Opinion
B154883.
7-11-2003
In re Marriage of DIANNA and GERALD GREEN. DIANNA DeCASTRO, Appellant, v. GERALD GREEN, Respondent.
Watkins & Watkins, J. Brian Watkins, for Appellant. Honey Kessler Amado, for Respondent.
Dianna Green DeCastro (DeCastro) seeks a writ of execution to recover child support arrearages from her former husband Gerald Green (Green). The trial court quashed DeCastros writ on the grounds of laches. We affirm.
FACTS
DeCastro and Green were divorced in 1977. DeCastro took custody of the parties son Aaron, who was born on November 1, 1973. Green agreed to pay monthly child support until Aaron reached the age of 18.
In 1984, DeCastro filed an order to show cause based on Greens nonpayment of support. At the time, Green owed DeCastro $ 116,055.61. In 1985, the parties stipulated to modify the judgment: Green agreed to pay (1) $ 50,000 to settle his arrearages; (2) child support until Aaron reached the age of 21, provided that he attended college; and (3) up to $ 2,000 per year towards Aarons pre-college schooling.
DeCastro filed a series of writ applications starting in 1998. The petition that concerns us is DeCastros third request for a writ of execution, filed on April 10, 2001. DeCastro requested $ 59,800 plus interest of $ 68,165.83 for child support arrearages.
Green moved to quash the writ and expunge the arrearages. Green declared that Aaron resided in Greens home on a full-time basis from 1985 through 1989. Because Aaron lived in Greens home, Green did not pay additional child support. Greens child support obligation ended on November 1, 1991, when Aaron turned 18. Aaron did not attend college, so Greens agreement to pay support until Aaron reached 21 did not take effect. Green declared that he paid for boarding school in Arizona after Aaron reached majority because Aaron had to repeat his last year in high school. Green was unable to prove his payments because his financial institution retains records for only seven years.
DeCastro opposed Greens motion to quash. She asserted that Aaron lived with her, not with Green, between 1985 and 1989. From 1989 to 1991, Aaron attended Beverly Hills High School, the school district in which Green resides. DeCastro claims that she, not Green, paid for Aarons repeat of the 12th grade at the private school in Arizona from 1991 to 1993. Aaron expressed his desire "to remain neutral in this matter" and stated that he lived with both of his parents during his minority.
At the hearing on September 26, 2001, the trial court was sympathetic to Greens laches argument, observing that Greens bank "doesnt keep stuff after ten years. Why isnt that prejudice? Why isnt that laches?" The court granted Greens motion to quash.
DISCUSSION
1. Appealability
The order quashing the writ of execution and expunging arrearages is appealable. (Code Civ. Proc., § 904.1, subd. (a)(10); Fam. Code, § 3554; In re Marriage of Barnes (1978) 83 Cal. App. 3d 143, 148, 147 Cal. Rptr. 710 [order quashing a writ of execution is appealable]; In re Marriage of Justice (1984) 157 Cal. App. 3d 82, 86, fn. 4, 204 Cal. Rptr. 6 [party may appeal a postjudgment order relating to the enforcement of a dissolution judgment].)
2. Availability of Laches as a Defense Before January 2003
Three years ago, this Court concluded that the defense of laches may thwart a stale attempt to enforce a judgment for past due child support. (In re Marriage of Fogarty & Rasbeary (2000) 78 Cal.App.4th 1353, 1356 (Fogarty). Accord: In re Marriage of Dancy (2000) 82 Cal.App.4th 1142, 1147-1148; In re Marriage of Copeman (2001) 90 Cal.App.4th 324, 328-333.) The ex-wife in Fogarty waited 17 years to collect delinquent child support from her ex-husband, who was prejudiced because he lacked financial records of the money he spent on the child. (78 Cal.App.4th at p. 1358.)
While acknowledging statutory provisions that make judgments for child, family or spousal support enforceable until paid in full, we determined that claims for unpaid support are nevertheless subject to the defense of laches. (Fogarty, supra, 78 Cal.App.4th at pp. 1359-1364, citing Fam. Code, § 4502.) "Laches is an equitable defense to the enforcement of stale claims. It may be applied where the complaining party has unreasonably delayed in the enforcement of a right, and where that party has either acquiesced in the adverse partys conduct or where the adverse party has suffered prejudice thereby that makes the granting of relief unfair or inequitable." (Fogarty, supra, at p. 1359.) The burden is on the debtor-spouse to prove an unreasonable delay, coupled with prejudice. (Id. at p. 1364.)
