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ADVANCE SHEET HEADNOTE

September 26, 2016

2016 CO 67

No. 14SC756, In re Marriage of Johnson—Interest on Child Support Debt—Laches.

This case concerns whether a father may rely on the doctrine of laches to defend 

against a mother’s claim for the interest on his child support debt. The supreme court 

concludes that laches may be asserted as a defense to a claim for interest on child 

support arrearages. The court therefore reverses the judgment of the court of appeals, 

which had concluded otherwise, and remands this case to that court for further 

proceedings consistent with this opinion.

 
The Supreme Court of the State of Colorado

2 East 14th Avenue • Denver, Colorado 80203

2016 CO 67

Supreme Court Case No. 14SC756

Certiorari to the Colorado Court of Appeals

Court of Appeals Case No. 13CA1309

In re the Marriage of

Petitioner:

William Michael Johnson,

and

Respondent:

Carolyn S. Johnson.

Judgment Reversed

en banc

September 26, 2016

Attorneys for Petitioner:

Holland & Hart LLP

Christina F. Gomez

Kristina R. Van Bockern

Denver, Colorado

No appearance by or on behalf of Respondent Carolyn S. Johnson

Attorneys for Amicus Curiae American Academy of Matrimonial Lawyers, Colorado 

Chapter:

American Academy of Matrimonial Lawyers

Kathleen A. Hogan

Denver, Colorado

Attorneys for Amicus Curiae Family Law Section of the Colorado Bar Association:

Epstein Patierno, P.C.

Christina Patierno

Denver, Colorado
2

Cox Baker & Page, LLC

Nathan M.J. Dowell

Castle Rock, Colorado

Sherr Puttmann Akins Lamb PC

Courtney Radtke McConomy

Greenwood Village, Colorado

JUSTICE GABRIEL delivered the Opinion of the Court.

JUSTICE MÁRQUEZ does not participate.
3

¶1 This case concerns whether a father may rely on the doctrine of laches to defend 

against a mother’s claim for the interest on his child support debt. Over fifty years ago, 

in Hauck v. Schuck, 353 P.2d 79, 81 (Colo. 1960), we decided that laches does not apply 

to a claim for unpaid child support that accrued within the statutory limitations period. 

In the present case, a division of the court of appeals extended Hauck’s reasoning to a 

claim for interest on such arrearages and concluded that laches could not apply to bar 

one parent’s right to collect interest on arrearages owed by the other parent. See In re 

Marriage of Johnson, 2014 COA 145, ¶ 17, __ P.3d __. In a special concurrence, Judge 

Berger noted that a more recent case from this court, Hickerson v. Vessels, 2014 CO 2,

316 P.3d 620, cast doubt on the division majority’s conclusion. See In re Marriage of 

Johnson, ¶ 24 (Berger, J., specially concurring). We granted certiorari to consider 

whether laches is an appropriate defense in an action to collect interest on past-due 

child support and in doing so, to resolve the arguable tension in our precedent.

1 We 

now conclude that laches may be asserted as a defense to a claim for interest on child 

support arrearages, and we therefore reverse the judgment of the court of appeals and 

remand this case to that court for further proceedings consistent with this opinion.

I. Facts and Procedural History

¶2 In 1983, the district court entered a decree dissolving the marriage of the 

petitioner, William Michael Johnson, and the respondent, Carolyn S. Johnson. The 

 

1 Specifically, we granted certiorari to review:

Whether the Court of Appeals erred in holding that, as a matter of law, 

laches can never apply as a defense to the recovery of statutory interest in 

a child support enforcement action.
4

decree further ordered Mr. Johnson to pay $400 per month in child support to 

Mrs. Johnson, to whom the court had granted custody of the couple’s two minor 

children. The decree did not specify when Mr. Johnson’s child support obligation 

would end, but the law at the time presumed that it would continue until his youngest 

child reached the age of majority, which was then twenty-one. See Koltay v. Koltay, 

667 P.2d 1374, 1376 (Colo. 1983) (citing section 2-4-401(6), C.R.S. (1973 & 1980 Repl. Vol. 

1B), for Colorado’s age of majority).

¶3 In September 2012, Mrs. Johnson filed a “Verified Motion for Entry of Support 

Judgment.” In this motion, Mrs. Johnson asserted that Mr. Johnson owed her $54,320 in 

child support arrearages, plus $838,965.32 in interest that had accrued between the 

entry of the Johnsons’ divorce decree in 1983 and their youngest child’s twenty-first 

birthday in 1997. Although Mr. Johnson responded by asserting a number of defenses,

including the statute of limitations and laches, the magistrate entered judgment against 

him for the total amount requested of $893,285.32.

