Opinion
No. 4-469 / 03-2106
Filed December 8, 2004
Appeal from the Iowa District Court for Johnson County, Kristin L. Hibbs, Judge.
A custodial parent appeals a child support order and other financial issues relating to the child. AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
David Burbidge, of Johnston Nathanson, P.L.C., Iowa City, for appellant.
Leslie Moore of Stein, Moreland, Moore Egerton, L.L.P., Iowa City, for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
In this appeal from a child support order, we must determine whether a custodial parent is entitled to past support from the child's date of birth or whether the claim for past support is barred by the doctrines of laches, estoppel and waiver. We must also review the district court's ruling on other financial issues relating to the child. We affirm in part, reverse in part, and remand.
I. Background Facts and Proceedings
Lawana Hixon and Austin Lundy are the unmarried parents of Trevor Miguel Lundy-Hixon, born on September 2, 1987. The parties were both in the Army and stationed in Germany when Trevor was conceived and born. Mr. Lundy, who was married, suspected but was not convinced Trevor was his.
In 1988, Ms. Hixon was transferred from Germany to California. She applied for child support services from the State of California. Three years later, she was transferred to Alaska, where she again applied for child support services. In 1994, Ms. Hixon moved to Colorado and applied for child support services through a third agency. After two years, she returned to Alaska and reapplied for child support services there. Up to this point, none of the three child support agencies had succeeded in locating Mr. Lundy.
In 2001, Ms. Hixon obtained detailed personal information about Mr. Lundy through an acquaintance, including his address in Alabama. She provided the information to the Alaska support agency, which solicited assistance from the State of Alabama. An Alabama agency, in turn, contacted Mr. Lundy. Paternity testing subsequently established him as the father of Trevor.
By this time, Ms. Hixon had moved to Iowa. She sought and obtained a dismissal of the Alabama paternity and support action.
Ms. Hixon testified that the Alabama agency would only seek current and future support on her behalf and not past child support.
In mid-2002, Ms. Hixon filed this action for custody and support. Mr. Lundy's amended answer asserted the affirmative "defenses of laches, estoppel and/or waiver." Following trial, the district court ordered Mr. Lundy to pay child support of $653.26 per month. The court also ordered him to pay past child support of $540 per month for twenty-three months (from December 2001 to November 2003), for a total past award of $12,420.00. The court allocated the tax dependency exemption between the parties in alternating years, ordered Mr. Lundy to pay half of Trevor's past medical bills incurred after December 1, 2001, and required both parties to bear their own attorney fees. Ms. Hixon appealed.
II. Past Child Support
Ms. Hixon argues child support should have been granted back to Trevor's birth. Mr. Lundy counters that the defenses of "laches, estoppel, and/or waiver" bar the claim. For the reasons that follow, we are not persuaded by either argument.
Despite his assertion that these defenses insulate him from having to pay any past support, Mr. Lundy expressed a willingness to pay past support for the period after he received a written request for support from Ms. Hixon in 2001.
Iowa Code section 600B.25(1) (2001) provides that a court "may order the father to pay amounts the court deems appropriate for the past support and maintenance of the child." This provision does not mandate that the court order support retroactively to the child's date of birth. It is true that this date "is the logical starting point for reimbursement." State Dep't of Human Servs. ex rel. Hammons v. Burge, 503 N.W.2d 413, 416 (Iowa 1993). But other factors bear on the issue, such as when the non-custodial parent received notice of the claim for support. State ex rel. Schaaf v. Jones, 515 N.W.2d 568, 571 (Iowa Ct.App. 1994).
On the notice question, the record reveals diametrically opposed versions of what Mr. Lundy knew and when. Ms. Hixon testified that she raised paternity and support issues with Mr. Lundy's wife. She said she also raised the issues with Mr. Lundy "about four or five times," but was met with expletives. Following Trevor's birth and while still in Germany, she stated she contacted an attorney about establishing paternity and support. She said that, when she arrived at the attorney's office, Mr. Lundy was leaving, after having discussed the same issues with the attorney.
In contrast, Mr. Lundy vehemently denied having conversations with Ms. Hixon about her pregnancy and further denied seeking legal advice about paternity at the time of Trevor's birth. He testified he believed he was not the father of Trevor because he only had "a one night stand" with Ms. Hixon and he had been told there were other potential fathers.
The district court resolved these contradictory versions in favor of Mr. Lundy, stating Mr. Lundy "did not know he was Trevor's father." Given the court's unique ability to assess the parties' demeanor and credibility, we give weight to this fact finding. In re Marriage of Udelhofen, 444 N.W.2d 473, 474 (Iowa 1989). The finding militates against an award of past support to the date of Trevor's birth.
We turn to Mr. Lundy's defenses of "laches, estoppel, and/or waiver." The burden of proving these defenses is by "clear convincing, and satisfactory proof." Moser v. Thorp Sales Corp., 256 N.W.2d 900, 908 (Iowa 1977).
Laches requires (1) an unreasonable delay in asserting a right and (2) resulting prejudice. Cullinan v. Cullinan, 226 N.W.2d 33, 36 (Iowa 1975); Thurn v. Thurn, 310 N.W.2d 539, 540 (Iowa Ct. App. 1981). Prejudice may not be inferred merely from the passage of time. Cullinan, 226 N.W.2d at 36; Thurn, 310 N.W.2d at 540. "The doctrine of laches will be applied only where it would be inequitable to permit recovery or is clearly demanded in the interests of justice." Moser, 256 N.W.2d at 908.
