Connin v. Bailey

• Decision Date: 13 December 1984
• Docket Number: No. 84-560,84-560
• Citation: 15 OBR 134,472 N.E.2d 328,15 Ohio St.3d 34
• Parties: , 15 O.B.R. 134 CONNIN, Appellee, v. BAILEY, Executor of the Estate of Connin, Appellant.
• Court: Ohio Supreme Court

Page 34

15 Ohio St.3d 34

472 N.E.2d 328, 15 O.B.R. 134

CONNIN, Appellee, v. BAILEY, Executor of the Estate of Connin, Appellant.

No. 84-560.

Supreme Court of Ohio.

Dec. 13, 1984.

Mildred L. Connin, appellee, and Bernard D. Connin, appellant's decedent, were married in 1929. Two children, one born in 1930 and the other in 1931, were issue of the marriage. The couple was divorced in 1934 and custody of the two minor children was awarded to appellee. Decedent was ordered to pay child support and alimony.

Bernard Connin died testate on February 28, 1982. Appellee presented a claim to Richard G. Bailey, the executor of decedent's estate, appellant herein, based on unpaid child support and alimony, and interest thereon. Appellant rejected the claim in full, and the appellee then filed a complaint on June 21, 1982 against decedent's executor for arrearages in child support, with interest, totaling $28,305.53.

The case was tried to the court on February 3, 1983. Appellee testified that, pursuant to a judgment entry dated June 28, 1934, she was granted child support in the amount of $3 per week for each of the parties' two children and a lump sum alimony award of $100, payable in ten monthly installments. Appellee further testified that she had sought court enforcement of her alimony and child support rights on numerous occasions thereafter.

Appellee stated, and the record so supports, that she made her last court appearance in 1946, requesting the decedent to be held in contempt. The court found the decedent to be in arrears for child support in the amount of $2,051.87, and held him in contempt on November 22, 1946. Appellant testified that since this date she has never received any child support or alimony payments from the decedent.

Appellee testified that she did not pursue the matter after November 1946, because she felt it was a waste of time and money to appear in court since she did not receive anything as a result of having so appeared. She testified further that each court appearance necessitated that she take time off from work, pay train and bus fare to return to Bryan, Ohio, as well as additional expenses, which worked a great financial hardship upon herself and her children.

The record also indicates that appellee knew of the decedent's whereabouts at all times. It also indicates that an allotment was made for the two children while the decedent served in the military from 1942 until 1945.

The trial court found that the doctrine of laches was a complete bar to this action and entered final judgment for the estate.

On appeal, the judgment was reversed and Mildred Connin was awarded $28,305.53. The appellate court found that the doctrine of laches did not bar suit because an acceptable explanation was given for the delay and because " * * * the record * * * fails to disclose any evidence that * * * [the decedent] * * * has been materially prejudiced by the * * * delay in asserting * * * [the] claim."

This cause is now before the court pursuant to the allowance of a motion to certify the record.

Gallagher, Milliken & Stelzer and John C. Milliken, Bryan, for appellee.

Newcomer, Shaffer, Geesey & Hutton and Wayne E. Shaffer, Bryan, for appellant.

Kathy L. Ellison, Dayton, urging affirmance for amicus curiae, Ohio National Organization for Women Legal Defense and Education Fund.

PER CURIAM.

The sole issue presented is whether the doctrine of laches constitutes a complete defense to a claim, instituted after some thirty-five years, to recover arrearages in child support and alimony against decedent's estate. This court concludes that, based on this record, the doctrine of laches does not operate to bar this claim.

The applicable law is not in dispute. "Laches is an omission to assert a right for an unreasonable and unexplained length of time, under circumstances prejudicial to the adverse party. It signifies delay independent of limitations in statutes. It is lodged principally in equity jurisprudence." Smith v. Smith (1957), 107 Ohio App. 440, 443-444, 146 N.E.2d 454 .

In order to invoke the doctrine of laches, the following, as set forth in Smith v. Smith (1959), 168 Ohio St. 447, 156 N.E.2d 113 , paragraph three of the syllabus, must be established:

"Delay in asserting a right does not of itself constitute laches, and in order to successfully invoke the equitable doctrine of laches it must be shown that the person for whose benefit the doctrine will operate has been materially prejudiced by the delay of the person asserting his claim." Accord Kinney v. Mathias (1984), 10 Ohio St.3d 72, 461 N.E.2d 901.

The question in this case thus becomes whether facts have been stated to persuade the conscience of the court to grant appellant relief from the rights asserted by appellee. This court would stress that the facts of this case are basically undisputed.

Unquestionably, appellee waited thirty-five years to prosecute her claim against the decedent. Appellee offered an acceptable explanation for this delay, however. Appellee testified as to the time and expense involved in going to court on this matter; each court appearance required her to take time off from work, pay train and bus fare and additional expenses, resulting in financial hardship to her children as well as to herself. The record indicates without contradiction that appellee's consistent, good-faith efforts to recover...