Cowan v. Cowan

• Decision Date: 25 August 2000
• Docket Number: No. 93446.,93446.
• Citation: 2001 OK CIV APP 14,19 P.3d 322
• Parties: Cathy COWAN (now Fisher), Plaintiff/Appellant/Cross-Appellee, v. Stanley Ray COWAN, Defendant/Appellee/Cross-Appellant.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

19 P.3d 322

2001 OK CIV APP 14

Cathy COWAN (now Fisher), Plaintiff/Appellant/Cross-Appellee, v. Stanley Ray COWAN, Defendant/Appellee/Cross-Appellant.

No. 93446.

Court of Civil Appeals of Oklahoma, Division No. 1.

August 25, 2000.

Rehearing Denied September 22, 2000.

Certiorari Denied January 23, 2001.

Joel L. Kruger, Peter G. Pariseau, Kruger & Associates, P.C., Tulsa, OK, for Plaintiff/Appellant/ Cross-Appellee.

Richard T. Garren, Karen E. Langdon, Riggs, Abney, Neal, Turpen, Orbison & Lewis, Tulsa, OK, for Defendant/Appellee/Cross-Appellant.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.

MEMORANDUM OPINION

BUETTNER, J.

¶ 1 Plaintiff/Appellant/Cross-Appellee Cathy Cowan (now Fisher) (Mother), appeals from an order of the trial court which awarded an amount of child support arrearage, but which also determined that laches barred recovery of nine years' worth of arrearages. Defendant/Appellee/Cross-Appellant Stanley Cowan (Father), appeals from the trial court's decisions holding him in contempt for failure to pay four months of child support from October 1984 to January 1985, and denying Father's application to hold Mother in contempt for failing to comply with the visitation ordered in the decree. Mother asserts that the equitable defense of laches is not available to bar recovery of unpaid child support. We agree and reverse and remand for a new determination of the arrearages owed to Mother. Father asserts that the statute of limitations for contempt proceedings is three years and that the trial court was therefore barred from finding him in contempt for failure to pay child support more than three years before Mother filed her application. We reverse the trial court's decision on Mother's contempt application because we find that dormancy bars collection of child support which accrued in 1984 and 1985. We affirm the trial court's denial of Father's contempt application.

¶ 2 Mother and Father were married in 1981. Two children were born of the marriage. The divorce decree was entered September 5, 1984 and filed January 27, 1986. Pursuant to the decree, custody of the children was awarded to Mother. Father was granted visitation in Texas¹ the last weekend of each month, as well as one month during the summer. Each party was ordered to disclose to the other party the children's whereabouts on June 15 and July 15 of each year.² A holiday visitation schedule was also included in the decree. The decree further ordered Father to pay $200 per month as child support, commencing on October 1, 1984, and continuing until the children reach majority.

¶ 3 The testimony revealed that Father never paid child support or exercised visitation from the time the decree was entered until Mother contacted him in September 1995. Father testified that he failed to pay child support in part because Mother's family told him the parties' children were dead. Father made little effort to determine the truth of this allegation. Mother conceded that she failed to inform Father of the children's whereabouts as required by the decree, but she asserted that her mother's address in Tulsa remained the same and that Father could have contacted her through her mother. Father testified that Mother's mother would not give him information regarding Mother or the children. Mother testified that she lived in Texas for two years after the decree was entered and then returned to Tulsa. Mother testified that she had used at least three different last names since the entry of the decree. While she was living in Tulsa, Mother occasionally sought to find Father, but was unsuccessful until she located him in Sallisaw in 1995. At the time of trial in February 1999, Father had paid all child support due from August 1994 through January 1999, without interest, however.

¶ 4 Mother filed her application for contempt August 6, 1997. Mother alleged Father owed $62,530 in unpaid child support and interest.³ Father filed his answer and counterclaim for contempt September 25, 1997. Father alleged Mother was in contempt for denying Father's visitation rights from the time of the decree through September 1995.

