Black v. Dancy

RAMIREZ, P. J.

I concur with the result achieved in the majority opinion. I write separately because I disagree with the majority’s dicta regarding the applicability of laches as a defense to petitions for child support arrears.

*1161I agree with the majority on the following points:

1) Substantial evidence supports the trial court’s finding that Kay Carol Black (Kay) did not conceal John Edward Dancy, Jr. (John Jr.) during the time periods in question. Thus, John Edward Dancy (John) cannot use concealment as an excuse for failing to meet his obligation to support John Jr. I also agree that this finding merits our rejection of John’s assertion that the trial court should have found that Kay was estopped from asserting a claim for child support arrears because she concealed John Jr. Since the trial court found there was no concealment, there can be no estoppel.
2) I also agree with the majority on the issue of attorney fees. John’s claim that Kay was not entitled to her attorney fees since she was not entitled to the arrears sought is overcome because we affirm the trial court’s decision that Kay was entitled to the arrears awarded. Further, there was substantial evidence of John’s ability to pay the attorney fees, and of Kay’s need. Therefore John failed to show an abuse of discretion.
3) In addition, if, arguendo, laches was available as a defense in this action, John has not shown that the trial court erred in failing to apply it. Because John did not request a statement of decision, we must assume, by implication, that if the trial court did consider the defense of laches, that it found in favor of Kay. We must uphold this implied finding if it is supported by substantial evidence. (In re Marriage of Cohn (1998) 65 Cal.App.4th 923, 928 [76 Cal.Rptr.2d 866].) As indicated in the majority opinion, there was ample evidence upon which the trial court could reasonably have concluded that laches did not apply. The trial court’s failure to bar Kay’s action for child support arrears based on laches was not error.

Because John is not entitled to the defense of laches under the facts of this case, we need not decide whether it is an available defense in actions on judgments for child support arrears. Statements of law that constitute general observations but are not necessary to the decision, in light of the facts of the case, are dicta, with no force as precedent. (Fireman’s Fund Ins. Co. v. Maryland Casualty Co. (1998) 65 Cal.App.4th 1279, 1301 [77 Cal.Rptr.2d 296].) Therefore, the majority’s conclusion on this point is dicta. (Cf. In re Marriage of Cutler (2000) 79 Cal.App.4th 460, 478 [94 Cal.Rptr.2d 156] (Cutler) [“We need not, and do not, decide whether the defense of laches is available in general as a defense to payment of a child support judgment, because under the facts of [this] case, laches is not available ... as a defense”].) Furthermore, the majority’s conclusion on this point is incorrect.

I first disagree with the majority because John was required to plead laches as an affirmative defense. (San Bernardino Valley Audubon Society v. *1162City of Moreno Valley (1996) 44 Cal.App.4th 593, 608 [51 Cal.Rptr.2d 897].) The record reveals that John did not raise the issue of laches until his opening argument. Since he pled no facts showing that laches applied, John was not entitled to raise the equitable defense.

Contrary to the position adopted in the majority opinion, I do not believe that there were sufficient facts on the face of Kay’s pleadings to support the defense of laches. The definition of laches requires that there be an unreasonable delay in asserting an equitable right, resulting in prejudice to an adverse party. (Wells Fargo Bank v. Bank of America (1995) 32 Cal.App.4th 424, 439 [38 Cal.Rptr.2d 521].) The only element of this definition that appears from the pleadings in this case is that of delay.

The majority cites Rouse v. Underwood (1966) 242 Cal.App.2d 316 [51 Cal.Rptr. 437] (Rouse) for the proposition that laches, while not raised in the pleadings, was nevertheless properly before the court because the party asserting laches argued it in the trial brief. Initially, this interpretation of Rouse makes it distinguishable because the record here is devoid of any evidence that John ever submitted a trial brief addressing laches or any other purported defense. The record does reveal that John’s assertion of the defense was conclusory, and that he made no attempt to produce evidence in support of the defense at trial.

In addition, Rouse was decided based upon the doctrine of the theory of the case by trial. (Rouse, supra, 242 Cal.App.2d at p. 328.) The Rouse plaintiff did not assert that laches was not properly before the trial court, but instead argued that the defense was not factually or legally supported. The plaintiff’s failure to object to the defense based on a defective pleading was held to preclude that argument on appeal. (Ibid.) The doctrine of the theory of the case simply allows a variance in the proof presented at trial. But the scope of what may be presented remains limited by the pleadings. Thus, the pleadings must at least “minimally advise the opposing party of the nature of the defense” before any evidence of that defense may be raised. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 385 [282 Cal.Rptr. 508].) That minimal advisement did not occur here so the doctrine does not apply.

