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In re Marriage of Capetillo

March 11, 1997

IN RE THE MARRIAGE OF: DONNA ROSEMARY (KIVETT) CAPETILLO, APPELLANT, AND DAVID LESLIE KIVETT, SR., RESPONDENT.


Appeal from Superior Court of Yakima County. Docket No: 80-3-01334-6. Date filed: 03/16/95. Judge signing: Hon. Stephen Brown.

Petition for Review Denied July 8, 1997,

Authored by John A. Schultheis. Concurring: Dennis J. Sweeney, Philip J. Thompson.

The opinion of the court was delivered by: Schultheis

SCHULTHEIS, J. In Washington, the equitable defense of laches may be applied to estop a custodial parent from recovering past-due child support. Donna Capetillo sought to recover 10 years' worth of past-due child support from her ex-husband, David Kivett. Mr. Kivett claimed he had not paid child support because he thought his children had been adopted by their stepfather. The trial court applied laches and denied Ms. Capetillo recovery. On appeal, she contends the evidence does not support the trial court's findings. She also argues her delay in enforcing the child support obligation does not qualify as unreasonable because she filed suit within the statute of limitations. We reverse and remand.

Facts

Ms. Capetillo and Mr. Kivett separated in June 1980, after eight years of marriage. Within the month, Mr. Kivett had moved to North Carolina, where he still resides. The divorce was final in April 1981. Ms. Capetillo was granted custody of the children, ages four, five and seven. Mr. Kivett received "reasonable and liberal rights of visitation," including the right to telephone at reasonable times. He was ordered to pay child support of $50 per child per month, pay $900 in back child support, maintain medical and dental insurance for the children (if available through his employment) and maintain life insurance for their benefit. The record shows that Mr. Kivett did not comply with any of these orders.

Ms. Capetillo remarried in 1981, a month after the divorce was final. Mr. Kivett visited the children for about a week that year, but has not seen them since. He claims he did not call the children at his ex-wife's house because he did not know her telephone number. Somewhat inconsistently, he also claims he called his ex-wife in 1983, at which time she reportedly told him he could not see or talk to the children. After this Discussion, he asserts, he stopped attempting to talk to the children or to send them gifts.

Ms. Capetillo admits she asked Mr. Kivett to leave the state after the separation. She claims the children were afraid of him because he was verbally and physically abusive to them. She also asserts he never asked for visitation (beyond the one trip to Yakima in 1981) and never sent any money. Within two years after her remarriage, she told Mr. Kivett her husband wanted to adopt the children. Mr. Kivett reportedly said he would sign adoption papers if he would never have to pay child support. The Capetillos dropped the idea of adoption when they came to believe it was impossible while Mr. Kivett was alive.

Although the children entered elementary school with the Kivett surname, one by one they adopted the name Capetillo. All three were Capetillos by 1984. Ms. Capetillo claims they chose their stepfather's surname on their own, without her encouragement.

In 1988, Mr. Kivett called to tell the children his mother was dying. During his conversation with Ms. Capetillo, she told him he had no right to see the children because he had not paid support. She also threatened to have him arrested for non-support if he came to Washington. He never called the children or his ex-wife after that. When asked why she waited until 1994 to collect the past-due child support, Ms. Capetillo replied that she never would have attempted it, but her children asked her to. Before that time, she asserted, she would not have been able to afford to hire a lawyer every time he missed a $150 payment.

Mr. Kivett called his children's school in 1984 and was told they were using the name Capetillo. Thinking that a student must have "legal documents" in order to go to school with a stepparent's name, he claims he started believing the children must have been adopted. At trial, he admitted he did not know how they could have been adopted without his signature. But he thought his brother or maybe an attorney told him Mr. Capetillo could run a notice in the local North Carolina newspaper and then adopt. Although Mr. Kivett read all of the paper every day, he did not see a notice. Nevertheless, he assumed the notice must have been put in there. He called the Yakima courthouse at some point and was told that even if adoptions had occurred, he could not find out because the records are sealed.

Mr. Kivett remarried in 1985 and became stepfather to two small children. While working as a manager of an auto body shop in 1986 or 1987, he suffered a back injury. He then worked as a barber, but continued to suffer back pain. Ultimately, Mr. Kivett had two surgeries in 1988 and 1989 to treat herniated discs. After the surgeries, he had to cut back his work hours from around 50 hours a week to around 32 hours a week. He received a $20,000 settlement for the back injury in 1989. As he admitted in court, all of this money was spent to pay bills and other necessities incurred while he was out of work for one and one-half years. Nonetheless, he insisted he would have saved the money if he had known he would have to pay child support.

In July 1994, Ms. Capetillo moved for judgment on the child support owed from July 1984 to September 1994. *fn1 At the time she filed, her youngest child was 17, but he turned 18 at the end of August. The total amount for past-due support was $15,700, with interest amounting to $10,938. After hearing the testimony of both parties, the trial court concluded that Ms. Capetillo waited an unreasonable time to enforce the child support obligation and that Mr. Kivett suffered damage due to this delay. The court found that Mr. Kivett detrimentally relied on his ex-wife's failure to pursue support when he (1) altered his work hours, (2) dissipated his settlement funds, (3) entered into a "blended" family marriage, and (4) forewent opportunities to modify support based on his back injury or his blended family. Consequently, the court applied the defense of laches to estop Ms. ...


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