Metropolitan News-Enterprise


Friday, July 21, 2006


Page 3


Laches No Defense in Private Actions to Enforce Child Support Orders—State Supreme Court


By TINA BAY, Staff Writer


Staff Writer

A Family Code amendment repealing the laches defense in child support enforcement actions between private parties applies retroactively, the California Supreme Court ruled yesterday.

In a unanimous opinion, the justices affirmed a Third District Court of Appeal ruling that Family Code Sec. 4502(c) applies to support orders issued before the provision’s effective date of January 1, 2003.

Under Sec. 4502(c), enacted in 2002, parents defending a child support order may raise the defense of laches only with respect to portions of the judgment owed to the state. The section repealed what supporters of the new law called a statutory loophole that enabled child support obligors to evade their debts on the basis of untimely enforcement actions.

Mary Ann Moyse sought to enforce a 1985 New York court order for child support after over 17 years had elapsed. Registering the order in California, to where her ex-husband Darrin Fellows had moved, Moyse alleged that Fellows had never made payments and owed her over $26,000 in arrearages.

Fellows asserted a laches defense in his motion to vacate the registration, which retired Shasta Superior Court Judge Jack Halpin, sitting by assignment, denied.

In confirming the registration and ordering arrearages of approximately $20,000, Halpin found that Fellows had not paid the child support and ruled that Sec. 4502(c) applied retroactively to bar Fellows’ laches defense.

Agreeing with Halpin, the Court of Appeal concluded legislative intent compelled retroactive application of Sec. 4502(c).

The high court agreed with the panel, overruling a conflicting holding in In re Marriage of Garcia (2003) 111 Cal.App.4th 140—where an appellate panel held that Sec. 4502(c) could not be applied retroactively because doing so would prejudice non-custodial parents who over time, in reliance on the laches defense, ceased keeping payment records that they would otherwise have kept to prove their responsibility.

Writing for the high court, Justice Carol Corrigan explained that when the Legislature enacted the Family Code in 1992, it clearly expressed a general intent in Sec. 4(c) that future code amendments would apply retroactively. Unless the law provided otherwise—and Sec. 4502(c) did not—this general legislative intent prevailed, she wrote.

Moreover, Fellows could not prevent retroactive application in his particular situation on the ground that it imposed new duties on him, Corrigan said.

The justice wrote:

“Both before and after its enactment, Fellows had a duty to pay his child support, and could establish compliance through testimony alone. The elimination of a laches defense did not create some novel proof requirement. Even before the enactment, prudence would have counseled preservation of written payment records.”

The court also concluded that Halpin did not deny Fellows due process by preventing him from asserting  laches, because the state’s compelling interest in protecting its children outweighed Fellows’ unreasonable reliance on the availability of a laches defense.

“Unquestionably, the availability of laches impaired the ability of a parent to collect child support,” Corrigan said. “Eliminating the defense necessarily advances the state’s interest in securing payment of all child support obligations.”

Moyse’s attorney, Robert J. McNair, told the MetNews:

“I think that this is a fair and proper decision that will assist those individuals who have had to raise children without the benefit of support, and at least give them some level of compensation for what they’ve had to do without in raising those children.

“But it also sends a message to those who have current and support obligations, and that is: you have one defense when a custodial parent raises these issues in court, and that one defense is proof that you paid your entire obligation in full.”

McNair explained that delayed enforcement should not bar support because many single parents like Moyse—a waitress at a New York City IHOP—are working class individuals who lack the time, money, or resources to hire a lawyer to enforce support orders.

Moreover, he said, non-custodial parents often move—Fellows had moved approximately six times in eight years—making it difficult for government agencies to collect on support obligations even when custodial parents do attempt to enforce support orders.

Fellows’ attorney, Mark D. Norcross of the Redding firm Enochian & Kenny, could not be reached for comment.

The case is  In re Marriage of Fellows,  06 S.O.S. 3780.


Copyright 2006, Metropolitan News Company