Marriage of Jones, Matter of

• Decision Date: 09 August 1996
• Docket Number: No. 73754,73754
• Citation: 22 Kan.App.2d 753,921 P.2d 839
• Parties: In the Matter of the Marriage of Mary A. JONES, Appellant/Cross-Appellee, and William J. Jones, Appellee/Cross-Appellant.
• Court: Kansas Court of Appeals

Page 839

921 P.2d 839

22 Kan.App.2d 753

In the Matter of the Marriage of Mary A. JONESAppellant/Cross-Appellee and William J. Jones, Appellee/Cross-Appellant.

No. 73754.

Court of Appeals of Kansas.

Aug. 9, 1996.

Review Denied Sept. 25, 1996.

Syllabus by the Court

1.The doctrine of laches is an equitable principle designed to bar stale claims.When a party neglects to assert a right or claim for an unreasonable and unexplained length of time and the lapse of time and other circumstances cause prejudice to the adverse party, relief is denied on the grounds of laches.

2.The mere passage of time is not enough to invoke laches.The court must consider the circumstances surrounding the delay and any disadvantage to the other party caused by that delay.

3.Under the facts of this case, where the obligor and obligee agreed to a child support payment of $1,200 a month, placed the figure of $1,800 in the divorce decree solely for the purpose of deceiving a lending institution into making a loan to the obligee, and the obligee made no claim for the additional $600 a month for 12 years, the trial court did not err in applying laches to the claim.

4.The limitation on the doctrine of laches in relation to child support payments owed to minor children is discussed and applied.

5.The rules considering modification of contractual alimony are discussed and applied.

Dennis J. Molamphy, Wichita, for appellant/cross-appellee.

John Dee Roper, Wichita, for appellee/cross-appellant.

Before PIERRON, P.J., MARQUARDT, J., and JAMES J. SMITH, District Judge, Assigned.

JAMES J. SMITH, District Judge, Assigned:

Mary A. Jones and William J. Jones were divorced on June 8, 1982.Two children, April and Sandra, were born of the marriage.The decree of divorce incorporated a property settlement agreement dated May 26, 1982.The agreement originally set William's child support obligation at $1,200 per month.That amount was stricken, and the sum of $1,800 per month was inserted and initialed by both parties.William has paid $1,200 per month from the beginning.At a 1987 hearing concerning health insurance, no claim for back child support payments was raised by Mary.

On May 10, 1994, Mary filed a motion for revivor to collect the deficiency in support payments from William.At the time Mary filed this motion, April was 19 years old and Sandra was 16 years old.

William filed a motion to terminate alimony and a motion to set aside the alimony judgment.

At the hearing on the motions, Mary testified the reason for the modification in child support amount was that she needed to qualify for a loan.William testified he did not remember any modification and had paid $1,200 per month from the beginning, as this was his understanding of the agreement.Mary testified that she knew William owed $1,800 per month, but she had not raised the deficiency issue since 1982 because she thought she might lose her alimony.

At the hearing on the motion for revivor in 1994, the court ruled that Mary was guilty of laches and that it would be inequitable and inappropriate for her to recover back payments dating back to June 25, 1982.It also denied William's motions to terminate alimony.

Both Mary and William appeal from the trial the court's rulings.

Mary claims that the dormancy and revivor statutes found in K.S.A. 60-2403andK.S.A. 60-2404 supersede the equitable doctrine of laches.She also argues that because their daughter Sandra is still a minor, the doctrine of laches cannot apply to her.

"Interpretation of a statute is a question of law.An appellate court's review of a question of law is unlimited."Foulk v. Colonial Terrace, 20 Kan.App.2d 277, Syl. p 1, 887 P.2d 140(1994), rev. denied257 Kan. 1091(1995).

"The common law as modified by constitutional and statutory law, judicial decisions, and the conditions and wants of the people, shall remain in force in aid of the General Statutes of this state; but the rule of the common law, that statutes in derogation thereof shall be strictly construed, shall not be applicable to any general statute of this state, but all such statutes shall be liberally construed to promote their object."K.S.A. 77-109.

K.S.A. 60-2403(a) states that a judgment becomes dormant 5 years after the date of entry of a judgment.When a judgment remains dormant for years, it may be extinguished.However, there are exceptions to this rule in K.S.A. 60-2403(b):

"(1) If a judgment for the support of a child becomes dormant before the child's emancipation, it shall be the duty of the clerk of the court to release the judgment of record when requested to do so only if the judgment has remained dormant for the period prior to the child's emancipation plus two years.When, after the child's emancipation, a judgment for the support of a child becomes and remains dormant for a period of two years, it shall be the duty of the clerk of the court to release the judgment of record when requested to do so.

