Centrally at issue in this case, in which the Petitioner is seeking retroactive child support for the parties' daughter, is the position of the Respondent who, like the defendant who murders both his parents and then seeks the mercy of the Court because he is an orphan, has never provided so much as a farthing for his nearly twenty-one-year-old daughter, has ignored repeated Orders of the Court in this case, and now, after more than two decades of utter inertia, lassitude, and neglect on his part, seeks to invoke the equitable defense of "laches." The Court rejects his position in toto, but in so doing, because Respondent's argument and attitude embody a paradigm which is all too often presented in this type of child support case, the Court sets forth its reasoning, rationale, and ruling in detail herein as a "public policy" statement which it believes should prevail in all such cases similarly situated.
In Part I, the Court discusses the procedural history of this case, including the delays occasioned by the Respondent's own actions and by happenstance. In Part II, the Courts sets forth the salient Findings of Fact, particularly with regard to the Respondent's attempted defense of "laches' and as to the basis for the Court's denying his motion for a suspension of temporary child support payments and awarding of retroactive child support against him. Part III sets forth in detail the Court's Conclusions of Law as to (A) the basic issues in paternity law, (B) the legal bases for the Court's rejection of the laches defense, (C) the legal precepts (which comprise the core of the Court's ruling in this case) of paternity and child support law, particularly with regard to retroactive child support, (D) the measure and terms of the retroactive child support awarded herein, together with what the Court deems a "practical application" of the foregoing, in view of the fact that, due to the delays occasioned by the Respondent and others, this Judgment Order issues within one month of the child's attaining the age of majority. In subsection (E) the Court discusses the legal basis for the additional award of the Petitioner's attorney's fees as against the Respondent and concludes in subsection (F) with an admonition regarding the Court's intention to retain jurisdiction over this matter for as long as necessary in order to effectuate the foregoing terms of this Order. Finally, Part IV informs the parties of the rights to review and appeal pursuant to the Final Judgement Order to that effect, which issues concomitant herewith.
On March 15, 1995, when the child at issue herein, "T.L.O," was 17 years and 200 days old, the Petitioner, a resident of the District of Columbia, filed a verified petition seeking an adjudication that the Respondent, a resident of California, be declared the father of T.L.O. and to require him thereafter to pay both retroactive child support and prospective child support until said child is twenty-one years of age, pursuant to the requirements of D.C. Code §30-401.1
The usual "Notice of Hearing and Order to Appear" in a paternity suit in this Court was issued by mail in this matter on or about May 4, 1995. Formal "process" subsequently issued in the manner permitted by Family Rule 4(c)(3), notifying the Respondent of a hearing, then scheduled for June 30, 1995. No question has been raised herein as to whether the Respondent was properly served.
On the scheduled date, the Respondent, acting pro se, without filing any motions, jurisdictional or otherwise, and without any challenge to the manner or sufficiency of process, or raising any other procedural or substantive due process issues, filed a formal, written Answer in which he affirmatively denied being the father of the child and that he had any legal obligation to support her. He did, however, concede that he was "willing to submit to a court ordered blood test or tests in order to determine parentage." (Answer at 2 ¶ 7).
Setting a pattern in this matter, on the date of the initial hearing, the Respondent did not appear. (Jacket entry of 6/30/95). Inasmuch, however, as the Respondent had already acknowledged in his Answer that he did not object to blood tests for paternity testing, the Court executed an Order requiring that both parties and the child submit blood samples for that purpose.2
A "Further Initial Hearing" was set for July 14, 1995, at which the Respondent personally appeared, as did the Petitioner and T.L.O. On that occasion all three parties in interest had their blood drawn at the facility provided by the Court for that purpose.
Beginning on or about July 27, 1995, the Petitioner's Counsel served various discovery devices on the Respondent, including two sets of interrogatories and a request for production of documents.3 The Respondent, however, ignored these discovery requests, altogether. The net effect of this conduct, of course, was to increase the difficulty and expense, including attorneys' fees, for the Petitioner in pursuing what turned out to be a facially meritorious action ab initio. Written notices from the Petitioner's Counsel to the Respondent in September 1995, availed nothing, and on or about October 18, 1995, Petitioners Counsel filed a motion to compel discovery.
