OPINION
Before BOOCHEVER, C. J., and RABI-NOWITZ, CONNOR, BURKE and MATTHEWS, JJ.
RABINO WITZ, Justice.
This is an appeal from an adverse judgment of the superior court, entered against appellant Herbert Young for payment of unpaid child support due under a California decree of divorce. Young alleges several specifications of error all of which we find devoid of merit.
Young and appellee Nancy Williams were married in California, and thereafter two children were born of the marriage. A California divorce decree entered in 1961 required Young to pay $75.00 per month for the support of each of two children until they reached majority. Since 1961, Young has made only intermittent support payments; he also has made some additional expenditures for the children. In an attempt to collect arrearages Nancy Williams instituted suit during 1975 in the superior court of Alaska; appellant was residing in Alaska at the time the action was brought. After trial to the court, judgment was entered on Williams’ behalf in the amount of $34,278.81.
One of Young’s specifications of error is that the superior court erroneously denied Young credit against his support obligation for $800.00 in payments made to his son, Herbert, Jr., paid in wages for services ren
dered. During the summers of 1973 and 1974, Young’s son, who was residing with his mother in California, flew up to live and work with him. The thirteen year old Herbert, Jr. worked on the construction of a fence and was paid $800.00.' The superior court held that this amount should not be credited against Young’s support obligation. However, the court did allow credit to Young for $225.00 because he had custody of Herbert, Jr., during this three month period; and thus, the court held the mother to have tacitly agreed to a suspension of support for that period.
The general rule in this area of child support is succinctly stated in
Briggs v. Briggs,
178 Or. 193, 204, 165 P.2d 772, 777 (1946):
[W]hen a defendant husband is required by a divorce decree to pay to the plaintiff money for the support of the children and the unpaid and accrued installments become judgments in favor of the plaintiff, he cannot, as a matter of law, claim credit on account of payments voluntarily made directly to the children, though special considerations of an equitable nature may justify a court in crediting such payments on his indebtedness to the plaintiff when that can be done without injustice to the plaintiff wife.
Our overall conclusion is that the superior court has not erred in failing to grant Young the $800.00 credit.
The majority position is that payments voluntarily made to the children are not to be credited against child support obligations.
The rationale is that such voluntary payments to the children quite often are intended for particular purposes whereas the manner in which child support payments are used to meet the children’s basic needs is left to the discretion of the parent or guardian with custody.
In those few cases in which credit has been granted, it is for payments made at the request of the parent or guardian with custody or for cash gifts used for child support, the disbursement of which was controlled by the parent or guardian with custody.
Furthermore, Young has already received benefit from his payments through receipt of the services rendered; to allow him credit for child support would amount to double payment. Thus, we are not persuaded that the superior court abused its discretion in denying the credit in question.
Young also asserts as a specification of error that the superior court erred in not finding that Williams’ claim for unpaid child support from 1964 to 1970 was barred by laches. In regard to this issue, Williams testified that after the irregular support payments came to a total halt in mid-1964, she did nothing to enforce them or contact Young until 1970.
The decision to sustain or deny a defense based on laches is properly addressed to the discretion of the trial court. It will not be overturned unless this court has a definite and firm conviction that a mistake has been committed.
As was noted in
Moore v. State,
553 P.2d 8, 15 (Alaska 1976), a party asserting the defense of lach-es must meet two separate criteria: he must show (1) inexcusable delay and (2) that the delay resulted in undue prejudice.
Young’s only showing of prejudice is that “by reason of this delay, he became liable for a much larger and more burdensome payment of child support, including accrued interest.” Sufficient material prejudice will not be inferred, as Young contends, from mere lapse of a substantial period of time. In this regard, the Ohio Supreme Court stated in
Smith
v.
Smith,
168 Ohio St. 447, 456, 156 N.E.2d 113, 120 (1959):
The only fact upon which defendant bases his claim of laches is the delay of plaintiff in asserting her right to obtain a ‘lump-sum judgment’ upon which execution may lawfully issue, for 14 years after the rights of the parties with respect to the amount due and owing on the judgment became fixed and unalterable. He has not attempted to show that he was materially prejudiced by such delay, and a material prejudice cannot be inferred from the mere lapse of the time mentioned. Defendant was instrumental in bringing into the world the child for whom the benefit of the support money was intended, and he assumed, in addition to the natural duties of a parent, a statutory duty to support the child until emancipation or majority. The weekly support order merely put a price tag on the statutory duty already existent. The defendant knew of the existence of his obligation of support before the divorce decree, and the extent of such obligation was fixed by the installment support order included in the judgment of divorce. The mere fact that he failed to meet such obligation does not mean that he was excused therefrom; it simply means that someone assumed his duty of support, for, in the absence of evidence to the contrary, the court will presume that the child was clothed, fed and generally accorded the necessities of life, the payment for which the weekly support money was intended.
