In re the Marriage of Josephine Marie Kann, n/k/a Josephine Marie Voshell, Appellee, and Bruce Allen Kann, Appellant.
County District Court No. 88DR2670 Honorable Christine M.
Matthew DePetro, Greenwood Village, Colorado, for Appellee
Pelegrin & Radeff, P.C., Andrew N. Hart, Lakewood,
Colorado, for Appellant
1 In a post dissolution of marriage proceeding, should laches
be recognized as a defense to collection of spousal
maintenance arrearages or interest on arrearages? This
question is undecided in Colorado and no clear majority rule
has emerged among courts of other states. We conclude that
laches should be recognized as a defense to collection of
both arrearages and interest.
2 Therefore, we reverse the trial court's order in part
and remand for further proceedings on laches and its
potential impact on the court's maintenance and attorney
fees awards. However, we affirm rejection of the waiver and
estoppel defenses to collection. I. Facts and Procedural
3 The decree dissolving the marriage between Bruce Allen Kann
(husband) and Josephine Marie Kann, now known as Josephine
Marie Voshell (wife), was entered in 1989.
4 Under the terms of the parties' separation agreement,
which the trial court incorporated into the decree, husband
agreed to pay wife lifetime maintenance of no less than $1200
per month. The agreement also provided that in the event of a
breach, the prevailing party would be entitled to recover
costs, expenses, and reasonable attorney fees. Although
husband was unrepresented in the dissolution proceeding, he
has never disputed that he knew of and understood these
5 For the next twenty-six years, husband never paid
maintenance and wife never asked him to do so. But in 2015,
suddenly things changed.
6 Wife retained counsel and sought entry of judgment for
$520, 636.32 - $289, 200 in unpaid maintenance and $231,
436.32 in interest. She also requested a maintenance
modification if the court did not award her the full
judgment. Husband denied any obligation to pay maintenance.
He raised three affirmative defenses: waiver, estoppel, and
laches. Alternatively, he asked that if wife received her
full judgment, the court should terminate his maintenance
7 The court held a hearing. Wife and husband (now also
represented by counsel) testified. In lengthy oral findings
and conclusions, the court
â¢ concluded that under the decree, husband
was obligated to pay maintenance;
â¢ held that Colorado law does not recognize
husband's laches defense;
â¢ found that husband had failed to meet his
burden of proof on the waiver and estoppel defenses; and
â¢ enforced the full $520, 636.32 judgment
8 Going forward, the court decreased wife's lifetime
maintenance award from $1200 to $800 per month. Finally, it
awarded wife her attorney fees as the prevailing party under
the separation agreement.
9 Husband appeals these findings and conclusions. Wife
Application of Laches in Proceedings to Enforce Past Due
Spousal Maintenance Payments
10 Husband primarily contends he should have been able to
raise laches in defending against wife's claim for past
due spousal maintenance and interest. We hold that laches may
be raised as a defense to both an unpaid spousal maintenance
award and any accrued interest.
Standard of Review and Law
11 The availability of an affirmative defense is a question
of law subject to de novo review. In re Marriage of
Johnson, 2016 CO 67, ¶ 9.
12 No Colorado case has addressed whether laches applies in a
proceeding brought solely to collect maintenance arrearages
and interest. But several cases have addressed this defense
in proceedings to enforce combined support (child support and
maintenance) or child support awards. See Hauck v.
Schuck, 143 Colo. 324, 327, 353 P.2d 79, 81 (1960)
(child support); Jenner v. Jenner, 138 Colo. 149,
151, 330 P.2d 544, 545 (1958) (combined support);
Hamilton v. Hamilton, 104 Colo. 615, 618-19, 94 P.2d
127, 128 (1939) (same); Price v. Price, 80 Colo.
158, 160, 249 P. 648, 649 (1926) (same); In re Marriage
of Meisner, 807 P.2d 1205, 1207 (Colo.App. 1990) (child
13 Those cases have held that while laches is an available
defense when a party brings a contempt citation to punish
nonpayment of support, see, e.g., Price, 80
Colo. at 160, 249 P. at 649, it is not available in actions
to collect past due support, see, e.g.,
Hauck, 143 Colo. at 327, 353 P.2d at 79;
Jenner, 138 Colo. at 151, 330 P.2d at 545; see
also Frick v. Frick, 500 P.2d 373, 374 (Colo.App. 1972)
(not published pursuant to C.A.R. 35(f)) (laches released
husband from enforcement of contempt judgment for support
owed between 1963 and 1971, but did not apply to enforcement
of his current support obligation). The latter conclusion
rests on the rationale that a support order is a continuing
money judgment. See Hauck, 143 Colo. at 327, 353
P.2d at 81.
14 In Johnson, 2016 CO 67, our supreme court
re-examined whether laches applies as a defense to recovery
of statutory interest in a child support enforcement action.
The trial court did not have the benefit of this decision
when it ruled.
15 Johnson involved a 1983 decree of dissolution
that required the husband to pay $400 in monthly child
support. Id. at ¶ 2. Twenty-nine years later,
the wife sought and received a judgment against him for $23,
260.27 in unpaid child support, plus interest. Id.
at ¶¶ 3, 5. The husband's laches defense was
rejected by the magistrate, the trial court on review, and a
majority of a division of this court. See id. at
¶¶ 3-4, 6; In re Marriage of Johnson, 2014
COA 145, rev'd, 2016 CO 67.
