WEIMER v. WEIMER, 25948-6-II (Wash.App. 10-19-2001)

No. 25948-6-II.The Court of Appeals of Washington, Division Two.
Filed: October 19, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of Pierce County, No. 99-3-03397-2, Hon. D. Gary Steiner, April 7, 2000, Judgment or order under review.

Counsel for Appellant(s), James B. Roche, Pierce Co. Deputy Pros. Atty., 946 S Tacoma Ave, Tacoma, WA 98402.

Counsel for Respondent(s), Timothy P. Coogan, Attorney At Law, 107 Tacoma Avenue North, Tacoma, WA 98403.

CARROLL C. BRIDGEWATER, J.

The State appeals from a trial court ruling that equitable estoppel barred Jutta Cronin from recovering child support arrearages from Ortwin Weimer.

The parties were married in October 1980 in North Carolina. Their only child, Anastasia, was born in April 1984.

The parties divorced in July 1986 in Germany. A German court awarded Cronin custody of Anastasia. It ordered Weimer to pay monthly child support.

In November 1987, Cronin sent Weimer a letter asking that he allow her new husband to adopt Anastasia. In her letter, Cronin indicated that if Weimer authorized the adoption, she would relieve him from any future financial obligations.

In May 1988, Cronin sent Weimer another letter. Again she asked him to consent to the adoption and indicated that it would end his support obligation. Cronin explained that Weimer could grant his consent by getting a letter notarized stating that he would allow her husband to adopt Anastasia. She also wrote: `If I should have no response from you concerning this adoption by 24 May 1988, I will as[s]ume that you agree to let my husband adopt Anastasia.’ Clerk’s Papers (CP) at 48.

In March 1990, Weimer executed a document entitled, `Natural Father’s Consent and Waiver of Right to Receive Notice of All Proceedings.’ CP at 50-52. This un-notarized document purports to be the consent to adoption of an unnamed child born in Germany in 1983. Anastasia, however, was born in 1984. She has never been adopted. Between July 1986 and November 1987, Weimer made two support payments totaling $349. His next payment was not made until in June 1997. Weimer currently lives in Washington. Cronin resides in Kentucky. In October 1999, the State filed an action seeking to collect current and past due child support from Weimer. It also filed a petition to register the German support order, under RCW 26.21, indicating that it was already registered in Kentucky. Weimer contested his obligation to pay past child support, but agreed that he had a current support obligation.

In January 2000, a court commissioner heard the parties’ arguments. The commissioner ordered Weimer to begin paying his current and past due child support. The judgment entered against Weimer totaled $13,023 for support arrears from January 1990 through January 2000. Weimer moved for revision of the commissioner’s order. The trial court affirmed Weimer’s current support obligation, but reversed the judgment for arrears. It found that: (1) there was an agreement between Weimer and Cronin (i.e., if Weimer signed a consent, Anastasia would be adopted and he would be relieved of his support obligation); (2) the consent was valid on its face; and (3) Weimer was entitled to equitable relief. The trial court ordered that no arrears were collectible from the birth of Anastasia until the date the State filed its petition to enforce the support order.

I. Washington Law.
We must first determine whether the law of a foreign jurisdiction might be relevant to this case. For example, the trial court referred to German law after it ruled that Weimer’s consent was valid. The trial court commented that there was a chance that a notarized consent might not be required for an adoption in Germany. The State, however, argues that only Washington law should apply because no party pleaded any foreign law or stated that they would rely on foreign law. Parties seeking to apply foreign must give notice in their pleadings. CR 9(k)(2).[1] See also State v. Rivera, 95 Wn. App. 961, 966, 977 P.2d 1247 (1999) (`Foreign law is a fact issue that must be pleaded and proved like any other fact by the party relying on the foreign law.’). When the law of a foreign jurisdiction is neither pleaded nor proved, it is `presumed to be the same as the law of Washington.’ In re Marriage of Landry, 103 Wn.2d 807, 811, 699 P.2d 214 (1985); see also CR 9(k)(4) (when a party fails to plead foreign law, the court `shall apply the law of the State of Washington unless such application would result in manifest injustice.’).

We apply Washington law because Weimer did not plead nor prove any foreign law.

II. Independent Review
Findings of fact that are supported by substantial evidence will be upheld on appeal. W. Nat. Assur. Co. v. Hecker, 43 Wn. App. 816, 822, 719 P.2d 954 (1986). But where findings of fact are not based on oral testimony, we independently review the record. In re Marriage of Hunter, 52 Wn. App. 265, 268, 758 P.2d 1019 (1988), review denied, 112 Wn.2d 1006 (1989).

Therefore, we independently review the record because all of the evidence was presented by sworn declaration or affidavit.

