Dean v. Dean
| Decision Date | 05 October 1995 |
| Docket Number | No. 94-1027,94-1027 |
| Citation | 665 So.2d 244 |
| Parties | 20 Fla. L. Weekly D2245 Doyle E. DEAN, Appellant, v. Elizabeth DEAN, f/k/a Betty Dean, Appellee. |
| Court | Florida District Court of Appeals |
Jan. 17, 1996.
Luther M. Taylor, Palm Beach Gardens, for appellant.
Rosenthal, Rosenthal & Rasco and Daniel Kaplan, N. Miami Beach, for appellee.
Before HUBBART, JORGENSON and GERSTEN, JJ.
This is an appeal by the husband Doyle E. Dean from a final order enforcing a 1964 divorce decree by awarding the wife Elizabeth Dean child support arrearages due under the decree. Although (a) the arrearages began in 1964 when the husband ceased making any child support payments after only several months of payments, and (b) the youngest of the parties' two minor children reached his majority in 1979, no action was brought by the wife seeking recovery of the child support arrearages until August 1993, when the action below was filed. The trial court rejected the husband's affirmative defense of laches on the basis that (a) the wife's proffered reasons for not commencing the instant action from 1964-93 were all justifiable, and (b) the husband was not prejudiced by the delay. We disagree and reverse.
The trial court made the following findings of fact in an extensive and thoughtful order which is now under review.
"The parties were married on March 13, 1954, in Brevard, Florida. The parties had two children, namely, Christine E. Dean, n/k/a Christine Salinetro, born April 13, 1961; and Edward J. Dean, born February 13, 1958. A final decree of divorce between the parties was entered on March 31, 1964. Pursuant to the Decree, the Husband was to pay to the Wife, as support, the sum of $90.00 per month per child. Support payments were to commence on April 1, 1964 and '... continue each and every month thereafter until each child reaches the age of 21 years or otherwise becomes emancipated sooner.'
The Wife claims that the Husband never paid child support. She claims that 181.5 months of child support are due for a total of $16,362 for Edward Dean, and 216.5 months are due for a total of $19,485 for Christine Dean n/k/a Christine Salinetro. The Wife testified, and the Court finds, that she supported the two children of the marriage through their emancipation without support from the Husband except for the first four months following the entry of the Divorce Decree.
....
In 1965, the Wife remarried. The Husband claims that the Wife never advised him of her remarriage or the address where she and the children resided. The Wife denies this claim and testified that the Husband telephoned her at her new residence. She stated that he made no demand for visitation, nor did they discuss child support. The Court finds the Wife's testimony to be credible.
In 1968, the Husband relocated to Palm Beach. The Wife was not aware of his relocation. In 1968, the Wife remarried again following a divorce from her second husband. She concedes that she did not advise the Husband of her divorce, remarriage or new residence. Likewise, the Husband made no effort to locate her or the children. When asked why she did not seek court assistance to collect past due child support from 1964 to 1968, she testified that she was in fear of her Husband due to the fact that he was physically abusive during the marriage and the divorce was 'nasty.'
In 1969, the Wife attempted to locate the Husband through an agency in order to seek past due child support. However, she received information which led her to believe that the Husband was dead. The Husband questions the Wife's credibility on this point, contending that she made no effort to verify his purported demise with the Husband's family who resided in Miami and in Brevard County. He testified that he never hid from the Wife. Nonetheless, the Court concludes that the Wife's testimony is credible. The Court finds that the Wife did not know that the Husband was alive until 1985.
Both Edward and Christine moved from their mother's home upon reaching the age of 18 years. Each held employment. The wife testified that they returned to the home prior to the age of 21 and that she continued to support them. Her testimony was indefinite in this regard. Rather, the Court finds that each child was emancipated at the age of 18 years. [The youngest child attained majority in 1979.]
In 1985, when the Wife and children learned that the Husband was alive, Edward Dean, sought to reconcile with his father. The Court finds that he requested the Wife to forbear any action to recover child support in order to encourage the reconciliation. The Wife accommodated his request believing reconciliation was more important than recovery of past due support obligations. Thereafter, Edward relocated to Palm Beach, Florida, to assist his father in his business. Within a short time, the Husband terminated Edward's employment.