¶4 Mr. Johnson sought district court review of the magistrate’s order, and the

district court found that the magistrate had clearly erred in entering judgment for the 

full amount. Applying section 14-10-122(1)(c), C.R.S. (2016), which provides that an 

order requiring the payment of child support becomes a final money judgment when it 

is due and not paid, the district court reasoned that such a payment is subject to the 

twenty-year limitations period set forth in section 13-52-102(2)(a), C.R.S. (2016), for 

executing on judgments. The court further found that the doctrine of laches was 

inapplicable “to actions for recovery of past due child support.” Accordingly, the court 
5

vacated the magistrate’s order and remanded the case with instructions to conduct an 

evidentiary hearing to re-determine, in accordance with the court’s order, the amount of

the judgment to be entered.

¶5 On remand, the magistrate conducted a hearing during which she addressed, 

among other things, whether Mr. Johnson’s child support obligation ended when his 

youngest child turned twenty-one (the age of emancipation when the Johnsons 

divorced in 1983) or when she turned nineteen (the age of emancipation under the 1991 

amendment to the applicable statute, see ch. 38, sec. 1, § 14-10-115(15)(1.5)(a), 1991 Colo. 

Sess. Laws 234). In a written ruling, the magistrate concluded that Mr. Johnson’s 

support obligation had continued until his youngest child turned twenty-one. The 

magistrate reasoned that to take advantage of the new, lower age of emancipation, 

Mr. Johnson was required to file a motion to modify the child support order. Any

resulting modification would then have applied to installments that accrued after the 

motion for modification. Because Mr. Johnson had filed no such motion, the magistrate 

ordered him to pay $23,260.27—representing child support owed for the period 

between September 12, 1992 and July 17, 1997, when the couple’s youngest child turned 

twenty-one—plus interest pursuant to section 14-14-106, C.R.S. (2016).

¶6 Mr. Johnson again sought district court review, that court adopted the 

magistrate’s order, and Mr. Johnson appealed to the court of appeals. A division of that 

court ultimately reversed the district court’s order on the emancipation question, 

concluding that Mr. Johnson’s child support obligation had ended when the parties’ last 

child turned nineteen. See In re Marriage of Johnson, ¶ 5. A majority of the division 
6

agreed with the district court, however, that under Hauck, laches is not an available 

defense in actions to collect past due child support and the interest thereon. See id. at 

¶¶ 17–18. The majority therefore concluded that the principal amount of the arrearages 

was $4,800 ($400 per month for the twelve months between July 1994, when 

Mr. Johnson stopped paying child support, and July 1995, when his youngest child

turned nineteen), and it remanded the case with instructions that the trial court 

calculate interest under section 14-14-106 on the $4,800 in arrearages. Id. at ¶ 19. 2

¶7 Judge Berger concurred specially. Although he agreed with the majority’s 

reliance on Hauck and its consequent refusal to allow laches as a defense in the present 

case, he pointed out the importance of the doctrine as “a needed ‘safety valve’ in 

unusual cases.” Id. at ¶¶ 21–22 (Berger, J., specially concurring). Judge Berger further 

noted the recent Hickerson decision, in which this court, as he put it, “put to rest 

arguments that laches can be a defense only to claims for equitable relief and cannot 

shorten the period for filing a claim if the claim had been filed within the statute of 

limitations.” Id. at ¶ 23 (Berger, J., specially concurring). And as pertinent here, Judge 

Berger observed that although Hickerson neither cited nor overruled Hauck, its 

rationale was “fully applicable, at least to the interest component of child support 

arrearages.” Id. at ¶ 24 (Berger, J., specially concurring).

¶8 Mr. Johnson then petitioned this court for a writ of certiorari, which we granted. 

When Mrs. Johnson did not enter an appearance or submit an answer brief, we invited 

 

2 As the division determined, the record reflects the parties’ agreement that Mr. Johnson 

had paid all child support due between September 1992 and July 1994, when the 

parties’ youngest child turned eighteen. Id.
7

three interested organizations to submit briefs as amici curiae, and two did so. As 

pertinent here, the Colorado Bar Association’s Family Law Section agreed with 

Mr. Johnson that under certain circumstances, laches should be available as a defense to 

the interest owed on child support arrearages. The Family Law Section differed with 

Mr. Johnson, however, as to the circumstances in which laches could apply, advocating 

for additional conditions on the application of the doctrine in the context now before us.

