In rе the Marriage of William Michael JOHNSON, Petitioner, and Carolyn S. JOHNSON, Respondent
Supreme Court Case No. 14SC756
Supreme Court of Colorado.
September 26, 2016
2016 CO 67
¶59 Beyond the requirement of recording an amendment, however, section 210 permits a declarant to add units according to its development rights, and therefore without the approval of the existing unit owners, only to the extent it is the owner of the units to be added.
¶60 The subtext to this action for past-due fees and penalties is and has always been the question whether by including the addition of the Kelley Lots among the development rights reserved to the declarant, that declarant neсessarily gave up any right to sell those lots without their being included as part of the Ryan Ranch. That consequence was clearly not intended by the declarant in this case when it drew up the CCR and created the community, and such a consequence would undoubtedly come as a shock to other developers doing likewise. As this case amply demonstrates, the construction sought by the Community Association would amount to nothing less than a trap for the unwary, in direct contravention of the fundamental purpose the Act was intended to serve.
¶61 Because I believe the primary merit of undertaking a further review by this court has always been our articulation of the limitations imposed on the exercise of development rights by
¶62 I therefore specially concur in the opinion of the court.
I am authorized to state that JUSTICE EID and JUSTICE MARQUEZ join in this special concurrence in the opinion of the court.
No appearance by or on behalf of Respondent Carolyn S. Johnson
Attorneys for Amicus Curiae American Academy of Matrimonial Lawyers, Colorado Chapter: American Academy of Matrimonial Lawyers, Kathleen A. Hogan, Denver, Colorado
Attorneys for Amicus Curiae Family Law Section of the Colorado Bar Association: Epstein Patierno, P.C., Christina Patierno, Denver, Colorado, Cox Baker & Page, LLC, Nathan M.J. Dowell, Castle Rock, Colorado, Sherr Puttmann Akins Lamb PC, Courtney Radtke McConomy, Greenwood Village, Colorado
JUSTICE GABRIEL delivered the Opinion of the Court.
¶1 This case concerns whether a father may rely on the doctrine of laches to defend against a mother‘s claim for the interest on his child support debt. Over fifty years ago, in Hauck v. Schuck, 143 Colo. 324, 353 P.2d 79, 81 (1960), we decided that laches does not apply to a claim for unpaid child support that accrued within the statutory limitations period. In the present case, a division of the court of appeals extеnded Hauck‘s reasoning to a claim for interest on such arrearages and concluded that laches could not apply to bar one parent‘s right to collect interest on arrearages owed by the other parent. See In re Marriage of Johnson, 2014 COA 145, ¶ 17, ___ P.3d ___. In a special concurrence, Judge Berger noted that a more recent case from this court, Hickerson v. Vessels, 2014 CO 2, 316 P.3d 620, cast doubt on the division majority‘s conclusion. See In re Marriage of Johnson, ¶ 24 (Berger, J., specially concurring). We granted certiorari to consider whether laches is an appropriate defense in
I. Facts and Procedural History
¶2 In 1983, the district court entered a decree dissolving the mаrriage of the petitioner, William Michael Johnson, and the respondent, Carolyn S. Johnson. The decree further ordered Mr. Johnson to pay $400 per month in child support to Mrs. Johnson, to whom the court had granted custody of the couple‘s two minor children. The decree did not specify when Mr. Johnson‘s child support obligation would end, but the law at the time presumed that it would continue until his youngest child reached the age of majority, which was then twenty-one. See Koltay v. Koltay, 667 P.2d 1374, 1376 (Colo. 1983) (citing
¶3 In September 2012, Mrs. Johnson filed a “Verified Motion for Entry of Support Judgment.” In this motion, Mrs. Johnson asserted that Mr. Johnson owed her $54,320 in child support arrearages, plus $838,965.32 in interest that had accrued between the entry of the Johnsons’ divorce decree in 1983 and their youngest child‘s twenty-first birthday in 1997. Although Mr. Johnson responded by asserting a number of defenses, including the statute of limitations and laches, the magistrate entered judgment against him for the total amount requested of $893,285.32.
