In re Marriage of Dancy

• Decision Date: 08 August 2000
• Docket Number: No. E021923.,E021923.
• Citation: 98 Cal.Rptr.2d 775,82 Cal.App.4th 1142
• Court: California Court of Appeals Court of Appeals
• Parties: In re the MARRIAGE of Kay Carol and John Edward DANCY. Kay Carol Black, Respondent, v. John Edward Dancy, Appellant.

98 Cal.Rptr.2d 775

82 Cal.App.4th 1142

In re the MARRIAGE of Kay Carol and John Edward DANCY Kay Carol Black, Respondent, v. John Edward Dancy, Appellant.

No. E021923.

Court of Appeal, Fourth District, Division 2.

August 8, 2000.

Certified for Partial Publication.^*

Review Denied November 15, 2000.

Covington & Crowe, Donald G. Haslam and Katrina West, Long Beach, for Appellant.

Franklin J. Brummett, Long Beach, for Respondent.

OPINION

HOLLENHORST, J.

This case involves a delayed action for delinquent child support, brought 28 years after the initial child support order was made and 10 years after the child reached the age of majority. The trial court granted child support arrearages plus interest. We affirm.

I FACTS AND PROCEDURAL HISTORY

John and Kay¹ married on April 21, 1967. They had one son, John Edward Dancy, Jr., ("John Jr.") born on November 13, 1967, before they separated on September 23, 1968.

On March 7, 1969, an interlocutory judgment of divorce was entered, awarding custody of John Jr. to Kay, subject to reasonable visitation by John. Commencing April 1, 1969, John was to pay Kay $75 per month in child support, until John Jr. reached the age of majority, became self-supporting or until further order of the court. A final judgment of dissolution of marriage was entered on July 30, 1970.

On November 20, 1995, Kay filed an order to show cause to establish child support arrearages, including principal and interest. At trial, Kay sought support arrearages for 160 months, amounting to $12,000, plus $30,302.87 interest, for a total of $42,302.87. The 160 months consisted of the following periods: March 1, 1969, through October 31, 1972 (44 months); May 1, 1973, through April 1978 (60 months); and November 1, 1981, through June 30,1986 (56 months).

John opposed Kay's claims, arguing that throughout these periods Kay had interfered with his visitation rights and had concealed herself and John Jr. Nevertheless, John declared that he had paid child support whenever he was able to locate them.

The trial court rejected John's arguments, finding John had not made any child support payments and had not established that Kay had concealed John Jr. With the exception of two periods during which Kay acknowledged no child support payments were owed—November 1, 1972, to April 30, 1973, when Kay was receiving public assistance, and April 1, 1978, to October 31, 1981, when John had custody—the court found, as per the interlocutory judgment of divorce, that John owed back child support of $75 per month from April 1, 1969, to June 1986, when John Jr. graduated from high school. The court calculated the indebtedness to be $11,850, plus interest of $21,821.90, for a total of $33,671.90, due as of September 30, 1997. Interest on the unpaid principal was to accrue at the rate of $3.25 per day, commencing October 1, 1997, and continuing until paid.

John appeals, contending (1) the trial court's finding that Kay did not hide John Jr., was not supported by substantial evidence; (2) the trial court abused its discretion in failing to find Kay was estopped from asserting a claim for child support arrearages due to her concealment of John Jr.; (3) the trial court abused its discretion in failing to find that the doctrine of laches barred enforcement of the child support order; and (4) the trial court erroneously ordered John to pay Kay's attorney fees. We find no merit to these contentions and affirm.

II.^**

III. ESTOPPEL

Because substantial evidence supports the trial court's ruling that Kay did not conceal John Jr., we reject John's next contention that the trial court abused its discretion in failing to find Kay was estopped from asserting a claim for child support arrearages because of that concealment. Given our conclusion above, the claim is patently without merit.

IV. LACHES

John next argues that the trial court abused its discretion by failing to find that laches barred enforcement of the child support order.

Before addressing this issue, however, we must first determine whether laches was even a viable defense for the trial court to consider in an action for the collection of child support arrearages. This is not an issue of first impression.

Recently, in In re Marriage of Fogarty & Rasbeary (2000) 78 Cal.App.4th 1353, 1356, 1363, 93 Cal.Rptr.2d 653 ("Fogarty "), the Second District Court of Appeal concluded that laches is available as a defense in a belated action for past due child support "[i]n view of the facts that the defense of laches has historically been applied to California child and spousal support judgments, that the Legislature did not specifically rule out the defense of laches, and that it appears the Legislature, in considering the proposed legislation, believed laches would still be available as a defense...." Upon analysis, we concur with and adopt the holding in Fogarty.