Meanwhile, on or about October 10, 1995, the results of the paternity tests ordered by the Court the previous June were filed with the Court. They showed that, as the Petitioner had asserted all along, despite Respondent's flat denial in his Answer, the Respondent was the father of T.L.O. by a probability of 99.61%.4
On November 17, 1995, the Respondent appeared at an ensuing "DNA/HLA Review Hearing" and acknowledged paternity on the record. An Order of Adjudication of Paternity to that effect was entered on December 12, 1995.5 This accomplishment obtained 247 days after this suit was originally filed and when the child at issue was 18 years 72 days old.
After having submitted to both the personal and subject matter jurisdiction of this Court, after having caused expensive paternity tests to be performed, after having ignored valid and extensive discovery requests, after having admitted to and had paternity adjudicated as to himself, after having entered into a consent order agreeing to comply with outstanding discovery requests on the issue of his ability to pay child support, the Respondent nevertheless continued to ignore his obligations, liabilities, and promises in this matter. As a result, on or about February 2, 1996 (after another 77 days from his last court appearance), Counsel for Petitioner filed a motion for an order to show cause why the Respondent should not be found in contempt of court for his continuing and willful failure to comply with the Court's Orders to fulfill his responsibilities in this matter.6
On June 19, 1996, a hearing was also held before a Judge of the Court (Mitchell-Rankin, J.) on the Petitioner's motion to compel discovery. The Court granted said motion, requiring, in particular, production of Respondent's tax records from 1990 to date, the Court expressly appending to the proposed Order the ruling that "failure to comply will subject the Respondent to the imposition of Rule 11 sanctions to include the inability to present proof and to rebut the same concerning any of the areas identified herein which are not provided." (Order of July 8, 1996 at 2). The case was then remanded for a "financial review" hearing to be held on June 20, 1996, for the purpose of setting temporary child support payments. (Jacket entry of 6/19/96).
Although no separate paper or order appears in the jacket to memorialize the fact, the jacket entry records that at the "financial review" hearing of June 20, 1996, the Court (Berg, C.) found that the Respondent was capable of making child support payments of $400 a month. The Court thereupon ordered the Respondent to make pendente lite child support payments in that mount and on that schedule -- one year and 98 days after the case had been filed and 216 days after paternity had been adjudicated. The case was scheduled for a further financial review hearing for September 19, 1996.7
Acting promptly for once in this case, on June 25, 1996, five days after he was ordered to pay temporary child support, the Respondent filed a motion to suspend the child support payments -- notwithstanding the fact that he had never paid any child support whatsoever, either before or since. Respondent gave as the reason for this request that he had been unemployed since June 6, 1995, although, he said, he was "attempting to re-open his business." (Motion at 1). Thus, having demurred throughout the case from ever providing any documentation as to his financial status, he now sought total relief from the only child support payments he had ever been legally obligated to make, because of that putative financial status. Petitioner was required to file an opposition to this motion, which she did through Counsel on July 10, 1996, stating as grounds therefor that the Respondent had presented no new evidence of his financial condition which had not already been considered before the then-current child support obligation of $400 monthly had been ordered only five days earlier. This, of course, acted to delay actual payment even further. On August 11, 1996, -- one year and 150 days after this action had been filed against him and 268 days after his paternity of T.L.O. had been adjudicated, but for whom he had not paid anything as yet (and despite the pendency of his own motion to suspend) -- the Respondent occasioned further unnecessary delay in this matter by taking a frivolous and groundless appeal from the non-final Order of July 8, 1998 (ordering Respondent's compliance with discovery). This resulted in an additional delay in further hearing on the merits until September 25, 1996 (when the matter first came before the Undersigned), or 45 more days.8 By the time the matter was first heard by the undersigned on that date, one year and 195 days had passed since the case had been filed, 313 days had elapsed since paternity, had been adjudicated, and 97 days had passed since the Respondent had been ordered to pay temporary child support. Meanwhile, of course, he had not paid anything in child support, despite the extant Order of the Court.