¶4 Mr. Johnson sought district court review of the magistrate‘s order, and the district court found that the magistrate had clearly erred in entering judgment for the full amount. Applying
¶5 On remand, the magistrate conducted a hearing during which she addressed, among other things, whether Mr. Johnson‘s child support obligation ended when his youngest child turned twenty-one (the age of emancipation when the Johnsons divorced in 1983) or when she turned nineteen (the age of emancipation under the 1991 amendment to the applicable statute, see ch. 38, sec. 1,
¶6 Mr. Johnson again sought district court review, that court adopted the magistrate‘s order, and Mr. Johnson appealed to the court of appeals. A division of that court ultimately reversed the district court‘s order on thе emancipation question, concluding that Mr. Johnson‘s child support obligation had ended when the parties’ last child turned nineteen. See In re Marriage of Johnson, ¶ 5. A major-
¶7 Judge Berger concurred specially. Although he agreed with the majority‘s reliance on Hauck and its consequent refusal to allow laches as a defense in the present case, he pointed out the importance of the doctrine as “a needed ‘safety valve’ in unusual cases.” Id. at ¶¶ 21-22 (Berger, J., specially concurring). Judge Bergеr further noted the recent Hickerson decision, in which this court, as he put it, “put to rest arguments that laches can be a defense only to claims for equitable relief and cannot shorten the period for filing a claim if the claim had been filed within the statute of limitations.” Id. at ¶ 23 (Berger, J., specially concurring). And as pertinent here, Judge Berger observed that although Hickerson neither cited nor overruled Hauck, its rationale was “fully applicable, at least to the interest component of child support arrearages.” Id. at ¶ 24 (Berger, J., specially concurring).
¶8 Mr. Johnson then petitioned this court for a writ of certiorari, which we granted. When Mrs. Johnson did not enter an appearance or submit an answer brief, we invited three interested organizations to submit briefs as amici curiae, and two did so. As pertinent here, the Colorado Bar Association‘s Family Law Section agreed with Mr. Johnson that under certain circumstances, laches should be available as a defense to the interest owed on child support arrearages. The Family Law Section differed with Mr. Johnson, however, as to the circumstances in which laches could apply, advocating for additional conditions on the application of the doctrine in the context now before us.
II. Standard of Review
¶9 The applicability of the common-law doctrine of laches to the statute governing interest on child support arrearages presents a question of law that we review de novo. See Hickerson, ¶ 10, 316 P.3d at 623 (“We review de novo questions of law concerning the application and cоnstruction of statutes.“).
¶10 Our purpose in matters involving statutory construction is to give effect to the intent of the legislature. See City of Littleton v. Indus. Claim Appeals Office, 2016 CO 25, ¶ 27, 370 P.3d 157, 165-66. To that end, we may not construe a statute to abrogate the common law unless the General Assembly has clearly expressed its intent to do so. See Robbins v. People, 107 P.3d 384, 387 (Colo. 2005); see also Hickerson, ¶ 10, 316 P.3d at 623 (“Where the interaction of common law and statutory law is at issue, we acknowledge and respect the General Assembly‘s authority to modify or abrogate common law, but only recognize such changes when they are clearly expressed.“).
III. Analysis
¶11 Mr. Johnson concedes that he owes $4,800 in child support (twelve months of $400-per-month payments) for the period beginning in July 1994, when he stopped making child support payments, and ending in July 1995, when his youngest child turned nineteen. As a result, the dispute in this case turns on the amount of interest, if any, he owes on that $4,800. To address this question, we begin by describing the statutory scheme for the collection of interest on child support debt. We then rеview our precedent, from Hauck to Hickerson, to determine whether the reasoning of our case law precludes the application of the doctrine of laches in the circumstances presented here.
¶12
Interest per annum at four percent greater than the statutory rate set forth in sectiоn 5-12-101, C.R.S., on any arrearages and child support debt due and owing may be compounded monthly and may be collected by the judgment creditor; however, such interest may be waived by the judgment creditor, and such creditor shall not be required to maintain interest balance due accounts.
¶13 Accordingly, together, sections 14-14-106 and 5-12-101 set the interest rate on Mr. Johnson‘s child support arrearages at 12% (8% plus 4%), compounded monthly. According to Mr. Johnson (and undisputed by any other party), this rate yields $46,399.62 in interеst accrued from 1995 until the division‘s judgment in 2014.3
¶14 Notwithstanding Mr. Johnson‘s above-described interest calculation, he contends that he is entitled to raise a laches defense to Mrs. Johnson‘s claim for such interest because she “unreasonably delay[ed]” in seeking to collect the $4,800 principal, which became due eighteen years before she filed suit in this case.