A. Laches as a Defense Against the Collection of Child Support Arrearages.

Fogarty's conclusion was an extension of our holding in In re Marriage of Plescia (1997) 59 Cal.App.4th 252, 69 Cal.Rptr.2d 120 ("Plescia") that the defense of laches is available to thwart a stale attempt to enforce a judgment for past due spousal support. (Fogarty, 78 Cal.App.4th 1353, 1356, 93 Cal.Rptr.2d 653.) In Plescia, we explained that "[t]he defense of laches is derived from the maxim that `[t]he law helps the vigilant, before those who sleep on their rights.' (Civ.Code, § 3527.) This has been restated as `[e]quity frowns upon stale demands [and] declines to aid those who have slept on their rights.' [Citation.] [11] In practice, laches is defined as an unreasonable delay in asserting an equitable right, causing prejudice to an adverse party such as to render the granting of relief to the other party inequitable. [Citation.] Thus, if a trial court finds (1) unreasonable delay; and (2) prejudice, and if its findings are not palpable abuses of discretion, a finding of laches will be upheld on appeal." (Plescia, at p. 256, 69 Cal.Rptr.2d 120.) Fogarty describes the doctrine of laches in like terms. (Fogarty, at p. 1359, 93 Cal.Rptr.2d 653.)

1. The Equitable Nature of Child Support Proceedings.

We recognize that, unlike spousal support laws, which are considered a form of equitable relief (see Plescia, supra, 59 Cal.App.4th 252, 258, 69 Cal.Rptr.2d 120), child support is strictly a legal right. (Fam.Code, §§ 3585 & 3591, subds. (a) & (b),³ formerly Civ.Code, § 4811, subd. (a).) However, child support proceedings, or where an action to determine arrearages is not a separate action, are equitable proceedings in which the trial court is permitted the broadest discretion in order to achieve fairness and equity. (In re Marriage of Lusby (1998) 64 Cal.App.4th 459, 470-471, 75 Cal.Rptr.2d 263; see also Fogarty, supra, 78 Cal.App.4th 1353, 1360, 93 Cal.Rptr.2d 653 ["family law courts have traditionally been regarded as courts of equity"]; Plescia, at pp. 257, 69 Cal. Rptr.2d 120 ["a matter proceeding under the [Family Code,] falls squarely under the jurisdiction of a superior court"].) Moreover, although accrued arrearages are treated like money judgments that may not be retroactively modified, the trial court nevertheless retains equitable discretion in determining whether and the extent to which original support provisions should be enforced. (Keith G. v. Suzanne H. (1998) 62 Cal.App.4th 853, 861-862, 72 Cal. Rptr.2d 525; Jackson v. Jackson (1975) 51 Cal.App.3d 363, 366-367, 124 Cal.Rptr. 101.) To this end, the trial court may consider whether there are equitable reasons for refusing to enforce a parent's support obligation in its entirety. (Ibid.)

"It is a fundamental duty of the court to provide equity to all parties, and fully dispose of the issues between the parties. [Citation.] Further, in effecting a complete disposition of the litigation before it, equity can extend its jurisdiction to matters that ordinarily are subject to legal cognizance only. [Citation.] Thus, unless the Legislature specifically excluded laches from the jurisdiction of the superior court, the court not only had the power to bring this controversy to an equitable conclusion, it had the duty." (Plescia, supra, 59 Cal. App.4th 252, 258, 69 Cal.Rptr.2d 120.)

2. No Evidence of Legislative Intent to Specifically Exclude Laches as a Defense to Prevent Collection of Past Due Child Support.

The significance of the Fogarty court's analysis was the fact that when the Legislature amended former Civil Code section 4384.5 (now Fam.Code, § 4502) to provide that judgments for child, family, or spousal support were exempt from any requirement for renewal and were enforceable until paid in full, it did not specifically rule out the defense of laches. (Fogarty, supra, 78 Cal.App.4th 1353, 1361-1362, 93 Cal.Rptr.2d 653.) Instead, the legislative history of section 4502 showed that the Legislature believed that laches would continue to be available as a defense. (Fogarty, at p. 1363, 93 Cal.Rptr.2d 653.) Our own analysis of the issue has similarly disclosed no evidence of legislative intent to specifically exclude laches as a defense to prevent the collection of child support arrearages despite the lack of any statute of limitations or the elimination of the due diligence defense. a. The Lack of an Applicable Statute of Limitations.

The wives in both Plescia and Fogarty, as the parties seeking the support arrearages, argued that support obligations have no applicable statutes of limitations and are thus always due until paid under section 4502. (Plescia, supra, 59 Cal.App.4th 252, 259, 69 Cal.Rptr.2d 120; Fogarty, supra, 78 Cal.App.4th 1353, 1361-1362, 93 Cal.Rptr.2d 653.) We rejected the argument in Plescia, noting that even if we assumed there is no statutory limit on the period of time in which a writ of execution can be brought on a judgment for past due support payments, "this would not ipso jure lead us to the position that the equitable defense of laches can never be...