At the September 25th hearing, this Court continued the matter for a further and final evidentiary hearing on October 18, 1996, on the issues of retroactive and permanent child support, specifically ruling that pending final judgment, (1) the extant child support order of $400 a month must be fully complied with until further Order of the Court, (2) the Order compelling discovery must be fully complied with as well,
4. Petitioner is granted leave to proceed pursuant to Rule 11 [on sanctions for bad faith litigation] for any undue or improper delay in this matter occasioned by Respondent's conduct.
(Order of October 9, 1996).9
On December 4, 1996, the final evidentiary hearing was held in this matter. Submitting on the merits, Petitioner now seeks from the Respondent on behalf of T.L.O. (1) prospective child support until the child attains majority on September 6, 1998, (2) back child support already due and owing pursuant to Court Order to June 20, 1995, and (3) retroactive child support to the child's birth on September 6, 1977.
The parties were given the opportunity to file post-hearing briefs on the issue of "laches" which arose during that hearing. The Petitioner, through Counsel, fled a "Memorandum of Points and Authorities in Support of Petitioner's Request for Retroactive Child Support to the Birth of [the Child at Issue]" on January 3, 1997 (hereinafter "Pet. Mem."). Acting pro se, the Respondent fled a formal "Opposition to Request for Retroactive Child Support and Memorandum of Points and Authorities" on or about February 3, 1997 (hereinafter "Resp. Opp."). The Petitioner rejoined with a "Reply to Respondent's Opposition to Petitioner's Request for Retroactive Child Support," fled March 10, 1997 (hereinafter "Pet. Resp.").
By the time this case was formally submitted on the merits, therefore, it had been pending 726 days since filing, 479 days since paternity adjudication, and 263 days since pendente lite child support had been ordered. Of course, as far as T.L.O. herself was concerned, she had experienced a delay in child support for all 7,125 days of her life up to that date, the Respondent -- insofar as the record in this case shows -- never having paid anything whatsoever in child support, either before or after the Court's express and repeated Orders that he do so.10
Based on the entire record herein, the testimony heard in open court, and the exhibits properly received therein, the Court makes the following Findings of Fact and Conclusions of Law.11
Paternity. The Court credits the Petitioner's testimony that she had been involved "in an intimate relationship" with the Respondent from 1972 to 1977, including the dates of conception and birth of T.L.O. on September 6, 1977 (Tape 1A & 1B; Pet. Mem. at 4 n.3).12 Based on the aforementioned DNA/HLA tests, which showed that the Respondent was the father of T.L.O. to a probability of 99.61%, the Court reaffirms the previous judgment that he is, in fact and in law, the father of this child.13
Father's Abandonment. The testimony is clear and convincing and the Court further finds that Respondent knew about the birth of his child, literally since the day of her birth, indeed, that he held the child the day she came home from the hospital.14 It was on that occasion, the Court finds, again crediting the Petitioner's testimony, that the Respondent made the first of his many faithless and meaningless promises regarding this child in promising "to sign the birth certificate" acknowledging his paternity of her and that he would otherwise "do something" to help support her. (Tape 1B). Moreover, from the moment this child came home from the hospital to date, she has borne the Respondent's last name as her own. (Pet. Resp. at 1-2).15 Respondent's putative and proffered ignorance of the child's existence and relationship to him is belied, the Court also finds, by the fact that his relatives knew of her and welcomed her as a member of their family, including his own brother, who frequently visited T.L.O., and who, for one, had the compassion and decency to acknowledge her as his niece. (Pet. Mot. at 4).16
Mother's Efforts to Obtain Child Support. Based upon the credibility of the testimony, the Court finds that "despite efforts to locate Respondent by making reasonable inquiries of Respondent's brother . . ., she was unable to locate him" because the brother (who had initiated an avuncular relationship with T.L.O.) was nevertheless "not forthcoming in supplying . . . information regarding the Respondent's whereabouts." (Pet. Mem. at 7) (Tape 1B). Nor was the Respondent himself ever forthcoming with either any proffered support or notice of his whereabouts.