¶15
B. Laches
¶16 “Laches is an equitable doctrine that may be asserted to deny relief to a party whose unconscionable delay in enforcing his rights has prejudiced the party against whom relief is sought.” Robbins, 107 P.3d at 388. A laches defense comprises three elements: (1) full knowledge of the facts by the party against whom the defense is asserted, (2) unreasоnable delay by the party against whom the defense is asserted in pursuing an available remedy, and (3) intervening reliance by and prejudice to the party asserting the defense. Hickerson, ¶ 12, 316 P.3d at 623.
¶17 Courts have interpreted the laches defense to signify so unreasonable a delay in the assertion of and attempt to secure equitable rights as to constitute in equity and good conscience a bar to recovery. Loveland Camp No. 83 v. Woodmen Bldg. & Benevolent Ass‘n, 108 Colo. 297, 116 P.2d 195, 199 (1941); see also In re Water Rights of Cent. Colo. Water Conservancy Dist., 147 P.3d 9, 17 (Colo. 2006) (“[T]he defense of laches arises from ‘an unconscionable delay in asserting one‘s rights which works to the defendant‘s prejudice or injury in relation to the subject matter of the litigation.’ “) (quoting City of Thornton v. Bijou Irrigation Co., 926 P.2d 1, 73 (Colo. 1996)).
¶18 Since at least 1960, we have consistently held that the doctrine of laches does not apply in actions for the recovery of past due child support. See, e.g., Hauck, 353 P.2d at 81; accord In re Marriage of Meisner, 807 P.2d 1205, 1207 (Colo. App. 1990); Carey v. Carey, 29 Colo. App. 328, 486 P.2d 38, 40 (1971). Specifically, in Hauck, 353 P.2d at 80, we made clear that accrued installments of child support are final judgments that are subject to the appropriate statute of limitations. We further explained that “laches is applicable only when the attempted enforcement is by means of contempt procedures.” Id. at 81. Thus, we observed that although laches might apply in an equitable proceeding for contempt, it did not apply in the proceeding before the court, namely, a legal action to collect accrued child support install-
¶19 As we recently observed, however, law and equity have been merged in Colorado since at least 1877, when the General Assembly enacted the Code of Civil Procedure. Hickerson, ¶ 11, 316 P.3d at 623. That Code provided, “[T]he distinction between actions at law and suits in equity, and the distinct forms of actions, and suits heretofore existing are abolished, and there shall be in this State but one form of civil action[.]” Code of Civil Procedure, ch. 1, § 1 (1877). This principle was reaffirmed in our current rules of civil procedure, which provide, “There shall be one form of action to be known as ‘civil action.’ ” C.R.C.P. 2. As a result, “very few issues” today depend on a claim‘s foundation in law or equity. See Hickerson, ¶ 11, 316 P.3d at 623.
¶20 Consistent with this principle, in Hickerson, we implicitly concluded that the availability of a laches defense is not an issue that turns on the distinction between law and equity. See id. We focused instead on whether the separation of powers doctrine precluded a court from applying laches to shorten the filing period established by statute. Id. In conducting this analysis, we noted that the General Assembly had not abrogated the common law doctrine of laches. Id. at ¶ 16, 316 P.3d at 624. We further observed, as pertinent here, that although the statute of limitations for actions to recover debts prohibited the filing of an action beyond the prescribed limitations period, it did not address the operation of laches tо shorten that period. Id. at ¶ 14, 316 P.3d at 624. To the contrary, several of our prior cases had recognized the applicability of laches to shorten the period for filing a claim “even though the claim has been been timely filed within a legislatively prescribed statute of limitations period.” Id. at ¶ 16, 316 P.3d at 624; see also O‘Byrne v. Scofield, 120 Colo. 572, 212 P.2d 867, 871 (1949) (quoting Great W. Mining Co. v. Woodmas of Alston Mining Co., 14 Colo. 90, 23 P. 908, 911 (1890), for the principle that statutes of limitations “fix[ ] a limitation beyond which the courts cannot extend the time, but within this limit the peculiar doctrine of сourts of equity should prevail“); Great W. Mining Co., 23 P. at 911 (explaining that courts cannot construe statutes of limitations to “permit a party in all cases to stand idly by until the limitation of the statute has nearly run, and then claim that, by virtue of the statute, he is excused from the laches“). Accordingly, we held that the separation of powers doctrine did not bar the application of laches to a debt collection action filed within the statute of limitations period. Hickerson, ¶ 9, 316 P.3d at 622.
