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  1. #1
    1300 feet is offline Junior Member
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    Defense of Laches and Arrears

    What is the name of your state (only U.S. law)? NJ

    I have an 18yo son with my ex-husband. There is a CS order filed in 1994 for child support for $50/week. The probation agency (CSE) has been relatively inactive in enforcing this order but the most recent activities had been in 2005 when they scheduled a hearing for non-compliance for which he showed up and then again when the CSE tried to emmancipate the child in 2010. I attended the 2005 hearing and I also responded to the emmancipation request in 2010. I have no idea if exH responded to the 2010 emmancipation request. Since DS is still in high school, emmancipation was not granted.

    My question is would the Defense of Laches apply in NJ under these circumstances? I spoke to a social security representitive a few years ago and she stated that they routinely garnish SS checks in our state for CS arrears but she was not a lawyer, obviously. What would I have to do to prevent my exH from using this as a defense?What is the name of your state (only U.S. law)?
  2. #2
    mistoffolees is offline Senior Member
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    What efforts have you made to try to collect?
  3. #3
    LdiJ is offline Senior Member
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    Quote Originally Posted by 1300 feet View Post
    What is the name of your state (only U.S. law)? NJ

    I have an 18yo son with my ex-husband. There is a CS order filed in 1994 for child support for $50/week. The probation agency (CSE) has been relatively inactive in enforcing this order but the most recent activities had been in 2005 when they scheduled a hearing for non-compliance for which he showed up and then again when the CSE tried to emmancipate the child in 2010. I attended the 2005 hearing and I also responded to the emmancipation request in 2010. I have no idea if exH responded to the 2010 emmancipation request. Since DS is still in high school, emmancipation was not granted.

    My question is would the Defense of Laches apply in NJ under these circumstances? I spoke to a social security representitive a few years ago and she stated that they routinely garnish SS checks in our state for CS arrears but she was not a lawyer, obviously. What would I have to do to prevent my exH from using this as a defense?What is the name of your state (only U.S. law)?
    "Latches" is not a defense here. Latches is used in situation where there was a court order but no effort at all was made to enforce that court order for an unreasonably long time.

    An example of a latches case would be a case where a parent was ordered to pay child support, the state wasn't involved at all in the collection, and the parent who was to receive child support made no effort at all to collect until the children were well into adulthood.

    In a case where the state is involved, and any effort at all was made by the state to collect, then latches would not apply. Clearly the state made efforts to collect in this case, so latches would not apply. Even if the state's effort were halfhearted, latches would not apply.
  4. #4
    Proserpina is offline Senior Member
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    It's "Laches", LdiJ.

    "Laches".

    Other than that, your post is accurate.

  5. #5
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    Quote Originally Posted by LdiJ View Post
    "Latches" is not a defense here. Latches is used in situation where there was a court order but no effort at all was made to enforce that court order for an unreasonably long time.

    An example of a latches case would be a case where a parent was ordered to pay child support, the state wasn't involved at all in the collection, and the parent who was to receive child support made no effort at all to collect until the children were well into adulthood.

    In a case where the state is involved, and any effort at all was made by the state to collect, then latches would not apply. Clearly the state made efforts to collect in this case, so latches would not apply. Even if the state's effort were halfhearted, latches would not apply.
    FYI, in addition to the laches element of unreasonably delay that LdiJ described, the other element of laches (in most states), is that of a prejudicial or inequitable result, if the order were enforced. For example, someone might claim that after 20 years with no request for payment, and now after the obligor's retirement from gainful employment and a greatly deflated 401k (and therefore reduced ability to pay now versus earlier), it would be unfair to enforce the obligation now.

    Also, it is extremely rare to see a viable laches defense prior to the running of the applicable statute of limitations. Here, it seems the child has just turned of age.
  6. #6
    LdiJ is offline Senior Member
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    Quote Originally Posted by Proserpina View Post
    It's "Laches", LdiJ.

    "Laches".

    Other than that, your post is accurate.

