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
1
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;
2
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.
3
¶ 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
4
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
5
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
6
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
7
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
8
(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
9
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
10
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
11
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.
13
¶ 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
14
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
17
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
18
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
19
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
20
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.
21
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.
22
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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In re Marriage of Kann
Combined Opinion