FOR PUBLICATION
APPELLANT PRO SE: ATTORNEY FOR APPELLEE:
KEVIN D. MILLER CYNTHIA REINERT
Baltimore, Maryland Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
KEVIN D. MILLER, )
)
Appellant-Respondent, )
)
vs. ) No. 49A04-0209-CV-453
)
ANGELA C. MILLER, )
)
Appellee-Petitioner. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Burnett Caudill, Magistrate
Cause No. 49D01-011-DR-1768
June 17, 2003
OPINION - FOR PUBLICATION
BAKER, Judge
Appellant-respondent Kevin D. Miller appeals the trial court’s ruling
in favor of his former wife, appellee-petitioner Angela C. Miller,
regarding an order for child support arrearage that was owed for their
minor son. Specifically, Kevin contends that Angela’s claim for back
support was barred by the doctrine of laches because she unreasonably
delayed in enforcing the support order and the delay unfairly prejudiced
him. Concluding that Kevin has failed to demonstrate sufficient prejudice
when applying the doctrine of laches in accordance with South Carolina law,
we affirm the trial court’s judgment.
FACTS
Kevin and Angela were married in 1982 in South Carolina while Kevin
was serving on active military duty in the United States Navy. Thereafter,
their son was born in June of 1984, and they moved to Indianapolis. The
three of them subsequently moved to Norfolk, Virginia, because Kevin had
been assigned to military duty there. In November 1987, Kevin and Angela
separated.
Angela moved to Moncks Corner, South Carolina, taking the parties’ son
with her. Kevin then began paying $318 in monthly support, without any
court intervention. In 1989, Angela petitioned to dissolve the marriage
and it became final on March 21 of that year in South Carolina.
Recognizing that Kevin had voluntarily been paying child support directly
to Angela, the dissolution court ordered that he continue to make payments
in the same amount.
Kevin continued paying child support each month until September 1992,
because he was unable to ascertain Angela’s whereabouts. The support
payments had been made from Kevin’s military allotment until he was
discharged from the service in August 1992. According to Kevin, none of
Angela’s family members would reveal her location to him. Kevin then
remarried in 1997 and two daughters were born to that marriage.
Thereafter, Kevin and his family relocated to Washington, D.C., in May
1999, where he attended law school.
In January 2000, Angela sought to enforce the South Carolina support
order with respect to their son. She contacted a private child support
collection agency, Child Support Enforcement, Inc. (CSE), in an effort to
collect the support that was owed. Kevin eventually received a demand
letter from CSE along with a computation of support arrearage allegedly
owed to Angela, representing a three-and-one-half-year period in which
Kevin had not paid support. CSE advised Kevin that he owed child support
dating back to the April 1989 dissolution. During 2000, Kevin paid Angela
three separate child support payments in the form of money orders, totaling
$1590, when he learned that Angela had moved to North Carolina.
On June 19, 2000, Kevin filed a defamation action against Angela in
the U.S. District Court of North Carolina, alleging that Angela had
submitted a false publication to CSE regarding the dates and amount of
alleged support arrearage that was owed. Thereafter, both parties
stipulated to a voluntary dismissal of the case and Kevin received a
settlement in the amount of $10,000 from CSE. The trial court ultimately
dismissed the action with prejudice. On October 25, 2001, Angela filed a
petition to register the South Carolina support and dissolution decree in
Marion County. Angela alleged that Kevin owed back support in the amount
of $34,504 plus $30,577.91 in accrued interest, thus making a total of
$65,081.91 due and owing. After the order was approved, Angela filed a
verified motion for sanctions for the nonpayment of child support and
contempt. A hearing was conducted on June 3, 2001, and the trial court
ultimately entered an order finding Kevin in contempt for the willful non-
payment of child support and determined that he was in arrears in the
amount of $34,491.90. The trial court rejected Kevin’s claim of laches that
Angela had unreasonably delayed in enforcing the support order and that he
had been prejudiced by that delay. Kevin now appeals.
DISCUSSION AND DECISION
In addressing Kevin’s argument, we note as an initial matter that
Indiana Code section 31-18-6-4(a) of the Interstate Family Support Act
(IFSA) provides in relevant part that “[t]he law of the issuing state
governs the nature, extent, amount and duration of current payments and
other obligations of support and payment of arrearages under the order.” In
light of this statute, South Carolina law applies here, inasmuch as that
state had issued the underlying support order.