    The sad thing is that I know darned well how it is spelled...sigh. My computer died and I have been using my daughter's laptop and I HATE trying to type on the keyboard. Its soooo awkward. I am usually so greatful to get a post a typed out, that I have been forgetting to check for obvious mistakes.
  7. #7
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    Quote Originally Posted by LdiJ View Post
    The sad thing is that I know darned well how it is spelled...sigh. My computer died and I have been using my daughter's laptop and I HATE trying to type on the keyboard. Its soooo awkward. I am usually so greatful to get a post a typed out, that I have been forgetting to check for obvious mistakes.
    I had no doubt that you knew the correct spelling.
  8. #8
    Ohiogal is offline Senior Member
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    Quote Originally Posted by Proserpina View Post
    It's "Laches", LdiJ.

    "Laches".

    Other than that, your post is accurate.

    Not for Ohio -- it is not correct for every state. In Ohio they had someone who waited 20 some years past the child's age of majority and still collected. I will try to find the case.
    Parents should remember 3 things: Love your kids more than you hate your ex; when you have children the relationship with the other parent is until death; your children determine what type of nursing home you end up in.
    Nothing stated by me should be taken as giving you legal advice or forming an attorney/client relationship.

    Attorney-GAL in Ohio.

    I've removed the knife from my back, polished it, and will one day return it -- long after you think I have forgotten.
  9. #9
    Ohiogal is offline Senior Member
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    Found it:
    Hayman v. Hayman, 2009-Ohio-4855, 2008 CA 0071 (OHCA5)
    {2}Appellant Harry Hayman and appellee Pamela Hayman were married on February 19, 1953. Six children were born of such marriage, namely: John H. (DOB 3/21/53), Melanie (DOB 5/18/55), Della (DOB 8/4/57), Frederick (DOB 8/6/60), Lisa (DOB 9/5/61) and Edward (DOB 8/15/62).

    {3}A Decree of Divorce was filed on October 10, 1968. Pursuant to the terms of the Decree, appellant was ordered to pay $80.00 a week plus poundage as child support. Appellant was ordered to pay such amount to the Clerk of Court as Trustee for appellee. At the time, all of the children were minors and resided with appellee.

    {4}As memorialized in an Entry filed on June 26, 1971, the trial court found that John, the oldest child, was emancipated. Appellant's child support order, upon agreement of the parties, was reduced to $68.00 a week plus poundage. Appellant was ordered to pay such amount to the Clerk of Court as Trustee for appellee. After Melanie moved in with him, appellant, on October 18, 1971, filed a motion requesting that his child support obligation be reduced by $8.00 per week. The trial court, pursuant to a Judgment Entry filed on December 2, 1997, overruled such request.

    {5}Subsequently, on September 30, 2004, Fairfield County Child Support Enforcement Agency (hereinafter 'CSEA") filed a motion asking the trial court to determine what arrearage amount was owed by appellant and to order appellant to make payments on the same. At the time, all of the children were emancipated. In response, appellant, on August 16, 2005, filed a motion asking that such motion be dismissed based on the doctrine of laches. Appellant, in his motion, argued that a twenty-eight year delay by appellee in seeking child support arrearages materially prejudiced him.

    {6}A hearing before a Magistrate was held on June 1, 2006. Prior to testimony, the parties stipulated as to CSEA Exhibit 1, which was a calculation of the arrearages owed by appellant. The records showed that appellant paid $4,159.41 in child support in 1969, $4,240.00 in child support in 1970, $3,688.00 in child support in 1971, $3,604.00 in child support in 1972, $3,536.00 in child support in 1973, $3,128.00 in child support in 1974, $408.00 in child support in 1975 and $1,020.00 in child support in 1976. Appellant did not make any payments after 1976. The records showed that appellant owed arrearages of $19,229.03.

    {7}At the hearing, appellee testified that Melanie left appellee's home and went to live with appellant in 1972, but that Melanie stayed with appellant for only three months before returning to appellee's home. Melanie got married shortly after moving back in with appellee. Appellee further testified that Edward, the parties' youngest child, dropped out of high school in 1980 and got married. According to appellee, Della graduated from high school in 1975 and Lisa got married in 1977. Frederick graduated from high school in 1977, when he was seventeen years old, and joined the military.

