In Re Marriage of Dancy
In re the MARRIAGE of Kay Carol and John Edward DANCY.
Kay Carol Black, Respondent,
v.
John Edward Dancy, Appellant.
Court of Appeal, Fourth District, Division Two.
*777 Covington & Crowe, Donald G. Haslam and Katrina West, Long Beach, for Appellant.
Franklin J. Brummett, Long Beach, for Respondent.
Certified for Partial Publication.[*]
*776 OPINION
HOLLENHORST, J.
This case involves a delayed action for delinquent child support, brought 28 years after the initial child support order was made and 10 years after the child reached the age of majority. The trial court granted child support arrearages plus interest. We affirm.
I
FACTS AND PROCEDURAL HISTORY
John and Kay[1] married on April 21, 1967. They had one son, John Edward Dancy, Jr., ("John Jr.") born on November 13, 1967, before they separated on September 23, 1968.
On March 7, 1969, an interlocutory judgment of divorce was entered, awarding custody of John Jr. to Kay, subject to reasonable visitation by John. Commencing April 1, 1969, John was to pay Kay $75 per month in child support, until John Jr. reached the age of majority, became self-supporting or until further order of the court. A final judgment of dissolution of marriage was entered on July 30, 1970.
On November 20, 1995, Kay filed an order to show cause to establish child support arrearages, including principal and interest. At trial, Kay sought support arrearages for 160 months, amounting to $12,000, plus $30,302.87 interest, for a total of $42,302.87. The 160 months consisted of the following periods: March 1, 1969, through October 31, 1972 (44 months); May 1, 1973, through April 1978 (60 months); and November 1, 1981, through June 30,1986 (56 months).
*778 John opposed Kay's claims, arguing that throughout these periods Kay had interfered with his visitation rights and had concealed herself and John Jr. Nevertheless, John declared that he had paid child support whenever he was able to locate them.
The trial court rejected John's arguments, finding John had not made any child support payments and had not established that Kay had concealed John Jr. With the exception of two periods during which Kay acknowledged no child support payments were owedNovember 1, 1972, to April 30, 1973, when Kay was receiving public assistance, and April 1, 1978, to October 31, 1981, when John had custodythe court found, as per the interlocutory judgment of divorce, that John owed back child support of $75 per month from April 1, 1969, to June 1986, when John Jr. graduated from high school. The court calculated the indebtedness to be $11,850, plus interest of $21,821.90, for a total of $33,671.90, due as of September 30, 1997. Interest on the unpaid principal was to accrue at the rate of $3.25 per day, commencing October 1, 1997, and continuing until paid.
John appeals, contending (1) the trial court's finding that Kay did not hide John Jr., was not supported by substantial evidence; (2) the trial court abused its discretion in failing to find Kay was estopped from asserting a claim for child support arrearages due to her concealment of John Jr.; (3) the trial court abused its discretion in failing to find that the doctrine of laches barred enforcement of the child support order; and (4) the trial court erroneously ordered John to pay Kay's attorney fees. We find no merit to these contentions and affirm.
II.[**]
III.
ESTOPPEL
Because substantial evidence supports the trial court's ruling that Kay did not conceal John Jr., we reject John's next contention that the trial court abused its discretion in failing to find Kay was estopped from asserting a claim for child support arrearages because of that concealment. Given our conclusion above, the claim is patently without merit.
IV.
LACHES
John next argues that the trial court abused its discretion by failing to find that laches barred enforcement of the child support order.
Before addressing this issue, however, we must first determine whether laches was even a viable defense for the trial court to consider in an action for the collection of child support arrearages. This is not an issue of first impression.
