Did the Supreme Court limit laches too much in defending back alimony and child support claims?

Posted Tuesday, April 21st, 2009 by Gregory Forman
Filed under Alimony/Spousal Support, Child Support, Jurisprudence, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

Two recent South Carolina Supreme Court opinions: Ables v. Gladden, 378 S.C. 558, 664 S.E.2d 442 (2008) and Strickland v. Strickland, 375 S.C. 76, 650 S.E.2d 465 (2007) abolished the defense of laches in the collection of back child support or alimony, while authorizing the continued use of a similar defense, equitable estoppel, in such collection cases.

What I find interesting about these two opinions is that South Carolina’s jurisprudence has failed to develop any analysis of the concept of “proof prejudice” or “evidentiary prejudice” as a distinct part of the laches defense. See The Laches Defense in Family Court. Almost all South Carolina case law dealing with the laches defense deals with what is commonly called “financial prejudice.” Financial prejudice is when a party changes financial position on the expectation that the other party will not enforce the order. Proof prejudice is when a party no longer has the ability to obtain the evidence to prove his or her compliance with the court order. These two types of laches prejudice have completely different theories: Financial prejudice claims no compliance but attempts to excuse it; proof prejudice claims compliance but complains about the inability to obtain evidence of compliance.

The rationale that led to the Ables and Strickland decisions is justified if the only type of laches is that involving financial prejudice, as many such types of laches will often implicate an equitable estoppel defense and those that do not (where a party merely spent money he or she would otherwise have not spent on the expectation that they would not have to pay support) are probably justified on the policy grounds articulated in these opinions. However the rationale would not apply to proof prejudice claims.

Thus, the failure to develop a “proof prejudice” jurisprudence may have led to poorly decided decisions. Another possibility is an argument that Ables and Strickland only applied to financial prejudice claims and that the proof prejudice still remains a viable laches defense.

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