The majority also concludes that John’s failure to plead laches does not bar the defense because the trial court was empowered to raise laches sua sponte, if the evidence supported it. While our decision in San Bernardino Valley Audubon Society v. City of Moreno Valley, supra, 44 Cal.App.4th 593, accepts that courts have, in extraordinary cases, applied the doctrine of laches on their own motion, those cases have always involved equitable as *1163opposed to legal relief. (See, e.g., Akley v. Bassett (1922) 189 Cal. 625, 647-648 [209 P. 576] [laches may be invoked by court against one seeking equitable relief]; Suhr v. Lauterbach (1913) 164 Cal. 591, 593 [130 P. 2] [court may invoke laches where evidence shows seeker of relief in equity is guilty of laches]; Corrigan v. Stiltz (1965) 233 Cal.App.2d 381 [43 Cal.Rptr. 548] [laches would only be invoked by the trial court to apply to causes of action in equity].) Child support is not equitable in nature, but is a legal right. (Fam. Code, §§ 3585, 3900; Davis v. Davis (1968) 68 Cal.2d 290, 291 [66 Cal.Rptr. 14, 437 P.2d 502].) Recognizing that jurisdiction over law and equity has long been combined in the courts of this state (Code Civ. Proc., § 307; Graham v. Light (1906) 4 Cal.App. 400 [88 P. 373]), still, trial courts should not be allowed to apply, of their own accord, the equitable remedy of laches to an action at law, especially when facts supporting the defense have not first appeared in the pleadings.

More important, however, than John’s failure to plead laches, is my disagreement with the majority’s statement that the equitable defense is available at all in actions on judgments for child support arrears. Even though, as we have observed, there is no distinction between courts that may hear matters of law and equity, courts have continued to recognize that laches is an equitable remedy, not applicable to actions seeking legal remedies. (See, e.g., Barkley v. City of Blue Lake (1996) 47 Cal.App.4th 309, 315 [54 Cal.Rptr.2d 679] [“It is well settled that the equitable defense of laches does not apply in an action based on a judgment, which is an action at law”]; Wells Fargo Bank v. Bank of America, supra, 32 Cal.App.4th at p. 439 [“. . . the laches defense is unavailable in an action at law for damages . . .”], citing Abbott v. City of Los Angeles (1958) 50 Cal.2d 438, 462 [326 P.2d 484]; Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 619 [12 Cal.Rptr.2d 741] [“The equitable doctrine of laches has a legal equivalent in the statutes of limitations. To allow a laches defense in a legal action would be to override a time limit mandated by the Legislature”]; and Pratali v. Gates (1992) 4 Cal.App.4th 632, 645 [5 Cal.Rptr.2d 733] [“The equitable defense of laches does not apply in an action at law”], but compare In re Marriage of Comer (1996) 14 Cal.4th 504, 514-515 [59 Cal.Rptr.2d 155, 927 P.2d 265] [court recognized application of equitable defense of estoppel in cases involving child support arrears, citing In re Marriage of Damico (1994) 7 Cal.4th 673 [29 Cal.Rptr.2d 787, 872 P.2d 126]].) Because child support is a legal right, the equitable defense of laches cannot bar enforcement of a judgment for child support. (Fam. Code, §§ 3585, 3900; Smith v. Smith (1954) 125 Cal.App.2d 154, 164 [270 P.2d 613]; Pratali v. Gates, supra, 4 Cal.App.4th at p. 645.)

The majority makes a distinction that while child support is a legal right, child support proceedings are equitable in nature. It then concludes that a *1164court may contemplate whether equitable considerations back a refusal to enforce a support obligation at all. (Maj. opn., ante, at pp. 1148-1149.) The cases cited do not support that conclusion.

For example, In re Marriage of Lusby (1998) 64 Cal.App.4th 459 [75 Cal.Rptr.2d 263] concerned a postdissolution proceeding to adjudicate the former wife’s request for certain add-on expenses to support the two minor children of the marriage. The trial court did recognize that family law judges retain “ ‘ “traditional discretionary authority to adjust child support orders in individual cases where fairness requires it.” ’ ” (Id. at p. 471.) However, ultimately the award was not based upon the court’s equitable powers, but upon the statutory provisions of the Family Code. (Id. at pp. 473-475.) In addition, the question confronting the trial court was the modification of the level of support that would then be owed prospectively. It was nowhere discussed that the court had discretionary or equitable powers to alter or extinguish an amount of child support that had already been awarded and accrued, as would result in the instant case.