II. Standard of Review

¶9 The applicability of the common-law doctrine of laches to the statute governing 

interest on child support arrearages presents a question of law that we review de novo. 

See Hickerson, ¶ 10, 316 P.3d at 623 (“We review de novo questions of law concerning 

the application and construction of statutes.”).

¶10 Our purpose in matters involving statutory construction is to give effect to the 

intent of the legislature. See City of Littleton v. Indus. Claim Appeals Office, 2016 CO 

25, ¶ 27, 370 P.3d 157, 165–66. To that end, we may not construe a statute to abrogate 

the common law unless the General Assembly has clearly expressed its intent to do so. 

See Robbins v. People, 107 P.3d 384, 387 (Colo. 2005); see also Hickerson, ¶ 10, 316 P.3d 

at 623 (“Where the interaction of common law and statutory law is at issue, we 

acknowledge and respect the General Assembly’s authority to modify or abrogate 

common law, but only recognize such changes when they are clearly expressed.”).

III. Analysis

¶11 Mr. Johnson concedes that he owes $4,800 in child support (twelve months of 

$400-per-month payments) for the period beginning in July 1994, when he stopped 
8

making child support payments, and ending in July 1995, when his youngest child 

turned nineteen. As a result, the dispute in this case turns on the amount of interest, if 

any, he owes on that $4,800. To address this question, we begin by describing the 

statutory scheme for the collection of interest on child support debt. We then review 

our precedent, from Hauck to Hickerson, to determine whether the reasoning of our 

case law precludes the application of the doctrine of laches in the circumstances 

presented here.

A. Interest On Child Support Debt

¶12 Section 5-12-101, C.R.S. (2016), provides, “If there is no agreement or provision of 

law for a different rate, the interest on money shall be at the rate of eight percent per 

annum, compounded annually.” Section 14-14-106, in turn, provides:

Interest per annum at four percent greater than the statutory rate set forth 

in section 5-12-101, C.R.S., on any arrearages and child support debt due 

and owing may be compounded monthly and may be collected by the 

judgment creditor; however, such interest may be waived by the 

judgment creditor, and such creditor shall not be required to maintain 

interest balance due accounts.

¶13 Accordingly, together, sections 14-14-106 and 5-12-101 set the interest rate on 

Mr. Johnson’s child support arrearages at 12% (8% plus 4%), compounded monthly. 

According to Mr. Johnson (and undisputed by any other party), this rate yields 

$46,399.62 in interest accrued from 1995 until the division’s judgment in 2014.

3

 

3 Although Mr. Johnson’s calculation is uncontested, our independent review suggests 

that it may be somewhat low. His calculation appears to have assumed that the entire 

$4,800 became due in 1995. In reality, beginning in July 1994, each unpaid $400 

installment accrued interest monthly as the principal grew to $4,800 over twelve 

months. See In re Marriage of Armit, 878 P.2d 101, 103 (Colo. App. 1994) (“[W]hen 
9

¶14 Notwithstanding Mr. Johnson’s above-described interest calculation, he contends

that he is entitled to raise a laches defense to Mrs. Johnson’s claim for such interest 

because she “unreasonably delay[ed]” in seeking to collect the $4,800 principal, which 

became due eighteen years before she filed suit in this case.

¶15 Section 14-14-106 says nothing about the applicability of common law defenses 

like laches to claims for interest on child support arrearages. Accordingly, we must 

decide whether the General Assembly intended to eliminate laches as a defense in this 

context. In this regard, our case law is instructive.

B. Laches

¶16 “Laches is an equitable doctrine that may be asserted to deny relief to a party 

whose unconscionable delay in enforcing his rights has prejudiced the party against 

whom relief is sought.” Robbins, 107 P.3d at 388. A laches defense comprises three 

elements: (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. Hickerson, ¶ 12, 316 P.3d at 623.

¶17 Courts have interpreted the laches defense to signify so unreasonable a delay in 

the assertion of and attempt to secure equitable rights as to constitute in equity and 

good conscience a bar to recovery. Loveland Camp No. 83 v. Woodmen Bldg. & 

Benevolent Ass’n, 116 P.2d 195, 199 (Colo. 1941); see also In re Water Rights of Cent. 

