Opinion
23CA0873
08-08-2024
In re the Marriage of Kathleen M. Gallo, Appellee, and James E. Gallo, Appellant.
Fuller & Ahern, P.C., Bradford L. Geiger, Parker, Colorado, for Appellee Modern Family Law, Craig R. Valentine, Colorado Springs, Colorado, for Appellant
SUMMARY
A division of the court of appeals addresses, for the first time in a published opinion, whether a parent can assert promissory estoppel as an equitable defense to a claim for past due child support payments. The division concludes that promissory estoppel is not a viable legal defense to such a claim.
Douglas County District Court No. 06DR1123 Honorable Robert Lung, Judge
ORDER AFFIRMED
Fuller & Ahern, P.C., Bradford L. Geiger, Parker, Colorado, for Appellee
Modern Family Law, Craig R. Valentine, Colorado Springs, Colorado, for Appellant
Freyre and Lipinsky, JJ., concur.
OPINION
SCHUTZ JUDGE
¶ 1 James E. Gallo (father) appeals the district court's order granting the claim of Kathleen M. Gallo (mother) for past due child support. In resolving father's appeal, we address for the first time in a published Colorado opinion whether the equitable doctrine of promissory estoppel is available as an affirmative defense to a claim for recovery of the principal amount of past due child support. Applying supreme court case law on the affirmative defense of laches' applicability to claims for child support, we conclude that promissory estoppel is not a viable defense to a claim to collect the principal amount of past due child support. Accordingly, we affirm.
I. Background and Procedural History
¶ 2 Mother and father married in 1998 and had a child in 2004. Mother petitioned to dissolve the marriage in 2006. In September 2007, the district court dissolved the marriage and ordered father to pay $1,250 in child support per month. Shortly after the decree was entered, father told mother he had health issues that impacted his ability to work. But father never filed a motion to modify the child support order.
¶ 3 In March 2008, mother sent father an email that said, "[B]ecause of your illness and not working, you don't need to pay me child support. Help where you can. We will figure this out. I don't want attorneys involved since we both paid enough during the divorce." From the date the decree was entered, father paid no child support to mother.
¶ 4 In March 2023, shortly before the child's emancipation, mother filed a motion seeking a judgment against father in the amount of $233,025 - the total principal amount of past due child support. Although she requested an award of postjudgment interest on any judgment entered, mother expressly disclaimed any claim for prejudgment interest. In response, father asserted that the affirmative defense of promissory estoppel precluded the requested judgment because he had detrimentally relied on mother's statements in her 2008 email.
¶ 5 Neither party requested a hearing on the motion. Based on the filings, the district court found in mother's favor and awarded her the full amount of past due child support and postjudgment interest. Citing Pinnacol Assurance v. Hoff, 2016 CO 53, the court concluded that mother's March 2008 email was not a promise and, therefore, father had failed to establish the first element of promissory estoppel. It reasoned as follows:
There was a request that [father] do what he could but there was never an indication that this request was a permanent waiver of child support. Further, child support is the right of the child and it is violative of public policy to waive all child support. A single email sent fifteen years [ago] does not reflect a meeting of the minds nor does [father allege] he did in fact do "what he could" for the last fifteen years.
Father appeals the district court's order.
II. Analysis
¶ 6 While acknowledging that equitable defenses have limited application to child support collection actions, father nevertheless argues that we should recognize promissory estoppel as a viable affirmative defense given the facts of this case. Father also argues that the district court erred by finding that mother's email did not meet the promise element of a promissory estoppel defense. We address each contention in turn.
A. Standard of Review and Applicable Law
¶ 7 Whether an affirmative defense is available presents a question of law that we review de novo. In re Marriage of Johnson, 2016 CO 67, ¶ 9. A district court's child support findings present a mixed question of fact and law. See In re Marriage of Garrett, 2018 COA 154, ¶ 9. We defer to the court's findings of fact if they are supported by the record and review its application of legal standards and legal conclusions de novo. Id.
¶ 8 "Promissory estoppel is a quasi-contractual cause of action that, under certain circumstances, provides a remedy for a party who relied on a promise made by another party, even though the promise was not contained in an enforceable contract." Pinnacol, ¶ 32. To establish the claim, a party must prove four elements: "(1) a promise; (2) that the promisor reasonably should have expected would induce action or forbearance by the promisee or a third party; (3) on which the promisee or third party reasonably and detrimentally relied; and (4) that must be enforced in order to prevent injustice." Id. If these elements are proved, a promise becomes binding and may be enforced through the normal remedies available under contract law. Id.
B. Promissory Estoppel
¶ 9 As reflected in Pinnacol, promissory estoppel is typically asserted as a claim for relief, not as an affirmative defense. Id. Father points us to no authority, whether in Colorado or elsewhere, that recognizes promissory estoppel as an affirmative defense to a claim for past due child support. Nor are we aware of any such authority.
¶ 10 Father cites Colorado case law that applies the equitable defense of laches to a claim for past due child support. For example, in Johnson, the court confronted whether a laches defense may be applied to the prejudgment interest component of a claim for past due child support. To establish a laches defense, the defendant must prove: "(1) full knowledge of the facts by the party against whom the defense is asserted, (2) unreasonable delay by the party against whom the defense is asserted in pursuing an available remedy, and (3) intervening reliance by and prejudice to the party asserting the defense." Johnson, ¶ 16.
