Posted by Nydia Streets of Streets Law in Florida Child Support

How long does a parent have to enforce child support arrears owed? Child support arrears are considered vested property rights which are not subject to modification. But if a parent waits too long to enforce payment of arrears, he or she may run into the defense of laches. This was an issue in the case Holley v. Erwin-Jenkins, 2D22-2561 (Fla. 2d DCA August 23, 2023).

When the former wife and former husband divorced, the former husband was ordered to pay $195.00 per week in child support through the central depository. Depository records showed that no payments were made starting the year following the divorce judgment. The former husband told the former wife he lost his job and could only afford $100 per week which he paid directly to the former wife. He never resumed paying the full amount. When the former husband tried to sell his house, the former wife filed a motion for contempt and enforcement to collect the arrears. A hearing was held before the general magistrate who ruled the former wife’s motion was premature because since the child had reached the age of majority, the former wife had to first file a motion to adjudicate the arrears, and the former husband would need to be ordered to pay against the arrears before contempt could be ruled upon.

The former wife never filed the motion to adjudicate the arrears. The former husband passed away a short time later, and the former wife filed a claim in the former husband’s probate case for the arrears. The estate responded with the affirmative defense of laches, claiming the former wife waited too long to pursue the arrears, resulting in prejudice to the estate where the former husband’s relevant bank records were no longer available, and the former husband had died and therefore was unable to rebut the former wife’s claims. The trial court agreed with the estate and dismissed the former wife’s petition. She appealed.

The appellate court reviewed the case under an abuse of discretion standard. It first held “In this case, the Final Judgment required [the former husband] to pay $195 per week in child support and directed that the payments be made through the Central Governmental Depository, which was designated as the Clerk of the Circuit Court for Pinellas County. [The former wife] presented competent substantial evidence that [the former husband] was delinquent in his obligation and owed $97,305 in unpaid support together with interest and fees for a total amount due of $282,070.64. Without a doubt, the evidence showed that no child support payments were paid into the depository after November 2, 1995, as ordered by the court. Of course, [the former wife] acknowledged that [the former husband] did pay her $100 per week toward the support payments. This evidence went unrebutted by the Estate. Therefore, [the former wife] met her burden of proof of showing by a preponderance of the evidence that she was entitled to a judgment for the arrearages sought, and the trial court erred by finding otherwise.”

The appellate court turned to the analysis of the laches defense. It noted the estate was required to prove the following to sustain this defense: “(1) conduct by the defendant that gives rise to the complaint; (2) that the plaintiff had knowledge of the defendant's conduct and did not assert the opportunity to institute suit; (3) lack of knowledge by the defendant that the plaintiff will assert the right upon which suit is based; and (4) extraordinary injury or prejudice.”

The court held “As an initial matter, the trial court erred in finding that [the former wife] failed to meritoriously defeat the affirmative defense of laches without first finding that the Estate had established its defense of laches—a task the Estate failed to do. [internal citation omitted]. ‘Mere delay in filing an enforcement suit, even if the payee spouse knows where the payor spouse is, is not sufficient in itself to constitute laches.’ [internal citation omitted]. ‘The delay must practically preclude the court from arriving at a safe conclusion as to the truth of the matters in controversy, making the achievement of equity doubtful or impossible, or subsequent events must have rendered it inequitable to enforce the asserted right.’”

The court went on to explain how the estate failed to meet every element of laches except the first. It also noted “Although a claim for child support may be defeated by laches, ‘rarely have the courts found the exceptional circumstances necessary to justify the application of that doctrine. In all events the welfare of the child is paramount and in the absence of extraordinary facts or strongly compelling circumstances, the action or inaction of a parent will not give rise to a defense of laches barring enforcement of child support arrearages.’”

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