 

child support is ordered, due, and unpaid, interest accrues on each installment from the 

date it was due.”). This distinction, however, does not impact our analysis in this case.
10

Colo. Water Conservancy Dist., 147 P.3d 9, 17 (Colo. 2006) (“[T]he defense of laches 

arises from ‘an unconscionable delay in asserting one’s rights which works to the 

defendant’s prejudice or injury in relation to the subject matter of the litigation.’”) 

(quoting City of Thornton v. Bijou Irrigation Co., 926 P.2d 1, 73 (Colo. 1996)).

¶18 Since at least 1960, we have consistently held that the doctrine of laches does not 

apply in actions for the recovery of past due child support. See, e.g., Hauck, 353 P.2d at 

81; accord In re Marriage of Meisner, 807 P.2d 1205, 1207 (Colo. App. 1990); Carey v. 

Carey, 486 P.2d 38, 40 (Colo. App. 1971). Specifically, in Hauck, 353 P.2d at 80, we

made clear that accrued installments of child support are final judgments that are 

subject to the appropriate statute of limitations. We further explained that “laches is 

applicable only when the attempted enforcement is by means of contempt procedures.” 

Id. at 81. Thus, we observed that although laches might apply in an equitable 

proceeding for contempt, it did not apply in the proceeding before the court, namely, a

legal action to collect accrued child support installments. See id. at 80–81. Accordingly, 

the applicability of the doctrine of laches appears to have turned on the distinction

between legal and equitable actions. See id.

¶19 As we recently observed, however, law and equity have been merged in 

Colorado since at least 1877, when the General Assembly enacted the Code of Civil 

Procedure. Hickerson, ¶ 11, 316 P.3d at 623. That Code provided, “[T]he distinction 

between actions at law and suits in equity, and the distinct forms of actions, and suits 

heretofore existing are abolished, and there shall be in this State but one form of civil 

action[.]” Code of Civil Procedure, ch. 1, § 1 (1877). This principle was reaffirmed in 
11

our current rules of civil procedure, which provide, “There shall be one form of action 

to be known as ‘civil action.’” C.R.C.P. 2. As a result, “very few issues” today depend 

on a claim’s foundation in law or equity. See Hickerson, ¶ 11, 316 P.3d at 623.

¶20 Consistent with this principle, in Hickerson, we implicitly concluded that the 

availability of a laches defense is not an issue that turns on the distinction between law 

and equity. See id. We focused instead on whether the separation of powers doctrine 

precluded a court from applying laches to shorten the filing period established by 

statute. Id. In conducting this analysis, we noted that the General Assembly had not 

abrogated the common law doctrine of laches. Id. at ¶ 16, 316 P.3d at 624. We further 

observed, as pertinent here, that although the statute of limitations for actions to 

recover debts prohibited the filing of an action beyond the prescribed limitations 

period, it did not address the operation of laches to shorten that period. Id. at ¶ 14, 

316 P.3d at 624. To the contrary, several of our prior cases had recognized the 

applicability of laches to shorten the period for filing a claim “even though the claim 

has been timely filed within a legislatively prescribed statute of limitations period.” Id.

at ¶ 16, 316 P.3d at 624; see also O’Byrne v. Scofield, 212 P.2d 867, 871 (Colo. 1949)

(quoting Great W. Mining Co. v. Woodmas of Alston Mining Co., 23 P. 908, 911 (Colo. 

1890), for the principle that statutes of limitations “fix[] a limitation beyond which the 

courts cannot extend the time, but within this limit the peculiar doctrine of courts of 

equity should prevail”); Great W. Mining Co., 23 P. at 911 (explaining that courts cannot 

construe statutes of limitations to “permit a party in all cases to stand idly by until the 

limitation of the statute has nearly run, and then claim that, by virtue of the statute, he 
12

is excused from the laches”). Accordingly, we held that the separation of powers 

doctrine did not bar the application of laches to a debt collection action filed within the 

statute of limitations period. Hickerson, ¶ 9, 316 P.3d at 622.

¶21 In so holding, we neither mentioned nor overruled Hauck, which, as noted 

above, forbade the use of laches to bar a claim to collect unpaid child support within the

statutory limitations period. Nonetheless, by concluding that laches could apply 

notwithstanding an applicable statute of limitations, Hickerson cast doubt on the 

propriety of extending Hauck’s reasoning to claims for interest on past-due child 

support. 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.