We note that while the doctrine of laches does not apply to cases
involving the enforcement of support orders in Indiana, see Knaus v. York,
586 N.E.2d 909, 914 (Ind. Ct. App. 1992), South Carolina law provides that
an alleged arrearage may be defended under this equitable doctrine. See S.
C. Dep’t. of Soc. Serv. v. Holden, 459 S.E.2d 846, 848 (S.C. 1995). The
supreme court of South Carolina has defined laches as:
Neglect of an unreasonable and unexplained length of time, under
circumstances affording opportunity for diligence, to do what in law
should have been done. Whether a claim is barred by laches is to be
determined in light of the facts of each case, taking into
consideration whether the delay has worked injury, prejudice, or
disadvantage to the other party; delay alone in assertion of a right
does not constitute laches. In sum, [an obligor parent] must
establish the following elements to prove laches: (1) delay, (2)
unreasonable delay, (3) prejudice.
Hallums v. Hallums, 371 S.E.2d 525, 527-28 (S.C. 1988).[1] Moreover, the
determination of whether laches has been established is largely within the
trial court’s discretion. Brown v. Butler, 554 S.E.2d 431, 434 (S.C. App.
2001).
In this case, although Kevin maintains that he was injured because he
was unable to modify his child support obligation, he did not offer any
evidence of an attempt to do so. Additionally, he did not inform the
trial court as to how he had become aware that Angela no longer resided in
South Carolina and, even more, compelling, Kevin did not explain why he
paid such a meager amount toward his child support obligation since
February 2000 once he found out where Angela was residing. The record also
does not disclose any effort on Kevin’s part, with the exception of
questioning Angela’s relatives about her whereabouts, to re-establish a
relationship with his child. Thus, under these circumstances, even if it
could be inferred that Angela delayed unreasonably in pursuing the
arrearage, Kevin failed to show how he was prejudiced by that delay. As a
result, we decline to disturb the trial court’s ruling with respect to
Kevin’s nonpayment of support.
Judgment affirmed.
DARDEN, J., concurs.
SULLIVAN, J., concurs in result, with opinion.
IN THE
COURT OF APPEALS OF INDIANA
KEVIN D. MILLER, )
)
Appellant-Respondent, )
)
vs. ) No. 49A04-0209-CV-453
)
ANGELA C. MILLER, )
)
Appellee-Petitioner. )
SULLIVAN, Judge, concurring in result
We are not here concerned with whether or not the South Carolina
dissolution decree and support order is entitled to full faith and credit.
The validity of that support order is not in issue. The only issue before
us is whether the custodial parent may be barred by the doctrine of laches
from collection of a support arrearage which has accrued over a period of
time under a South Carolina decree.
Instead of a full faith and credit question, we merely have an issue
as to whether we must look to South Carolina common law, i.e. the doctrine
of laches, when application of that law in Indiana would violate the public
policy of this state. I conclude that we are not obligated to do so.
Here, the South Carolina support order was registered in Marion
County, and in her petition Angela alleged an arrearage of $34,504 plus
interest which she sought to enforce and collect. The trial court in
Marion County was not authorized to modify the South Carolina support
decree but was authorized only to confirm the South Carolina decree as it
existed when registered. See Beach v. Beach, 642 N.E.2d 269, 279 (Ind. Ct.
App. 1994). However, when confirmed, Indiana, as the state of registry,
may effect a modification with respect to the manner of enforcement of the
foreign support order as confirmed. Id.
Thus, in determining the manner in which the South Carolina support
order is to be enforced, the Indiana trial court in this case might have
accorded comity to the law of South Carolina and utilized the doctrine of
laches to bar Angela’s attempted collection of the arrearage or, as it did,
could choose to not apply the doctrine of laches. However, it is
unnecessary to reach the issue decided by the majority opinion, i.e., that
Kevin failed to establish that Angela’s laches resulted in prejudice to
him.