3. New Law Effective January 2003
Effective January 1, 2003, Family Code section 4502 was amended to eliminate laches as a defense in actions between individuals to collect delinquent support. The amended statute reads: "(c) In an action to enforce a judgment for child, family, or spousal support, the defendant may raise, and the court may consider, the defense of laches only with respect to any portion of the judgment owed to the state." The amendment thus prevents a court from finding lack of diligence by the party who delayed in enforcing a support order, or prejudice to the judgment debtor as a result of the delay.
DeCastro argues that the amendment applies retroactively to bar Greens assertion of the defense of laches in this case. The amendment itself is silent on the issue of retroactivity. The issue of retroactivity involves statutory interpretation and presents a question of law. (Rosasco v. Commission on Judicial Performance (2000) 82 Cal.App.4th 315, 318.)
As a general rule, statutes operate prospectively. "`[A] retrospective operation will not be given to a statute which interferes with antecedent rights . . . unless such be "the unequivocal and inflexible import of the terms, and the manifest intention of the legislature."" (United States v. Security Industrial Bank (1982) 459 U.S. 70, 79, 74 L. Ed. 2d 235, 103 S. Ct. 407; Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243, 933 P.2d 507; Rosasco v. Commission on Judicial Performance, supra, 82 Cal.App.4th at p. 320.) By applying an amended statute to a pending case, there is a risk that the "`recently enacted law applies "the new law of today to the conduct of yesterday."" (Id. at p. 322.) Where, as here, the statute is silent on the issue of retroactivity, the court must determine whether the amendment "would impair rights a party possessed when he acted, increase a partys liability for past conduct, or impose new duties with respect to transactions already completed." (Landgraf v. USI Film Products (1994) 511 U.S. 244, 280, 128 L. Ed. 2d 229, 114 S. Ct. 1483; Aktar v. Anderson (1997) 58 Cal.App.4th 1166, 1180.)
It is not useful to draw a distinction between "procedural" and "substantive" changes to the law: "In truth, the distinction relates not so much to the form of the statute as to its effects. If substantial changes are made, even in a statute which might ordinarily be classified as procedural, the operation on existing rights would be retroactive because the legal effects of past events would be changed, and the statute will be construed to operate only in futuro unless the legislative intent to the contrary clearly appears." (Aetna Cas. & Surety Co. v. Ind. Acc. Com. (1947) 30 Cal.2d 388, 394, 182 P.2d 159; Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1225-1226, fn. 26, 246 Cal. Rptr. 629, 753 P.2d 585.) In short, "The critical question is whether a change in the law can be applied retrospectively to create a substantive change in the legal circumstances in which an individual has already placed himself in direct and reasonable reliance on the previously existing state of the law." (Rosasco v. Commission on Judicial Performance, supra, 82 Cal.App.4th at p. 322.)
In this case, Greene could reasonably rely on the existing state of the law in affording him the defense of laches. He did not retain documentary evidence that might have proved he paid court-ordered child support between 1989 and 1992. The amendment to Family Code section 4502 imposes a new duty on parents who pay child support: parents like Greene now have a duty to keep records of their child support payments throughout their lives, a duty that did not exist so long as the defense of laches was available to defeat stale claims.
In sum, there are two reasons for not applying the amendment to Family Code section 4502 retroactively. First, the Legislature did not expressly indicate any intent that its amendment to Family Code section 4502 be applied retroactively. Had the Legislature so intended, "a provision directing retroactive application should have been included." (Evangelatos v. Superior Court, supra, 44 Cal.3d at p. 1227; Civ. Code, § 3.) Second, applying the amendment retroactively would unfairly create a substantive change in the legal circumstances of those who relied on existing law giving them the right to rely on the defense of laches.
4. Application of Laches Defense in the Case at Bench
The standard for reviewing the trial courts application of the laches defense is abuse of discretion. We must assume that the judgment is correct and affirm unless the trial courts decision exceeds the bounds of reason. (Fogarty, supra, 78 Cal.App.4th at pp. 1364-1365.)
Green showed that DeCastro did not take any action to collect unpaid child support from 1989 until 1998. The present application for a writ of execution was filed in April 2001, some 10 years after Greens support obligations ended. DeCastro declared that she suspended her collection efforts for several reasons: to encourage Green to support Aarons attempts to enter the film industry; because Green promised to invest in DeCastros company; and because Green promised to pay DeCastro.