It was not until 1993 that the Petitioner was able to locate the Respondent who, she says, had no listed number or address in California. She then "attempted to solicit voluntary contributions . . . from him" for the child's benefit. Respondent reacted, once again, with only promises and the Petitioner "naively relied on his false promises that he would contribute money for the benefit of their daughter." When no money was forthcoming, however, she retained legal counsel and, at long last, filed the instant suit. Thus, any delay, she contends "was reasonable, justifiable, and explained.' (Pet. Mem. at 7) (Tape 1B; Pl. Exs. 2B & 2C). The Court so finds.17
Mother's Income, Expenses, and Child Support Request. On documentation which is part of the record herein, the Petitioner has duly filed a "Financial Statement" on a form provided by the Family Division of this Court (dated February 14, 1996), which shows that she is by profession a registered nurse with a gross annual income of $63,226.44 and a net income of $41,019.00, on which she has been supporting herself and her child. She also claims annual expenses of $42,837.60, thus showing a "negative income" shortfall of $1,818.60 annually. The Court has reviewed these submissions, finds them to be reasonable and credible, and adopts them as findings of fact herein.
Father's Income and Expenses. At the hearing in this matter, the Respondent testified that he lives in what is known as the Palms Section of Los Angeles, with his mother in her apartment, along with one of his brothers. His expenses, he would have the Court believe, are modest, including $200 a month for his share of the rent, $60-$70 a month as his share of the utilities, and $223 a month for a 1986 Mustang automobile (sans insurance payments, he said). At age 45 (at the time he testified at the hearing), he claims that his 63-year-old mother provides his food for him, although he had estimated at a previous hearing that his food expenses were about $150 monthly. (Tape 2A). Even if believed, this comes to approximately $788 monthly or $9,456 annually in expenses, which is coming from somewhere.
In terms of income, the Respondent asserts that in 1994 he was making $12,000 a year, even less in 1993 ($9,600), and an average in that same range ($800-$1,000 a month) for "most years" back to 1990. He dissembled when asked by the Court for income estimates for any years prior to that, asserting that he simply could not remember. The Court finds this testimony was evasive, improbable, unreliable, and unconvincing, both as to income and expenses. (Tape 2A).
Although certainly having had ample time to have obtained and filed a court-issued financial form, or one like it, and despite having been ordered by the Court at least twice to provide documentation of his own income and expenses (including returns, 1040 or 1099 forms), the Respondent has yet to file anything of that nature with the Court. Even as late as the hearing in this matter, the Court offered to "hold the record open" for post-hearing submissions of this information, but the Respondent demurred entirely on that prospect. (Tape 2A).18
More tangible information as to the Respondent's income during the relevant period herein may be gleaned from statements in the aforementioned "night club prospectus" (PI. Ex. 3) in conjunction with the Respondent's testimony at the hearing (Tape 2A). That prospectus asserts that at that time the Respondent was already "the owner and operator of the Kingston 12 Reggae nightclub" in Santa Monica, California, which it further asserts he had established in 1980 (when his child was three years old), and finally which claims that said enterprise "has been profitable for the past nine . . . years" (or until his child was twelve years old). (Id. At 12). At the hearing, the Respondent made a lame effort to recant this published financial information as having been in the nature of "puffery," and asserted that this night club, although in operation for all of the nine years at issue, had never made a profit. (Tape 2A) ("whatever I got, I paid out"). Either this is a blatant falsehood or he poured money and time into a "losing" nightclub during the period between the time that his own daughter was three and twelve, without ever providing a minute or a dollar to her. (Tape 2A). Again, this is indicative of the Respondent's veracity and priorities.
Based on this record -- largely barren on this vital issue due to the Respondent's own contumacy and obduracy -- the Court is essentially left to the guidance of the "law of the case" as already found herein. As set forth above, on June 20, 1996, the Respondent was found by the Court to have been able to make at least $4,800 ($400/month) in temporary child support payments annually. On this record, under the District of Columbia Child Support Guidelines, by deduction, this imputes an annual income to him of at least $40,750.00 (as of 1996).19 The Court is quite confident and comfortable for all purposes that this modest figure is more than a fair imputation of Respondent's income and so finds -- to start with, for now. At the same time, the Respondent has no other child support obligations and no competing expenses outside of ordinary (and, by his own testimony, modest) living expenses, and the Court so finds.20 As discussed below, the Petitioner requests retroactive child support at the rate of $25 a day to the date of birth of the child at issue, but asks only that the Respondent be required to pay one-half of that. The Court finds this to be a reasonable request.