We are persuaded to follow the Ohio court’s reasoning and thus conclude that sufficient
prejudice has not been established on the record and, therefore, the equitable doctrine of laches should not apply.
In the case at bar, we find the superior court did not abuse its discretion by rejecting the defense of laches.
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OPINION
Before BOOCHEVER, C. J., and RABI-NOWITZ, CONNOR, BURKE and MATTHEWS, JJ.
RABINO WITZ, Justice.
This is an appeal from an adverse judgment of the superior court, entered against appellant Herbert Young for payment of unpaid child support due under a California decree of divorce. Young alleges several specifications of error all of which we find devoid of merit.
Young and appellee Nancy Williams were married in California, and thereafter two children were born of the marriage. A California divorce decree entered in 1961 required Young to pay $75.00 per month for the support of each of two children until they reached majority. Since 1961, Young has made only intermittent support payments; he also has made some additional expenditures for the children. In an attempt to collect arrearages Nancy Williams instituted suit during 1975 in the superior court of Alaska; appellant was residing in Alaska at the time the action was brought. After trial to the court, judgment was entered on Williams’ behalf in the amount of $34,278.81.
One of Young’s specifications of error is that the superior court erroneously denied Young credit against his support obligation for $800.00 in payments made to his son, Herbert, Jr., paid in wages for services ren
dered. During the summers of 1973 and 1974, Young’s son, who was residing with his mother in California, flew up to live and work with him. The thirteen year old Herbert, Jr. worked on the construction of a fence and was paid $800.00.' The superior court held that this amount should not be credited against Young’s support obligation. However, the court did allow credit to Young for $225.00 because he had custody of Herbert, Jr., during this three month period; and thus, the court held the mother to have tacitly agreed to a suspension of support for that period.
The general rule in this area of child support is succinctly stated in
Briggs v. Briggs,
178 Or. 193, 204, 165 P.2d 772, 777 (1946):
[W]hen a defendant husband is required by a divorce decree to pay to the plaintiff money for the support of the children and the unpaid and accrued installments become judgments in favor of the plaintiff, he cannot, as a matter of law, claim credit on account of payments voluntarily made directly to the children, though special considerations of an equitable nature may justify a court in crediting such payments on his indebtedness to the plaintiff when that can be done without injustice to the plaintiff wife.
Our overall conclusion is that the superior court has not erred in failing to grant Young the $800.00 credit.
The majority position is that payments voluntarily made to the children are not to be credited against child support obligations.
The rationale is that such voluntary payments to the children quite often are intended for particular purposes whereas the manner in which child support payments are used to meet the children’s basic needs is left to the discretion of the parent or guardian with custody.
In those few cases in which credit has been granted, it is for payments made at the request of the parent or guardian with custody or for cash gifts used for child support, the disbursement of which was controlled by the parent or guardian with custody.
Furthermore, Young has already received benefit from his payments through receipt of the services rendered; to allow him credit for child support would amount to double payment. Thus, we are not persuaded that the superior court abused its discretion in denying the credit in question.
Young also asserts as a specification of error that the superior court erred in not finding that Williams’ claim for unpaid child support from 1964 to 1970 was barred by laches. In regard to this issue, Williams testified that after the irregular support payments came to a total halt in mid-1964, she did nothing to enforce them or contact Young until 1970.
The decision to sustain or deny a defense based on laches is properly addressed to the discretion of the trial court. It will not be overturned unless this court has a definite and firm conviction that a mistake has been committed.
As was noted in
Moore v. State,
553 P.2d 8, 15 (Alaska 1976), a party asserting the defense of lach-es must meet two separate criteria: he must show (1) inexcusable delay and (2) that the delay resulted in undue prejudice.
Young’s only showing of prejudice is that “by reason of this delay, he became liable for a much larger and more burdensome payment of child support, including accrued interest.” Sufficient material prejudice will not be inferred, as Young contends, from mere lapse of a substantial period of time. In this regard, the Ohio Supreme Court stated in
Smith
v.