III. Child Support
The entry of an adoption decree `divests any parent . . . who is not married to the adoptive parent or who has not joined in the petition for adoption of all legal rights and obligations in respect to the adoptee, except past-due child support obligations.’ RCW 26.33.260(1). Parents cannot agree to end either parent’s prospective child support obligation.

In re Marriage of Pippins, 46 Wn. App. 805, 808, 732 P.2d 1005
(1987). Such agreements are against public policy. Hartman v. Smith, 100 Wn.2d 766, 768, 674 P.2d 176 (1984).

In addition, prospective child support belongs to the child, not the custodial parent. Pippins, 46 Wn. App. at 808; see also Ditmar v. Ditmar, 48 Wn.2d 373, 374, 293 P.2d 759 (a custodial parent `has no personal interest’ in child support money and `holds it only as a trustee’ for the child’s benefit). Child support is meant to help satisfy current childcare expenses. Hartman, 100 Wn.2d at 769. Public policy does not, however, apply to agreements affecting retrospective child support payments. Past due support reimburses the custodial parent for moneys actually expended. Hartman, 100 Wn.2d at 768.

A cause of action for past due support `lies with the custodial parent — not with the child.’ Hartman, 100 Wn.2d at 768.

In general, retrospective support payments `are not subject to modification’ because each payment `vests when due.’ Hartman, 100 Wn.2d at 768. In limited circumstances, however, Washington courts will apply `equitable principles to mitigate the harshness of particular claims for retrospective support if it will not work an injustice to the custodian or the child.’ In re Marriage of Capetillo, 85 Wn. App. 311, 316-17, 932 P.2d 691, review denied, 132 Wn.2d 1011 (1997). Therefore, equitable defenses are available in actions for retrospective support, but not prospective support. Pippins, 46 Wn. App. at 809. Nevertheless, a `trial court does not have unfettered discretion to relieve the payor from past due support payment. Rather, it must identify an equitable principle that justifies departure from the general rule that support obligations will not be modified retrospectively.’ In re Marriage of Hunter, 52 Wn. App. 265, 269, 758 P.2d 1019 (1988).

The trial court erred by finding an agreement between Weimer and Cronin that ended Weimer’s child support obligation. As mentioned previously, agreements of this nature violate public policy. Furthermore, such an agreement, if it did exist and was valid, cannot relieve Weimer of his past due support unless equitable relief is warranted.

IV. Equitable Relief
The State contends that the trial court erred in granting Weimer equitable relief from his child support arrearage.

A. Equitable Estoppel
Equitable estoppel is a question of fact “[u]nless only one reasonable inference can be drawn from the evidence[.]” Colonial Imports, Inc. v. Carlton Northwest, Inc., 121 Wn.2d 726, 737, 853 P.2d 913 (1993) (quoting 28 Am. Jur. 2d Estoppel and Waiver § 149, at 831-32 (1966)). In addition, equitable estoppel is `not favored,’ and the party asserting it `must prove every element with clear, cogent, and convincing evidence.’ In re Marriage of Sanborn, 55 Wn. App. 124, 129, 777 P.2d 4 (1989); see also Colonial Imports, Inc., 121 Wn.2d at 735 (“the facts relied upon to establish an equitable estoppel must be clear, positive, and unequivocal in their implication[.]” (quoting 28 Am. Jur. 2d Estoppel and Waiver § 148, at 831 (1966))).

The elements of equitable estoppel are: ‘(1) an admission, statement, or act . . . inconsistent with the claim afterward asserted; (2) action by the defendant on the faith of such admission, statement, or act; and (3) injury resulting from allowing the plaintiff to contradict or repudiate such admission, statement, or act.’ Sanborn, 55 Wn. App. at 129; see also McDaniels v. Carlson, 108 Wn.2d 299, 308, 738 P.2d 254 (1987) (the admission, statement, or act `on which estoppel is based must induce reliance by the other party.’). In addition to proving the elements of equitable estoppel, `the party asserting the doctrine must show that the reliance was reasonable.’ Concerned Land Owners of Union Hill v. King County, 64 Wn. App. 768, 778, 827 P.2d 1017, review denied, 119 Wn.2d 1008 (1992).