Absence of Prejudice to Father. The Court further finds that Respondent did not show that he suffered any prejudice by any delay in filing this suit. He has not married or, insofar as this record shows, fathered any other children for whom he has any sort of financial responsibility. Indeed, it is arguable that he has, in fact, benefited for the two decades' time which has elapsed since his parental responsibilities "vested," inasmuch as the amount of retroactive child support to be awarded in this matter will turn out to be what amounts to a twenty-one-year, interest-free loan from his daughter during that period. Moreover, inasmuch as the Respondent has never even proffered, much less produced, any evidence in his own right, he cannot be heard to argue that the delay has resulted in the loss of any such evidence which might have aided his position in this matter. Indeed, as pointed out below, his entire argument seems to reduce itself to the proposition that, inasmuch as the child has gotten along without him, or any financial or any other type of support from him whatsoever, she didn't really need it in the first place and, perforce, he should not be required to produce it, or any part of it, now. In sum, as Petitioner argues in her post-hearing submission, during this twenty-year lapse of time there is nothing to indicate that the Respondent "conduct[ed] himself any differently since [the birth of his daughter in] 1977 th[a]n he would have if he were assured that he would never be financially responsible for" her (Pet. Mem. at 8), and the Court so finds.
Father's Failure to Obey Court Orders. In terms of his response to the conduct of this litigation, the Court finds that the Respondent had been informed by Orders from two judicial officers of this Court, including the undersigned, that his failure to comply with the Orders of the Court would result in sanctions and, specifically, in his being deemed to have conceded the issue of child support altogether. At the hearing in this matter, the following exchange occurred on this precise point:
THE RESPONDENT: Well, Your Honor, at this point I have not made any. I filed a motion to suspend the payments until I could see if I could re-open the club.
THE COURT: Well, I didn't ask you what procedural steps you took in the litigation. I asked you what efforts, if any, have you made to make payments, in whole or in part, under the outstanding orders of the Court.
THE COURT: No efforts. Is that your testimony?
THE RESPONDENT: Yes, Your Honor.
(Tape 2A) 21 The conditions continue to date, without any further explanation, justification, or excuse from the Respondent. Such conduct by litigants before the Court is completely unacceptable, even absent court orders. Consequently, the Court now deems that sanctioned concession regarding any child support defense to be a fact governing this aspect of the case.
Father's Failure to Pay Child Support. The Petitioner points out that, and the Court finds, Respondent has never paid a cent in child support, even after having been ordered to do so in June 1996, that he had willfully failed to comply with a discovery order of the Court since the same time, and finally that he has carelessly, if not willfully, failed to appear in court for these proceedings, occasioning at least two bench warrants. (See Pet. Resp. at 2) ("He has provided no financial support to . . . [T.L.O.] ever.").
Meritorious and Reasonable Attorney's Fees. Finally, in this regard, the Court finds that this suit was meritorious ab initio, both in terms of the formal adjudication of paternity and in terms of the award of child support (as hereinafter set forth). Yet, the conduct of the Respondent, in terms of dilatory tactics, negligent actions, frivolous motions and procedural delays, has needlessly attenuated this litigation in terms of both time and expense. All of this has, in turn, necessitated needless concomitant costs to the Petitioner, all on a facially valid claim, and all without justification or excuse on this record. Represented as she is by private counsel, the expense to the Petitioner, in terms of attorney's fees and other costs, has been necessary and reasonable on this record, both in terms of rates and time involved. (Pl. Ex. 2) That expense thus far has totaled $17,749.89, which sum accounts for nearly three years' work in bringing a suit which has been completely successful on it its merits in every respect. The Court finds this to be a reasonable fee for the work necessitated in this case thus far.
A. Basic Considerations
In addition to the basic precepts of "paternity and child support law" as set forth in more detail below in subsection C. 1., there are three threshold issues of law to be addressed as a predicate to the ensuing discussion of the (in)applicability of laches in this case.
