concurring and dissenting. These parties were divorced in 1942. Pence paid, support for the child in excess of the amount provided in the order of the court until 1945. $40 paid during this time remained in the registry of the court uncalled-for until 1947. Mrs. Pence made no effort whatever to contact Pence or to collect payment subsequent to May, 1945, until the motion was filéd in September, 1953, a period of more than 8 years. She was married twice after her divorce from Pence. Pence married again and has a child by that marriage. He earns $400.00 per month and there is no showing that he has accumulated any savings. To require him to pay the entire sum in arrears, or a large portion thereof, would be wholly inequitable. -
Of course Pence owes for the support of his child;: and he would owe for such support without a court order.. McCall v. McCall, 205 Ark. 1123, 172 S. W. 2d 677. Obvipusly the child was supported by someone, and Mrs. Pence furnished such support; but the question is, can she recoup for her expenditures over the eight year period, or is she barred by laches from recovering for a period greater than some reasonable period prior to the time she filed her motion to enforce payment? Although appellee does not plead laches by using that word in his response to appellant’s motion, he did plead that appellant had waived her right to the collection of the amount in arrears, and he further pleaded the statute of limitation. The court made a finding that appellant had kept the child concealed from the father, and had waived her right to the aid of the court in reducing to judgment any payments which fell due during that period. Thus the court treated the complaint as alleging laches, and as heretofore stated there was a specific plea of waiver.
Laches is “The established doctrine of equity that, apart from any question of statutory limitations, its courts will discourage delay and sloth in the enforcement of rights. Equity demands conscience, good faith, and reasonable diligence. In their absence the court will not act. The object of the doctrine of laches is to exact of the complainant fair dealing with his adversary, and the rule was adopted largely because after great lapse of time, from death of parties, loss of papers, death of witnesses, change of title, intervention of equities, or other causes, there is danger of doing injustices, and there can be no longer a safe determination of the controversy.” Dalian tine’s Law Dictionary, 2nd Edition.
The doctrine of laches is a species of estoppel and rests upon the principle that if one remains silent when in conscience he ought to speak, equity will bar him from speaking when in conscience he ought to remain silent; and further, the equitable maxims that he who seeks equity must do equity, and that equity aids the vigilant, and that hence while there is a great variety of cases in which the equitable doctrine is invoked, each case must depend on its own particular circumstances and courts of equity discourage laches and delay without cause. Stewart v. Pelt, 198 Ark. 776, 131 S. W. 2d 644; Neal v. Stuckey, 202 Ark. 1119, 155 S. W. 2d 683; Hardy v. Hilton, 211 Ark. 991, 204 S. W. 2d 163; Grimes v. Carroll, 217 Ark. 210, 229 S. W. 2d 668.
“The right to enforce a judgment or decree for alimony may be lost by laches.” 27 C.J.S. 1034.
In Stone v. Stone, 162 Mich. 319, 127 N. W. 258, the parties at the time of separation had one child, and the defendant was ordered to pay $5 per week for alimony, and a solicitor’s fee of $25. Nothing was done to enforce the collection of this alimony for 13 years, and there the Supreme Court of Michigan said: “Can she be heard at this late day, and under this state of facts, to object to the dismissal of her bill of complaint upon the ground of gross laches in failing to seasonably prosecute her suit to a final decree? We are of the opinion that it would be inequitable and against sound public policy to permit her to do so. . . . Equity will not lend its aid to those who are not so diligent in protecting their own rights.”
In Herman v. Herman, 17 N. J. Misc. 127, 5 Atl. 2d 768, the New Jersey court said: “If the wife unduly delays or neglects to apply for alimony or to seek collection of arrearages under an existing alimony order, the court will be inclined to find in her delay a waiver of evidence of payment. See Wilson v. Wilson, 181 Atl. 257.”
In Franck v. Franck, 107 Ky. 362, 54 S. W. 195, the Supreme Court of Kentucky said: “Upon the question of enforcing the payment of alimony long in arrears, Mr. Bishop, in his work on Marriage and Divorce (§ 1098) says: ‘As this allowance is for the wife’s maintenance from year to year, the court will not ordinarily compel payment beyond a year prior to the application, unless some explanation of the delay is made or appears.’ And the rule was very thoroughly established in the English ecclesiastical courts that, where both parties have long abstained from applying to the court, the one for a reduction of alimony, or the other to enforce the regular payment, it will not enforce payment of arrears beyond one year prior to the monition, without sufficient cause being shown for delay. See De Blaquiere v. De Blaquiere, 5 Eng. Ecc. R. 126. And in the case of Wilson v. Wilson, supra, upon an application by the wife to enforce a monition for the payment of alimony, the court said: ‘Unless the husband is absent from the country, or some particular reasons are set forth, it would be productive of great inconvenience and injustice if, after the lapse of so many years, the court should enforce such monition. If the wife is aggrieved, she should make her application within a reasonable time; otherwise, the court will infer she has made some more beneficial arrangement. As a general rule, therefore, the court is not inclined to enforce arrears of many years’ standing’.”
The order in the case at bar providing for payment of $2.50 per week was for the purpose of providing the necessaries of life for the child, of the parties. Subsequent to 1945 the appellant furnished those necessaries, but she could have compelled the appellee to do so if she had so desired; but now, in my opinion, she is barred on the principle of laches from recovering any amount accruing prior to a reasonable time beyond the time of making the application, which I believe should be one year. Therefore I would modify to that extent the decree of the Chancellor, and as modified, affirm.
Hence I concur in the majority opinion insofar as appellee is required to pay arrearages for a period of one year prior to the time appellant filed her motion to enforce such payment; and I dissent insofar as the majority opinion allows the collection of such arrearages for a period of more than year.