"There is no artificial rule as to the lapse of time which will justify the application of the doctrine of laches. Each case must be determined upon the basis of its facts, and in the absence of a palpable abuse of discretion the trial courts finding upon the issue will not be disturbed upon appeal." (Williams v. Marshall (1951) 37 Cal.2d 445, 455, 235 P.2d 372.) The trial court in this case could justifiably find an unreasonable delay. DeCastros brief details Greens history of child support arrearages, starting in 1981. Given this history, none of DeCastros reasons for waiting to collect were plausible. DeCastro acquiesced in Greens conduct and waited over 10 years to take action, which constituted an unreasonable delay.
With respect to the issue of prejudice, Green showed that his financial institution does not keep records beyond seven years; therefore, he is unable to prove the payments he made toward Aarons support and schooling. Inability to produce records to prove the payment of child support —due to the passage of the years— is a proper basis upon which the trial court may find prejudice to the debtor-spouse. (Fogarty, supra, 78 Cal.App.4th at p. 1365.) Material prejudice from a partys delay "may arise by reason of a defendants inability to present a full and fair defense on the merits due to the loss of records, . . . thereby undermining the courts ability to judge the facts." (A.C. Aukerman Co. v. R.L. Chaides Const. Co. (Fed.Cir. 1992) 960 F.2d 1020, 1033.)
The loss of material evidence, coupled with the excessive passage of time, supports the trial courts finding of laches in this case. Neither DeCastro nor Green submitted any receipts or bank records showing who paid for Aarons private school in Arizona, though both parties claim to have shouldered the responsibility alone. The financial records would have been available had DeCastro sought to collect from Green on a timely basis. Without the records, the trial court could not fully and fairly resolve this dispute.
5. Unclean Hands
DeCastro belatedly argues in her reply brief that Green should have been denied relief based on the doctrine of unclean hands. Although the words "unclean hands" appear once in DeCastros opening brief, she secreted them within her laches argument, and never argued that the judgment should be reversed on the basis of unclean hands. A passing reference in an appellate brief does not suffice to establish a legal argument. (Kunec v. Brea Redevelopment Agency (1997) 55 Cal.App.4th 511, 526, fn. 9.) Though DeCastro directly raises unclean hands in her reply brief, arguments raised for the first time in a reply brief will not be indulged. (Pan Asia Venture Capital Corp. v. Hearst Corp. (1999) 74 Cal.App.4th 424, 428-429, fn. 4.) More significantly, the argument was not presented in the trial court, and was therefore not preserved for appeal. (See Canal-Randolph Anaheim, Inc. v. J.E. Wilkoski (1980) 103 Cal. App. 3d 282, 289, fn. 5, 163 Cal. Rptr. 30.)
Even if the argument were properly preserved, it would not succeed. The "unclean hands" we referred to in Fogarty was not simply past failure to make timely support payments. Rather, unclean hands means the debtor-spouse runs away and hides, or secretes assets, or lies about income. (Fogarty, supra, 78 Cal.App.4th at p. 1366.) None of that type of conduct is alleged to have occurred here.
6. Use of Written Declarations
DeCastro argues that the trial court should not have made its ruling on declarations alone, without live testimony. During the hearing, DeCastros attorney stated that his client was present and that opposing counsel "is free to take [DeCastro] on cross-examination," noting that there were "quite a few factual disagreements." The trial court indicated that it resolves factual disputes by looking at written declarations.
The court did not abuse its discretion by proceeding on written declarations alone. The court has discretion to allow or disallow live testimony at hearings aimed at collecting delinquent child support, and need not allow testimony when there is no offer of proof as to what the testimony would be. (Fogarty, supra, 78 Cal.App.4th at p. 1358, fn. 3.) DeCastro made no offer of proof in this case as to what her testimony would be. Apparently, she planned to reiterate in person the statements she made under penalty of perjury in her declaration. Such testimony would be cumulative and not a productive use of the trial courts time.
DISPOSITION
The judgment is affirmed.
We concur: NOTT, J., and DOI TODD, J. --------------- Notes: The parties do not raise, and we do not reach, the question of whether the legislative abolition of the equitable defense of laches violates the separation of powers doctrine. (See, e.g. People v. Superior Court (Romero) (1996) 13 Cal. 4th 497, 917 P.2d 628 [legislation depriving the trial court of its discretionary judicial power to strike prior criminal convictions violates the separation of powers doctrine].)