"(2) The provisions of this subsection shall apply only to those judgments which have not become void as of July 1, 1988."

Prior to July 1, 1988, a judgment was considered dormant 5 years from the date of the judgment, and after remaining dormant for 2 years, the clerk of the court could release the judgment.SeeK.S.A.1987 Supp. 60-2403;K.S.A.1985 Supp. 60-2403;K.S.A.1984 Supp. 60-2403.Thus, prior to 1988, all judgments that were more than 7 years old would have been void.In the instant case, none of the judgments would be void because the payments were to begin on June 25, 1982; thus, 7 years had not elapsed on any of the support judgments.Therefore, the 1988amendment to K.S.A. 60-2403 would apply to the support judgments in the present case.

K.S.A. 60-2404 states in pertinent part:

"If the motion for revivor was filed within two years after the date on which the judgment became dormant or, in the case of a child support judgment, was filed during the period prior to the child's emancipation, within two years after the child's emancipation or within two years after the judgment became dormant, whichever is later, on the hearing thereof the court shall enter an order of revivor unless good cause to the contrary be shown, and thereupon the execution shall issue forthwith.On the hearing of a motion to revive a child support judgment, the court may enter an order to prevent the unjust enrichment of any party or to ensure that payments will be disbursed to the real party in interest."(Emphasis added.)

"The doctrine of laches is an equitable principle designed to bar stale claims.When a party neglects to assert a right or claim for an unreasonable and unexplained length of time and the lapse of time and other circumstances cause prejudice to the adverse party, relief is denied on the grounds of laches.The mere passage of time is not enough to invoke the doctrine.For laches to apply, the court must consider the circumstances surrounding the delay and any disadvantage to the other party caused by that delay."Steele v. Guardianship & Conservatorship of Crist, 251 Kan. 712, Syl. p 9, 840 P.2d 1107(1992).

K.S.A. 60-2404 specifically states that, "the court shall enter an order of revivor unless good cause to the contrary be shown."The statute does not specifically define what is meant by "good cause."We find that equitable principlessuch as laches guide the court in its determination of what good cause entails.Thus, we find the legislature did not abrogate equitable remedies in enacting the dormancy and revivor statutes.

During the revivor hearing, the 1994court noted that Mary had listed her child support income as $1,200 rather than $1,800 on certain documents.Mary also testified that on certain occasions she was paid child support directly by William and then she would receive an additional check from the court; on the occasions when double checks were issued, she discarded one of the checks instead of cashing them both.Further, at a 1987 hearing concerning health insurance, Mary made no claim for back child support payments.It is evident from the trial court's findings that Mary neglected the enforcement of any claim for the additional $600 for a period of almost 12 years.

In its findings of fact in the journal entry, the 1994court found:

"At no time did Petitioner and Respondent intend that Respondent would pay Petitioner $1,800 per month.The true intention of the parties at all times was that Petitioner was to receive $1,200 per month.The evidence is clear that Petitioner never did request more than $1,200 per month child support and that Respondent was reasonably prompt and did make all child support payments at the rate of $1,200 per month starting June 25, 1982."

The 1994court found, in its conclusions of law:

"As a matter of law ... Petitioner is guilty of laches and ... it would be wholly inequitable and inappropriate for Petitioner to be able to now go back all the way to June 25, 1982, and seek to recover $600 per month, which represents the difference between the original number inserted in the Agreement and the number placed in the final Decree."

During trial, the 1994court stated;

"I think it is clear that it would be terribly inequitable to now go back and enforce something, I don't even know how much this would come to, hundreds of thousands of dollars, imagine with interest but 70 or $90,000, $600 a month when both of these partiesthey have been constantly in contact with each other.The support payments have been made every single month."

The specific circumstances of this case warrant the doctrine of laches being used even though the statute of limitations has not run, as the 1994court found "good cause" to not issue the order of revivor.

There is case law in Kansas that supports the use of laches in child support cases.In McKee v. McKee, 154 Kan. 340, 341, 118 P.2d 544(1941), the child support was initially set at $70 per month in 1920.Later, in 1920, it was...