Paternity. The establishment of paternity is the primary purpose of these proceedings, inasmuch as the ultimate goal of providing child support cannot even be reached, much less served, unless that determination is first made. See Harrison v. District of Columbia, 95 A.2d 332 (D.C. 1953); see also D.C. Code §§16-901 (b- 1) & 16-2343.1 (e) (setting forth a "conclusive presumption" in all cases of DNA/HLA test results above 99.00% that the subject thereof is the father of the child concomitantly tested).22
Child Support. However determined, once paternity is established "[i]t is withhout dispute that the father has an absolute legal obligation to support his child." Benvenuto v. Benvenuto, 389 A.2d 795, 798 (D.C. 1978); Wright v. Wright, 386 A.2d 1191, 1195 (D.C. 1978) (although "that duty is commensurate only with his ability to do so"). Parental duty for financial support begins at the birth of the child. J.A.W. v. D.M.E., 591 A.2d 844, 848 (D.C. 1991). This duty continues irrespective of the father's access to or visitation rights with the child. Norton v. Norton, 298 A.2d 514, 515 (D.C. 1972) (" `the welfare of the child should not be prejudiced by the delictum of a parent,' . . . even if it consists of impeding his visitation rights, [and] does not justify the father's failure to support his child") (citation and footnote omitted).
Affirmative Defense. It thus falls to the parent (typically the father) to demonstrate why he should be relieved of his statutory obligation to support his child. W.M. v. D.S.C., 591 A.2d at 848 and J.A.W. v. D.M.E., 591 A.2d at 845. Here the Respondent attempts to shoulder that burden by arguing a lack of "notice" of either the existence of the child or his obligations to her, by raising the defense of "laches."
1. Respondent's Contumacy
The Respondent's record in this case serves as both an independent basis for, and as a predicate to, the rejection of his laches defense and in finding against him on his argument as to why he should not be required to pay retroactive child support. His conduct has been deplorable in the face of repeated court orders. At the outset the Court finds that he has forfeited any argument or defense to his child support obligation because of his willful and continuing disregard of the Court's Orders, two of which expressly admonished and warned him that his unjustified failure to comply therewith, would have this explicit result.
As seen above in the discussion of the "Procedural History" of this case, in June 1995, the Respondent failed to appear for the initial hearing in this matter and the next month he ignored properly-propounded discovery devices, necessitating an additional delay and hearing held nearly a year later in June 1996. That hearing resulted in a direct order by a Judge of the Court to respond to those discovery requests, expressly admonishing him that his failure to do so could result in the sanction of precluding him from adducing evidence in his own right to counter "any of the areas identified . . . [and the documents for] which are not provided," including his duty and ability to pay child support. Moreover, at or about the same time, the Respondent was specifically ordered to pay $400 a month in temporary child support, an order which he has ignored in its entirety for every day since then. Finally, in September 1996, this Court also ordered him both to provide discovery responses and to pay temporary child support, also expressly warning him that "the issue of support will be deemed conceded," subject only to competent evidence presented by the Petitioner.
On that record alone, therefore, the Respondent should be denied relief sought and those sanctions will be imposed, irrespective of any argument which might be made on the issue of "laches." "For all of the above reasons, Respondent should not now receive the benefit of the equitable defense of laches," Petitioner argues. (Pet. Mem. at 6). The Court so finds.
To the extent, however, that the Respondent may argue that any colorable claim to laches survives beyond this sanction, the Court also concludes that it should be denied on the merits, for the following reasons:
During the hearing, the applicability of the ancient "doctrine of laches" was raised.23 The Court now concludes as a matter of law that (1) laches is an inherently equitable principle which is not automatically applicable simply because of the lengthy passage of time, (2) even if applicable, the Respondent may not invoke it now because he attempts to do so with "unclean hands," (a) in violation of the Court's direct orders to him and (b) vitiating any concomitant equitable entitlement, and that (3) even if the defense had been properly raised with standing to do so, the Respondent has not shown either (a) undue and unexplained delay in Petitioner's filing of this suit or (b) any prejudice to him stemming from that delay, thus failing in both of the vital elements necessary to establish the bar of laches.