¶ 11 In assessing the scope of the laches defense in child support actions, the supreme court acknowledged that its prior holding in Hauck v. Schuck, 143 Colo. 324, 327, 353 P.2d 79, 81 (1960), and subsequent case law have "consistently held that the doctrine of laches does not apply in actions for the recovery of past due child support." Johnson, ¶ 18. But the court also concluded that those authorities do not preclude the application of laches to a claim for prejudgment interest on past due child support awards. Id. at ¶ 28.
In reaching this conclusion, the court reasoned: "Accordingly, although the instant case does not require us to overrule Hauck, it does provide us with an opportunity to address whether Hauck's restriction on the application of laches is limited to the principal amount of child support debt. We conclude that it is." Id. at ¶ 21.
¶ 12 Thus, the supreme court's pronouncement in Johnson of the scope of the laches defense in child support claims establishes two central principles: (1) laches is available as an affirmative defense to contest an award of prejudgment interest on past due child support, but (2) laches is not available as a defense to the collection of the principal amount of past due child support. Id. at ¶¶ 21, 28.
¶ 13 Recall that mother asserted only a claim for the principal amount of the past due child support. She did not request an award of prejudgment interest, and the court did not award her any. Thus, even if father had asserted a laches defense to the claim for the principal amount of the past due child support, the supreme court's decisions in Johnson and Hauck would preclude the application of the defense to such a claim.
¶ 14 To the extent that father asks us to extend Johnson's rationale that laches is available as a defense against a prejudgment interest claim to permit a party to plead promissory estoppel as a defense to a claim for the principal amount of past due child support, we decline to do so for multiple reasons.
¶ 15 First, we recognize that the supreme court's continuing limitations on the laches defense in child support cases are grounded in important public policy considerations. Child support rights belong exclusively to a child. In Interest of Baby A, 2015 CO 72, ¶ 40. Children have a legal right to be supported by their parents, and parents have a legal obligation to provide reasonable child support. Abrams v. Connolly, 781 P.2d 651, 656 (Colo. 1989). The General Assembly enacted child support guidelines to ensure that parents equitably contribute to a child's expenses and vested the courts - rather than parents - with the sole authority to modify child support orders. See § 14-10-122(1), C.R.S. 2023 (authority to modify child support awards); see also § 14-10-115, C.R.S. 2023 (child support guidelines).
¶ 16 Second, a court may only modify child support orders on a showing of changed circumstances that are substantial and continuing. § 14-10-122(1)(a); In re Marriage of Gross, 2016 COA 36, ¶ 15. Indeed, the court retains continuing jurisdiction to modify child support orders and must apply the statutory guidelines if the parties seek such a modification. § 14-10-122(1)(a)-(b); § 14-10115. A laches defense does not account for these statutory conditions and criteria.
¶ 17 Despite these important policy considerations and the plain statutory language, father fails to provide us with any legal authority or a viable rationale explaining why principles of promissory estoppel should be allowed to defeat a claim for the principal amount of past due child support when, in recognition of these policy considerations, the supreme court has held that laches is not available as an affirmative defense to such a claim.
¶ 18 We are bound by the decisions of the supreme court. Nation SLP, LLC v. Bruner, 2022 COA 76, ¶ 29. Johnson recognizes the continuing vitality of Hauck's bar precluding the assertion of laches as a defense to a claim for the principal amount of past due child support. The policy considerations underpinning Johnson apply with equal force to an effort to avoid past due child support through the application of promissory estoppel. Accordingly, we conclude the district court did not legally err by rejecting father's promissory estoppel defense.
C. Father's Claim of Factual Error
¶ 19 Even if we were to assume, for the sake of argument, that promissory estoppel was available as a defense to mother's claim for past due child support, we would reject father's contention that the district court erred by finding that mother's statements in her email were insufficient to satisfy the first two elements of promissory estoppel.
¶ 20 For purposes of promissory estoppel, "[a] promise [is one] which the promisor should reasonably expect to induce action or forbearance on the part of the promisee." Vigoda v. Denver Urb. Renewal Auth., 646 P.2d 900, 905 (Colo. 1982) (quoting Restatement (Second) of Contracts § 90 (Am. L. Inst. 1981)). As previously explained, parents do not have the authority to unilaterally waive or modify a child support order. Baby A, ¶ 40. Therefore, as a matter of law, even if we assume that mother's email functioned as a promise, father could not have reasonably or legally relied on it.
¶ 21 Finally, there is record support for the district court's factual finding that the March 2008 email did not constitute a promise. As the district court noted, nothing in the email suggests that it was intended as a permanent child support waiver. Rather, read in context, it rings as a temporary accommodation of father's health and work circumstances. Moreover, as the district court found, the email suggested that mother expected father to help when he could, not to stop paying child support entirely. And father does not contest the district court's finding that he failed to contribute child support "when he could," as mother requested. Indeed, father does not contest that he never paid child support after the entry of the order.
¶ 22 Based on these findings, even if the parties had the legal authority to modify the child support order - which they don't - father fails to establish that the district court erred by concluding that the March 2008 email did not constitute a promise. Because the district court's factual findings enjoy record support, they are binding. See In re Marriage of Connerton, 260 P.3d 62, 66 (Colo.App. 2010).
III. Disposition
¶ 23 The district court's order is affirmed.
JUDGE FREYRE and JUDGE LIPINSKY concur.