Recently, in In re Marriage of Fogarty & Rasbeary (2000)
A. Laches as a Defense Against the Collection of Child Support Arrearages.
Fogarty's conclusion was an extension of our holding in In re Marriage of Plescia (1997)
1. The Equitable Nature of Child Support Proceedings.
We recognize that, unlike spousal support laws, which are considered a form of equitable relief (see Plescia, supra,
"It is a fundamental duty of the court to provide equity to all parties, and fully dispose of the issues between the parties. [Citation.] Further, in effecting a complete disposition of the litigation before it, equity can extend its jurisdiction to matters that ordinarily are subject to legal cognizance only. [Citation.] Thus, unless the Legislature specifically excluded laches from the jurisdiction of the superior court, the court not only had the power to bring this controversy to an equitable conclusion, it had the duty." (Plescia, supra,
2. No Evidence of Legislative Intent to Specifically Exclude Laches as a Defense to Prevent Collection of Past Due Child Support.
The significance of the Fogarty court's analysis was the fact that when the *780 Legislature amended former Civil Code section 4384.5 (now Fam.Code, § 4502) to provide that judgments for child, family, or spousal support were exempt from any requirement for renewal and were enforceable until paid in full, it did not specifically rule out the defense of laches. (Fogarty, supra,
The wives in both Plescia and Fogarty, as the parties seeking the support arrearages, argued that support obligations have no applicable statutes of limitations and are thus always due until paid under section 4502. (Plescia, supra,
"..........................
"The reason that laches may be successfully invoked, even when a relevant statute of limitations has not expired, is because it was the product of a different body of jurisprudence and has different requirements than a statute of limitations; not because laches is a lesser included portion of a statute of limitations. Nothing more than the mere passage of time is required for the statute of limitations to bar an action at law. [Citation.] However, mere passage of time alone will never constitute a proper defense of laches. [Citation.] For laches to apply, the passage of time must be unreasonable, and it must have caused prejudice to the other party. [Citation.] Thus, laches exists independently of a relevant statute of limitations.
"... When a statute provides for absolutely no period of limitations, this does not mean that the statute provides for absolutely no laches defense. These two doctrines are fundamentally different, and the valid existence of one in no way inhibits or supports the valid existence of the other. This is because `"[e]quity ... has its origin ... in those cases where the law, by reason of its universality, would create injustice in the affairs of men."' [Citations.] Equity was specifically designed to step in where the law does not work justice." (Plescia, supra,
The court in Fogarty concurred with our discussion. (Fogarty, supra,
b. The Elimination of the Due Diligence Defense.
"Prior to 1993, a judgment for child or family support could be enforced by writ of execution without prior court approval until five years after the child reached majority, and thereafter only as to amounts that were not more than ten years overdue.... [(Civ.Code, former § 4383, subd. (a), repealed by Stats.1992, ch. 162, § 3, p. 464, operative Jan. 1, 1994 (hereafter, former section 4383).)[[5]] Beyond these time frames, the trial court had discretion to determine whether to allow enforcement of the judgment. In making this determination, the trial court was required to consider the lack of diligence in pursuing enforcement for more than these specified periods. (Civ.Code, former § 4384, repealed by Stats.1992, ch. 162, § 3, p. 464, operative Jan. 1, 1994 (hereafter, former section 4384).)
"Then in 1992 the Legislature decreed that (1) a judgment for child or spousal support was exempt from any requirement that judgments be renewed; and (2) such judgment, including lawful interest and penalties, `is enforceable until paid in full' (Civ.Code, former § 4384.5, added by Stats.1992, ch. 718, § 3, pp. 3319-3320; amended by Stats.1993, ch. 876, § 1, operative Jan. 1, 1994, and continued without substantive change in Fam.Code, § 4502, which adds a new reference to `family' support.) At the same time, the Legislature repealed former sections 4383 and 4384. And to further emphasize the new order, the Legislature also inserted the same intention in the general provisions for renewal and enforcement of judgments. Specifically, in 1992 it amended Code of Civil Procedure section 683.130 to provide that judgments for child or spousal support are exempt from renewal requirements and are enforceable until paid in full. [Citations.]
