In Re the Marriage of Johnson

Opinions of the Colorado Supreme Court are available to the
public and can be accessed through the Judicial Branch’s homepage at
http://www.courts.state.co.us. Opinions are also posted on the
Colorado Bar Association’s homepage at http://www.cobar.org.

ADVANCE SHEET HEADNOTE
September 26, 2016

2016 CO 67

No. 14SC756, In re Marriage of Johnson—Interest on Child Support Debt—Laches.

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. The supreme court

concludes that laches may be asserted as a defense to a claim for interest on child

support arrearages. The court therefore reverses the judgment of the court of appeals,

which had concluded otherwise, and remands this case to that court for further

proceedings consistent with this opinion.
 The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203

2016 CO 67

Supreme Court Case No. 14SC756
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 13CA1309

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

Judgment Reversed
en banc
September 26, 2016

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

JUSTICE GABRIEL delivered the Opinion of the Court.
JUSTICE MÁRQUEZ does not participate.

2
¶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

1 Specifically, we granted certiorari to review:
Whether the Court of Appeals erred in holding that, as a matter of law,
laches can never apply as a defense to the recovery of statutory interest in
a child support enforcement action.

3
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

4
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

5
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

2As the division determined, the record reflects the parties’ agreement that Mr. Johnson
had paid all child support due between September 1992 and July 1994, when the
parties’ youngest child turned eighteen. Id.

6
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 the circumstances in which laches could apply, advocating

for additional conditions on the application of the doctrine in the context now before us.

II. Standard of Review

¶9 The applicability of the common-law doctrine of laches to the statute governing

interest on child support arrearages presents a question of law that we review de novo.

See Hickerson, ¶ 10, 316 P.3d at 623 (“We review de novo questions of law concerning

the application and construction of statutes.”).

¶10 Our purpose in matters involving statutory construction is to give effect to the

intent of the legislature. See City of Littleton v. Indus. Claim Appeals Office, 2016 CO

25, ¶ 27, 370 P.3d 157, 165–66. To that end, we may not construe a statute to abrogate

the common law unless the General Assembly has clearly expressed its intent to do so.

See Robbins v. People, 107 P.3d 384, 387 (Colo. 2005); see also Hickerson, ¶ 10, 316 P.3d

at 623 (“Where the interaction of common law and statutory law is at issue, we

acknowledge and respect the General Assembly’s authority to modify or abrogate

common law, but only recognize such changes when they are clearly expressed.”).

III. Analysis

¶11 Mr. Johnson concedes that he owes $4,800 in child support (twelve months of

$400-per-month payments) for the period beginning in July 1994, when he stopped

7
making child support payments, and ending in July 1995, when his youngest child

turned nineteen. As a result, the dispute in this case turns on the amount of interest, if

any, he owes on that $4,800. To address this question, we begin by describing the

statutory scheme for the collection of interest on child support debt. We then review

our precedent, from Hauck to Hickerson, to determine whether the reasoning of our

case law precludes the application of the doctrine of laches in the circumstances

presented here.

A. Interest On Child Support Debt

¶12 Section 5-12-101, C.R.S. (2016), provides, “If there is no agreement or provision of

law for a different rate, the interest on money shall be at the rate of eight percent per

annum, compounded annually.” Section 14-14-106, in turn, provides:

Interest per annum at four percent greater than the statutory rate set forth
in section 5-12-101, C.R.S., on any arrearages and child support debt due
and owing may be compounded monthly and may be collected by the
judgment creditor; however, such interest may be waived by the
judgment creditor, and such creditor shall not be required to maintain
interest balance due accounts.

¶13 Accordingly, together, sections 14-14-106 and 5-12-101 set the interest rate on

Mr. Johnson’s child support arrearages at 12% (8% plus 4%), compounded monthly.

According to Mr. Johnson (and undisputed by any other party), this rate yields

$46,399.62 in interest accrued from 1995 until the division’s judgment in 2014.3

3 Although Mr. Johnson’s calculation is uncontested, our independent review suggests
that it may be somewhat low. His calculation appears to have assumed that the entire
$4,800 became due in 1995. In reality, beginning in July 1994, each unpaid $400
installment accrued interest monthly as the principal grew to $4,800 over twelve
months. See In re Marriage of Armit, 878 P.2d 101, 103 (Colo. App. 1994) (“[W]hen

8
¶14 Notwithstanding Mr. Johnson’s above-described interest calculation, he contends

that he is entitled to raise a laches defense to Mrs. Johnson’s claim for such interest

because she “unreasonably delay[ed]” in seeking to collect the $4,800 principal, which

became due eighteen years before she filed suit in this case.

¶15 Section 14-14-106 says nothing about the applicability of common law defenses

like laches to claims for interest on child support arrearages. Accordingly, we must

decide whether the General Assembly intended to eliminate laches as a defense in this

context. In this regard, our case law is instructive.