Smith,
168 Ohio St. 447, 456, 156 N.E.2d 113, 120 (1959):
The only fact upon which defendant bases his claim of laches is the delay of plaintiff in asserting her right to obtain a ‘lump-sum judgment’ upon which execution may lawfully issue, for 14 years after the rights of the parties with respect to the amount due and owing on the judgment became fixed and unalterable. He has not attempted to show that he was materially prejudiced by such delay, and a material prejudice cannot be inferred from the mere lapse of the time mentioned. Defendant was instrumental in bringing into the world the child for whom the benefit of the support money was intended, and he assumed, in addition to the natural duties of a parent, a statutory duty to support the child until emancipation or majority. The weekly support order merely put a price tag on the statutory duty already existent. The defendant knew of the existence of his obligation of support before the divorce decree, and the extent of such obligation was fixed by the installment support order included in the judgment of divorce. The mere fact that he failed to meet such obligation does not mean that he was excused therefrom; it simply means that someone assumed his duty of support, for, in the absence of evidence to the contrary, the court will presume that the child was clothed, fed and generally accorded the necessities of life, the payment for which the weekly support money was intended.
We are persuaded to follow the Ohio court’s reasoning and thus conclude that sufficient
prejudice has not been established on the record and, therefore, the equitable doctrine of laches should not apply.
In the case at bar, we find the superior court did not abuse its discretion by rejecting the defense of laches.
Young’s third specification of error is that the superior court erred in not excluding all evidence of child support payments barred by the statute of limitations.
The superior court held that child support payments were judgments at the time each payment accrued.
Thus, the applicable statute of limitations on actions to recover arrearages in child support payments is that applicable for judgments, which is ten years.
In order to resolve the question whether support payments made during the period from 1966 to 1975 should be credited against support obligations for this same period, the superior court took evidence as to support obligations and payments made for the period from 1961 to 1965.
This was done because the superior court concluded that “[a]ll sums paid or credited shall be applied to the oldest ar-rearage” not extinguished by the statute of limitations.
Since the total credit for all of Young’s payments made in the period 1966 to 1975 was applied to obligations which accrued prior to 1966, Young received
no credit against support obligations owing from 1966 to 1975.
Young argues that the superior court was barred from considering the earlier period (i. e. 1961 to 1965):
In the case of appellant, this would result in the exclusion of evidence as to all payments due from 1961 to 1965, as well as payments made by appellant. Payments and credits to appellant during the period from 1966 to ,1975 would then be applied to the earliest unpaid obligations during that period.
Claiming that the period from 1961 to 1965 is now barred by the ten-year statute of limitations since this action was brought in 1975, Young contends that no consideration should be given to this earlier period. However, he advances no legal support for this argument
and we can find none. The superior court properly considered what support obligation Young had during the 1961 to 1965 period and what payments he had made against it. Thus, by ascertaining what was still owing on this debt during the period 1965 to 1975 the court was able to compute the extent to which the payments Young made after 1965 were applicable to the pre-1965 debt and to the post-1965 debt. The application of a payment to the oldest outstanding debt is to be computed as of the date the payment was made and not as of when the suit was filed to enforce the underlying judgment.
Thus, although the entire debt from 1961 through 1965 was barred by the statute of limitations when this action was brought in 1975, this was not the case when the various payments were made by Young prior to 1975. Those payments properly are to be credited against the debt.
In
Parhm v. Parhm,
2 Cal.App.3d 311, 82 Cal.Rptr. 570, 574 (1969), the trial court took a position similar to that urged by Young and excluded evidence of child support obligations and payments for the period barred by the statute. of limitations. The California court of appeals concluded that the case must be remanded because the trial court was unable properly to determine the extent to which the payments made during the period not barred were entitled to be credited against the obligation now being sued on, lacking a complete accounting of the earlier period.
We find no error in the superior court's consideration of both the support obligation and payments made during the earlier period in order to be able fully to evaluate what credit should be given for later payments.
As a final issue, Young alleges that the trial court erred in not finding that certain payments made by Young should not have been applied against the oldest existing arrearages, but instead should be applied against current obligations because that was Young’s clear intention.
This issue was never presented to the trial court and was not addressed in appellant’s points on appeal or opening brief. Instead, it was raised for the first time in appellant’s reply brief. This is in violation of Appellate Rule 9(e), which provides, in part:
At the time of filing his notice of appeal, the appellant shall serve and file . a concise statement of the points on appeal. The court will consider nothing but the points so stated.
Appellate Rule 9(e) further provides for supplementing the points on appeal:
On motion, and for cause, the statement of points may be supplemented subsequent to the filing of the designation of record.
Young made no attempt to supplement the points on appeal. He merely added a new issue for this court’s consideration in his reply brief in contravention of the appellate rules. Since the issue is not properly before us, we consider it waived.
Affirmed.