"With these legislative changes, spousal and family support orders are enforceable in perpetuity until paid. The lack of diligence defense is gone, as is the trial court's discretion in deciding whether to enforce a judgment beyond the presumptively timely period for enforcement." (In re Marriage of Garcia (1998)
The wife in Plescia argued that this elimination of the lack of diligence requirement implied a legislative elimination of the equitable defense of laches as well. This court disagreed, stating: "It is a fundamental tenet of statutory interpretation that absent any indication that the Legislature intends a statute to supplant common law, the courts should not give it that effect. [Citation.] Of course, this tenet will not apply when a Legislature has minutely described the limitations and exceptions dealing with a given subject matter. [Citation.] In the instant case [wife] urges us to supplant the well-established common law doctrine of laches through the elimination of a diligence requirement for a statute of limitations, an elimination that is only apparent after a close reading of several often modified statutes. While it appears to be true that the consideration of diligence has been eliminated when a court enforces a spousal support order by a writ of execution, this sleight of hand interpretation will not be expanded to areas of the common law long held established. Absent any legislative intention that laches has been supplanted as an equitable defense, we refuse to condone its supplantation by fiat.
"It is also a fundamental tenet of statutory interpretation that legislation will be interpreted on the assumption that the Legislature was aware of existing judicial decisions. [Citation.] Although there has been very little California litigation on this specific issue, the existence of a laches defense to spousal support arrearages has long been recognized. [Citations.] In other states where this same issue has been considered, laches has been allowed as an equitable defense. [Citation.] Also, in at least 18 other states the defense of laches has been upheld in an action on spousal support arrearages. [Citation.] In addition, there are states that do recognize laches as a valid defense to spousal support, but simply have not had a case which met all of the requirements of laches. [Citation.] It is clear that the laches defense to spousal support is established in judicial opinions reflecting the common law. Assuming that the Legislature was aware of this established law, its failure to use the language of laches weighs in heavily against appellant's argument.
"Moreover, one of the fundamental tools for statutory interpretation is the maxim expressio unius est exclusio alterius. [Citation.] This maxim is roughly translated as `the expression of the one thing implies the exclusion of the other.' [Citation.] In the statutory scheme at hand, the Legislature eliminates from judicial consideration the requirement of diligence in a spousal support action. (See §§ 291, 4502, 5101.) However, it has long been established that the requirements of a valid laches defense are: (1) unreasonable delay, and (2) undue prejudice to the party raising the defense. [Citation.] While diligence may be a factor taken into account when examining the *783 reasonableness of a delay, these two doctrines are certainly not coterminous in definition. Further, diligence has very little to do with the prejudice aspect of the laches defense. Thus, when the Legislature expressly eliminated the diligence defense, it must be seen to have left all other defenses alone, especially since we have no indications to the contraiy.
"Taking into account the long common law history of the laches defense, and the large amount of judicial support for it in other states, we find the Legislature's failure to mention laches quite conspicuous. When the Legislature discontinued looking at diligence, it could have eliminated the laches defense as well. It did not do so. Thus, we conclude that the Legislature's decision to leave laches out of its legislative scheme allows that remedy to remain available in appropriate cases." (Plescia, supra,
3. Existing Law
The court in Fogarty noted that, although states are divided as to whether laches should apply in an action for past due child support, California is among the group of states that historically has allowed laches as a defense to such actions. (Fogarty, supra,
As we observed above, under California law, the trial court has discretion to determine the appropriate means of enforcing a judgment for child support, and in exercising that discretion, the trial court can, and should take the equities of the situation into account. (Keith G. v. Suzanne H., supra,
Additionally, the equitable considerations in a laches defense, i.e., undue delay and prejudice to the party asserting the defense, have long been applied as a defense in child support arrearages cases. (See Di Corpo v. Di Corpo (1948)
Other cases appear to assume the validity of the laches defense without deciding the issue. In Nealis v. Carlson (1950)
Recently in Garcia, supra,
We have reviewed out-of-state authority and find that most other states allow laches as a defense in an action for back child support. (See, e.g., Davis v. Department of Revenue ex rel. (Fla.Dist.Ct.App. 5th Dist.1997)
Moreover, as with spousal support, there is no legislative indication that laches has been supplanted as a defense in an action for back child support. Although the Legislature eliminated from consideration the requirement of diligence in an action to recover child support arrearages, it did not expressly or impliedly eliminate the laches defense. As we stated previously, "When the Legislature discontinued looking at diligence, it could have eliminated the laches defense as well." (Plescia, supra,
4. Conclusion
Although we strongly disapprove of the nonpayment of court-ordered child support, we cannot ignore the long common law history of the laches defense in the child support context, the large amount of judicial support for it in this and other *785 states, or the Legislature's failure to mention laches in its revisions to the Family Code, just as we could not ignore them in the spousal support context. Counsel has not cited, nor have we found, any California case or explicit statutory language declaring the equitable defense of laches may not be raised in defense to the collection of child support arrearages.[7] Absent any express case law or statutory language to the contrary, we hold that laches is a viable defense to an action for child support arrearages.
