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In re Marriage of Johnson

Supreme Court of Colorado, En Banc

September 26, 2016

In re the Marriage of William Michael Johnson, Petitioner, and Carolyn S. Johnson. Respondent

         Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 13CA1309

          Attorneys for Petitioner: Holland & Hart LLP Christina F. Gomez Kristina R. Van Bockern Denver, Colorado

          No appearance by or on behalf of Respondent Carolyn S. Johnson

          Attorneys for Amicus Curiae American Academy of Matrimonial Lawyers, Colorado Chapter: American Academy of Matrimonial Lawyers Kathleen A. Hogan Denver, Colorado

          Attorneys for Amicus Curiae Family Law Section of the Colorado Bar Association: Epstein Patierno, P.C. Christina Patierno Denver, Colorado Cox Baker & Page, LLC Nathan M.J. Dowell Castle Rock, Colorado Sherr Puttmann Akins Lamb PC Courtney Radtke McConomy Greenwood Village, Colorado

          OPINION

          GABRIEL, JUSTICE

          ¶1 This case concerns whether a father may rely on the doctrine of laches to defend against a mother's claim for the interest on his child support debt. Over fifty years ago, in Hauck v. Schuck, 353 P.2d 79, 81 (Colo. 1960), we decided that laches does not apply to a claim for unpaid child support that accrued within the statutory limitations period. In the present case, a division of the court of appeals extended Hauck's reasoning to a claim for interest on such arrearages and concluded that laches could not apply to bar one parent's right to collect interest on arrearages owed by the other parent. See In re Marriage of Johnson, 2014 COA 145, ¶ 17, P.3d . In a special concurrence, Judge Berger noted that a more recent case from this court, Hickerson v. Vessels, 2014 CO 2, 316 P.3d 620, cast doubt on the division majority's conclusion. See In re Marriage of Johnson, ¶ 24 (Berger, J., specially concurring). We granted certiorari to consider whether laches is an appropriate defense in an action to collect interest on past-due child support and in doing so, to resolve the arguable tension in our precedent.[1] We now conclude that laches may be asserted as a defense to a claim for interest on child support arrearages, and we therefore reverse the judgment of the court of appeals and remand this case to that court for further proceedings consistent with this opinion.

         I. Facts and Procedural History

         ¶2 In 1983, the district court entered a decree dissolving the marriage of the petitioner, William Michael Johnson, and the respondent, Carolyn S. Johnson. The decree further ordered Mr. Johnson to pay $400 per month in child support to Mrs. Johnson, to whom the court had granted custody of the couple's two minor children. The decree did not specify when Mr. Johnson's child support obligation would end, but the law at the time presumed that it would continue until his youngest child reached the age of majority, which was then twenty-one. See Koltay v. Koltay, 667 P.2d 1374, 1376 (Colo. 1983) (citing section 2-4-401(6), C.R.S. (1973 & 1980 Repl. Vol. 1B), for Colorado's age of majority).

         ¶3 In September 2012, Mrs. Johnson filed a "Verified Motion for Entry of Support Judgment." In this motion, Mrs. Johnson asserted that Mr. Johnson owed her $54, 320 in child support arrearages, plus $838, 965.32 in interest that had accrued between the entry of the Johnsons' divorce decree in 1983 and their youngest child's twenty-first birthday in 1997. Although Mr. Johnson responded by asserting a number of defenses, including the statute of limitations and laches, the magistrate entered judgment against him for the total amount requested of $893, 285.32.

         ¶4 Mr. Johnson sought district court review of the magistrate's order, and the district court found that the magistrate had clearly erred in entering judgment for the full amount. Applying section 14-10-122(1)(c), C.R.S. (2016), which provides that an order requiring the payment of child support becomes a final money judgment when it is due and not paid, the district court reasoned that such a payment is subject to the twenty-year limitations period set forth in section 13-52-102(2)(a), C.R.S. (2016), for executing on judgments. The court further found that the doctrine of laches was inapplicable "to actions for recovery of past due child support." Accordingly, the court vacated the magistrate's order and remanded the case with instructions to conduct an evidentiary hearing to re-determine, in accordance with the court's order, the amount of the judgment to be entered.

         ¶5 On remand, the magistrate conducted a hearing during which she addressed, among other things, whether Mr. Johnson's child support obligation ended when his youngest child turned twenty-one (the age of emancipation when the Johnsons divorced in 1983) or when she turned nineteen (the age of emancipation under the 1991 amendment to the applicable statute, see ch. 38, sec. 1, § 14-10-115(15)(1.5)(a), 1991 Colo. Sess. Laws 234). In a written ruling, the magistrate concluded that Mr. Johnson's support obligation had continued until his youngest child turned twenty-one. The magistrate reasoned that to take advantage of the new, lower age of emancipation, Mr. Johnson was required to file a motion to modify the child support order. Any resulting modification would then have applied to installments that accrued after the motion for modification. Because Mr. Johnson had filed no such motion, the magistrate ordered him to pay $23, 260.27-representing child support owed for the period between September 12, 1992 and July 17, 1997, when the couple's youngest child turned twenty-one-plus interest pursuant to section 14-14-106, C.R.S. (2016).

         ¶6 Mr. Johnson again sought district court review, that court adopted the magistrate's order, and Mr. Johnson appealed to the court of appeals. A division of that court ultimately reversed the district court's order on the emancipation question, concluding that Mr. Johnson's child support obligation had ended when the parties' last child turned nineteen. See In re Marriage of Johnson, ¶ 5. A majority of the division agreed with the district court, however, that under Hauck, laches is not an available defense in actions to collect past due child support and the interest thereon. See id. at ¶¶ 17-18. The majority therefore concluded that the principal amount of the arrearages was $4, 800 ($400 per month for the twelve months between July 1994, when Mr. Johnson stopped paying child support, and July 1995, when his youngest child turned nineteen), and it remanded the case with instructions that the trial court calculate interest under section 14-14-106 on the $4, 800 in arrearages. Id. at ¶ 19. [2]

         ¶7 Judge Berger concurred specially. Although he agreed with the majority's reliance on Hauck and its consequent refusal to allow laches as a defense in the present case, he pointed out the importance of the doctrine as "a needed 'safety valve' in unusual cases." Id. at ¶¶ 21-22 (Berger, J., specially concurring). Judge Berger further noted the recent Hickerson decision, in which this court, as he put it, "put to rest arguments that laches can be a defense only to claims for equitable relief and cannot shorten the period for filing a claim if the claim had been filed within the statute of limitations." Id. at ¶ 23 (Berger, J., specially concurring). And as pertinent here, Judge Berger observed that although Hickerson neither cited nor overruled Hauck, its rationale was "fully applicable, at least to the interest component of child support arrearages." Id. at ¶ 24 (Berger, J., specially concurring).

         ¶8 Mr. Johnson then petitioned this court for a writ of certiorari, which we granted. When Mrs. Johnson did not enter an appearance or submit an answer brief, we invited three interested organizations to submit briefs as amici curiae, and two did so. As pertinent here, the Colorado Bar Association's Family Law Section agreed with Mr. Johnson that under certain circumstances, laches should be available as a defense to the interest owed on child support arrearages. The Family Law Section differed with Mr. Johnson, however, as to ...


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