In re Marriage of Kann

COLORADO COURT OF APPEALS 2017COA94

Court of Appeals No. 16CA0259
Jefferson County District Court No. 88DR2670
Honorable Christine M. Phillips, Judge

In re the Marriage of

Josephine Marie Kann, n/k/a Josephine Marie Voshell,

Appellee,

and

Bruce Allen Kann,

Appellant.

ORDER AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division III
Opinion by JUDGE WEBB
Booras and Freyre, JJ., concur

Announced July 13, 2017

J. 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 Background

¶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

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 dissolution proceeding, he has never disputed that he knew of and

understood these terms.

¶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 obligation.

¶7 The court held a hearing. Wife and husband (now also

represented by counsel) testified. In lengthy oral findings and

conclusions, the court

 concluded that under the decree, husband was obligated to

pay maintenance;

 held that Colorado law does not recognize husband’s laches

defense;

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  found that husband had failed to meet his burden of proof on

the waiver and estoppel defenses; and

 enforced the full $520,636.32 judgment against him.

¶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

concedes preservation.

II. 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.

A. 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.

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¶ 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 support).

¶ 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

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 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

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 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

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 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.

B. Application

1. Interest

¶ 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

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 the benefit” of a past due recovery, laches should apply “in cases

where the arrears in alimony relate to alimony for her own

support”).

2. Principal

¶ 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

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 (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

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 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 significantly delayed attempting to enforce the award, a

fair inference could arise that the spouse does not need the

underlying award to meet basic needs.

¶ 26 Third, the duration and potential accrual of child support and

maintenance awards differ. While in most cases child support

terminates when the child turns nineteen, see § 14-10-115(13)(a),

maintenance can continue over the payee spouse’s lifetime. See

§ 14-10-114(3)(e); Wagner, 44 Colo. App. at 116, 612 P.2d at 1148.

As a result, unpaid maintenance awards can accrue to exorbitant

amounts, while unpaid child support accruals will usually be more

limited.

¶ 27 Johnson did not need to reconcile these differing policy

considerations because it addressed only child support. Still, they

loom large over this proceeding. Even so, we look beyond Johnson.

¶ 28 We begin by returning to Jenner, 138 Colo. 149, 330 P.2d 544,

the only other supreme court case that has tangentially addressed

this specific issue. Of course, “we are bound by the decisions of the

Colorado Supreme Court.” Pressey ex rel. Pressey v. Children’s

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 Hosp. Colo., 2017 COA 28, ¶ 31. But a closer look shows Jenner to

be distinguishable.

¶ 29 In Jenner, the wife secured a judgment against the husband

for nonpayment of a combined maintenance and child support

award. 138 Colo. at 150, 330 P.2d at 544. The husband admitted

nonpayment but asserted laches as a defense. Id. at 150, 330 P.2d

at 545. Citing Lowell’s Estate v. Arnett, 104 Colo. 343, 347, 90 P.2d

957, 959 (1939), and Hamilton, 104 Colo. at 618-19, 94 P.2d at

128, the supreme court limited laches to contempt proceedings.

Jenner, 138 Colo. at 151, 330 P.2d at 545. So, unlike the case

before us, Jenner involved both maintenance and child support.

¶ 30 With only this much for guidance, we turn to cases from other

jurisdictions that have considered the laches defense in actions to

enforce maintenance. This issue has been addressed in most

jurisdictions. While a clear majority rule has not emerged, the

competing rationales are noteworthy.

¶ 31 Roughly half of the jurisdictions appear to hold that laches is

not a defense in a proceeding to enforce a money judgment like

maintenance. See, e.g., Cartron v. Cartron, 565 So. 2d 656, 659

(Ala. Civ. App. 1990); Lantz v. Lantz, 845 P.2d 429, 432 (Alaska

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 1993), overruled on other grounds by State v. Dean, 902 P.2d 1321

(Alaska 1995); Heisley v. Heisley, 676 S.W.2d 477, 477-78 (Ky. Ct.