We make our holding keeping in mind the public policy argument that child support is owed to the child rather than the dilatory parent, which strongly militates against the application of laches in the child support context (except, perhaps, where the child has reached adulthood and thus will not benefit from the arrearages collection.) (Hogoboom & King, Cal. Practice Guide: Family Law (TRG 1999) § 6:739, at pp. 6-285 to 6-286; see also id., ¶ 18:4.3, p. 18-2.) In this regard, it has long been held that "a parent under a court order to pay support for a minor child must pay that support even if the parent with custody interferes with the paying parent's right to visit with the child." (Damico, supra,
The issue is considerably different where the custodial parent does not continuously seek to enforce the payment of child support while the child is a minor but instead seeks past unpaid child support after the "child" has reached the age of majority. (See State of Washington ex rel. Burton v. Leyser, supra,
Thus, although we too "agree the principal concern in litigating the right to current and future child support is the welfare of the child[,] ... when past unpaid support is the issue, the welfare of the child may not be involved" (State of Washington ex rel. Burton v. Leyser, supra,
Having said that, we note, however, that in most cases, the doctrine of laches will not be supportable as the debtor-spouse will either not be able to show both undue delay and prejudice, or have unclean hands. As noted in the recent case of In re Marriage of Cutler (2000)
In Cutler, the court held that the debtor-spouse, the husband, had unclean hands based on his failure to remain in contact with his children, the necessity of the district attorney's intervention shortly after the judgment was issued, as well as the district attorney's resulting inability to collect, and the husband's complete failure to make any attempt to comply with the judgment.
By contrast, the court in Fogarty upheld the trial court's determination that the debtor-father did not have unclean hands: "The trial court weighed the respective histories of both parties and made a decision adverse to appellant[-wife]. The record supports that decision. The normal factual pattern we see involves the debtor-spouse (usually the father) either running away and hiding, and/or secreting assets, and/or lying about income to the creditor-spouse (usually the mother). As a result, the mother and the child(ren) often live on the edge of poverty, with the mother either on public assistance or holding down several jobs. Such sympathetic facts are absent here." (Fogarty, supra,
B. Application of Laches in this Case.
There remain two procedural obstacles to our consideration of the issue.
First, John did not plead laches as an affirmative defense. As this court stated in San Bernardino Valley Audubon Society v. City of Moreno Valley (1996)
However, we need not decide this issue because we conclude the issue of laches was properly raised by Kay's pleadings (Burt v. Burt (1960)
The second problem is that John did not request a statement of decision. Under Code of Civil Procedure section 632, a party may, after the court issues its tentative decision, request a statement of decision explaining the basis for its ruling. Where, as here, no statement of decision was requested and there is a conflict in the evidence, "we will infer findings in favor of the judgment.... [Citation.]" (Tyler v. Children's Home Society (1994)
Applying this standard, we conclude the record supports the trial court's implied finding that laches was not established, although Kay waited nearly 30 years before bringing her action for child support arrearages. Delay alone is insufficient; there must be both (1) unreasonable delay, and (2) prejudice to the party asserting laches. (Plescia, supra,
As to prejudice, John stipulated for purposes of trial that he had the ability to pay child support arrearages and reasonable attorney fees and costs. He claims, however, that he was prejudiced because he "had remarried, had additional children to support, and was embroiled in nasty and expensive litigation concerning their welfare." We are not impressed. John's obligation was not extinguished by his acquisition of additional wives and children. (Long v. Long (1946)
John also argues he was prejudiced in that he no longer had any "proof of past payments of child support that could have been used to offset the final amount owed. *788 According to John, all of his canceled checks in this regard were destroyed and/or lost; his former attorney no longer had them, and his bank did not retain records older than seven years. Although this may have been a valid consideration, the trial court heard the testimony in this regard and impliedly rejected it by not finding laches applicable. We affirm that implied finding.