¶21 In so holding, we neither mentioned nor overruled Hauck, which, as noted above, forbade the use оf laches to bar a claim to collect unpaid child support within the statutory limitations period. Nonetheless, by concluding that laches could apply notwithstanding an applicable statute of limitations, Hickerson cast doubt on the propriety of extending Hauck‘s reasoning to claims for interest on past-due child support. Accordingly, although the instant case does not require us to overrule Hauck, it does provide us with an opportunity to address whether Hauck‘s restriction on the application of laches is limited to the principal amount of child support debt. We conclude that it is.
¶22 The prohibition against applying laches to bar collection of the principal amount of child support debt is grounded in the settled principle that child support belongs to children, not their parents. See McQuade v. McQuade, 145 Colo. 218, 358 P.2d 470, 472 (1960) (“The inherent right to support belongs to the child....“). Accordingly, as a policy matter, a parent‘s delay in enforcing a judgment for child support should not prejudice the child‘s right to parental support. Cf. Hammond v. Hammond, 14 P.3d 199, 203 (Wyo. 2000) (explaining that parents cannot waive or bargain away the right to сhild support because the right does not belong to them; it belongs to the child).
¶23 The same reasoning does not support precluding the application of the doctrine of laches as a defense to the interest component of child support debt. As the California Court of Appeal aptly explained, when a dilatory parent waits until the child has reached the age of majority to seek unpaid child support,
¶24 We reached a similar conclusion in Price v. Price, 80 Colo. 158, 249 P. 648 (1926), a contempt proceeding for failure to pay accrued installments of permanent alimony:
If, as in the instant case, the wife for a long period of time supports the child without receiving alimony, where the husband had been ordered to pay alimony for the support of the child, and she afterwards recovers the arrears of alimony, such reсovery is her own recovery and not that of the child. The recovery amounts simply to a reimbursement of the wife. She is the one who reaps the benefit.
¶25 Given the wife‘s more-than-fifteen-year delay in initiating contempt proceedings in Price, we concluded that the husband could raise laches as a defense to the contempt citation, even though the arrearages at issue appear to have been (at least partly) intended as child support. See id. at 648-49.
¶26 Both the Copeman and Price courts recognized that laches may bar the enforcement of past-due support payments when due to the passage of time, the parent, rather than the child, would obtain the benefit of any recovery. See Copeman, 108 Cal. Rptr. 2d at 808; Price, 249 P. at 649. In our view, this reasoning is equally applicable here. Indeed, prohibiting laches as a defense to the interest component of child support debt would arguably encourage the very kind of delay that the Copeman and Price courts condemned. This is particularly true given that the interest rate on support arrearages is four percent higher than the statutory rate. See
¶27 Conversely, allowing a party to assert a laches defense to a claim for interest on unpaid child support would serve the dual purposes of protecting the right of children to parental support and encouraging parents to enforce child support obligations promptly. Cf. Williams v. Woodruff, 35 Colo. 28, 85 P. 90, 101 (1905) (citing Rip Van Winkle as an illustration of the principle that “[p]arties cannot lie down to sleеp upon their rights, and, on waking up many years after, find them in the same condition as that in which they were left“).
¶28 For these reasons, we conclude that Mr. Johnson may raise the doctrine of laches as a defense to Mrs. Johnson‘s claim for the interest that has accrued on the $4,800 in child support arrearages at issue. We express no view, however, as to the merits of this defense. That determination must be made in the first instance by the trial court. See People v. Valdez, 178 P.3d 1269, 1276 (Colo. App. 2007) (“Whether the elements of laches hаve been established is a question of fact.“).
¶29 In determining on remand whether Mr. Johnson can establish a laches defense, the courts below should apply the three-pronged test for laches set forth above. See
IV. Conclusion
¶30 For these reasons, we reverse the judgment of the court of appeals and remand the case to that court with instructions to return the case to the trial court for a determination as to whether Mr. Johnson can prove the elements of a laches defense with respеct to Mrs. Johnson‘s claim for interest on Mr. Johnson‘s child support arrearages.
JUSTICE MARQUEZ does not participate.