App. 1984) (citing Ryan v. Ryan, 219 N.W.2d 912, 916 n.2 (Minn.

1974)); Nicholas v. Nicholas, 841 So. 2d 1208, 1212 (Miss. Ct. App.

2003); Richter v. Richter, 126 N.W.2d 634, 637 (N.D. 1964);

Strickland v. Strickland, 650 S.E.2d 465, 470 (S.C. 2007); Bennett v.

Commonwealth, 422 S.E.2d 458, 463 (Va. Ct. App. 1992); Wall v.

Wall, 410 N.W.2d 593, 595 (Wis. Ct. App. 1987).

¶ 32 In rejecting laches outright, several of these jurisdictions

appear to have an applicable statute of limitations that bars its

application or they do not recognize an equitable defense to a legal

claim, like a money judgment accruing under a divorce decree. See,

e.g., Lantz, 845 P.2d at 432 (ten-year statute of limitations is the

“sole line of demarcation” to recover maintenance arrearages)

(citation omitted); Ryan, 219 N.W.2d at 916 n.2 (equitable defenses

are not available in an action based on accrued payments due

under a divorce decree).

¶ 33 But many other jurisdictions allow a payor spouse to assert

laches in maintenance enforcement proceedings. See, e.g.,

Medeiros v. Medeiros, 514 S.W.3d 504, 508 (Ark. Ct. App. 2017)

12
 (noting that laches is specifically permitted by Ark. Code Ann.

§ 9-17-607(5) (2017)); Fromm v. Fromm, 948 A.2d 328, 333 (Conn.

App. Ct. 2008); Frazier v. Frazier, 616 So. 2d 575, 579 (Fla. Dist. Ct.

App. 1993) (holding also that equitable proceedings to enforce

alimony and child support orders are not barred by a statute of

limitations); Brochu v. McLeod, 148 A.3d 1220, 1226 (Me. 2016);

Rybinski v. Rybinski, 53 N.W.2d 386, 388 (Mich. 1952); Clarke v.

Clarke ex rel. Costine, 821 A.2d 104, 109 (N.J. Super. Ct. App. Div.

2003).

¶ 34 The rationale of these cases appears to be that the facts of

each case should determine whether the defense applies. See, e.g.,

Frazier, 616 So. 2d at 579.

¶ 35 Review of these authorities has brought us full circle. Recall,

Colorado Supreme Court precedent does not prevent us from

holding that a payor spouse may raise laches as a defense to a

claim for maintenance arrearages as well as for accrued interest.

And Johnson has removed an impediment to doing so — the flawed

comparison to child support cases.

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¶ 36 Based on the rationales advanced by courts elsewhere, the

following considerations persuade us that allowing laches under

these circumstances is the better reasoned view:

 the only applicable statutory limitations period — twenty years

under section 13-52-102(2)(a), C.R.S. 2016 — does not

preclude maintenance arrearages from mounting to exorbitant

levels;

 this statute of limitations does not foreclose recognizing

laches, see Hickerson, ¶ 9;

 applying laches no longer turns on the distinction between

legal and equitable actions, Johnson, 2016 CO 67, ¶ 20;

 our supreme court has noted that “[e]quity by its very nature

is applied on a case-by-case basis,” Cedar Lane Invs. v. Am.

Roofing Supply of Colo. Springs, Inc., 919 P.2d 879, 884 (Colo.

App. 1996); and

 our supreme court has also expressed unbridled confidence in

trial courts to weigh conflicting evidence, see People in Interest

of A.J.L., 243 P.3d 244, 250 (Colo. 2010) (“Thus, while a trial

court may properly attach more weight to more recent

evidence, whether it should do so is necessarily determined by

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 its assessment of witness credibility, and its analysis of the

sufficiency and probative value of the evidence presented at

trial. Therefore, the decision of whether to afford more weight

to more recent evidence falls squarely within the discretion of

the trial court.”) (citation omitted).

