148 A.3d 1220 (Me. 2016), Cum-15-427, Brochu v. McLeod

Docket Nº:Docket: Cum-15-427
Citation:148 A.3d 1220, 2016 ME 146
Opinion Judge:MEAD, J.
Attorney:On the briefs and at oral argument: Joe Lewis, Esq., Port City Legal, Portland, for appellant Catherine E. Brochu. Brett N. Gabor, Esq., Hallett, Zerillo & Whipple P.A., Portland, for appellee Richard A. McLeod.
Case Date:September 20, 2016
Court:Supreme Judicial Court of Maine

Page 1220

148 A.3d 1220 (Me. 2016)

2016 ME 146




Docket: Cum-15-427

Supreme Judicial Court of Maine

September 20, 2016

Argued June 9, 2016

Order of dismissal vacated. Remanded to the District Court for further proceedings consistent with this decision.

On the briefs and at oral argument: Joe Lewis, Esq., Port City Legal, Portland, for appellant Catherine E. Brochu.

Brett N. Gabor, Esq., Hallett, Zerillo & Whipple P.A., Portland, for appellee Richard A. McLeod.




[¶1] Catherine E. Brochu, formally known as Catherine McLeod, appeals from an order of the District Court (Portland, Eggert, J. ) granting, based on the affirmative defense of laches, Richard A. McLeod's motion to dismiss Brochu's motion to enforce nearly forty years' overdue child and spousal support payments. On appeal, Brochu contends that the court erred by (1) concluding that laches is a viable defense in child or spousal support cases; (2) finding that the elements of laches were satisfied; and (3) interpreting the parties' settlement agreement to limit the term of spousal support to eighteen months. We vacate the judgment.


[¶2] Viewing the evidence in the light most favorable to the court's judgment, the record supports the following facts. Young v. Lagasse, 2016 ME 96, ¶ 4, A.3d . Brochu and McLeod married on November 4, 1970. They had two children, born in 1970 and 1972. On June 6, 1977, Brochu and McLeod executed a separation agreement, which provided that McLeod " shall pay to [Brochu], for her support, the sum of $160 per month during the joint lives of the parties, and so long as [Brochu] does not remarry or cohabit for a maximum of eighteen months from the date of this Agreement." Brochu did not remarry or cohabitate during the eighteen months following the agreement. From the date of the separation agreement in 1977 to present, McLeod has never made a child or spousal support payment.

[¶3] McLeod went into hiding in 1977, shortly after he and Brochu had executed the separation agreement. At that time, McLeod was in the United States Marine Corps. Brochu called his military base in an attempt to locate him, but was advised that McLeod was absent without leave. Brochu also consulted some of McLeod's family members about his whereabouts, but they too did not know where he had gone.

[¶4] On August 9, 1979, the court issued a divorce judgment incorporating the settlement agreement.1 Brochu remarried in October of that year and legally changed her sons' surnames to match her new husband's surname. Brochu completely stopped looking for McLeod after the divorce in 1979.

[¶5] In 1996, the United States Marine Corps instituted an action against McLeod for his unauthorized absence dating back to 1977, and he was given a bad-conduct discharge as a result. There is no indication that Brochu was aware of McLeod's trial or whereabouts in 1996.

[¶6] In 2014, the parties' son, then forty-two years old, asked Brochu for information about his biological father. Brochu conducted a Google search of McLeod's name and in less than five minutes was able to find McLeod's address in California.

[¶7] On March 30, 2015, Brochu filed a motion to enforce the nearly forty years' overdue child and spousal support payments. McLeod filed a motion to dismiss on July 6, 2015, asserting the affirmative defense of laches, among other things.2 The District Court held a hearing on July 29, 2015, at which both Brochu and McLeod testified.

[¶8] The following exchange occurred regarding Brochu's efforts to locate McLeod over the years: THE COURT: Let me cut to the chase. Were you able to learn during the late 1970s and into the '80s while your children were still living with you where [McLeod] was?

[BROCHU]: No, I had no idea where he was . . .

THE COURT: And what efforts did you make after the divorce was granted to find out where he was?

[BROCHU]: Well, after the divorce . . . it just became . . . a non-issue. Again, at that time I still didn't know how to go about finding him, even beginning to know where he could possibly be.

THE COURT: So you were just willing to move along within life knowing that you had your two kids and you were going to have to provide for them?

[BROCHU]: That--I accepted that, yes.

. . . .

[MCLEOD'S ATTORNEY]: So after the divorce was finalized in 1979 to 2014, you in fact made no effort to locate [McLeod]? [BROCHU]: No, I didn't.

Brochu also explained that she thought she lost any right to pursue child support once both of her children had attained the age of majority in 1990. After locating McLeod in 2014, however, she soon consulted an attorney and instituted this action against McLeod.

[¶9] McLeod's testimony at the hearing was limited. McLeod contended that he never paid child or spousal support because Brochu had left him and he was unable to find her or their children. McLeod also testified that the only time he looked for their children was in the 1970s. McLeod offered no information as to his assets or income; whether he would have done anything differently had he known that he would ultimately have to pay the child support arrearages; or whether he had any additional children.

[¶10] At the hearing, the court took the defense of laches under advisement. With regard to the interpretation of the parties' settlement agreement, the court concluded that the agreement did not require spousal support payments for life, instead interpreting the language to limit the payments to a term of eighteen months. The court reasoned that " [t]here was absolutely no intention that there be lifetime alimony. There are meant to be 18 months of spousal support, after a short marriage, and that even wouldn't be paid if one of them died or if she remarried or cohabitated during that 18[-]month period."

[¶11] With regard to the amounts owed by McLeod, the principal sum of the child support arrears is $29,200, and the spousal support owed is about $3,000. Brochu contends that, after assessing both pre- and post-judgment interest, McLeod owes her over $400,000.

[¶12] In its order dated August 3, 2015, the court granted McLeod's motion to dismiss, concluding that (1) laches is available as a defense in child support arrearage cases, and (2) the elements of laches were satisfied. Brochu appealed.


[¶13] " Laches is negligence or omission seasonably to assert a right. It exists when the omission to assert the right has continued for an unreasonable and unexplained lapse of time, and under circumstances where the delay has been prejudicial to an adverse party, and where it would be inequitable to enforce the right." Dep't of Human Servs. v. Bell, 1998 ME 123, ¶ 7, 711 A.2d 1292 (quotation marks omitted). We review de novo whether the doctrine of laches bars a claim. Cloutier v. Turner, 2012 ME 4, ¶ 11, 34 A.3d 1146.

A. Whether Laches Applies to Child Support Arrearages


To continue reading