¶22 The prohibition against applying laches to bar collection of the principal amount 

of child support debt is grounded in the settled principle that child support belongs to

children, not their parents. See McQuade v. McQuade, 358 P.2d 470, 472 (Colo. 1960) 

(“The inherent right to support belongs to the child . . . .”). Accordingly, as a policy 

matter, a parent’s delay in enforcing a judgment for child support should not prejudice 

the child’s right to parental support. Cf. Hammond v. Hammond, 14 P.3d 199, 203 

(Wyo. 2000) (explaining that parents cannot waive or bargain away the right to child 

support because the right does not belong to them; it belongs to the child).

¶23 The same reasoning does not support precluding the application of the doctrine 

of laches as a defense to the interest component of child support debt. As the California 
13

Court of Appeal aptly explained, when a dilatory parent waits until the child has 

reached the age of majority to seek unpaid child support, reimbursing the custodial 

parent does not cognizably advance the child’s welfare. In re Marriage of Copeman,

108 Cal. Rptr. 2d 801, 808 (Cal. Ct. App. 2001), superseded by statute as recognized in In 

re Marriage of Fellows, 138 P.3d 200, 203 (Cal. 2006).

¶24 We reached a similar conclusion in Price v. Price, 249 P. 648, 649 (Colo. 1926), a 

contempt proceeding for failure to pay accrued installments of permanent alimony:

If, as in the instant case, the wife for a long period of time supports the 

child without receiving alimony, where the husband had been ordered to 

pay alimony for the support of the child, and she afterwards recovers the 

arrears of alimony, such recovery is her own recovery and not that of the 

child. The recovery amounts simply to a reimbursement of the wife. She 

is the one who reaps the benefit.

¶25 Given the wife’s more-than-fifteen-year delay in initiating contempt proceedings 

in Price, we concluded that the husband could raise laches as a defense to the contempt 

citation, even though the arrearages at issue appear to have been (at least partly) 

intended as child support. See id. at 648–49.

¶26 Both the Copeman and Price courts recognized that laches may bar the 

enforcement of past-due support payments when due to the passage of time, the parent, 

rather than the child, would obtain the benefit of any recovery. See Copeman, 108 Cal. 

Rptr. 2d at 808; Price, 249 P. at 649. In our view, this reasoning is equally applicable 

here. Indeed, prohibiting laches as a defense to the interest component of child support 

debt would arguably encourage the very kind of delay that the Copeman and Price
14

courts condemned. This is particularly true given that the interest rate on support 

arrearages is four percent higher than the statutory rate. See § 14-14-106.

¶27 Conversely, allowing a party to assert a laches defense to a claim for interest on 

unpaid child support would serve the dual purposes of protecting the right of children 

to parental support and encouraging parents to enforce child support obligations

promptly. Cf. Williams v. Woodruff, 85 P. 90, 101 (Colo. 1905) (citing Rip Van Winkle 

as an illustration of the principle that “[p]arties cannot lie down to sleep upon their 

rights, and, on waking up many years after, find them in the same condition as that in 

which they were left”).

¶28 For these reasons, we conclude that Mr. Johnson may raise the doctrine of laches 

as a defense to Mrs. Johnson’s claim for the interest that has accrued on the $4,800 in 

child support arrearages at issue. We express no view, however, as to the merits of this 

defense. That determination must be made in the first instance by the trial court. See

People v. Valdez, 178 P.3d 1269, 1276 (Colo. App. 2007) (“Whether the elements of 

laches have been established is a question of fact.”).

¶29 In determining on remand whether Mr. Johnson can establish a laches defense, 

the courts below should apply the three-pronged test for laches set forth above. See

supra ¶ 16. Although the Family Law Section urges us to modify this test in the present 

context by limiting the availability of laches to cases in which (1) “extraordinary facts or 

compelling circumstances” exist and (2) “the impact on the child’s welfare, and the 

welfare of the parties, has been specifically considered,” we decline to do so. In our 

view, the long-established elements of the doctrine of laches, which require
15

unconscionable delay and prejudice, see Hickerson, ¶ 12, 316 P.3d at 623; Loveland 

Camp No. 83, 116 P.2d at 199, can readily be applied, without modification, here.

IV. Conclusion

¶30 For these reasons, we reverse the judgment of the court of appeals and remand 

the case to that court with instructions to return the case to the trial court for a 

determination as to whether Mr. Johnson can prove the elements of a laches defense

with respect to Mrs. Johnson’s claim for interest on Mr. Johnson’s child support

arrearages.

JUSTICE MÁRQUEZ does not participate.