In Re the Support Obligation of Loomis , 1998 S.D. LEXIS 116 ( 1998 )

MILLER, Chief Justice (on reassignment).

[¶ 1.] In this opinion we hold that, under the facts of this case, the mother of an out-of-wedlock child is barred by the equitable doctrines of laches and estoppel from receiving retroactive child support.¹

FACTS

[¶ 2.] In October 1982, David Loomis and Linda Teller had a brief sexual encounter in Gillette, Wyoming. Teller gave birth on July 15, 1983. Neither during the pregnancy nor afterwards did she tell Loomis that he fathered her child, even though they both lived in Gillette for approximately three years after the birth.²

[¶ 3.] When she was fourteen years old, the child told her mother that she wanted to know who her father was and where he lived. To locate Loomis, Teller apparently sought the assistance of a social service agency. Ultimately, in December 1996, the South Dakota Office of Child Support Enforcement notified Loomis that Teller claimed he fathered her fourteenryear-old daughter. Teller sought current ongoing child support, plus an amount for accrued child support for the preceding six years.

[¶ 4.] After a blood test, which confirmed Loomis’ paternity, he never challenged his paternity or his duty to pay ongoing child support. He did, however, object to having to pay past child support because of Teller’s conduct of not telling him for fourteen years that he had a daughter.

[¶ 5.] After an administrative hearing, the referee recommended that, based on the child support guidelines, Loomis owed $21,-343.52 in retroactive support. However, he recommended that amount be reduced to $14,000, finding a substantial deviation appropriate considering Loomis’ present financial condition and Teller’s long delay in seeking support. The circuit court accepted the referee’s recommendations and entered an order denying Loomis’ objections. He appeals, contending the circuit court abused its discretion in failing to apply the equitable doctrines of laches and estoppel to bar Teller’s claim for retroactive child support. We reverse and remand.

STANDARD OF REVIEW

[¶ 6.] When the circuit court has adopted a child support referee’s findings and conclusions, we apply the clearly erroneous standard of review to the findings and give no deference to conclusions of law. Wolff v. Weber, 1997 SD 52, ¶7, 563 N.W.2d 136, 138 (citing Whalen v. Whalen, 490 N.W.2d 276, 280 (S.D.1992)); Janke v. Janke, 467 N.W.2d 494, 497 (S.D.1991). In applying this standard, we will not reverse findings of fact unless we are left with a definite and firm conviction a mistake has been made. Janke, 467 N.W.2d at 497.

[¶ 7.] In child support cases, the question of whether laches is an available defense is an issue of law. Fisco v. Department of Human Servs., 659 A.2d 274, 275 (Me.1995); see also Archer v. Archer, 907 S.W.2d 412, 416 (Tenn.Ct.App.1995) (application of laches defense presents a mixed question of law and fact reviewable de novo). Furthermore, whether equitable estoppel will deny Teller the right to bring an action for back child support against Loomis is fully reviewable as a mixed question of law and fact. Crouse v. Crouse, 1996 SD 95, ¶ 14, 552 N.W.2d 413, 417.

DECISION

[¶ 8.] 1. The circuit court erred in not applying the equitable defenses of laches and estoppel to bar Teller’s claim for retroactive child support.

[¶ 9.] We initially address Teller’s claim that SDCL 25-8-5 is a legislative de-

termination that the equitable defenses of laches and estoppel cannot be applied in such a case. The interpretation of a statute is a question of law. See Moss v. Guttormson, 1996 SD 76, ¶ 10, 551 N.W.2d 14, 17. We will give words in a statute them plain and ordinary meaning where possible. In re Estate of Gossman, 1996 SD 124, ¶ 6, 555 N.W.2d 102, 104.

[¶ 10.] SDCL 25-8-5 provides:

The mother may recover from the father a reasonable share of the necessary support of a child born out of wedlock.

In the absence of a previous demand in writing served personally or by registered or certified letter addressed to the father at his last known residence, not more than six years’ support furnished before bringing an action may be recovered from the father.

[¶ 11.] Nothing in this statute indicates the legislature intended to abrogate a father’s rights to assert equitable defenses. What the legislature has done in SDCL 25-8-5 is to establish a maximum time span for which a father of a child born out of wedlock can be required to pay past child support. Had it intended to somehow totally supplant a father’s right to assert equitable defenses, it could have specifically stated so.

[¶ 12.] Having decided that Loomis had a right to raise the equitable defenses of laches and estoppel, we will next examine whether it was error for the circuit court not to apply those defenses.

a. Laches

[¶ 13.] In order for laches to bar any recovery for Teller, it must be shown that, “(1) she had full knowledge of the facts upon which the action is based, (2) regardless of this knowledge, she engaged in an unreasonable delay before commencing the suit, and (3) that allowing her to maintain the action would prejudice other parties.” Conway v. Comvay, 487 N.W.2d 21, 24 (S.D.1992) (citations omitted) (emphasis omitted).

[¶ 14.] It is apparent that Teller had full knowledge of the facts upon which the action is based. She knew from the very beginning that Loomis was the father of the. child, yet she did not reveal it to him until the child was fourteen years old.