16 Specially concurring, Judge Berger opined that laches
provides "a needed 'safety-valve' in unusual
cases." Johnson, 2014 COA 145, ¶ 21. He
pointed to a recent supreme court case, Hickerson v.
Vessels, 2014 CO 2, holding that laches can be a defense
to both legal and equitable claims and that
"legislatively prescribed limitations periods do not
ordinarily preclude a laches defense." Johnson,
2014 COA 145, ¶ 23 (quoting Hickerson, ¶
17). And he offered that Hickerson's rationale
"is fully applicable, at least to the interest component
of child support arrearages." Id. at ¶ 24.
17 On certiorari review, the supreme court generally agreed
with the special concurrence. The court noted that
Hickerson "cast doubt on" the earlier
opinions barring laches as a defense to claims for interest
on past due child support. Johnson, 2016 CO 67,
¶ 21. Then it framed this issue by distinguishing
between principal and interest.
18 As to principal, the court began by recognizing that child
support belongs to children, not their parents. Id.
at ¶ 22. It explained, "as a policy matter, a
parent's delay in enforcing a judgment for child support
should not prejudice the child's right to parental
support." Id. Unsurprisingly, it adhered to the
view that laches should not be a defense to principal.
19 But the court's approach to interest was more nuanced.
Citing out-of-state authority, the court recognized the
anomaly of a "dilatory parent" who "waits
until the child has reached the age of majority to seek
unpaid child support, " a time when the award might
reimburse that parent but would "not cognizably advance
the child's welfare." Id. at ¶ 23.
Next, it drew on Price - a contempt action - for the
proposition that recovering arrearages of alimony
"amounts simply to a reimbursement of the wife. She is
the one who reaps the benefit." Johnson, 2016
CO 67, ¶ 24 (quoting Price, 80 Colo. at 160,
249 P. at 649). The court synthesized these principles by
observing that allowing a laches defense to interest
"would serve the dual purposes of protecting the right
of children to parental support and encouraging parents to
enforce child support obligations promptly."
Id. at ¶ 27.
20 We conclude that Johnson's rationale applies
with equal force to proceedings in which a party seeks
interest on maintenance arrearages. Specifically, only the
recipient spouse benefits from recovering interest on the
arrearage. Allowing laches as a defense would encourage
prompt assertion of the claim which, as discussed below,
could grow exponentially over time. And recovering accrued
interest after a lengthy delay could be a windfall. Cf.
Price, 80 Colo. at 160, 249 P. at 649 (noting that where
the recipient spouse "reaps the benefit" of a past
due recovery, laches should apply "in cases where the
arrears in alimony relate to alimony for her own
21 Whether laches should be recognized as defense to
principal presents a harder question. Granted,
Johnson declined to apply laches to bar collection
of the principal amount of child support. See 2016
CO 67, ¶ 22. Yet, the policy underpinnings of this
portion of the opinion do not apply to spousal maintenance.
Three differences are informative.
22 First, child support is a right that belongs to and
benefits the child, not the parent to whom it is awarded.
See Samuel J. Stoorman & Assocs., P.C. v. Dixon,
2017 CO 42, ¶ 12; see also Johnson, 2016 CO 67,
¶ 22. Thus, if a parent fails to enforce a child support
award for their child, the child suffers. See
Johnson, 2016 CO 67, ¶ 26.
23 In contrast, maintenance is not awarded as a matter of
right, but may be granted only under circumstances specified
in the statute. See In re Marriage of Wagner, 44
Colo.App. 114, 116, 612 P.2d 1147, 1148 (1980); see
also § 14-10-114(1)(a)(II), C.R.S. 2016 (trial
court may award maintenance if one spouse needs it and the
other spouse can pay). And because maintenance benefits
solely the spouse to whom it is awarded, Stoorman,
¶ 12, the only person who suffers from failing to
enforce a maintenance judgment is that spouse.
24 Second, child support mitigates potential harm to children
from dissolution of the marriage by approximating the
financial benefits a child would have enjoyed in an intact
household. See §§ 14-10-104.5,
14-10-115(1)(b)(I), C.R.S. 2016; see also In re Marriage
of Nimmo, 891 P.2d 1002, 1007 (Colo. 1995). In other
words, child support effectively maintains the child's
standard of living after the divorce. Thus, failing to
enforce such an award would result in a decreased standard of
living for the child. See Nimmo, 891 P.2d at 1007.
25 Maintenance, however, is primarily concerned with
providing that the basic needs of a disadvantaged spouse are
met; it ensures that the lesser-earning spouse has means to
pay for food, clothing, and shelter. See In re Marriage
of Ikeler, 161 P.3d 663, 669 (Colo. 2007); In re
Marriage of Mirise, 673 P.2d 803, 804 (Colo.App. 1983).
Maintenance does not guarantee that spouses enjoy an equal
lifestyle forever. See In re Marriage of Antuna, 8
P.3d 589, 595 (Colo.App. 2000). So, if the recipient of a
spousal maintenance award has ...