In support of his equitable estoppel argument, Weimer relies on State v. Hartman, 100 Wn.2d 766. In Hartman, the mother was awarded custody and the father was ordered to pay child support. Hartman, 100 Wn.2d at 766-67. Later, the father gave his consent to allow the mother’s new husband to adopt the child. Hartman, 100 Wn.2d at 767. Both parties understood that the adoption would relieve the father of his duty to pay child support. Hartman, 100 Wn.2d at 767. The adoption was completed, but later vacated. Hartman, 100 Wn.2d at 767. The mother then sought to recover the support that would have accrued during the presumptive adoption. Hartman, 100 Wn.2d at 767-68. During the seven-year adoption period, the mother did not request child support from the father. Hartman, 100 Wn.2d at 768. The Supreme Court ruled that equitable estoppel barred the mother’s claim. Hartman, 100 Wn.2d at 769-70. It reasoned that throughout the period of the presumptive adoption, the mother represented to the father that he no longer had a duty to provide support and that the father relied on her representations and on the terms of the adoption decree to his detriment (he relinquished his parental rights).[2]
Hartman, 100 Wn.2d at 769.

Hartman is readily distinguishable from this case because, unlike Hartman, here the adoption was never finalized. The State contends that Weimer failed to prove all three elements of equitable estoppel. We agree. 1. Cronin’s statements Cronin’s letters suggested that Weimer could avoid paying child support if he consented to the adoption. The message in Cronin’s letters is arguably inconsistent with her subsequent attempt to collect child support from Weimer. But as we previously discussed, parents may not agree to end either parent’s child support obligation; such agreements are against public policy and `do not affect a subsequent request for child support.’ Pippins, 46 Wn. App. at 808. Furthermore, a parent seeking to assert an equitable defense to the collection of child support ‘[cannot] rely on an agreement that contravenes public policy.’ Pippins, 46 Wn. App. at 809.

Therefore, Weimer has failed to prove the first element of equitable estoppel.

2. Weimer’s reliance
Weimer claims that he relied on Cronin’s statements by relinquishing his parental rights. Although he admits that his consent was not notarized, he argues that he effectuated what Cronin requested.

Although Weimer may have relied on Cronin’s statements, his reliance was not reasonable. Weimer consented to the adoption and waived notice of further proceedings, but he never took any steps to learn whether the adoption was finalized. A parent who is required to pay child support `is not entitled to stop payment based on his . . . assumption that an adoption has been finalized.’ Schnepp v. State, 899 P.2d 185, 190
(Ariz.Ct.App. 1995). 3. Weimer’s injury

Weimer has failed to establish an injury resulting from his reliance on Cronin’s statements. A parent `cannot prove damages simply by showing [that] he is having to do now what he has been legally obligated to do for years.’ Capetillo, 85 Wn. App. at 318.

In sum, Weimer failed to prove the elements of equitable estoppel by clear, cogent, and convincing evidence. The trial court erred by finding that equitable estoppel barred Cronin from collecting Weimer’s past due child support.

B. Laches
Weimer also argues that the doctrine of laches should prevent Cronin from collecting his support arrearage. To establish laches, a defendant must prove that: ‘(1) the plaintiff had knowledge of the facts constituting a cause of action or a reasonable opportunity to discover such facts; (2) there was an unreasonable delay in commencing the action; and (3) there is damage to the defendant resulting from the delay.’ In re Marriage of Watkins, 42 Wn. App. 371, 374, 710 P.2d 819
(1985), review denied, 105 Wn.2d 1010 (1986). 1. Cronin’s knowledge Cronin had knowledge of the facts constituting a cause of action for past due child support, or at least a reasonable opportunity to discover such facts, because she referred to Weimer’s duty to pay support in both her letters. In addition, the German support order was entered in Kentucky at some point in time before 1999 when the State of Washington instituted collection proceedings against Weimer.

2. Undue delay
Except in unusual circumstances, `the doctrine of laches should not be invoked to bar an action short of the applicable statute of limitation.’ Hunter, 52 Wn. App. at 270. The statute of limitation does not bar the collection of Weimer’s past due child support. RCW 6.17.020 (ten years).

The support that is more than ten years past due, however, is uncollectible. Weimer has failed to establish the second element of laches. Cronin’s delay was not unreasonable.3 3. Damages Even if Cronin’s delay was unreasonable, Weimer has failed to prove that the delay damaged him. To establish laches, the damages must occur in reliance on the custodial parent’s failure to pursue child support. Capetillo, 85 Wn. App. at 318. Weimer cannot prove that he was damaged by showing that he is now having to do what he was legally obligated to have previously done. Capetillo, 85 Wn. App. at 318. He has failed to demonstrate that he was harmed by Cronin’s delay in seeking to collect his past due child support. See Capetillo 85 Wn. App. at 319 (father was not damaged where his `hardship was created by his own failure to pay, to inquire, or to seek modification’ and trial court did not find that the mother `agreed, by word or conduct, to excuse [father’s] support obligation’). The doctrine of laches therefore does not apply to this case. Reversed.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

WE CONCUR: ARMSTRONG, C.J., QUINN-BRINTNALL, J.