[¶ 15.] The fact that she waited fourteen years before bringing an action for child support also constitutes an unreasonable delay. In State v. Garcia, 187 Ariz. 527, 931 P.2d 427, 428-29 (Ariz.Ct.App.1996),' the court held there was an unreasonable delay and laches applied because neither the mother nor the state sought child support for more than sixteen years. This was true, even though the father lived across the street from the mother’s family. Id. at 429. It is also interesting to note that in Garcia, unlike the present case, the mother told the father the child was his while she was still pregnant. Id. at 428; see also Wigginton v. Commonwealth, 760 S.W.2d 885 (Ky.App.1988) (holding that a claim for support arrearages was barred by laches because a mother did not bring a paternity action for fifteen years). In the present case, Teller waited fourteen years, even though they lived in the same town for the first three years.

[¶ 16.] The last factor to consider is whether allowing Teller to maintain her claim for retroactive child support would prejudice Loomis. The prejudice to Loomis is quite clear if he is forced to make such payments.³ Loomis has a current family consisting of a wife and two minor children. Now, in addition to the expenses in supporting his family, as well as the current support he now pays to the child he had with Teller, he is being asked to pay additional payments in the amount of $14,000. He also has placed the child on his health insurance plan. From his current conduct, it seems obvious that, had he known all along that the child was his, he would have supported her and also been able to develop some sort of relationship with her. See Garcia, 931 P.2d at 429 (holding father would be prejudiced if forced to pay arrear-ages for sixteen years because he had other children to support, other financial obligations, and was never allowed to develop a relationship with his son); Moore v. Hafeeza, 212 N.J.Super. 399, 515 A.2d 271, 275 (1986) (holding that a mother’s fifteen-year delay in bringing a claim for child support was prejudicial, because father was denied right to develop a relationship with his child and he also incurred other financial obligations).

b. Equitable estoppel

[¶ 17.] “Equitable estoppel is based on fair dealing, good faith and justice.” D.G. v. D.M.K., 1996 SD 144, ¶37, 557 N.W.2d 235, 242. Four factors must be met in order for equitable estoppel to bar recovery: (1) a false representation or a concealment of material facts; (2) the victim must have been without knowledge of the real facts; (3) the representation or concealment must have been made with the intent that it be acted on; and (4) the victim must have relied on the misrepresentation or concealment creating prejudice or injury. Crouse, 1996 SD 95, ¶ 14, 552 N.W.2d at 417. “There can be no estoppel if any of these essential elements are lacking, or if any of them have not been proved by clear and convincing evidence.” Id.

[¶ 18.] We find there was a concealment of material facts in this case. Teller stated under oath that she did very little to try and contact Loomis. Then she further admitted she intentionally prevented contact between Loomis and his daughter for those fourteen years, even though he lived in the same town for the first three of those years. It was only at the request of her daughter that she finally took steps towards contacting Loomis.

[¶ 19.] The second factor for equitable es-toppel is also met, as Loomis was without knowledge of the real facts. There is no question he did not know for fourteen years that he had a child with Teller.

[¶20.] The third factor requires the concealment must have been made with the intention that it be acted on. Teller intentionally concealed Loomis’ paternity from him, and thus, he was not allowed any relationship with his daughter. It seems apparent that had he known he had this daughter, he would have paid support for her. This is evidenced by the fact that he is not contesting paternity or his obligation to pay current support.

[¶ 21.] The fourth and final factor is that Loomis must have relied on the concealment creating prejudice or injury. Once again, as in the situation with laches, the prejudice in this case is clear. Loomis has been denied a relationship with his daughter for fourteen years. Now, Teller is attempting to force him to pay retroactive support in the amount of $14,000. Loomis testified that he could have structured his life differently had he known about this daughter. If the decision of the circuit court is affirmed, then Loomis would be forced to pay $14,000 on top of his current support payments, while still trying to support his current family. See State, Dept. of Human Servs, v. Irizarry, 945 P.2d 676, 680-81 (1997) (discussing reliance and injury under an estoppel claim and stating that a father had relied to his detriment as shown by certain lifestyle choices and the effect back child support payments would have on his current family). .

[¶22.] It is important to reiterate that Loomis does not contest paternity or current support. Equity does not permit us to force Loomis to pay $14,000 in retroactive child support payments when Teller intentionally concealed the fact that he had a daughter. He would be greatly prejudiced to hold otherwise. We reverse the decision of the circuit court as Teller’s claims are barred by the defenses of laches and equitable estoppel, and remand to enter an order consistent with this opinion.

[¶ 23.] Reversed and remanded.

[¶ 24.] AMUNDSON, Justice, concurs.

[¶ 25.] SABERS, Justice, concurs specially.

[¶ 26.] KONENKAMP and GILBERTSON, Justices, dissent.

1 . We must first note that SDCL 25-8-5, which allows a mother to recover past child support, is a statute that allows a mother to be reimbursed for past child support she has furnished. Under the dictates of the statute, the mother is the one who brings the action. The statute also directs that “the mother” may "recover” support, but not more than six years’ of the support that has already been "furnished.” Therefore, the plain language of the statute states that it is a means for the mother to be reimbursed for support she has already provided to the child. It is not a statute dealing with child support arrearages or any debt a father owes directly to a child.

2 . Teller admitted during the hearing in front of the referee that she intentionally prevented contact between Loomis and their daughter for fourteen years.

3 . Even the referee also must have recognized a degree of prejudice, as he used it as a reason to reduce the amount of arrearages that Loomis should be required to pay.