him to comply with the terms of the decree. The court said that there was no inexcusable delay. In fact, there was evidence that the parties could, and would, resolve the differences between themselves. The husband signed a consent decree when ordered to pay the $2,619. The daughter had talked with her father about her financial situation in 1980. The husband, in short, was aware that he had an obligation to pay and was expected to pay. He was not caught off guard.
Phillips v. Morrow, 104 Nev. 384, 760 P.2d 115 (1988), too, presents a somewhat different fact scenario in that two of the husband's ex-wives were litigating about which party was entitled to the marital residence of the husband and second wife. Upon divorcing his second wife, the husband agreed that the wife would have the marital residence in exchange for $17,000, or one-third of the net value of the real estate. The husband's first wife recorded a child support judgment against the house 17 days later. Five years later, the first wife attempted execution on the house. The second wife interposed the homestead exemption defense. The trial court entered a judgment lien against the house, ordering that the house be sold to satisfy the lien.
The appellate court affirmed. It explained that the husband had not fulfilled the condition of child support payments. Also, he had an interest in the house when the first wife filed her claim. He, in fact, did not file a quitclaim deed until two years after the first wife recorded judgment. Additionally, after the second divorce, the second wife had lent the husband money, paid his debts, collected no child support for their own children, and had allowed him to live in the house rent-free. The court rejected the second wife's assertion of a laches bar. It noted that she had actually participated in the dissipation of funds from which the first wife could have collected support.
For other cases that have refused a laches defense, see Brock v. Hudson, 494 So. 2d 285 (Fla. Dist. Ct. App. 1986) (four years not an unreasonable delay where wife was prevented from attempting to enforce order for two of those years due to present husband's terminal illness); Department of Social Services v. Wright, 112 A.D.2d 159, 490 N.Y.S.2d 844 (1985) (court fixed arrears at $1,200, no matter that Department, which was paying wife welfare, delayed in filing suit; husband had been out of the country for four years and there was no showing that he was materially prejudiced); Patten v. Vose, 404 Pa. Super. 426, 590 A.2d 1307 (1991) (laches did not bar wife's suit for child support arrearages of $3,252, even though wife did not bring suit until 1988 to enforce the parties' postmarital agreement of 1971; pursuant to that agreement the husband took custody of the parties' remaining minor child, and his support obligation ended at that time, yet he was still responsible for paying the accrued arrearages); and Brown v. Dyer, 489 A.2d 1081 (D.C. 1985) (delay not unreasonable in that it was only three and one-half years and wife did attempt to enforce judgment before leaving the country). See also Gambino v. Gambino, 396 So. 2d 434 (La. Ct. App. 1981) (where wife delayed filing for child support payments for six years after divorce, laches still not a bar; court held there is not a prescriptive time limit on a right to initiate action for support of an unemancipated minor).
In the above cases, the courts refused to bar a claim for child support arrearages where the support obligor asserted the affirmative defense of laches. The courts have cited the strong public policy of holding parents to their familial support obligations as a major reason. The courts have, in fact, required the supporting parent to pass a heavy evidentiary burden to be successful with a laches defense, showing both an inexcusable delay in filing suit and material prejudice. Seldom does the obligor meet this burden. Finally, some jurisdictions do not allow the interposition of a laches defense to bar a claim for child support arrearages.
IV. STATUTE OF LIMITATIONS AS A DEFENSE
While laches has seldom been successfully asserted to deny a custodial parent's claim for child support arrearages, the statute of limitations defense has been used successfully to bar claims of at least a portion, if not all, of past-due child support. Some states have a special statute of limitations pertaining to an action to collect child support. Other states apply to child support enforcement actions the statute of limitations for enforcing money judgments generally.
A case where a support obligor successfully asserted the statute of limitations is Leslie v. Beringer, 636 So. 2d 441 (Ala. Civ. App. 1994). The parties were divorced in 1966. Custody of their five children was granted to the wife; the husband was ordered to make monthly child support payments. In July 1968, the mother filed a show cause motion as to why the husband should not be ordered to pay. She dismissed the motion the following month. In January 1969, the divorce decree was modified so that the husband would have custody and there would be no child support obligation. In October 1992, after a 23-year lapse, the wife filed for payments totaling $210,000, representing unpaid support from 1966 until the custody change plus interest. The husband argued both laches and the statute of limitations. The trial court granted the wife $5,186, representing amounts due from August 1968 until the change of custody.
The appeals court reversed the award, holding that the father owed no money. The court cited Alabama's statute of limitations, which allows 20 years for filing a claim for unpaid child support, as its reason for limiting the award.
