Hauck v. Schuck

• Citation: 143 Colo. 324,353 P.2d 79
• Decision Date: 13 June 1960
• Docket Number: No. 18991,18991
• Parties: Jennie HAUCK, Executrix of the Estate of George A. Schuck, Deceased, Plaintiff in Error, v. Elsie L. SCHUCK, Claimant, and Ruby L. Olson, Claimant, Defendants in Error.
• Court: Supreme Court of Colorado

Page 79

353 P.2d 79

143 Colo. 324

Jennie HAUCK, Executrix of the Estate of George A. Schuck, Deceased, Plaintiff in Error, v. Elsie L. SCHUCK, Claimant, and Ruby L. Olson, Claimant,

Defendants in Error.

No. 18991.

Supreme Court of Colorado, In Department.

June 13, 1960.

Grace Kenehan, Denver, for plaintiff in error.

Thomas L. Ford, Denver, for defendants in error.

DOYLE, Justice.

Plaintiff in error as executrix of the estate of George A. Schuck, deceased, seeks review of a judgment of the district court which allowed the claim of defendant in error Elsie L. Schuck. The parties will be referred to herein as claimant and executrix.

The claim was first asserted in the county court. Its basis was unpaid installments under a child support order entered as part of a divorce decree. The decedent had been ordered to pay $25 per month for the support of his daughter, Ruby L. Olson, who also appears as a defendant in error. Ruby Olson's rights are not involved in this review. The claim was filed in the County Court on November 15, 1957. The divorce decree was entered on September 23, 1929. Ruby L. Schuck, now Ruby L. Olson, was born July 13, 1920.

In her claim, filed in the probate court, the claimant had sought to recover a total of $3,662.50, which represented all of the amounts which had accumulated from the date of the divorce until Ruby reached majority, with the exception of $175, which sum was admittedly paid by decedent.

The county court allowed the claim to the extent of $1,087. The balance was disallowed on the theory that it was barred by the 20-year statute of limitations applicable to judgments, C.R.S. '53, 77-1-2. All amounts which had accrued prior to November 15, 1937, 20 years prior to the date of the filing of the claim, were disallowed. This left the period starting November 15, 1937, and continuing to July 13, 1941, the date on which Ruby became 21.

The district court adopted the findings of the county court and, in entering judgment, observed:

'The Court: I think the county court reached a proper conclusion in this case, and that its judgment and findings should be substantially adopted and affirmed by this court. And that will be done and that will be the findings of the court.

'The defense of laches, in my judgment has not been established. The mere lapse of time is not sufficient to bar a claim on the ground of laches. There are some things, outside of the lapse of time, which have been established, but not sufficient, in my judgment to invoke the remedy of laches. And as far as the emancipation is concerned, the only proof was that this young lady was working part of the time and receiving a small pittance for her labor, not sufficient to completely support her away from the mother's house.'

In seeking a reversal the executrix urges the following: (1) That the claim is barred by laches; (2) That the evidence established beyond dispute that Ruby was emancipated at the age of 19; (3) That claimant failed to present clear and convincing proofs to establish the amount of her claims.

It seems clear from a long line of our decisions, illustrated by Burke v. Burke, 127 Colo. 257, 255 P.2d 740; Ferkovich v. Ferkovich, 130 Colo. 228, 274 P.2d 602; Jenner v. Jenner, 138 Colo. 149, 330 P.2d 544, and our most recent pronouncement in Beardshear v. Beardshear, Colo., 352 P.2d 969, that accrued installments of support or alimony are final judgments. The appropriate statute of limitations is that which pertains to judgments, C.R.S. '53, 77-1-2. Both county court and district court were correct in applying this limitation provision. From this it follows that the computation was correct and unless the court erred in its refusal to hold that the claims in question were barred by laches the judgment must be affirmed.

There are a number of decided cases which have considered the question whether laches can operate in circumstances such as the present one. See Price v. Price, 80 Colo. 158, 249 P. 648; Lowell v. Arnett, 104 Colo. 343, 90 P.2d 957; Hamilton v. Hamilton, 104 Colo. 615, 94 P.2d...