Here the trial court rejected Kevin’s laches argument as was its
prerogative. The rationale for such rejection is firmly grounded upon the
public policy of Indiana. That policy is enunciated in Knaus v. York, 586
N.E.2d 909, 914 (Ind. Ct. App. 1992) which held, “[T]he doctrine of laches
simply does not apply to child support cases. This court will not penalize
a child for his or her parent’s delay in pursuing child support.”
In this regard, the right of support is that of the child, not that
of the custodial parent. The custodial parent merely acts as the trustee
for the child for whose benefit the support order was entered and has no
right to waive or otherwise interfere with the child’s right to such
support. In re Marriage of Truax, 522 N.E.2d 402, 407 (Ind. Ct. App.
1988), trans. denied. This principle is one of long standing in Indiana.
Corbridge v. Corbridge, 230 Ind. 201, 102 N.E.2d 764 (1952); Ort v. Schage,
580 N.E.2d 335 (Ind. Ct. App. 1991); Pickett v. Pickett, 470 N.E.2d 751
(Ind. Ct. App. 1984).
If we were to bar Angela’s claim on behalf of her minor son,[2] it
would seem to be equivalent to permitting the custodial parent’s action or
non-action to deny the child’s rightful claim for support from Kevin. To
do so would contravene the public policy of this state.[3] Accordingly,
the Indiana court was at liberty to reject the application of South
Carolina’s laches doctrine. See Schaffert v. Jackson Nat’l Life Ins. Co.,
687 N.E.2d 230 (Ind. Ct. App. 1997); Maroon v. State Dep’t of Mental
Health, 411 N.E.2d 404 (Ind. Ct. App. 1980); 16 Am. Jur. 2d Conflict of
Laws § 24 (1988).
There is another, albeit related, basis for affirming the trial
court’s refusal to apply South Carolina’s laches defense. In Indiana the
doctrine of laches is held to be premised upon grounds of public policy.
State ex. rel. Peoples Nat’l Bank and Trust Co. of Washington v. Dubois
Circuit Court, 250 Ind. 38, 234 N.E.2d 859 (1968), upon reh’g. Thus the
overriding public policy which inheres in a child’s right to support must
also inhere in a decision whether or not to apply the equitable defense of
laches. The courts of this state have determined that the public policy
considerations relative to child support trump any policy considerations
favoring application of the laches doctrine.
The equitable doctrine of laches is not the equivalent or the mirror
image of a statute of limitations. However, it is fair to say that the two
concepts are first cousins and that various considerations overlap between
the two limiting principles. See 27A Am. Jur. 2d Equity §§ 148, 194
(1996). Accordingly, it would seem appropriate to hold that like a
statute of limitations, application of the doctrine of laches is
procedural rather than a matter of substantive law. See Lee v. Estate of
Cain, 476 N.E.2d 922 (Ind. Ct. App. 1985) (holding that because limitation
statutes are procedural in nature, the law of the forum state is
applicable). Aside from, but certainly consistent with public policy
considerations, the law of Indiana concerning application of the doctrine
of laches would control.
I would affirm upon grounds that the doctrine of laches is simply
not applicable to the case before us.
-----------------------
[1] We note that in the event that Indiana law applied here, the burden
of proof upon the claimant is similar. Specifically, the following three
elements must be established: 1) inexcusable delay in asserting a known
right; 2) an implied waiver arising from knowing acquiescence in existing
conditions; and 3) a change in circumstances causing prejudice to the
adverse party. Ebersol v. Mishler, 775 N.E.2d 373, 378 (Ind. Ct. App.
2002). Moreover, a mere lapse in time is insufficient; unreasonable delay
that causes prejudice or injury is necessary. Id.
[2] The child was born in June 1984 and thus at the time Angela brought her
suit to enforce the South Carolina support order in Indiana was sixteen
years of age.
[3] At least seventeen other jurisdictions, Alabama, California, Colorado,
the District of Columbia, Florida, Illinois, Louisiana, Kansas, Kentucky,
Minnesota, Missouri, Montana, New York, North Carolina, Virginia,
Washington and Wisconsin also hold the doctrine of laches inapplicable to
collection of past due child support. See cases collected in John C.
Williams, J.D., Annotation, Laches or Acquiescence as Defense, so as to Bar
Recovery of Arrearages of Permanent Alimony or Child Support, 5 A.L.R.4th
1015 (1981).
