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Laches as a viable defense to the collection of child support arrearages

by | May 1, 2017 | Child Support, Contempt, Firm News

Wynn v Craven is a Georgia Supreme Court case involving the collection of Child Support arrearages.  The mother Helen Wynn sought $72,000 in unpaid child support against Robert Craven, the father.  The father Mr. Craven was ordered to pay 20% of his income or a minimum of $100 per week.  By 2014 the mother was owed $72,000 in arrears after a total of 15 years of unpaid child support.  She had had on several occasssions written Mr. Craven the father and demanded payment of unpaid child support.  He often did make payments throughout the years however, he never paid enough to forgive his total amount of arrearages owed.  Mother filed a contempt lawsuit in 2014 claiming there was past due arrearages for child support.  The Father Mr. Craven in turn responded with the affirmative defense of laches.  The trial court held that because mother accepted an amount of $100 per month for a period of years she therefore acquiesced her chances to file a contempt action against the father giving up her right to the full amount of child support arrearages owed.

She then filed an appeal claiming that the trial Court erred in deciding the way they did. She argued that to allow the defense of laches basically lets the father get away without paying child support.  The appellate Court agreed.  The father alleges that there was a base of $100 of that needed to be paid and he did pay it.  However, the appellate Court ruled that the child support order also stated he was to pay 20% percent of his income which he did not pay.  Father also argued that there was a delay of 15 years before she filed her claim for arrearages.

Laches can be asserted only when it would be inequitable for a party to enforce their legal rights.  The appellate Court ruled that child support cannot be waived by inaction.  That Mom was asserted the rights of her child not her legal rights.

Interestiingly in California Family Law section 291 permits Laches as an affirmative defense in Child support actions only when it is an action by the State of California.  State of Georgia as California states Laches cannot be asserted on behalf of a parent who is in arrears of child support.  There logic is that the parent filing for collection of the arrears of for the child not the parent.  There is a strong public policy in the United States where child support cannot be waived because of delay.  Although financial hardship might result from the assertion of an arrearage claim many years after a judgment for support is entered the parent who is obligated to pay child support cannot escape their parental obligations.

The Child support Courts as in the Georgia case of Wynn v Craven matter will defer to the trial courts to reassess the financial condition of the parent who owes the arrears.  They can use equity and fairness to determine what the parent can pay on arrears to assist them.  However, there will no complete waiver of their obligation to pay their arrears.