The doctrine of laches "is founded on the principle that equity aids the vigilant rather than those who slumber on their rights, [and] is designed to promote diligence and prevent enforcement of stale claims." Simpson v. District of Columbia Office of Human Rights, 597 A.2d 392, 403 (D.C. 1991) (citing Powell v. Zuckert, 125 U.S.App. D.C. 55, 57, 366 F.2d 634, 636 (1966)).24 In its most fundamental terms, it is embodied in " `the principle that equity will not aid a plaintiff whose unexcused delay, if the suit were allowed, would be prejudicial to the defendant.' " Major v. Shaver, 187 F.2d 211, 212, 88 U.S.App.D.C. 148, 149 (1951) (quoting Russell v. Todd, 309 U.S. 280; 287 (1940)). This principle, of course, is a valid defense to putative obligations, based on the premise that if a person delays without reasonable grounds in making a claim, thus "sleeping on her rights," and there is ensuing prejudice to the other party, it is fundamentally unfair to charge the latter if he has reasonably and detrimentally relied upon the apparent waiver of the obligation now sought to be enforced. See Bliss v. Bliss, 65 App.D.C. 147, 150, 81 F.2d 411, 414 (1935) (" `Independently of any statute of limitations, courts of equity uniformly decline to assist a person who has slept upon his rights, and shows no excuse for his laches in asserting them.' ") (quoting Speidel v. Henrici, 120 U.S. 377, 387 (1887)).25
Correspondingly, however, within the realm of equity, it is also a shibboleth that "he who demands equity must do it." Gary v. Dane, 133 U.S.App. D.C. 397, 401, 411 F.2d 711, 715 (1969). Thus follows the oft-quoted maxim that " `[i]t is elementary, of course, that one seeking equity must do equity and show "clean hands" at the threshold.' " Temple v. District of Columbia Rental Housing Comm., 536 A.2d 1024, 1031 (D.C. 1987) (quoting Udall v. Littell, 125 U.S.App. D.C. 89, 96, 366 F.2d 668, 675 (1966)); Shugard v. Hoage, 67 App. D.C. 52, 54, 89 F.2d 796, 798 (1937) (" `He who comes into equity must come with clean hands.' "). Consequently, a "counter-defense," as it were, to any protestations by a respondent as to any putative "undue delay" by the claimant, is the allegation of the objecting party's "unclean hands" due to his prior misrepresentation, enticement, or invited error.
As set forth in the Findings of Fact above, and as related in more detail in the discussion on "delay" below, because of the Respondent's refusal to comply with the Court's Orders, his failure to provide discovery, and his refusal to produce evidence which would show his income so that he could be determined to provide at least some interim support for his daughter, he comes into equity with "unclean hands" and cannot, therefore, demand equity by invoking laches. See Dalo v. Kivitz, 596 A.2d 35, 40 (D.C. 1991) ("Dalo's `hands are far from clean.' ").26
A close study of relevant case law reveals that the applicability of laches depends on (1) the type of case, (2) the cause of action, (3) the period of delay, (4) the cause of delay, and (5) the nature and degree of prejudice stemming therefrom. Clearly, under the more modern, theory of "equitable responsibility" of both parents, these concepts, rooted as they are in the realm of equity, are as well applicable to domestic relations, family, and child support cases.27
In modern cases, the Court of Appeals has distinguished between laches as a defense to divorce-judgment/child support cases and consent-judgment/child support cases, as well as between judgments for child support already ordered, as contrasted with an initial order for retroactive child support. See Jasper v. Carter, 451 A.2d 46, 48 n.2 (D.C. 1982) ("It is true that the defense of laches may partially or wholly bar an action to collect past due support payments," meaning payments already court-ordered but remaining unpaid.) In Kerrigan v. Kerrigan, 642 A.2d at 1327 n.3, the Appeals Court ruled that in child support cases, " `while each [support payment] as it comes due becomes a judgment, the defense of laches . . . may partially or wholly prevent its enforcement.' " (quoting Brandt v. Brandt, 107 U.S.App. D.C. 242, 244 & n.2, 276 F.2d 488, 490 & n.2 (1960) (brackets in original)); see also Padgett v. Padgett, 472 A.2d 849, 851 (D.C. 1984) ("If available, the defense of laches may bar an action, in whole or in part, for the collection of arrearages in child . . . support payments . . . .") (divorce decree case). Clearly then, if merited, laches would be applicable to cases arising in the Paternity and Support Branch of the Court.