In McKellar v. McKellar, 110 Nev. Adv. 23, 871 P.2d 296 (1994), the court similarly ruled that at least some of a custodial parent's child support claim was barred by the statute of limitations. The parties divorced in August 1974. The husband was ordered to pay child support of $300 per month for their one child. In July 1977, the husband ceased payments. In May 1991, the wife filed for arrearages. In April 1992, the court awarded her a judgment for $122,522.
The supreme court affirmed in part and reversed in part. It held that the award must be reduced to disallow any arrearages accruing more than six years prior to the initiation of the action, pursuant to Nevada's statute of limitations for enforcement of money judgments, which applied to child support orders at the time the obligation was created. The court noted that in 1987 the Nevada legislature abolished any statute of limitations for enforcement of a child support obligation. There was no indication, however, that the statute was to be retroactively applied.
In re Marriage of Kramer, 253 Ill. App. 3d 923, 625 N.E.2d 808 (1993), illustrates a similar case of refusal to retroactively apply a new statute of limitations, at least to payments accruing prior to the change in the statute, in an action for child support arrearages. It also illustrates the principle that a subsequent support order entered in a RURESA proceeding does not nullify a prior order. In Kramer, the parties married in 1971. They had one child before separating in 1973. The wife was granted a divorce in Nebraska in January 1974. By the terms of the decree the husband was to pay $100 per month in child support until the child was 19, married, or otherwise emancipated. In 1974, the wife brought a RURESA action in California, where the husband resided, to enforce the order. In July 1974, the California court entered an order reducing the husband's obligation to $50 per month until the child reached 18. The husband complied with the California order. In December 1983, the wife brought an action to collect arrearages representing the difference between the California and Nebraska orders, some $11,150. Proceedings to enforce the judgment continued until 1986. Meanwhile, the husband had moved from California to Illinois. In August 1990, the wife resumed collection attempts. She instituted proceedings against the husband in South Dakota, where she now lived, and was granted judgment, but the Illinois court would not register the judgment because the South Dakota court did not have personal jurisdiction over the husband. In July 1992, the wife petitioned the Illinois court to register the judgment of dissolution granted by the Nebraska court. She then sued for support under that order. The court applied the then-current statute of limitations, which allowed a claim to be brought within 20 years of a money judgment, although at the time the obligation was created a foreign money judgment in Illinois was subject to a five-year statute of limitations. The trial court found the husband to be in arrearages of $25,382 and to owe interest on the $11,150 from May 1992.
The appeals court affirmed in part and reversed in part. It noted that the statute of limitations runs from the date of accrual of a cause of action. Each separate installment of child support is a cause of action. The causes of action accruing prior to September 1991, when the statute of limitations was changed, were governed by the five-year statute. The subsequent legislation extending the statute of limitations could not be retroactively applied to revive those causes of action. The court held, however, that the 20-year statute applied to those payment obligations arising after September 1991. More generally, the court held that the wife's action was not time-barred because she did not register the foreign judgment until 1992. The right to register a foreign judgment is procedural, and thus any right accrued under a foreign decree is vested. The court further ruled that the California decree did not modify the Nebraska order. Thus, the wife was entitled to collect a portion of the arrearages.
In re Marriage of Opp, 516 N.W.2d 193 (Minn. Ct. App. 1994), is illustrative of an unsuccessful limitations defense. The parties divorced in November 1979. In December 1982, the wife brought a contempt motion for failure to keep current with child support payments. The husband filed a motion for modification of the support order and for forgiveness of the arrearages. The court modified the support order and forgave a portion of the arrearages, ordering the husband to pay $4,928 in arrearages. This order was not immediately docketed, and the husband never paid. In April 1993, the wife filed an affidavit of the amount due under the order and requested entry of the 1982 order. The court granted her judgment and applied interest, calculating that the husband owed $8,840.
The appeals court affirmed. It said that its statute of limitations, allowing an action to be brought within 10 years of a judgment, runs from the entering of the order. The court explained that entering of an order required more than entry on a computer. The court also held that a judgment of arrearages is not obtained by operation of the divorce decree but by operation of the arrearage order. In short, the statute did not begin to run until the order was docketed in 1993.
In re Marriage of Brown, 263 Mont. 184, 867 P.2d 381 (1994), il lustrates an example of the tolling of a statute of limitations upon a stipulation that the obligor was in arrears. The parties married in April 1972. They divorced in July 1979. The wife was granted custody of the parties' three children, and the husband was ordered to pay $125 per month per child as support. In the fall of 1979, the wife filed a show cause motion due to the husband's failure to pay. In March 1982, the wife brought an action under RURESA. In July 1982, the parties stipulated that the husband was in arrears $16,425 and agreed that he would pay $60 per week. The judge signed the order in September 1982. In July 1992, the wife filed another show cause motion. The court found that the husband owed $58,800 and ordered him to pay $125 per month.
