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Regarding Laches
The significance of uploading this lengthy and successful brief is
to show how the FACTS and the LAW must be interwoven.


1. Upon maturation, court-ordered child-support payments become by operation of law money judgments, against which laches or equitable estoppel is incompatible and therefore unavailable as a defense to recovery.

A divorce decree providing alimony and child support is a final judgment, like any other money judgment, which gives the obligee 20 years after the judgment is rendered to levy upon the execution.  M.G.L. c. 260, sec. 20.  Brown v. Greenlow, 330 Mass. 88 (1953) (wife sought to recover from her husband arrears in alimony and child support which had remained unpaid for 23 years).  After 20 years from the date of judgment, the money judgment shall be rebuttably presumed to be paid and satisfied.  Id. at 90.  If successfully rebutted, the presumption of payment affects only those payments which should have been made more than 20 years before the filing of the action seeking payment of arrearages in court-ordered spousal and child support.  Id. See also McIlroy v. McIlroy, 208 Mass. 458, 465 (1911) (where after 17 years, in an action for unpaid alimony or support, the court "could consider any change in the present position of the parties"); Knapp v. Knapp, 134 Mass. 353, 356 (1883) (twenty-eight years).

Simply put, each court-ordered child-support payment becomes a separate judgment as of the date the payment falls due.  By 1988, this reasoning, that past-due support payments are equivalent to a judgment, was enacted into law:  G.L. c. 119A sec. 13(a).  The statute also disallows retroactive modification of any payment installment under any child-support order except those which are the subject of a pending complaint for modification. G.L. c. 119A, sec. 13(b).

The enactment of this statute a year prior to Jane bringing suit gives -- according to the Master and the Defendant -- support to their argument that Jane's alleged delay prejudiced John Doe.  Plaintiff suggests that this reason is a smokescreen, for by 1988, John's income had swelled to $139,061 -- around $100,000 greater than it had been in either 1981 or 1983 (the dates of the first and second agreements, respectively), making it impossible for him to have succeeded in modifying either agreement for child support.[FN1]

    FN1. John Doe's 1988 income was roughly $116,000 greater than his 1981 income and roughly $92,000 greater than his 1983 income.

Cf. Larson v. Larson, 30 Mass.App.Ct. 418, 426-427 (1991), and cases cited therein. "Each violation of [a] continuing monthly payment obligation under [a] divorce judgment constitutes a new claim for preclusion purposes, as with any contract calling for continuous separate performances over a period of time or for payment of money in separate installments."  Id.

Notwithstanding the statute, this Court has addressed -- in terms of social policy -- the issue of whether laches is available as a defense in an action for child-support arrearages:

    There are obvious policy considerations against adopting a rule which would give a spouse a financial incentive to disobey a judgment, and which would increase his potential reward each time he fails to make a payment required by the judgment. . . . "To hold otherwise would be to defeat the object of the law and seriously impair the value of the decree in the wife's favor by depriving her of a source of credit to obtain support." [Cites omitted.]

Spiliotis v. Campbell, 13 Mass.App.Ct. 189, 192 (1982) (absent showing of prejudice on face of complaint, dismissal for laches was error; death of husband-obligee did not as a matter of law preclude administratrix of deceased wife's estate from recovering alimony and child-support arrears accrued at date of her decedent's death).[FN2]

    FN2. The social concerns of this Court in Spiliotis have been heard in other jurisdictions: Strecker v. Wilkinson, 552 P.2d 979 (Kan. 1976) ("the support of children, like their custody, is a matter of social concern; the husband could not 'invoke the defense of laches as a bar to enforce his moral and legal obligation to support his child'"). Paterson v. Paterson, 242 N.W.2d 907, 910 (Wis. 1976) (laches unavailable: failure of custodian to promptly seek enforcement of support order does not inure to profit or benefit of person choosing not to make payments).

And then, the year after Spiliotis, this Court stated that any delay in seeking arrearages in alimony and child-support payments should be treated NOT as a matter of laches but as a matter of "whether the circumstances of the parties [have] so changed as to require a modification of the earlier judgment."  Kennedy v. Kennedy ["Kennedy II"], 17 Mass.App.Ct. 308, 316 (1983), quoting Spiliotis, 13 Mass.App.Ct. at 190, quoting with approval Bullock v. Zeiders, 12 Mass.App.Ct. 634, 637 (1981) ("It is difficult to imagine facts in a case dealing with alimony and support payments where the consequences of a delayed claim would not ultimately be subsumed in whether the circumstances of the parties had so changed as to require a modification of the earlier judgment.").