B. Laches

¶16 “Laches is an equitable doctrine that may be asserted to deny relief to a party

whose unconscionable delay in enforcing his rights has prejudiced the party against

whom relief is sought.” Robbins, 107 P.3d at 388. A laches defense comprises three

elements: (1) full knowledge of the facts by the party against whom the defense is

asserted, (2) unreasonable delay by the party against whom the defense is asserted in

pursuing an available remedy, and (3) intervening reliance by and prejudice to the

party asserting the defense. Hickerson, ¶ 12, 316 P.3d at 623.

¶17 Courts have interpreted the laches defense to signify so unreasonable a delay in

the assertion of and attempt to secure equitable rights as to constitute in equity and

good conscience a bar to recovery. Loveland Camp No. 83 v. Woodmen Bldg. &

Benevolent Ass’n, 116 P.2d 195, 199 (Colo. 1941); see also In re Water Rights of Cent.

child support is ordered, due, and unpaid, interest accrues on each installment from the
date it was due.”). This distinction, however, does not impact our analysis in this case.

9
Colo. Water Conservancy Dist., 147 P.3d 9, 17 (Colo. 2006) (“[T]he defense of laches

arises from ‘an unconscionable delay in asserting one’s rights which works to the

defendant’s prejudice or injury in relation to the subject matter of the litigation.’”)

(quoting City of Thornton v. Bijou Irrigation Co., 926 P.2d 1, 73 (Colo. 1996)).

¶18 Since at least 1960, we have consistently held that the doctrine of laches does not

apply in actions for the recovery of past due child support. See, e.g., Hauck, 353 P.2d at

81; accord In re Marriage of Meisner, 807 P.2d 1205, 1207 (Colo. App. 1990); Carey v.

Carey, 486 P.2d 38, 40 (Colo. App. 1971). Specifically, in Hauck, 353 P.2d at 80, we

made clear that accrued installments of child support are final judgments that are

subject to the appropriate statute of limitations. We further explained that “laches is

applicable only when the attempted enforcement is by means of contempt procedures.”

Id. at 81. Thus, we observed that although laches might apply in an equitable

proceeding for contempt, it did not apply in the proceeding before the court, namely, a

legal action to collect accrued child support installments. See id. at 80–81. Accordingly,

the applicability of the doctrine of laches appears to have turned on the distinction

between legal and equitable actions. See id.

¶19 As we recently observed, however, law and equity have been merged in

Colorado since at least 1877, when the General Assembly enacted the Code of Civil

Procedure. Hickerson, ¶ 11, 316 P.3d at 623. That Code provided, “[T]he distinction

between actions at law and suits in equity, and the distinct forms of actions, and suits

heretofore existing are abolished, and there shall be in this State but one form of civil

action[.]” Code of Civil Procedure, ch. 1, § 1 (1877). This principle was reaffirmed in

10
our current rules of civil procedure, which provide, “There shall be one form of action

to be known as ‘civil action.’” C.R.C.P. 2. As a result, “very few issues” today depend

on a claim’s foundation in law or equity. See Hickerson, ¶ 11, 316 P.3d at 623.

¶20 Consistent with this principle, in Hickerson, we implicitly concluded that the

availability of a laches defense is not an issue that turns on the distinction between law

and equity. See id. We focused instead on whether the separation of powers doctrine

precluded a court from applying laches to shorten the filing period established by

statute. Id. In conducting this analysis, we noted that the General Assembly had not

abrogated the common law doctrine of laches. Id. at ¶ 16, 316 P.3d at 624. We further

observed, as pertinent here, that although the statute of limitations for actions to

recover debts prohibited the filing of an action beyond the prescribed limitations

period, it did not address the operation of laches to shorten that period. Id. at ¶ 14,

316 P.3d at 624. To the contrary, several of our prior cases had recognized the

applicability of laches to shorten the period for filing a claim “even though the claim

has been timely filed within a legislatively prescribed statute of limitations period.” Id.

at ¶ 16, 316 P.3d at 624; see also O’Byrne v. Scofield, 212 P.2d 867, 871 (Colo. 1949)

(quoting Great W. Mining Co. v. Woodmas of Alston Mining Co., 23 P. 908, 911 (Colo.

1890), for the principle that statutes of limitations “fix[] a limitation beyond which the

courts cannot extend the time, but within this limit the peculiar doctrine of courts of

equity should prevail”); Great W. Mining Co., 23 P. at 911 (explaining that courts cannot

construe statutes of limitations to “permit a party in all cases to stand idly by until the

limitation of the statute has nearly run, and then claim that, by virtue of the statute, he

11
is excused from the laches”). Accordingly, we held that the separation of powers

doctrine did not bar the application of laches to a debt collection action filed within the

statute of limitations period. Hickerson, ¶ 9, 316 P.3d at 622.