¶ 37 To be sure, merely recognizing husband’s laches defense does

not mean that it will succeed. While the trial court held that laches

did not apply to either principal or interest, in the alternative it

made limited findings that husband had failed to meet his burden

of proving this defense. Even so, for the reasons discussed in the

following section, we further conclude that a remand is required.

C. Scope of the Remand

¶ 38 Considering the elements of laches outlines the need for a

remand.

1. Laches Elements

¶ 39 Laches shields a party from untimely claims. See SCA

Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC, 580

U.S. ___, ___, 137 S. Ct. 954, 960 (2017). As an equitable doctrine,

it may be asserted to deny relief to a party whose unconscionable

15
 delay in enforcing a right has prejudiced the adverse party. See

Hickerson, ¶ 12.

¶ 40 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 that party in pursuing an available remedy;

and (3) intervening reliance by and prejudice to the party asserting

the defense. Id.

¶ 41 Everyone before us agrees that wife knew of the maintenance

award, yet waited twenty-six years to enforce it. So, we address

only the reasonableness of her delay and any resulting prejudice to

husband.

a. Unreasonable delay

¶ 42 Unreasonable delay is a question of fact that depends on the

circumstances of each case. See Keller Cattle Co. v. Allison, 55 P.3d

257, 261 (Colo. App. 2002). “What may be inexcusable delay in one

case will not be inconsistent with diligence in another.” See 2 John

Norton Pomeroy, Pomeroy’s Equity Jurisprudence § 419c, at 175-76

(5th ed. 1941).

¶ 43 When deciding whether delay is unreasonable, a trial court

must weigh not only the length of time but also the attendant

16
 circumstances. Loveland Camp No. 83, W.O.W. v. Woodmen Bldg. &

Benevolent Ass’n, 108 Colo. 297, 305, 116 P.2d 195, 199 (1941).

Considerations include “the acts and conduct of the party, if any,

indicating either his assent to or acquiescence in the acts of the

opposing party of which he then complains, or a waiver of his

rights, and the nature and character of the property interests

involved and to be affected.” See Foley v. Terry, 532 P.2d 765, 767

(Colo. App. 1974) (not published pursuant to C.A.R. 35(f)) (quoting

Graff v. Portland Town & Mineral Co., 12 Colo. App. 106, 113, 54 P.

854, 856 (1898)). But no matter how unreasonable the delay, the

inquiry still shifts to prejudice.

b. Prejudice

¶ 44 “Laches in legal significance, is not mere delay, but delay that

works a disadvantage to another.” Pomeroy § 419d, at 178-79.

Thus, the party asserting laches has the further burden of

demonstrating prejudice. Nolan v. Dist. Court, 195 Colo. 6, 9, 575

P.2d 9, 10 (1978).

¶ 45 In turn, prejudice must necessarily result from justifiable

reliance on the actions of the opposing party, under the

circumstances of the case considered as a whole. City of Thornton

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 v. Bijou Irrigation Co., 926 P.2d 1, 74 (Colo. 1996); see also Pomeroy

§ 419d, at 179 (commenting that prejudice requires a “showing as

to whether the situation of the adverse party underwent a change

during the period which elapsed while the complainant delayed

institution of suit”). Prejudice may be economic, such as liability

for greater damages or loss of return on investment that a timelier

lawsuit would likely have prevented. Bristol Co. v. Osman, 190 P.3d

752, 755 (Colo. App. 2007). Other forms of prejudice include

detrimental change of position by the defendant or other

circumstances arising during the period of delay that impair the

defendant’s ability to defend. See Cullen v. Phillips, 30 P.3d 828,

833 (Colo. App. 2001).

c. Interdependence

¶ 46 The concepts of delay and prejudice do not operate in their

own separate vacuums but are, instead, interrelated. In Bristol Co.,

190 P.3d at 755, the division explained as follows:

A trial court must balance, on the one hand,
the length of the delay in filing the
infringement suit and the plaintiff’s
explanation for the delay, against, on the other
hand, the prejudice to the defendant resulting
from the delay. Thus, it involves a weighing of

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 equities and depends on the trial court’s
evaluation of the circumstances.