    {8}Appellee testified that although she was not getting child support, she never filed a motion requesting the same because she did not know where appellant lived because he moved often. Although she thought that a couple of her children might have had contact with appellant from 1971 on, appellee never asked them if they knew where appellant was. At the hearing, appellee testified that Edward went to work at the same place as appellant in 1982, but that she never attempted to call information and ask for appellant's phone number. She also admitted that she never tried to ascertain appellant's address through the Bureau of Motor Vehicles.
    and:
    { {39}In Booth v. Booth (1989), 44 Ohio.St.3d 142, 541 N.E.2d 1028, the Ohio Supreme Court determined an abuse of discretion standard is the appropriate standard of review in matters concerning child support. In order to find an abuse of that discretion, we must determine the trial court's decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio.St.3d 217, 219, 450 N.E.2d 1140.

    {40}R.C.3123.21 states, in relevant part, as follows: "(A) A withholding or deduction notice described in section 3121.03 of the Revised Code or an order to collect current support due under a support order and any arrearage owed by the obligor under a support order pertaining to the same child or spouse shall be rebuttably presumed to provide that the arrearage amount collected with each payment of current support equal at least twenty per cent of the current support payment." In deviating from "the twenty percent presumption," a trial court "may consider evidence of household expenditures, income variables, extraordinary health care issues, and other reasons for a deviation from the twenty percent presumption." R.C.3123.21(B).

    {41}There is thus a rebuttable presumption of a minimum monthly payment of 20 percent of the current support payment to address an arrearage, Lyons v. Bachelder (2005), Morrow App. No.2004-CA-0018, 2005 WL 2266672 at 34, with the opportunity to deviate upward or downward from the 20 percent presumption.

    {42 In the case sub judice, the current support order was $68.00 a week or $294.67 a month. Twenty percent of such amount is $58.93. The two figures added together equal $353.60, which is the amount that the trial court ordered appellant to pay. Contrary to appellant's argument, the trial court did not order him to pay $353.60 plus 20%. While appellant argues that there was no evidence as to appellant's living expenses and that, therefore, the decision as to how much he should pay monthly toward arrearages is arbitrary, we note that appellant testified that he had enough money to live on and that he had substantial assets. Moreover, the trial court found, based on appellant's testimony, that appellant would pay such money out of the money that he had already saved for his children. Based on the foregoing, we cannot say that the trial court abused its discretion in ordering appellant to pay $353.60 per month plus processing charge.

    {43}Appellant's first assignment of error is, therefore, overruled.

    II

    {44} Appellant, in his second assignment of error, argues that the trial court erred in failing to apply the doctrine of laches to relieve him from his obligation to pay child support arrearages. We disagree.

    {45} The decision of a trial court concerning the application of the doctrine of laches will not be reversed on appeal in the absence of an abuse of discretion. Payne v. Cartee (1996), 111 Ohio.App.3d 580, 590, 676 N.E.2d 946, 952-953. An abuse of discretion is more than just an error in judgment, but rather implies that the court's attitude is unreasonable, arbitrary, or unconscionable. See Blakemore, supra.

    {46} Laches is an equitable doctrine. It has been defined by the Ohio Supreme Court as "an omission to assert a right for an unreasonable and unexplained length of time, under circumstances prejudicial to the adverse party. Connin v. Bailey (1984), 15 Ohio.St.3d 34, 35, 472 N.E.2d 328 quoting Smith v. Smith (1959), 168 Ohio.St. 447, 156 N.E.2d 113. Delay in asserting a right does not of itself constitute laches, and in order to successfully invoke the equitable doctrine of laches it must be shown that the person for whose benefit the doctrine will operate has been materially prejudiced by the delay of the person asserting the claim. Connin, 15 Ohio.St.3d at 35-36, 472 N.E.2d 328. See also: Smith, 168 Ohio.St. at syllabus 3.

    {47}We find that the trial court did not abuse its discretion in finding that appellant was not materially prejudiced by the 28 year delay between the time when appellee received her last child support payment in 1976 until appellee filed her motion in 2004. Appellant contends that he was materially prejudiced because he has financially assisted all of his children over the last twenty eight years and has provided for them in his estate planning and that, if the arrearage issue had been raised earlier, such money which he has already given to his children or has set aside for his children would have been applied to the arrearage instead.

    {48}However, at the hearing, appellant testified that any money that appellee would get from him would come from the money that he had set aside for the children. He further testified that he had enough to live on and that he had substantial assets. Thus, as noted by the Magistrate, appellant did not allege that his standard of living or ability to provide for himself would be affected.

