Malinak v. Malinak

775 S.E.2d 915, 242 N.C. App. 609, 2015 N.C. App. LEXIS 700
CourtCourt of Appeals of North Carolina
DecidedAugust 18, 2015
DocketNo. COA14–1354.
StatusPublished

This text of 775 S.E.2d 915 (Malinak v. Malinak) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Malinak v. Malinak, 775 S.E.2d 915, 242 N.C. App. 609, 2015 N.C. App. LEXIS 700 (N.C. Ct. App. 2015).

Opinion

McCULLOUGH, Judge.

*609Leigh Bowman Malinak ("plaintiff") appeals from a contempt order holding Pavol Malinak ("defendant") in willful civil contempt and *610holding defendant owes $6,800.00 in back child support. For the following reasons, we reverse and remand.

I. Background

Plaintiff and defendant were married 22 June 1996, had one child together during their marriage on 6 November 1996, and separated with the intent to remain permanently separated on 4 February 1999. On 26 January 2000, plaintiff filed a complaint in Alexander County District Court seeking custody of and support for the child. Pursuant to a consent order filed 31 March 2000, plaintiff was granted primary custody and defendant was ordered to pay $400.00 per month in child support.

On 18 April 2000, defendant filed an answer and counterclaims seeking child custody, child support, attorney's fees, and absolute divorce. Plaintiff replied to defendant's counterclaims and joined defendant's request for absolute divorce on 28 June 2000. The same day plaintiff filed her reply, the trial court filed a judgment granting absolute divorce. All other matters were severed and reserved for future determination.

*916More than a decade later on 1 April 2014, plaintiff filed a motion to show cause based on defendant's alleged failure to make child support payments. Specifically, plaintiff alleged defendant owed $48,000.00. After several continuances, defendant filed a pleading on 23 July 2014 asserting the affirmative defenses of laches, the statute of limitations, and unclean hands.

Following a hearing on plaintiff's motion to show cause in Alexander County District Court, the Honorable Deborah Brown announced her decision to hold defendant "in contempt of the prior court order in that he is in arrears on his child support in the amount of six thousand, eight hundred dollars." The trial judge explained her reasoning and calculations in open court and later memorialized her decision in a written order of contempt filed 7 August 2014. The following findings of fact in the order of contempt explain her ruling:

6. The parties entered into a Consent Judgment on March 31, 2000, which provides for among other things for the payment of child support in the amount of $400.00 per month.
7. The Defendant paid child support until May 2001.
8. The Plaintiff discouraged the Defendant from visiting with the minor child and represented to the Defendant *611that she would not enforce the child support order if he would not visit.
9. The lack of visitation does not excuse the payment of child support.
....
13. The Defendant began paying child support again in October in 2012, and has paid child support consistently since that time.
....
15. The Plaintiff has waited 13 years to attempt to enforce the consent order of March 31, 2000. The Plaintiff is barred by the docrtrine [sic] of Laches from seeking child support prior to March 26, 2011.
16. The Plaintiff testified that she did not pursue the child support as she did not have monies with which to do so. She did however obtain Medicaid through the Department of Social Services and could have pursued child support.
17. From March 26, 2011, through July 2014, the Defendant should have paid $14,400.00 in child support. The Defendant has paid $7,600.00 leaving a balance of $6,800.00.
18. The Defendant's failure to pay was wilful [sic] and without lawful justification or excuse.
19. The purposes for which the order was entered can still be served by its' enforcement.

Plaintiff filed notice of appeal from the order of contempt on 4 September 2014.

II. Discussion

The sole issue raised on appeal by plaintiff is whether the trial court erred by barring the recovery of unpaid child support prior to 26 March 2011 under the doctrine of laches. The doctrine of laches is an affirmative defense which the pleading party bears the burden of proving. Taylor v. City of Raleigh, 290 N.C. 608, 622, 227 S.E.2d 576, 584 (1976).

To establish the affirmative defense of laches, our case law recognizes that 1) the doctrine applies where a delay *612of time has resulted in some change in the condition of the property or in the relations of the parties; 2) the delay necessary to constitute laches depends upon the facts and circumstances of each case; however, the mere passage of time is insufficient to support a finding of laches; 3) the delay must be shown to be unreasonable and must have worked to the disadvantage, injury or prejudice of the person seeking to invoke the doctrine of laches; and 4) the defense of laches will only work as a bar when the claimant knew of the existence of the grounds for the claim.

MMR Holdings, LLC v. City of Charlotte, 148 N.C.App. 208, 209-10, 558 S.E.2d 197, 198 (2001). The applicability of the doctrine of laches in child support cases is a question of law. "We review questions of law de novo." Staton v. Brame, 136 N.C.App. 170, 174, 523 S.E.2d 424, 427 (1999).

*917In the present case, plaintiff concedes recovery of unpaid child support accruing prior to 1 April 2004 is barred by the ten year statute of limitations provided in N.C. Gen.Stat. § 1-47, see State of Michigan v. Pruitt, 94 N.C.App. 713, 714, 380 S.E.2d 809

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Bluebook (online)
775 S.E.2d 915, 242 N.C. App. 609, 2015 N.C. App. LEXIS 700, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malinak-v-malinak-ncctapp-2015.