¶ 47 In other jurisdictions, a clear showing of one factor permits a

lesser showing of the other: “If only a short period of time has

elapsed since the accrual of the claim, the magnitude of prejudice

require[d] before the suit should be barred is great, whereas if the

delay is lengthy, prejudice is more likely to have occurred and less

proof of prejudice will be required.” Zelazny v. Lyng, 853 F.2d 540,

543 (7th Cir. 1988) (quoting Goodman v. McDonnell Douglas Corp.,

606 F.2d 800, 807 (8th Cir. 1979)); see also Batiste v. City of New

Haven, 239 F. Supp. 2d 213, 225 (D. Conn. 2002) (“Where there is

no excuse for delay, defendants need show little prejudice; a weak

excuse for delay may, on the other hand, suffice to defeat a laches

defense if no prejudice has been shown.”) (citation omitted); Pavlik

v. State, 637 P.2d 1045, 1048 (Alaska 1981) (“[W]here there is a

long delay, a lesser degree of prejudice will be required.”).

2. Application to Trial Court’s Findings on Burden of Proof

¶ 48 Recall, the trial court alternatively found that “even if laches

were a defense in this particular proceeding, Husband did not prove

to the Court that he suffered any prejudice as a result of not paying

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 court ordered maintenance for [twenty-six] years.” Notwithstanding

deference to trial court factual findings, this “even if” finding is

insufficient in three ways for us to conclude that husband failed to

establish laches.

¶ 49 First, because delay and prejudice are interdependent, the

court could not resolve prejudice without also considering the

reasonableness of wife’s delay. Failure to do so is especially

problematic where, as here, the delay was very lengthy. But in its

“even if” discussion of laches, the court did not specifically address

whether wife’s delay was reasonable.

¶ 50 True, the court referenced wife’s testimony that she feared

husband, thought he was controlling, was concerned that he would

hurt their grandchildren, and had difficulty finding an attorney who

would take her case. Yet it did so in ruling that wife had not

expressly waived her right to maintenance. Never did the court tie

this evidence to its laches determination or find the delay to have

been reasonable.

¶ 51 Second, while the court took up the prejudice element of

laches, it did so in the context of husband’s assertion that he “was

relying on an oral agreement.” The court then explained that

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 having found no such agreement, “the court cannot find Husband

was prejudiced by Wife seeking judgment now.” But laches does

not turn on, in the court’s words, “an oral or implied agreement to

waive maintenance.”

¶ 52 Third, the court found that “Husband was able to buy and sell

homes in the ensuing years post-divorce, earn a substantial

retirement, earn a master’s degree, and live a comfortable lifestyle.”

But this approach proves too much. After all, because the

judgment debtor asserting laches will always have retained money

that would otherwise have been paid to the judgment creditor, that

gain cannot be the sole basis for declining to find prejudice.

¶ 53 Given all this, we remand for the trial court to reconsider the

full scope of the laches defense, evaluate both delay and prejudice,

and address the interdependence between them. The court shall do

so on the existing record, without taking further evidence.

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 III. Other Affirmative Defenses

¶ 54 Husband challenges the trial court’s rejection of his implied

waiver and estoppel defenses.1 We uphold the trial court’s

conclusions.

A. Waiver

1. Law

¶ 55 Waiver is the intentional relinquishment of a known right, and

may be implied from a party’s conduct if the conduct is free of

ambiguity and clearly manifests the intent not to assert the right.

In re Marriage of Hill, 166 P.3d 269, 273 (Colo. App. 2007).