    {49}Appellant also contends that he was materially prejudiced because he no longer has his bank records to check against CSEA's records. At the hearing, appellant did not allege that he made any child support payments directly to appellee. All payments made by appellant should, therefore, appear on CSEA's records. Thus, as noted by the trial court, the fact that appellant could not obtain his banking records did not prejudice him. We further note that appellant's counsel stipulated that the CSEA records were "as accurate as can be after 36 years." Transcript at 7.

    {50}In short, we find that the trial court's decision was not arbitrary, unconscionable or unreasonable because appellant failed to show that he was materially prejudiced by appellee's delay.[1]
    Parents should remember 3 things: Love your kids more than you hate your ex; when you have children the relationship with the other parent is until death; your children determine what type of nursing home you end up in.
    Nothing stated by me should be taken as giving you legal advice or forming an attorney/client relationship.

    Attorney-GAL in Ohio.

    I've removed the knife from my back, polished it, and will one day return it -- long after you think I have forgotten.
  10. #10
    BL
    BL is offline Senior Member
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    Quote Originally Posted by Ohiogal View Post
    Found it:
    Hayman v. Hayman, 2009-Ohio-4855, 2008 CA 0071 (OHCA5)


    and:
    Until I looked it up , poundage sounded like the children's pounds .

    Like how much they eat .

    Laws have some funny words .Wonder if the term came from the english too ?
  11. #11
    Ohiogal is offline Senior Member
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    Quote Originally Posted by BL View Post
    Until I looked it up , poundage sounded like the children's pounds .

    Like how much they eat .

    Laws have some funny words .Wonder if the term came from the english too ?
    Most likely, yes.
    Parents should remember 3 things: Love your kids more than you hate your ex; when you have children the relationship with the other parent is until death; your children determine what type of nursing home you end up in.
    Nothing stated by me should be taken as giving you legal advice or forming an attorney/client relationship.

    Attorney-GAL in Ohio.

    I've removed the knife from my back, polished it, and will one day return it -- long after you think I have forgotten.
  12. #12
    1300 feet is offline Junior Member
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    Thanks so much for your responses! Tonight was the first time since I posted that I was able to log on and read them.

    Mistoffolees, I have not done anything on my own to try and collect. When the order was established in 1994, I paid the fee for Title IV-D services from the state. I was told they would enforce the order if necessary up to and including: garnishing wages, intercepting taxes, and locating the parent if necessary. I have cooperated with probation every time they contacted me giving all and any information I had regarding the father to them. The only times they have been successful at locating him were when he was arrested. Those times, I have been the recipient of any bail monies posted.

    LdiJ, thank you for the easily understood response! I feel better about the eX trying to use this defense in court at some future date. I am sure he will try everything once the state starts to garnish his SS checks- if he has accrued enough credits to collect SS and if that particular social program is still in effect at that time.

    Ohiogal, Thank you for the case cut and paste. I know it is an Ohio case, but I enjoyed reading it.


    Now for another question that EnforceSupport's response provoked:

    I was told that there was no statute of limitations on CS arrears- at least in NJ. My case manager gave me that bit of information when I asked about it specifically. She said if that were true, there would be many parents not paying support and "hiding" out until the prescribed time limit expired. Is this correct?
  13. #13
    mistoffolees is offline Senior Member
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    Quote Originally Posted by 1300 feet View Post
    I was told that there was no statute of limitations on CS arrears- at least in NJ. My case manager gave me that bit of information when I asked about it specifically. She said if that were true, there would be many parents not paying support and "hiding" out until the prescribed time limit expired. Is this correct?
    That's undoubtedly one of the reasons. Heck, even though there's NO statute of limitations, some parents hide out and don't pay. Spend some time reading this board for examples.
  14. #14
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    Quote Originally Posted by 1300 feet View Post
    I was told that there was no statute of limitations on CS arrears- at least in NJ. My case manager gave me that bit of information when I asked about it specifically. She said if that were true, there would be many parents not paying support and "hiding" out until the prescribed time limit expired. Is this correct?
    I'll have to let someone else answer as to whether there is, or is not, a statute of limitations in NJ. Some states still have, and some don't. And, some states that have abolished their SOL's have done so only prospectively, meaning, that it may still be asserted with certain arrears which accrued prior to the elimination of the SOL.

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