In 1989, Edward and the Husband again sought reconciliation. The Husband was invited to Edward's wedding. In turn, the Husband gave Edward a deed to a condominium and a ring. The Husband testified that the condominium was worth $28,000.00 and that the ring was worth $11,000. Edward sold the condominium in 1991 for $20,000. The Court finds that both the condominium and the ring were wedding gifts. Shortly after the wedding, Edward and the Husband had irreconcilable differences. At that time Edward urged the Wife to seek past due child support. While the Wife is a Judicial Assistant to a county court judge, she has been unable to afford an attorney until present counsel agreed to file the present action.
The Husband testified that he is now 58 years old. He has been remarried three times. His most recent marriage has been within the last nine months. He testified that he has raised and supported two other children (now ages 25 and 26) from his prior marriages, and currently pays child support in amount of $749.00 a month for a child (age 11) of another marriage. He pays another ex-wife lump sum alimony. In his current marriage, he is raising two children of his new wife. According to his statement of net worth, the Husband has a total net worth of $124,116 (Petitioner's Exhibit 3).
In regard to prejudice, the Husband claims that (i) he would not have given the condominium and ring to his son on his wedding if he knew he would be obligated for child support arrearages; and (ii) that he never would have married and had additional children, or would have assumed additional child support obligations, if he knew that his Wife would now seek past due child support that had not been sought over the last thirty years. Moreover, as a businessman in Palm Beach, he claims he never would have assumed extensive personal obligations on certain mortgages and other obligations for which he has personal liability if he knew that he had to pay past due child support obligations, plus interest, to the Wife.
The Wife admits that she did not contact the Husband concerning child support from 1964 to 1969, and from 1985 until this action was filed. As indicated above, she initially did not seek relief due to fear of the Husband. Thereafter, she believed he was dead until 1985. From 1985 to 1990, she decided to forbear against the Husband at the request of her son to encourage reconciliation. The Husband and son's efforts towards reconciliation terminated in 1990. Since then, the Wife testified that she has sought counsel to assist her in filing this action."
Order on Pet. for Enforcement of Final J. at 2-6.
On August 2, 1993, three years later, the wife filed a petition to enforce the final judgment in which she sought child support arrearages from the husband for the years 1964-79, plus interest. The husband answered by asserting the equitable defense of laches. The trial court rejected the defense of laches, granted the petition to enforce the final judgment, and ultimately awarded the former wife $35,847.00 in child support arrearages, plus interest, for a total of $88,590.04. The husband appeals.
The law is well settled that a proceeding for the enforcement of periodic alimony or child support orders is equitable in nature and is not barred by the running of the statute of limitations. 1 The defense of laches, however, may be employed to bar a claim for arrearages due under a child support order, where, as here, extraordinary facts or compelling circumstances are shown and the child's welfare is not otherwise jeopardized. 2 In order for the defendant to establish the defense of laches in an action of this nature, the defendant must prove the following elements:
1. Conduct on the part of the defendant, or on the part of one under whom he/she claims, giving rise to the situation of which the complaint is made;
2. The plaintiff, having had knowledge of the defendant's conduct, and having been afforded the opportunity to institute suit, is guilty of not asserting his/her rights by filing suit;
3. Lack of knowledge on the defendant's part that the plaintiff will assert the right on which he/she bases the suit; and
4. Injury or prejudice to the defendant in the event relief is accorded to the plaintiff or the suit is held not be barred. 3
Although the defendant must prove each of the elements of laches, the elements are closely related and are somewhat dependent on each other.
The husband, without dispute, established the first and third elements of laches below. As to the first element, it was shown that the husband ceased supporting the parties' two minor children in August 1964 in violation of the divorce decree; as of that date, the wife clearly had a cause of action against the husband to enforce overdue child support payments. As to the third element, it was shown that the husband had no knowledge from 1964-93 that the wife ever intended to bring the present suit; the parties had limited contact during these thirty years, and at no time in the course of this period did the...
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