¶ 56 We review a trial court’s waiver conclusion for an abuse of

discretion. see, e.g., Shoen v. Shoen, 2012 COA 207, ¶ 12

(“[Plaintiff]’s choice of law argument raises a question of waiver,

which we review for an abuse of discretion.”), which means that the

court has misconstrued or misapplied the law, or makes a decision

that is manifestly arbitrary, unreasonable, or unfair. See Int’l

Network, Inc. v. Woodard, 2017 COA 44, ¶ 24.

1In his briefs, husband clarifies that he does not appeal the trial
court’s finding of no express waiver.

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 2. Application

¶ 57 Husband argues that wife told him that she waived her right

to maintenance, but in any event, she showed implied waiver by

failing to raise nonpayment of the award “despite opportunities to

do so” during the twenty-six years. He points to different occasions

— baptisms, a funeral, weddings, and some telephone calls — when

the parties talked to one another and wife could have asked for

maintenance.

¶ 58 For her part, wife acknowledged seeing husband during the

twenty-six-year period, but denied that they interacted or

communicated with one another. She testified that she “always

planned on getting maintenance at some point,” and that she

delayed collecting not because of any verbal agreement but because

she feared husband, for the reasons discussed above.

¶ 59 The trial court resolved the conflicting testimony in wife’s

favor, finding no express or implied waiver. The court found that

wife “testified credibly that there was no conversation . . . about

non-payment of maintenance to her.” It explained that “[h]usband’s

testimony was vague about the nature of the conversation, where it

took place, and any details which would convince the Court that

23
 wife was knowingly giving up her right to maintenance under the

separation agreement.” The court also rejected husband’s

argument that wife’s twenty-six-year delay signified an implied

waiver, finding that wife would not have given up “a substantial

amount of maintenance for a lifetime” when she was “dealing with

health problems and starting a new business.”

¶ 60 The court had the prerogative to decide which party it believed

and on this basis to conclude that no implied waiver occurred. See

A.J.L., 243 P.3d at 250. Because the record supports its

determination, the court properly exercised its discretion. See

Shoen, ¶ 12.

B. Estoppel

1. Law

¶ 61 The equitable estoppel doctrine may afford relief from accrued

arrearages. In re Marriage of Beatty, 2012 COA 71, ¶ 13 (child

support). Before it may be applied as a bar, four elements must be

proven: (1) the party against whom estoppel is asserted knew the

true facts; (2) that party intended its conduct be acted on by the

other party or led the other party to believe that its conduct is so

intended; (3) the party asserting estoppel was ignorant of the true

24
 facts; and (4) the party asserting estoppel detrimentally relied on

the other party’s conduct. Jefferson Cty. Sch. Dist. No. R-1 v.

Shorey, 826 P.2d 830, 841 (Colo. 1992).

¶ 62 “Whether the circumstances of a particular case involve

representation and reasonable reliance giving rise to equitable

estoppel are questions of fact.” Rocky Mountain Nat. Gas, LLC v.

Colo. Mountain Junior Coll. Dist., 2014 COA 118, ¶ 30. “Findings of

fact must be accepted on review, unless they are so clearly

erroneous as not to find support in the record.” Ward v. Dep’t of

Nat. Res., 216 P.3d 84, 93 (Colo. App. 2008).

2. Application

¶ 63 Husband asserts that he proved all four elements of estoppel:

(1) wife knew of the maintenance award; (2) wife knew all along that

she would seek to collect it eventually; (3) he did not know of her

intention to collect maintenance; and (4) he detrimentally relied on

wife’s inaction by making life choices that he would not otherwise

have made had he known that she intended to collect maintenance.

¶ 64 The trial court rejected husband’s estoppel defense, making

the following findings: (1) husband understood his obligation to pay

maintenance under the separation agreement; (2) wife never told

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 him that he did not have to pay maintenance; and (3) husband did

not detrimentally rely on wife’s assertion that she would not collect

maintenance.