Thus, under any theory, there is, essentially, no possibility of the original decree being obscured by the passage of time or loss of evidence so as to require the doctrine of laches to be invoked.  Thus, it is incontrovertible that court-awarded child-support payments become enforceable money judgments upon maturation, or absolute debts based on judgments, against which laches or equitable estoppel is incompatible and therefore unavailable as a defense to recovery of child-support arrearages.

2. Laches can not be relied upon as a matter of right where laches was not set up in the Answer.

Laches is an affirmative defense, explicitly listed in Rule 8(c) of the Massachusetts Rules of Domestic Relations Procedure. Peteros v. Peteros, 328 Mass. 416 (1952). The purpose of Rule 8(c) is to give a plaintiff notice of the defense of laches so that the plaintiff can rebut any showing by Defendant of inexcusable delay and prejudice suffered by him as a result of that delay.  Reporters' Notes, Rule 8, stating that the defendant must give plaintiff  "fair notice. 2A Moore, Federal Practice sec. 8.27(3). This is of course the natural corollary of the notice-pleading theory behind the Rules generally and Rule 8(a) in particular."  MGLA, Civil Rules, page 119.

Therefore, where laches was not set up in the Answer, laches can not be relied upon as a matter of right.  Adamowicz v. Iwanicki, 286 Mass. 453 (1934); Albano v. Puopolo, 309 Mass. 501, 509-510 (1941).

If  laches is affirmatively pleaded, laches is available as a defense to a claim that is equitable in nature. Srebnick v. Lo-Law Transit Management, Inc., 29 Mass.App.Ct. 45 (1990); Albano, at 509- 510. It is not, however, generally available as a defense to a legal claim.  Srebnick, at 49. A claim for overdue child-support payments is legal in nature.  Cf. Brown v. Greenlow, supra.

Although laches cannot be asserted as a matter of right unless set up in the pleadings, a court of equity may in its discretion do what justice and fair dealing require as to delay in making claim. Raytheon Mfg. Company. v. RCA, 286 Mass. 84 (1934). However, a court of equity will not enforce a contract that would aid one who has committed a material breach of the contract.  Rayner v. McCabe, 319 Mass. 311 (1946). Similarly, equity will not aid one guilty of illegal or inequitable conduct in a matter in which he seeks relief. Mackey v. Rootes Motors Inc., 348 Mass. 464 (1965). Service Wood Heel Co. v. Mackesy, 293 Mass. 183 (1936). Even a meritorious laches defense may be defeated if the defendant is guilty of egregious conduct.  Wafer Shave, Inc. v. Gillette Co., 857 F.Supp. 112 (D. Mass. 1993).

Not ever complying with any aspect of the second agreement for child support is egregious, and then wanting this Court to rule that the terms of that agreement "govern the determination of Mr. Doe's arrearage" constitutes, Plaintiff suggests, something more than egregious. So, under Wafer Shave, even were John's claimed laches defense meritorious, it cannot be countenanced.

Further, John Doe not only failed to set up laches as an affirmative defense in his Answer, but he also failed to assert laches via a motion to dismiss pursuant to Rule 12(b)(6).  Cf. Rozene v. Sverid, 4 Mass.App.Ct. 461, 464-464 (1976) (where defendant neither pled statute-of-frauds affirmative defense in Answer, nor raised it at hearing, nor filed a motion to dismiss, defense was waived, dismissal reversed, and judgment entered for plaintiff).  John's actions replicated Sverid's:  John Doe neither pled laches in his Answer nor filed a motion to dismiss for laches.  Further, he did not raise laches during trial, to wit, he offered no positive showing of inexcusable delay nor of any prejudice suffered by that delay, a showing that is essential to the affirmative defense of laches.

In fact, where John failed to set up laches in his Answer, had he attempted to make a positive showing at trial, he, ideally, would not have been permitted to offer evidence in support of the defense or otherwise to rely on the defense.  First County National Bank v. Roach, 58 Mass App.Dec. 180 (1976) (penalty for failure to set up affirmative defense in Answer is not to permit defendant to offer evidence in support of the affirmative defense or otherwise to rely on it).

Here, no such evidence being taken, there were no subsidiary findings. All there is, is the Master's non sequitur finding of laches as set forth in UF 11(A-F), 20, 23.  To the extent that the Master's ultimate findings are conclusions of law, they are subject to independent judicial review for correctness and consistency with his subsidiary findings.  Pollock v. Marshall, 391 Mass. 543, 555 (1984). Bills v. Nunno, 4 Mass.App.Ct. 279, 283 (1976) (where master's report discloses basis for general finding and it is apparent thereby that general finding is erroneous, aggrieved party is entitled to have objection to general finding sustained, or to have general finding struck from report).