¶21 In so holding, we neither mentioned nor overruled Hauck, which, as noted

above, forbade the use of laches to bar a claim to collect unpaid child support within the

statutory limitations period. Nonetheless, by concluding that laches could apply

notwithstanding an applicable statute of limitations, Hickerson cast doubt on the

propriety of extending Hauck’s reasoning to claims for interest on past-due child

support. Accordingly, although the instant case does not require us to overrule Hauck,

it does provide us with an opportunity to address whether Hauck’s restriction on the

application of laches is limited to the principal amount of child support debt. We

conclude that it is.

¶22 The prohibition against applying laches to bar collection of the principal amount

of child support debt is grounded in the settled principle that child support belongs to

children, not their parents. See McQuade v. McQuade, 358 P.2d 470, 472 (Colo. 1960)

(“The inherent right to support belongs to the child . . . .”). Accordingly, 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. Cf. Hammond v. Hammond, 14 P.3d 199, 203

(Wyo. 2000) (explaining that parents cannot waive or bargain away the right to child

support because the right does not belong to them; it belongs to the child).

¶23 The same reasoning does not support precluding the application of the doctrine

of laches as a defense to the interest component of child support debt. As the California

12
Court of Appeal aptly explained, when a dilatory parent waits until the child has

reached the age of majority to seek unpaid child support, reimbursing the custodial

parent does not cognizably advance the child’s welfare. In re Marriage of Copeman,

108 Cal. Rptr. 2d 801, 808 (Cal. Ct. App. 2001), superseded by statute as recognized in In

re Marriage of Fellows, 138 P.3d 200, 203 (Cal. 2006).

¶24 We reached a similar conclusion in Price v. Price, 249 P. 648, 649 (Colo. 1926), a

contempt proceeding for failure to pay accrued installments of permanent alimony:

If, as in the instant case, the wife for a long period of time supports the
child without receiving alimony, where the husband had been ordered to
pay alimony for the support of the child, and she afterwards recovers the
arrears of alimony, such recovery is her own recovery and not that of the
child. The recovery amounts simply to a reimbursement of the wife. She
is the one who reaps the benefit.

¶25 Given the wife’s more-than-fifteen-year delay in initiating contempt proceedings

in Price, we concluded that the husband could raise laches as a defense to the contempt

citation, even though the arrearages at issue appear to have been (at least partly)

intended as child support. See id. at 648–49.

¶26 Both the Copeman and Price courts recognized that laches may bar the

enforcement of past-due support payments when due to the passage of time, the parent,

rather than the child, would obtain the benefit of any recovery. See Copeman, 108 Cal.

Rptr. 2d at 808; Price, 249 P. at 649. In our view, this reasoning is equally applicable

here. Indeed, prohibiting laches as a defense to the interest component of child support

debt would arguably encourage the very kind of delay that the Copeman and Price

13
courts condemned. This is particularly true given that the interest rate on support

arrearages is four percent higher than the statutory rate. See § 14-14-106.

¶27 Conversely, allowing a party to assert a laches defense to a claim for interest on

unpaid child support would serve the dual purposes of protecting the right of children

to parental support and encouraging parents to enforce child support obligations

promptly. Cf. Williams v. Woodruff, 85 P. 90, 101 (Colo. 1905) (citing Rip Van Winkle

as an illustration of the principle that “[p]arties cannot lie down to sleep upon their

rights, and, on waking up many years after, find them in the same condition as that in

which they were left”).

¶28 For these reasons, we conclude that Mr. Johnson may raise the doctrine of laches

as a defense to Mrs. Johnson’s claim for the interest that has accrued on the $4,800 in

child support arrearages at issue. We express no view, however, as to the merits of this

defense. That determination must be made in the first instance by the trial court. See

People v. Valdez, 178 P.3d 1269, 1276 (Colo. App. 2007) (“Whether the elements of

laches have been established is a question of fact.”).

¶29 In determining on remand whether Mr. Johnson can establish a laches defense,

the courts below should apply the three-pronged test for laches set forth above. See

supra ¶ 16. Although the Family Law Section urges us to modify this test in the present

context by limiting the availability of laches to cases in which (1) “extraordinary facts or

compelling circumstances” exist and (2) “the impact on the child’s welfare, and the

welfare of the parties, has been specifically considered,” we decline to do so. In our

view, the long-established elements of the doctrine of laches, which require

14
unconscionable delay and prejudice, see Hickerson, ¶ 12, 316 P.3d at 623; Loveland

Camp No. 83, 116 P.2d at 199, can readily be applied, without modification, here.

IV. Conclusion

¶30 For these reasons, we reverse the judgment of the court of appeals and remand

the case to that court with instructions to return the case to the trial court for a

determination as to whether Mr. Johnson can prove the elements of a laches defense

with respect to Mrs. Johnson’s claim for interest on Mr. Johnson’s child support

arrearages.

JUSTICE MÁRQUEZ does not participate.

15