Estoppel by acquiescence (or waiver) requires a showing that a party intended to waive or abandon a right. Thurn, 310 N.W.2d at 541. There must also be a showing of justifiable reliance to one's detriment. See Moser, 256 N.W.2d at 908; cf. Thurn, 340 N.W.2d at 541 (stating showing of prejudice not required).
We are not convinced Mr. Lundy satisfied the high burden of proving these defenses. Ms. Hixon applied for child support in every state in which she resided. While she relied almost exclusively on child support agencies to locate Mr. Lundy, the fact that she made the effort to contact these agencies and did so repeatedly and consistently defeats both the laches and estoppel/waiver defenses.
In reaching this conclusion, we recognize Ms. Hixon could have pursued other avenues for locating Mr. Lundy and obtaining support. As the district court found, she did not contact Mr. Lundy's supervisors in Germany, did not pursue a paternity action in Germany, and did not attempt to reach Mr. Lundy through any military source until 2000. She also provided inaccurate information to some of the government agencies with which she was dealing. However, after learning of Mr. Lundy's whereabouts, she provided this new information to child support authorities. This conduct suggests Ms. Hixon, at worst, did not act diligently in pursuing a right. Cf. Thurn, 310 N.W.2d at 540-41 (rejecting laches and waiver defenses despite twenty-two year delay in attempting to execute on child support judgment where ex-wife executed as soon as she learned of inheritance received by ex-husband). This is not the same as an unreasonable delay in asserting a right or a waiver or abandonment of a right. See Cullinan, 226 N.W.2d at 36 ("We in no way subscribe to defendant's argument plaintiff should have traced defendant's whereabouts through his social security number.").
Ms. Hixon testified she did not contact Mr. Lundy's commanding officer because she did not wish to get him in trouble with the military.
Having rejected Ms. Hixon's argument that she is entitled to past support back to Trevor's birth as well as Mr. Lundy's argument that he should have to pay no past support based on the defenses he has asserted, we turn to the district court's ruling. Exercising the discretion afforded by Iowa Code section 600B.25(1), the court elected to award Ms. Hixon limited past support back to November 2001, the month Mr. Lundy acknowledged he received a written request for support from Ms. Hixon. Based on our de novo review of the record, we conclude this limited retroactive award was equitable. There was evidence supporting the court's finding that Mr. Lundy did not know he was the father until 2001 and there was also evidence that Ms. Hixon could have been more diligent in pursuing her right to support in the years preceding 2001. For these reasons, we affirm the court's past support award of $12,420.
III. Calculation of Past Monthly Support
Ms. Hixon next takes issue with the district court's calculation of the past monthly support amount. She essentially contends that the court should not have excluded from income a portion of Mr. Lundy's basic allowance for housing (BAH), a tax-free payment to service members who live off base. Mr. Lundy counters that the BAH is (1) an excludable public assistance payment and (2) income to Mr. Lundy's new spouse that should not be included in the child support calculation.
We agree with Ms. Hixon that the entire BAH, including the portion paid on behalf of Mr. Lundy's dependents, should have been counted as income for purposes of calculating child support. First, while the Child Support Guidelines exclude "public assistance payments," BAH payments are not recognized as public assistance payments. See Iowa Ct. R. 9.5; Iowa Admin. Code r. 441-99.1(1)(b) (2003) (exempting income, for child support calculation purposes, from programs listed in rule 441-27(6)). See also Iowa Admin. Code r. 441.27(6) (listing programs, and not listing BAH). Second, the BAH income remains Mr. Lundy's income. 32 C.F.R. § 54.6(b)(1)(ii) (2003) (stating that the "basic allowance for quarters for members with dependents" is included in disposable income for child support allotment purposes); In re Guidelines for Child Support, 863 S.W.2d 291, 294 (Ark. 1993) (stating the BAH with dependents is included in the service member's income for child support calculations). As the entire BAH should have been counted as income to Mr. Lundy in calculating the twenty-three months of past support owing to Ms. Hixon, we remand for recalculation of past support.
IV. Remaining Trial Issues
Ms. Hixon finally contends the district court acted inequitably in (1) alternating the tax dependency exemption between the parties', (2) failing to order Mr. Lundy to pay fifty percent of all of Trevor's uncovered medical expenses prior to December 1, 2001, and (3) declining to order Mr. Lundy to pay a portion of her attorney fees. We discern no inequity in the court's rulings on any of these matters.
V. Appellate Attorney Fees
Both parties request appellate attorney fees. An award rests within our discretion. In re Marriage of Benson, 545 N.W.2d 252, 257 (Iowa 1996). Given the parties' relative financial positions, we decline to order either party to pay all or a portion of the other's fees.
VI. Disposition
We affirm all portions of the district court's ruling except the court's calculation of the past monthly support figure. We remand for a redetermination of that figure in light of our conclusion that Mr. Lundy's entire BAH payment, including the portion attributable to his dependents, should have been included as income.
Costs are divided evenly between the parties.