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Prior to the January 1, 2003 amendment of section 4502 of the California Family Code, laches (unreasonable delay with undue prejudice) was a defense to collection of back spousal support and child support. But on January 1, 2003, Family Code section 4502(c) eliminated the defense of laches for back spousal support and child support. And although aforesaid section 4502(c) was subsequently deleted by the California Legislature, Family Code section 291(d) was enacted as a replacement.
In an action for enforcement of judgment for child 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 that is owed to the state, under Family Code Section 291(d).
So, the alternative defense of waiver under California Civil Code section 3515 may be available to bar collection of spousal and child support arrears, but no longer laches.
Delay Inconsistent With Intent To Enforce Right To Support:
With the common law laches defense to spousal support collection eliminated by the California Legislature, the laches defense enunciated in Marriage of Plescia (1997) 59 CA 4th 252, 257-258, 69 CR 2d 120, 123-124, and in In re Marriage of Cordero (2007), 95 Cal. App. 4th 653, 115 Cal. Rptr. 2d 787, is no longer good law.
This leaves the defendant-obligor spouse with the defense of waiver. Waiver has been defined as “the intentional relinquishment of a known right or such conduct as warrants an inference of the relinquishment of such right, and may result from an express agreement or be inferred from circumstances indicating an intent to waive,” per Panno v. Russo 82 Cal. App. 2d 408, 412, 186 P. 2d 452.
In In re Marriage of Paboojian (1987) 189 Cal. App. 3d 1434, 235 Cal Rptr. 65, the Court of Appeals ruled that: “although the evidence of an express waiver is equivocal… (the) delay (failure to demand the court-ordered support for almost 16 years) in itself is not a defense to the right to enforce the accrued payments under the divorce decree, (citing DiMarco v. DiMarco (1963) 60 Cal. 2d 387, 294, 33 Cal. Rptr. 610), (b)ut the delay is so inconsistent with the intent to enforce the right to support that it corroborates the trial court’s finding of a waiver.”
Acceptance Of Lesser Amount Of Support And 4-Year Delay Not Waiver:
It has, however, been ruled in Hamer v. Hamer (2000) ___ Cal. App. 4th ___, that “mere acquiescence in payment of an amount of child and spousal support less than that provided by a final dissolution judgment is (not) sufficient to constitute a waiver or otherwise to bar collection of the unpaid amounts.”
In Hamer v. Hamer, supra, the Court of Appeals found that… “it simply cannot be said that the four-year delay in the instant case-especially in the absence of an express agreement to forego collection of the unpaid amount-was” ‘conduct so inconsistent with the intent to enforce the right in question as to induce a reasonable belief that it has been relinquished,'” citing Paboojian, supra.
Passage Of Time Not Enough In Laches And Waiver Defenses:
As stated in Paboojian and Hamer, supra, mere delay or passage of time is insufficient to waive or bar back spousal support. There must be lack of intent to enforce the right to support either by an express agreement or an influence from circumstances indicating an intent to waive, per Graham v. Graham, (1959) 174 Cal. App. 2d 678, citing Panno v. Russo, supra.
The same is true in the eliminated laches defense. Indeed, laches involves unreasonable delay causing undue prejudice to the party raising the laches defense, per Marriage of Plescia, supra.
(The Author, Roman P. Mosqueda, has practiced Family Law for more than 20 years in California, New York, and the Philippines. He published a book: Marriage and Its Dissolution Handbook.)
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