McKee v. McKee

• Decision Date: 08 November 1941
• Docket Number: 35259.
• Parties: McKEE v. McKEE.
• Court: Kansas Supreme Court

118 P.2d 544

154 Kan. 340

McKEE v. McKEE.

No. 35259.

Supreme Court of Kansas

November 8, 1941

Syllabus by the Court.

Where divorce decree provided for payment of specified monthly installments by father for support of minor child mother's right to recover unpaid portion of each such monthly installment became barred by limitation five years after each such installment became due and payable, since where alimony or child support is ordered paid in installments, each installment when due is regarded as a "judgment" taking effect as of the date due. Gen.St.1935, 60-306, subd. 6.

Lapse of time alone will not ordinarily support a defense of "laches", but it has been held sufficient to make the doctrine applicable in cases where it would be clearly inequitable to permit the enforcement of bare legal rights or where the delay in asserting rights has been wholly unreasonable.

"Acquiescence" of person seeking recovery in action of adverse party against whom recovery is sought is an important factor in determining whether there has been such "laches" as will bar recovery.

All facts and surrounding circumstances are to be considered in determining the applicability of doctrine of laches, since such doctrine is equitable in character.

Where divorce decree ordered husband to pay $60 per month for support of child during minority but mother for more than 19 years accepted without objection monthly payments of only $50, and made no effort to collect deficiency in monthly installments until after child had attained majority and executed release of both father and mother from any further claim so far as judgment and orders of court were concerned mother's right to recover deficiency in any monthly installment, even those accruing within the preceding five years, was barred by "laches".

The decree in a divorce proceeding ordered payment by the husband of $60 a month for the support and maintenance during minority of a child then one or two years of age. Soon thereafter the payments were reduced by the husband to $50 a month and were accepted in that amount by the former wife every month for more than nineteen years and until after the child had become of age and no longer required or asked support from either parent.

In an action in which the former wife sought to recover the alleged deficiency of $10 a month over the whole period it is held (1) The trial court correctly ruled that all alleged deficiencies in the monthly installments due and unpaid for more than five years were barred by the statute of limitations, G.S.1935, 60-306, par. 6; (2) by acquiescence in the reduction to $50 and by her acts and conduct viewed in the light of all the facts and circumstances set out in the opinion, the appellee was barred, by her laches, from recovering any of the alleged deficiencies in the monthly payments.

Appeal from the District Court, Montgomery County; Joseph W Holdren, Judge.

Action by Nelle J. McKee against John G. McKee, wherein plaintiff was granted a divorce and defendant was ordered to make stipulated monthly payments for support of minor child. Defendant filed application for an order declaring the judgment under divorce decree satisfied, and plaintiff, answering, sought judgment for deficiency of $10 per month in monthly payments. From a judgment in favor of plaintiff for monthly deficiency of $10 over five-year period, defendant appeals, and from order overruling her motion for new trial, plaintiff cross-appeals.

P. L. Courtright, of Independence, for appellant.

Thos. E. Wagstaff and Jay W. Scovel, both of Independence, for appellee.

HOCH Justice.

By appeal and cross-appeal we are asked to determine what if any further payments for child support should be required from the appellant.

On June 22, 1920, Nelle J. McKee was granted a divorce from John G. McKee and the defendant ordered to pay $70 a month for the support and maintenance of a minor child, then one or two years of age. On September 2, 1920, this amount was reduced, under order of the court, to $60 a month. Under circumstances presently to be related, appellant reduced the payments to $50 a month and beginning in February, 1921, appellee received and accepted such monthly payments of $50 for more than nineteen years.

On November 20, 1940, appellant filed an application for an order declaring the judgment satisfied. Submitted with the applicationwas a written release signed on November 4, 1940, by the daughter, who had become of age on June 30, 1940, acknowledging payment in full so far as she was concerned and releasing both the father and the mother from any further claim as far as the judgment and orders of the court were concerned.

Answering the motion appellee denied that there had ever been any modification of the order for monthly payments of $60 and asked judgment, computed on a basis of $10 a month deficiency beginning with February, 1921, for $2,340 and attorney's fees.

Replying, the appellant alleged in substance that the court had in effect authorized the reduction to $50 and that if the order had not been formally entered the record should be corrected to show such order. He further contended that if it be determined that no such order had actually been made, the appellee was barred from recovery by the statute of limitations, by laches and by the fact that the daughter had become of age, had executed a release and there was no further obligation to support her.

Trial was had and the court held that all claims for child support which had been due and unpaid for five years were barred by the statute of limitations, but that those within five years were not barred. Judgment, based on a monthly deficiency of $10 over the five-year period was entered for the plaintiff in the amount of $610.65 with interest. From this judgment appellant appeals on the ground that all claims were barred by laches of the plaintiff and by the fact that after she had become of age and before any proceedings were begun to collect the amount claimed, the daughter had executed a release to both her father and mother. Appellee cross-appeals from the order overruling her motion for a new trial, her motion being grounded in alleged error of the court in holding any of the claim barred by the statute of limitations.

We first consider the cross-appeal. It is well settled that where alimony or child support is ordered paid in installments each installment when due is to be regarded as...