The Colorado Court of Appeals addressed the question of laches in the case: In re Marriage of Kann, (2017 COA 94).
This case goes all the way back to a divorce in 1989. The divorce decree of Bruce Allen Kann and Josephine Marie Kann was entered into in 1989. Under the terms of the dissolution, husband agreed to pay wife lifetime maintenance of no less than $1200 per month. The agreement also provided that in the event of a breach, the prevailing party would be entitled to recover costs, expenses, and reasonable attorney fees. For 26 years, Bruce Kann paid no maintenance and she never asked him to do so. In 2015, things changed, and she sued him for $520,636.32 in unpaid maintenance an interest. Husband denied any obligation to pay maintenance. He raised three affirmative defenses: waiver, estoppel, and laches. He failed in all three. He appealed. The husband claimed he should be able to raise laches as an affirmative defense considering she waited 26 years to sue.
No Colorado case has addressed whether laches applies in a proceeding brought solely to collect maintenance arrearages and interest. There have been cases where laches was raised in claims combining maintenance and child support arrearages. Allowing laches as a defense in maintenance only cases would encourage prompt assertion of the claim which could grow exponentially over time. And recovering accrued interest after a lengthy delay could be a windfall for the plaintiff.
The Court did a great deal of comparing and contrasting court cases dealing with child support—the arrearage of which hurts the child. Maintenance, however, is primarily concerned with providing that the basic needs of a disadvantaged spouse are met. So, if the recipient of a spousal maintenance award has significantly delayed attempting to enforce the award, one could conclude that the spouse does not need the money to meet basic needs. The Court did not decide the merits of this case—just decided that Bruce Kann should be allowed to raise laches as an affirmative defense. The case was remanded with very specific instructions to the trial court to reconsider the full scope of the laches defense, evaluate both delay and prejudice, and address the interdependence between them, and to do it based on the existing record, without taking further evidence.
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