Having found substantial evidence to support the trial court's implied finding that laches was inapplicable, we conclude the trial court's failure to apply laches was not an abuse of discretion.
V.[***]
VI.
DISPOSITION
The judgment is affirmed. Respondent is to recover her costs on appeal.
GAUT, J., concurs.
Concurring Opinion of RAMIREZ, P.J.:
I concur with the result achieved in the majority opinion. I write separately because I disagree with the majority's dicta regarding the applicability of laches as a defense to petitions for child support arrears.
I agree with the majority on the following points:
1) Substantial evidence supports the trial court's finding that Kay Black (Kay) did not conceal John Edward Dancy, Jr. (John Jr.) during the time periods in question. Thus, John Dancy (John) cannot use concealment as an excuse for failing to meet his obligation to support John Jr. (Maj. opn. ante, at p. 778.) I also agree that this finding merits our rejection of John's assertion that the trial court should have found that Kay was estopped from asserting a claim for child support arrears because she concealed John Jr. Since the trial court found there was no concealment, there can be no estoppel.
2) I also agree with the majority on the issue of attorney fees. John's claim that Kay was not entitled to her attorney fees since she was not entitled to the arrears sought is overcome because we affirm the trial court's decision that Kay was entitled to the arrears awarded. Further, there was substantial evidence of John's ability to pay the attorney fees, and of Kay's need. (Maj. opn. ante, page 788.) Therefore John failed to show an abuse of discretion.
3) In addition, if, arguendo, laches was available as a defense in this action, John has not shown that the trial court erred in failing to apply it. Because John did not request a statement of decision, we must assume, by implication, that if the trial court did consider the defense of laches, that it found in favor of Kay. We must uphold this implied finding if it is supported by substantial evidence. (In re Marriage of Cohn (1998)
Because John is not entitled to the defense of laches under the facts of this case, we need not decide whether it is an available defense in actions on judgments for child support arrears. Statements of law that constitute general observations but are not necessary to the decision, in light of the facts of the case, are dicta, with no force as precedent. (Fireman's Fund Ins. Co. v. Maryland Casualty Co. (1998)
I first disagree with the majority because John was required to plead laches as an affirmative defense. (San Bernardino Valley Audubon Society v. City of Moreno Valley (1996)
Contrary to the position adopted in the majority opinion, I do not believe that there were sufficient facts on the face of Kay's pleadings to support the defense of laches. The definition of laches requires that there be an unreasonable delay in asserting an equitable right, resulting in prejudice to an adverse party. (Wells Fargo Bank v. Bank of America (1995)
The majority cites Rouse v. Underwood (1966)
In addition, Rouse was decided based upon the doctrine of the theory of the case by trial. (Rouse, supra,
The majority also concludes that John's failure to plead laches does not bar the defense because the trial court was empowered to raise laches sua sponte, if the evidence supported it. While our decision in San Bernardino Valley Audubon Society v. City of Moreno Valley, supra,
More important, however, than John's failure to plead laches, is my disagreement with the majority's statement that the equitable defense is available at all in actions on judgments for child support arrears. Even though, as we have observed, there is no distinction between courts that may hear matters of law and equity, courts have continued to recognize that laches is an equitable remedy, not applicable to actions seeking legal remedies. (See, e.g., Barkley v. City of Blue Lake (1996)
The majority makes a distinction that while child support is a legal right, child support proceedings are equitable in nature. It then concludes that a court may contemplate whether equitable considerations back a refusal to enforce a support obligation at all. (Maj. opn., ante, at p. 779.) The cases cited do not support that conclusion.