¶ 65 As for this last finding, the court noted that husband’s

“non-payment of maintenance is not detrimental reliance.” To the

contrary, the court described husband as being “substantially

better off” for not paying any maintenance over the twenty-six

years, noting that he had a boat, an ATV, retirement funds, a home

with land and cars; he had obtained a master’s degree; and he

could take a year off from work to build a custom home. The court

also found that husband did not explain how he would have acted

differently had he known wife would collect maintenance.

¶ 66 As with waiver, although contrary evidence may exist in the

record, the court was free to weigh the evidence as it did and to

determine that husband did not establish all four elements of the

defense. See id.; A.J.L., 243 P.3d at 250; Rocky Mountain Nat. Gas,

LLC, ¶ 30. We perceive no basis on which to disturb the court’s

rejection of the estoppel defense.

¶ 67 Husband’s emphasis on the lack of findings about wife’s

intentions does not require a different outcome. The court’s finding

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 that he failed to prove detrimental reliance alone precludes

estoppel. See Shorey, 826 P.2d at 841 (estoppel requires a showing

of all four elements); see also Beatty, ¶ 13 (the party claiming

estoppel must demonstrate detrimental reliance).

IV. Modification of Maintenance

¶ 68 Husband contends the trial court erred in modifying rather

than terminating his maintenance obligation. We are unable to

resolve this contention because the propriety of the court’s order

will depend on whether the court awards wife none, part, or all of

her request for maintenance arrearages plus interest. Therefore, we

reverse the modified maintenance award and remand for the court

to reconsider the issue once it has determined whether laches bars

any of wife’s requested relief.

A. Facts and Procedural Background

¶ 69 In the joint trial management certificate, the parties took “all

or nothing” positions on whether the trial court should continue or

terminate wife’s maintenance award. Wife sought “a future

maintenance claim only if she is denied her judgment.” (Emphasis

added.) Husband “request[ed that the trial court] terminate the

current maintenance Order if the Court does not find that [his]

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 affirmative defenses absolve him of his obligation to pay [wife]

maintenance.” (Emphasis added.) In other words, both parties

argued that wife should either receive a judgment on past due

maintenance or continue to receive maintenance going forward, but

not both.

¶ 70 The parties adhered to the “all or nothing” position during

closing argument at the hearing. Wife described her motion to

modify maintenance as “prophylactic.” She reiterated that if the

court “were inclined not to give us our half million dollar judgment,”

her maintenance obligation should remain intact going forward.

With little explanation, husband merely asked that the court “in

fairness” terminate the award if it rejected his defenses.

¶ 71 For reasons known only to the court, it disregarded these

positions by enforcing the full judgment against husband and

ordering him to pay continuing, albeit reduced, maintenance for

wife’s lifetime.

B. Standard of Review and Law

¶ 72 A trial court may modify the maintenance provisions of a

separation agreement incorporated into a dissolution decree if, as

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 here, the agreement is silent on modification. In re Marriage of

Udis, 780 P.2d 499, 502 (Colo. 1989).

¶ 73 A modification of maintenance requires a showing of changed

circumstances so substantial and continuing as to make the

existing terms unfair. § 14-10-122(1)(a), C.R.S. 2016. To determine

whether changes are substantial and continuing, the court must

examine all circumstances pertinent to an initial maintenance

award, including all relevant circumstances of both parties. See

Udis, 780 P.2d at 503; In re Marriage of Nelson, 2012 COA 205,

¶ 26.

¶ 74 The party seeking a modification has a heavy burden of

proving that the provisions have become unfair under all relevant

circumstances. Udis, 780 P.2d at 503. Still, in determining

whether to continue or modify the maintenance award, a court

should recognize that such an award may not impoverish the payor

spouse. Santilli v. Santilli, 169 Colo. 49, 55, 453 P.2d 606, 609

(1969).