The appeals court affirmed. It noted that the applicable statute of limitations is 10 years. The court held that the stipulation in open court tolled the statute and, pursuant to the husband's acknowledgment, he was obligated to pay accumulated arrearages. With that acknowledgment, as well, the statute of limitations began to run anew for each child support payment due thereafter. Thus, the husband owed the total amount of arrearages accruing both before the stipulation order and after.
In In re Marriage of Ryan, 22 Cal. App. 4th 841, 27 Cal. Rptr. 2d 580 (1994), the husband, similarly, was unsuccessful in asserting a statute of limitations defense in a RURESA proceeding. The husband and wife married in Texas in 1967. They had three children before divorcing in 1974. The husband was ordered to pay $117 per month per child. He paid through November 1976. He paid sporadically for a while thereafter, then, from September 1977 to August 1985 he paid nothing. The husband thereafter moved to New York, and the wife got another order for child support in New York. The husband paid on that obligation from December 1985 through August 1988 and nothing thereafter. At that point, the husband moved to California. The wife filed a RURESA petition, alleging past due support of $15,571 under the Texas decree. Applying the Texas statute of limitations for enforcement of a money judgment, the trial court found that the wife could only collect for the period from 1979 to 1989, that is, $12,837. The husband appealed, contending that under Texas law nothing was due. Under the Texas statute of limitations pertaining to an action for child support, a custodial parent must file an action within two (now four) years of a child reaching adulthood.
The appeals court reversed. It held that the California statute of limitations, not the Texas statute of limitations, applied. Under the California statute, a child support obligation may be enforced until a child is 23, whether the obligation is 10 years old or longer. After the child is 23, the limitations period is 10 years. Because none of the children was 23 when the wife filed the action, the wife could collect amounts due more than 10 years prior to her filing under RURESA.
The special Texas statute of limitations was also at issue in In the Interest of M.J.Z., 874 S.W.2d 724 (Tex. Ct. App. 1994). In that case the court said that the statute of limitations for bringing an action to collect child support is jurisdictional and thus not subject to the rules generally applied to a statute of limitations. The parties were divorced in February 1980. The wife was appointed managing conservator of the parties' one son, who was 10 years old at the time of divorce. The husband was ordered to pay child support of $400 per month. In June 1992, 49 days before the child reached the age of 22, within a four-year period of the child's eighteenth birthday, the attorney general filed to reduce to judgment aggregate arrearages of $13,743. In January 1993, the husband was found to be owing.
The appellate court affirmed. The statute of limitations for child support judgments requires that an action be filed within four years of a youth becoming an adult or within four years after which the obligation terminates by operation of law. The court rejected the husband's argument that the state had not acted with due diligence in bringing the action. It said the statute was jurisdictional in nature and not subject to a due-diligence analysis or the other tolling rules to which a traditional limitations statute is subject:
- Because section 14.41(b) addresses a court's jurisdiction, tolling rules typically applied to statutes of limitations do not apply to section 14.41(b). See C.L.C. 760 S.W.2d at 792 (appellate court found running of two-year period not suspended under TEX.CIV.PRAC. & REM.CODE ANN. 16.063, which applies only to statutes of limitation). Conceptually, an attempt to collect child support arrearage is different than the filing of a cause of action for money damages. The latter is subject to the traditional two- or four-year statutes of limitation to give the defendants reasonably prompt notice of a potential claim. An action for child support, however, is a motion filed in a matter over which the court has continuing jurisdiction.
V. CONCLUSION
Where a custodial parent delays in bringing a suit for child support arrearages, the fact of the delay is seldom a bar to the parent's claim for child support arrearages. The public policy for enforcement of a child support obligation is so strong that the courts will often forgive delays of 10, 15, or even 20 years. To successfully assert a laches defense, the obligor parent must prove both an inexcusable delay and prejudice should he be forced to pay the arrearages.
Nevertheless, some jurisdictions allow a statute of limitations defense to limit recovery. This legal defense, in fact, has been much more successful in precluding the collection of at least some child support arrearages. The problem for the obligor parent with the statute of limitations defense is that the limitations period is so lengthy that it seldom disallows recovery.
The best advice for a support obligor, whether pressed or not to pay child support, is to continue to make regular payments, or to set aside regular payments in the event that he or she cannot find the custodial parent and child, so that he or she will not be faced with a suit for an intolerable sum of arrearages. On the other hand, if the obligor parent cannot afford to pay the child support, the parent should seek modification of the court order, not resort to self-help measures. The courts are the proper media to achieve justice in any particular case.
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