For example, In re Marriage of Lusby (1998)
The same can be said for Keith G. v. Suzanne H. (1998)
Since this case was argued, two opinions have been published that bear on these issues. In In re Marriage of Fogarty (2000)
Cutler, recently decided by the Fifth District, thoroughly analyzes the changes in the applicable statutes and illustrates the Fogarty court's error in relying on the purported historical or traditional use of laches as a defense to child support arrears actions. The cases that the Fogarty court and the majority in this case rely on applied former Code of Civil Procedure section 681, which specified that money judgments were extinguished if not enforced within five years (later modified to 10 years). This is not a laches defense, but rather a statute of limitations defense. Further, as the Cutler court observes, in 1982 the successor statutes to former Code of Civil Procedure section 681 explicitly provided that they do not apply to either child or spousal support judgments. (Cutler, supra, 79 Cal.App.4th at pp. 469-70,
In addition, the cases that Fogarty and the majority rely on established lack of diligence as a defense, not laches. As we observed in Plescia, supra,
It has repeatedly been observed that requiring parents to fulfill their moral and legal responsibilities to provide for their children is of paramount importance. The noncustodial parent has an obligation to pay child support regardless of whether the custodial parent actively seeks it. (See, e.g., Moss v. Superior Court (1998)
For these reasons I do not join in the majority opinion.
NOTES
Notes
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts II. and V.
[1] We refer to the parties by their first names, not out of familiarity or disrespect, but because this is the preferred practice in family law cases. (In re Marriage of Smith (1990)
[**] See footnote *, ante.
[3] All further statutory references are to the Family Code unless otherwise indicated.
Section 3585 provides: "The provisions of an agreement between the parents for child support shall be deemed to be separate and severable from all other provisions of the agreement relating to property and support of the wife or husband. An order for child support based on the agreement shall be lawimposed and shall be made under the power of the court to order child support." (Italics added.)
Section 3591 provides in part: "(a) Except as provided in subdivisions (b) and (c), the provisions of an agreement for the support of either party are subject to subsequent modification or termination by court order. [¶] (b) An agreement may not be modified or terminated as to an amount that accrued before the date of the filing of the notice of motion order to show cause to modify or terminate."
[4] The entire chapter, beginning with section 5100 and ending with section 5104, concerns enforcement by writ of execution. See section 5100 (enforcement of child or family support orders without prior court approval); section 5101 (enforcement of spousal support without prior court approval); section 5102 (period for enforcement of installment payments); section 5103 (enforcement of support against employee pension benefit plan); and section 5104 (application for writ).
[5] Former Civil Code section 4383 reads in part: "[A] judgment, order, or decree for the payment of child [support or family] support may be enforced by a writ of execution without prior court approval until five years after the child reaches the age of majority and, thereafter, for amounts that are not more than 10 years overdue on the date of application therefor. A judgment, order, or decree for the payment of spousal support may be enforced by a writ of execution without prior approval for amounts that are not more than 10 years overdue on the date of the application for the writ...."
[6] We observe that inasmuch as support orders entered before 1993 are subject to the prior law, under which the court could consider "diligence" in deciding whether to allow the enforcement of certain support arrearages, and the support order in this case was obviously entered before 1993 (having been entered in 1969), it appears the trial court erred in applying the post-1993 law. Arguing that Garcia, supra,
[7] In fact, we note that laches is one of the stated grounds that an obligor-parent alleged to be in arrears may use as either a defense to a motion for an order requiring the obligor-parent to deposit assets to secure future payments or as a basis for filing a motion to stop a sale or use of assets under section 4631.
[8] It is true that the cases applying laches on the court's own motion have involved equitable as opposed to legal relief (see ibid.) and that while there is no longer a distinction between courts of law and courts of equity in this state (Code Civ. Proc., § 307; Graham v. Light (1906)
[***] See footnote *, ante.
[1] In In re Marriage of Plescia (1997)