October 22, 2017

Colorado Court of Appeals: Laches is Available as Defense to Long-Overdue Maintenance Award

The Colorado Court of Appeals issued its opinion in In re Marriage of Kann on Thursday, July 13, 2017.

Post-Dissolution of Marriage—Laches as a Defense to Collection of Spousal Maintenance Arrearages and Interest—Implied Waiver and Estoppel.

A decree of dissolution of marriage between husband and wife was entered in 1989. Husband agreed to pay wife lifetime maintenance of no less than $1,200 per month. In the event of breach, the prevailing party would be entitled to recover costs, expenses, and reasonable attorney fees. For the next 26 years, husband never paid maintenance and wife never asked him to do so.

In 2015, 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 raised the affirmative defenses of waiver, estoppel, and laches. He also requested that the court terminate his maintenance obligation if it awarded wife the full judgment. The trial court (1) concluded that husband was required to pay maintenance under the decree; (2) held that Colorado law does not recognize the laches defense; (3) found that husband had failed to meet his burden of proof on the waiver and estoppel defenses; and (4) enforced the full judgment against him. The court also decreased the maintenance going forward to $800 per month and awarded wife attorney fees as the prevailing party under the separation agreement.

On appeal, husband argued that he should have been able to raise laches as a defense. While a novel issue in Colorado, courts have addressed the issue as to child support and child support combined with maintenance. Based on these cases, the court of appeals concluded that laches is available as an affirmative defense when a party seeks maintenance arrearages as well as the interest on those arrearages. The court remanded for the trial court to reconsider the full scope of the laches defense on the existing record.

Husband also challenged the rejection of his implied waiver and estoppel defenses. The record supports the trial court’s rejection of husband’s waiver argument. As to estoppel, husband asserted that he proved all four elements. The trial court rejected this defense, finding that (1) husband understood his obligation to pay maintenance; (2) wife never told him that he did not have to pay; and (3) husband did not detrimentally rely on wife’s assertion that she would not collect maintenance. The court found no basis on which to disturb the trial court’s rejection of the estoppel defense.

Husband further argued that it was error to modify rather than terminate his maintenance obligation. The court could not resolve this issue because the propriety of the trial court’s order will depend whether it awards the wife none, part, or all of her request for maintenance arrearages plus interest.

The portions of the trial court’s order rejecting husband’s laches defense, awarding attorney fees to wife as the prevailing party, and modifying husband’s maintenance obligation were reversed. The case was remanded for the court to consider whether laches bars wife’s entitlement to maintenance interest or arrearages and, based on this determination, to then reconsider the maintenance and attorney fee awards as well as wife’s claim for appellate attorney fees. In all other respects the order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

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