Therefore the Probate Court judge's decision to vacate the Master's sua sponte finding of laches as a matter of law was correct.

3. Absent a positive showing by the former husband that the delay was inexcusable and that the delay prejudiced or disadvantaged him, the defense of laches is unavailable.

Laches is an equitable doctrine consisting of two elements: inexcusable delay by Plaintiff in instituting suit and prejudice to Defendant caused by that delay.  Myers v. Salin, 13 Mass.App.Ct. 127, 138, rev. denied 385 Mass. 1103 (1982).  Mere delay is not enough. Spiliotis, 13 Mass.App.Ct. at 191; Mosely v. Briggs Realty Co., 320 Mass. 278, 283 (1946). The delay must prejudice or disadvantage the defendant in order for laches to be applicable. Three Sons, Inc. v. Phoenix Ins. Co., 357 Mass. 271, 278 (1970); Bullock, 12 Mass.App.Ct. at 636.

Because laches is a question of fact, there must be an affirmative showing of proof to satisfy those two elements. Provident Co-op Bank v. Jane Talcott, Inc., 358 Mass. 180 (1970); Blakeley v. Pilgrim Packing Co., 4 Mass.App.Ct. 19 (1976) (reversal and remand required where judge adopted master's finding of laches, as there was no showing that delay operated to prejudice defendants). Therefore a finding of laches depends on careful attention to the particular facts and historical nuance of each case [Cobb v. Prokop, 557 F.Supp. 391 (D. Mass. 1983)], the peculiar facts [Weinstein v. Tariff, 356 Mass. 738, 739 (1970)], according to all the circumstances [Sears v. Treasurer and Receiver General, 327 Mass. 310 (1951)].

Those facts which the Master concluded caused prejudice to John [UF 11(A-F) . . . and UF 15(B)] provocatively raise as many questions as they allegedly settle: for instance, Would John not have moved if Jane sued him sooner?  Would John not have given mortgages if Jane sued him sooner?[FN3]

    FN3. It is known that John did not acknowledge his child-support obligations on his residential loan applications [Supp.App. 7: Tr.Exhs. 37, 38A, 38B], although there is no subsidiary finding to that effect.  Nevertheless, to answer this question in the affirmative, one must believe that the Court's order to pay child support was insufficient to put John Doe on notice that he had to pay the child support and that he perhaps should not incur "significant debt" in buying two homes.

Would John not have remarried immediately after his divorce if Jane sued him sooner? Would he have sought modification sooner?  Would he have succeeded in reducing his child-support obligations if he had sought modification at any time prior to her bringing suit?  Would he have saved more evidence of his income than his IRS forms (which were produced [Supp.App. 5]) had she sued him sooner?  Would he have saved evidence of his expenses for each year had she sued him sooner?  Would it have made any difference if he had saved records of his expenses where his court-ordered financial obligations were already known to him before he incurred the additional "significant debt"?  Would his exposure to child-support payments -- not arrearages, but payments -- been any smaller for the six years had she sued him sooner?  How much sooner? a year sooner? two years sooner? a few months or a year or two after the 1983 agreement was executed?  Would his hands have been dirtier or cleaner -- or his guilt (?) greater or less great -- if his "exposure regarding arrears was greater than he realized"?  Would he have sought modification before the law changed had she sued him sooner?  As to UF 15(B), which assumes that John had a defensible position prior to her suing him, what was his defensible position?

The answers to all of the questions, of course, is No. No-no-no-no-no . . . And as to UF 15(B), the answer is, None.

Obviously, the Master's rationale for concluding that the facts in UF 11(A-F) performed some disadvantage to John is euphemistically elusive, in addition to being provocative, for the finding of prejudice is, on its face, untenable, insupportable, or just plain wrong as a matter of law.

In actual fact, John could have sought modification at any time but failed to do so, for his income between 1982 and 1989 went from $23,600 in 1982 to $47,700 to $72,530 to $84,478 to $131,979 to $117,195 to $139,061 to $105,920 in 1989, the year Jane filed for contempt. [SF 36] As of February 1990, when John testified, he was earning a gross income of $2280 per week [SF 37), or $118,560, annualized.[FN4]

    FN4. John Doe's declared income for the years from 1984 through 1989, inclusively, was $575,694.35. [UF 36]

Thus John was not prejudiced by any delay by Jane in instituting suit, for Jane was and is not seeking any monies that John was not already obligated to pay under the Separation Agreement. Were he not required to meet his obligations, John would receive an unjustifiable windfall.

Thus this Court must uphold the Probate Court's decision to find laches inapplicable to this action. She is entitled, after all, to the full benefit of her Agreement with John upon their divorce.