¶ 5 Trial on these issues was held January 6, 1999. In its order, the trial court held 1) Mother never attempted to notify Father of the whereabouts of the children as required by the decree; 2) Mother failed to make any effort to collect child support; 3) Father made no child support payments immediately following the decree; 4) Father should have made child support payments until January 1985 (which amounted to $900); 5) Father acknowledged his obligation to pay child support from August 1994 until August 1995 and Mother is to have judgment for the statutory arrears (interest) from August 1994 through August 1995 up to the time of payment in June 1998; 6) Father is further ordered to pay interest on other specific late payments made during 1996 and 1997; 7) Mother's claim for child support from January 1985 through August 1994 is barred by laches and Father therefore has no obligation for child support during that period; 8) there was no evidence of a specific denial of visitation and accordingly, the court did not find Mother to be in contempt; and 9) Father was found guilty of contempt for failure to pay child support from September 1984 through January 1985 and was sentenced to 30 days in jail with the purge fee set at $900.

¶ 6 Mother relies on this court's opinion in Aguero v. Aguero, 1999 OK CIV APP 38, 976 P.2d 1088, for its holding that equitable defenses such as laches, estoppel, waiver, and release are not available to obligor parents in actions to recover unpaid child support. In Aguero, the parties divorced in 1987 and the father never paid the full amount of child support owed each month. In 1997, DHS filed an application for contempt citation in which it alleged arrearages of $44,650. At the hearing, the parties disputed the amount of arrearages owed, but both parties agreed that the father had failed to pay over $20,000. The father alleged that the mother acquiesced in the reduced and sporadic child support payments he made and asked the court for equitable relief and a finding that no back support was owed. The trial court applied the law of waiver and equitable estoppel and awarded Mother an arrearage of $3,150. In determining whether equitable defenses were available to an obligor parent in an action for unpaid child support, this court examined three cases: McNeal v. Robinson, 1981 OK 43, 628 P.2d 358; Kissinger v. Kissinger, 1984 OK CIV APP 52, 692 P.2d 71; and Thrash v. Thrash, 1991 OK 32, 809 P.2d 665.

¶ 7 The Aguero court determined that, while those cases appeared to support the use of equitable defenses in child support cases, upon closer inspection, McNeal actually only provided for equitable relief where an obligor parent has alternatively satisfied his obligation to support his children, in the form of voluntary expenditures for the benefit of the children or assuming physical custody of the children. In fact, McNeal never used the phrase "equitable defenses" to excuse nonsupport of an obligor parent's children.

¶ 8 In Aguero, this court further determined that in Kissinger, this court erroneously extended McNeal to allow a finding that the mother waived her right to enforce unpaid child support, a finding that the Aguero court termed "expanding McNeal far beyond what we perceive as its intended reach."

¶ 9 In Thrash, the trial court ordered a large arrearage and on appeal, the father asserted equitable defenses in asserting that the mother waited seven years to enforce the terms of the decree. The Supreme Court found that no set of facts had been presented to support the father's equitable defenses. The court did say that the "father is correct in concluding that equitable defenses may be invoked to bar the recovery of delinquent child support payments." However, in Aguero, this court noted that that statement by the Supreme Court came immediately after its discussion of McNeal, in which the Supreme Court noted that McNeal allowed equitable consideration of the fact that the father in McNeal failed to make child support payments only while the children were residing with him. This court in Aguero therefore concluded that the Thrash court did not intend to extend the full range of equitable defenses to excuse noncompliance with a support order.

¶ 10 In Aguero, this court held, in pertinent part:

We believe the status of Oklahoma jurisprudence in regard to the interposition of "equitable defenses" in a child support collection action is still limited to the facts and holding of McNeal: a child support obligor may be given some form of credit against an arrearage for alternative compliance with the support order. Nothing in the subsequent case law convinces us that McNeal's equitable recognition of "alternative compliance" has been, or should be, expanded to include the divergent concept of "noncompliance due to laches, estoppel, waiver." . . . . (O)ur conviction that equitable defenses are not available to excuse noncompliance with a support order is clearly supported by public policy. The award of child support is for the benefit of the child. Children are entitled to support from both of their parents, and one parent should not be able to waive a child's right to support from the other. Recognizing the entire gamut of equitable defenses would afford parents too much discretion in complying with court-ordered support....

¶ 11 Although Father argues that he should be excused from payment of child support because the children were secreted from him for several years, there is no evidence that Mother ever told Father that the children were dead. Mother and the children should not be punished for the actions of Mother's mother, who allegedly told Father he would never see the children alive again. Furthermore, Mother and the children returned to Tulsa after only two...