The same can be said for Keith G. v. Suzanne H. (1998) 62 Cal.App.4th 853 [72 Cal.Rptr.2d 525] (Keith G.) and Jackson v. Jackson (1975) 51 Cal.App.3d 363 [124 Cal.Rptr. 101]. Both of those cases recognize that a trial court maintains equitable jurisdiction to determine the manner in which a judgment for child support will be paid. However, neither case stands for the proposition that those equitable powers allow the court to extinguish the accrued arrears altogether. The Court of Appeal held that the trial court could 1) give credit for past overpayment; 2) permit partial enforcement of, or quash a writ of execution against a parent in arrears who, during the period in question, had sole physical custody of the child; or 3) take into consideration whether the parent had satisfied or otherwise discharged the support obligation. (Keith G., supra, 62 Cal.App.4th at pp. 858-859; Jackson v. Jackson, supra, 51 Cal.App.3d at p. 368.) The Court of Appeal did not hold that a trial court had “equitable discretion” to determine that the arrears were not required to be paid in any form. In fact, Keith G. holds that the trial court lacks jurisdiction to modify or terminate support that has already accrued. (Keith G., supra, 62 Cal.App.4th at p. 858; Fam. Code, § 3651, subd. (c); see also In re Marriage of Comer, supra, 14 Cal.4th at pp. 541-542 (cone. opn. of Baxter, J.) [judgment for child support is a vested property right involving due process considerations].) This interpretation of these cases comports with Family Code section 4502 that provides, in pertinent part, that “[a] judgment for child, family, or spousal support, including all *1165lawful interest and penalties computed thereon, is enforceable until paid in full.”1

Since this case was argued, two opinions have been published that bear on these issues. In In re Marriage of Fogarty & Rasbeary (2000) 78 Cal.App.4th 1353 [93 Cal.Rptr.2d 653] (Fogarty), the Second District, Division Two, held that laches is a defense in an action for child support arrears. The court, citing our decision in Plescia, supra, 59 Cal.App.4th 252, based its holding on a determination that family law courts have traditionally been regarded as courts of equity and that child support, like spousal support, is inherently equitable in nature. Fogarty’s reliance on Plescia is misplaced. Child support differs from spousal support, in that it is not an equitable, but a legal right. Further, while Fogarty states that laches has been a defense to stale child support claims for over 50 years, it cites no cases that stand for that proposition.

Cutler, recently decided by the Fifth District, thoroughly analyzes the changes in the applicable statutes and illustrates the Fogarty court’s error in relying on the purported historical or traditional use of laches as a defense to child support arrears actions. The cases that the Fogarty court and the majority in this case rely on applied former Code of Civil Procedure section 681, which specified that money judgments were extinguished if not enforced within five years (later modified to 10 years). This is not a laches defense, but rather a statute of limitations defense. Further, as the Cutler court observes, in 1982 the successor statutes to former Code of Civil Procedure section 681 explicitly provided that they do not apply to either child or spousal support judgments. (Cutler, supra, 79 Cal.App.4th at pp. 469-470; Code Civ. Proc., § 683.310.) Thus, the Legislature has specifically stated that the authorities that the Fogarty court and the majority rely on do not apply.

In addition, the cases that Fogarty and the majority rely on established lack of diligence as a defense, not laches. As we observed in Plescia, supra, 59 Cal.App.4th at page 262, lack of diligence and laches are not the same. And, because Family Code section 4502 applies notwithstanding any other provision of law, it prevails over Family Code section 291, which authorizes a court to consider lack of diligence in enforcing a judgment. While it may have been an issue in cases such as this one, where support orders were entered before 1993, had it been raised below, lack of diligence is no longer *1166a valid consideration in enforcing a support judgment. (In re Marriage of Garcia (1998) 67 Cal.App.4th 693, 697-698 [79 Cal.Rptr.2d 242]; see also Cutler, supra, 79 Cal.App.4th at p. 475.) Fogarty’s analysis is fatally flawed. Thus, the majority’s reliance upon it is misplaced. Further, in Nealis v. Carlson (1950) 98 Cal.App.2d 65 [219 P.2d 56], cited by the majority, the court held that laches barred an attempt to set aside a decree of divorce, thus preventing a woman from obtaining half of her deceased ex-husband’s estate. It did not consider the application of laches to support arrears of any kind, and therefore provides no authority on that point.

It has repeatedly been observed that requiring parents to fulfill their moral and legal responsibilities to provide for their children is of paramount importance. The noncustodial parent has an obligation to pay child support regardless of whether the custodial parent actively seeks it. (See, e.g., Moss v. Superior Court (1998) 17 Cal.4th 396, 422-424 [71 Cal.Rptr.2d 215, 950 P.2d 59]; In re Marriage of Comer, supra, 14 Cal.4th at pp. 529-530; In re Marriage of Padilla (1995) 38 Cal.App.4th 1212, 1218 [45 Cal.Rptr.2d 555].) It is the strength of this public policy that has established child support as a legal right and a primary parental duty, whereas spousal support has remained an equitable consideration. Insisting on the enforcement of judgments for child support until they are paid in full reinforces the fundamental importance of providing for children when they are young and need the support by placing parents on notice that the obligation will not evaporate if ignored long' enough, and creates a strong incentive to avoid nonpayment.

For these reasons I do not join in the majority opinion.

Appellant’s petition for review by the Supreme Court was denied November 15, 2000.

In re Marriage of Plescia (1997) 59 Cal.App.4th 252 [69 Cal.Rptr.2d 120] (Plescia), this court held that laches was a valid defense to actions for spousal support arrears, in spite of Family Code section 4502. However, spousal support is an equitable rather than a legal right. Thus Plescia is distinguishable.