Additionally, by the Master -- not by John, but the Master -- raising the issue of laches for the first time only in the Master's Preliminary Report, eight months after the end of trial, Jane was denied the opportunity to show affirmatively or rebut that John was not prejudiced by any so-called delay in seeking arrearages and compliance with the couple's Separation Agreement.

4. The second or 1983 Agreement is voidable and cannot therefore govern any determination of John Doe' arrearages.

After arguing in her Proposed Rulings of Law against the validity of the second, or 1983, agreement, Plaintiff did not need to address the issue again in the lower court inasmuch as both the Master and the Court found the Court-approved Separation Agreement to be the operative agreement.  However, in his appellate brief (at page 6), Defendant focused on this point and argued that the second Agreement should be deemed the operative agreement.

Plaintiff argues that the second agreement is voidable because John never made full disclosure. Shaw's Supermarkets, Inc. v. Delgiacco, 410 Mass. 840 (1991) (contract induced by fraudulent misrepresentations is voidable).  For example, in the second Agreement, John Doe represented that his income in 1983 was only $35,000 [A19], but at trial, John's income in 1983 was proved to be $47,700 [SF 36].  Taken together, the Master's finding and the document he had before him, demonstrate conclusively that the UF 2 is inconsistent with or unsupported by the evidence: that is, while the evidence shows that John did not make "full and accurate financial disclosures," the Master found that he did. Compare SF 36, A19, and UF 2.

Significant also is that the second agreement has a $60,000 cap, which John Doe asks this Court to impose on any award to Jane Doe. The conflicting facts allow this Court to draw the inference that Jane Doe would not have agreed to a cap of $60,000 had she known that John's income had doubled in one year, and was as close to $60,000 as to $35,000.

When John Doe made false representations as to his income, he made these representations with knowledge of their falsity for the purpose of inducing Jane to sign the agreement.  In reliance upon these representations, Jane signed the Agreement to her detriment -- and to that of the children.  Another inference may also be drawn that Jane would not have agreed to such a radical decrease in the weekly child-support obligation had John disclosed his actual income.  Of course, parents may also not bargain away the rights of their children to support from either one of them, and only an informed agreement made by the parents, allocating responsibility for support of a minor child, free from fraud, coercion, and one that is fair and reasonable at the time, should be upheld.  DeCristofaro v. DeCristofaro, 24 Mass.App.Ct. 231, 236 (1987); Knox v. Remick, 371 Mass. 433, 437 (1976) (where appropriate, support order may be modified to increase the father's support obligations).  The second agreement cannot be deemed fair and reasonable.  Lavin v. Lavin, 24 Mass.App.Ct. 929 (1987) (separation agreement not fair and reasonable on grounds that husband had not disclosed major assets).

Therefore, the second agreement must be found invalid.  See Bates v. Southgate, 308 Mass. 170, 175-176 (1941) and cases cited therein re "fraud which enters into the making of the contract."

    Such contracts, if given validity, would overcome the salutary maxim which pervades the common law, that fraud vitiates every transaction at the election of the injured party.

Id., at 177, quoting Granlund v. Saraf, 263 Mass. 76, 79.

Misrepresentation of a material fact is sufficient to estop John Doe from relying on the second agreement to reduce his arrearages. MacKeen v. Kasinskas, 333 Mass. 695 (1956) (doctrine of estoppel is designed primarily to prevent results contrary to good conscience and fair dealing).

Ironically, it was just because John Doe had not acted in good faith after the executing the original Separation Agreement that the explicit accountability and periodic review provisions were included in the second agreement.  Thus John cannot be allowed to benefit from his own disobedience. Harrington v. Fall River Housing Authority, 27 Mass.App.Ct. 301 (1989) (estoppel is an equitable doctrine created to prevent one from benefiting from his own wrongdoing and to avoid injustice). Bond Leather Co., Inc. v. Q.T. Shoe Mfg. Co., Inc., 764 F.2d 928 (1985).  Granlund, supra.

Absent any proffer of evidence by John Doe as to why he did not comply with his duties clearly commanded by the Separation Agreement, he waived any defenses to his conduct.  Cf. Diver v. Diver, 402 Mass. 599 (1988), where a party charged with contempt had the burden of demonstrating inability to comply with court's orders. Allen v. School Committee of Boston, 400 Mass. 193 (1987), where the court held that defense of impossibility is unavailing in contempt proceeding where the alleged contemnor is responsible for its inability to comply.

Where John did not offer any evidence whatsoever as to why he did not comply with his duties, the conclusion must be that John Doe simply never intended to comply with the second agreement.  He must, therefore, not be allowed to benefit from his own wrongdoing. Harrington, supra.

Thus there is no theory under which the second agreement can be deemed a valid agreement.