ANALYSIS OF JUNE 8, 2010 CAV OPINION[Posted June 8, 2010] This is session week in the Supreme Court of Virginia, so things will get pretty lively around here later this week on opinion day. To warm you up for the arrival of this session’s batch of published opinions, the Court of Appeals hands down one published opinion that implicates an interesting statute-of-limitations question.
Adcock v. DCSE is an appeal from a judgment for arrearages in child support. Husband and wife got divorced, and wife was awarded the princely sum of $30 per week as support for the couple’s three children. The result of the judgment in the case is that husband owes almost $74,000. Do you have any idea how many $30 weeks you have to exhaust before you get to $74K?
Well, that’s part of the intrigue of this case. You see, the divorce occurred in 1966, and back then, thirty bucks a week might well have been princely – reasonably princely, anyway. The youngest of the couple’s children, a son, became an adult in 1982; husband didn’t pay anything after that date, and if you believe wife, for quite a while before it, too. But for some reason, no enforcement proceeding was instituted until 2008, at which point that youngest child was almost old enough to start receiving promotional literature from AARP.
That raises one obvious question: What’s the statute of limitations for suing to collect a child-support arrearage? Is it (A) two years; (B) five years; (C) twenty years; or (D) never? The answer, it seems, is (D) – there is no limitation period for enforcing a child-support obligation, and wife is allowed to wait until that youngest child is president of AARP before she heads off to court. So provides a 1992 CAV opinion in a spousal-support case that becomes the fulcrum of today’s split panel decision.
The rule I mentioned above isn’t without exceptions. Pursuant to the 1992 case, once the support obligation becomes the subject of “an order for a sum certain or liquidated amount,” the 20-year limitation period for enforcement of judgments starts ticking. The majority finds that there was no order fixing the amount of the arrearages before this proceeding was initiated, so the clock never started running against wife’s claim.
Senior Judge Coleman dissents. He notes that he was on the panel that decided the 1992 case, and he would hold today that once the amount can be definitely calculated – here, it’s pretty clear when that last kid’s 18th birthday will be – then you have a liquidated amount. (Support orders can’t be modified retroactively, so once the period of support ends, there’s no changing the amount due.) The majority (Judge Frank, writing for Judge Elder) distinguishes between ascertaining an amount due and liquidating it; the majority finds that the latter task requires a court order.
The idea of suing now on a 1960s support order will come as a surprise to many lawyers, who are accustomed to requirements of reasonable diligence in pressing claims. It’s possible that the husband left a potentially winning argument on the table, as the opinion observes that he didn’t raise the bar of laches in this purely equitable proceeding. Perhaps a defense like that would be more productive in a comparable future case, but from a purely legal standpoint, the statute of limitations helps no man in a situation like this.