¶ 75 Whether circumstances have sufficiently changed lies within

the sound discretion of the trial court based on the facts presented.

Absent an abuse of that discretion, we will not disturb the court’s

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 ruling. Nelson, ¶ 27. And we must construe the evidence in the

light most favorable to the prevailing party. Id.

C. Application

¶ 76 Because the trial court’s treatment of maintenance ignored the

parties’ de facto agreement that if wife was awarded the entire

judgment, she would not receive further maintenance, this portion

of the order must be set aside. On remand, the court shall

reconsider this issue. Consistent with the parties’ positions, if wife

receives a full judgment, the future obligation terminates; but if she

receives no judgment, the obligation continues.

¶ 77 We recognize, however, a third scenario not contemplated by

the parties in their “all or nothing” positions — whether to modify or

terminate future maintenance should the court only partially

enforce the past due the maintenance award. Granted, “[l]aches is

a complete defense.” Hazard v. E. Hills, Inc., 45 A.3d 1262, 1271

(R.I. 2012). Still, this scenario could arise if the court weighed the

equities differently as between principal and interest.

¶ 78 Under this scenario, the court may exercise its discretion in

determining whether to continue the maintenance obligation and, if

so, whether the parties’ current needs and abilities warrant

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 modification. See In re Marriage of Ward, 740 P.2d 18, 20 (Colo.

1987). Any order continuing or modifying maintenance must be

supported by findings of fact and conclusions of law sufficiently

explicit to give us a clear understanding of the basis of its order.

See In re Marriage of Rozzi, 190 P.3d 815, 822 (Colo. App. 2008).

¶ 79 Finally, because maintenance awards are based on the parties’

financial situations when such orders are entered, the trial court

may take additional evidence of changed financial circumstances as

it deems appropriate. See In re Marriage of Morton, 2016 COA 1,

¶ 14.

V. Trial Court’s Attorney Fee Award

¶ 80 Husband contends the trial court erred in awarding wife her

attorney fees as the prevailing party under the separation

agreement. The parties concede that the fee award must be set

aside if we disturb the modification order. We agree and set aside

the fee award for reconsideration after the court has resolved

husband’s laches defense.

¶ 81 We reject wife’s argument that on remand the trial court

should also consider her prior request for fees under section

14-10-119, C.R.S. 2016. The court did not address this request in

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 its findings, and wife did not file a cross-appeal challenging the

court’s omission. For these reasons, wife is now precluded from

arguing that the court must take up this issue on remand. See

Leverage Leasing Co. v. Smith, 143 P.3d 1164, 1167-68 (Colo. App.

2006) (holding that where a party does not file a cross-appeal, they

may only raise arguments in support of the trial court’s judgment

that do not seek to increase their rights under the judgment).

VI. Appellate Attorney Fee Request

¶ 82 Wife seeks an award of her appellate attorney fees under the

separation agreement, section 14-10-119, and C.A.R. 39.1.

¶ 83 Because husband’s appeal has succeeded in part, wife is not

the prevailing party under the separation agreement. Nor is

husband, because wife succeeded on other issues. We therefore

deny that request. See C.A.R. 39.1.

¶ 84 However, as the trial court is better equipped to resolve the

factual issues associated with wife’s section 14-10-119 request for

appellate attorney fees, we remand this issue for its consideration.

See Beatty, ¶ 22.

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 VII. Conclusion

¶ 85 We reverse those portions of the trial court’s order (1) rejecting

husband’s laches defense, (2) awarding attorney fees to wife as the

prevailing party, and (3) modifying husband’s maintenance

obligation. We remand the case for the court to consider whether

laches bars wife’s entitlement to maintenance interest or

arrearages, and then to reconsider the maintenance and attorney

fee awards based upon its laches determination, as well as wife’s

claim for appellate attorney fees under section 14-10-119.

¶ 86 In all other respects, the trial court’s order is affirmed.

JUDGE BOORAS and JUDGE FREYRE concur.

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