The determination of whether the elements of "laches" as a defense have been established is fundamentally one for the Court itself, sitting as it does in equity, rather than a question for it as a "factfinder" in the proceeding. See Beins v. District of Columbia Bd. of Zoning Adjustment, 572 A.2d 122, 126 (D.C. 1990) (" `[w]hether the facts, taken together, are sufficient to sustain the defense of laches . . . is a question of law' ") (quoting Goto v. D.C. Bd. of Zoning Adjustment, 423 A.2d 917, 925 n. 16 (D.C. 1980); Jasper v. Carter, 451 A.2d at 49 ("we note that `the determination of whether the defense of laches is available is appropriately made by the trial court") (quoting Schmittinger v. Schmittinger, 404 A.2d 967, 970 (D.C. 1979); and King v. Kitchen Magic, Inc., 391 A.2d at 1187 ("Whether there has been inexcusable delay in seeking a remedy, and prejudice to the defendant from the passage of time, are issues which initially should be resolved by the trial court.").
More precisely put, the determination "is a mixed question of fact and law in this sense: answers to the factual questions bearing on prejudice to the defendant from delay and on the plaintiffs' earlier awareness of the claim are for the trial court, whose findings will be accepted unless `clearly erroneous.' " American Univ. Park Citizens Ass'n v. Burka, 400 A.2d at 741 (citing Churma v. United States Steel Corp., 514 F.2d 589, 593 (3d Cir. 1975). As set forth in the foregoing Findings of Fact, the Court has found as a matter of fact that there has been neither undue nor unexplained delay in the Petitioner's pursuit of child support for the parties' child nor any concomitant prejudice to the Respondent either during or because of any such delay. The surmounting issue, therefore, becomes whether any such factual issues allow of a defense of laches as a matter of law.28
The burden of proof in demonstrating the bar of laches is, of course, upon the party asserting laches. Interdonato v. Interdonato, 521 A.2d 1124, 1137 (D.C. 1987); see also American Univ. Park Citizens Ass'n, 400 A.2d at 740; Dawson v. Drazin, 223 A.2d 375, 377 (D.C. 1966); Kosty v. Lewis, 115 U.S.App. D.C. 343, 349 n.8, 319 F.2d 744, 750 n.8 (1963); and Libby v. L.J. Corp., 101 U.S.App. D.C. 87, 91, 247 F.2d 78, 82 (1957). Once, however, the moving party has made a prima facie showing of laches, the burden of going forward with the evidence shifts to the other party to rebut it. Kerrigan v. Kerrigan, 642 A.2d at 1327. Here, the Court finds, as set forth above, that the Respondent has failed to establish a prima facie case and it is, therefore, unnecessary to address any burden as to the Petitioner.
There are two vital hemispheres to the principle of laches. A review of cases dating back only to the establishment of the current D.C. court system in 1971, reveals that our Court of Appeals has repeatedly held that "[i]n order to invoke the doctrine of laches . . . a party must demonstrate both undue delay by the plaintiff and prejudice to the defendant resulting from the delay." Warren v. Chapman, 535 A.2d at 861 (emphasis added); see also Kerrigan v. Kerrigan, 642 A.2d at 1326 ("Laches is a valid defense in equity when the court finds an undue and unexplained delay on the part of one party which works an injustice to the other party.")(quoting Amidon v. Amidon, 280 A.2d 82, 84 (D.C. 1971)); Interdonato v. Interdonato, 521 A.2d at 1137 ("an unreasonable and unexplained delay by one party, and prejudice to the other party resulting from the delay"); Woodley Park Community Ass'n v. D.C. Bd. of Zoning Adjustment, 490 A.2d 628, 639 (D.C. 1985)(" `omission to assert a right for an unreasonable and unsatisfactorily explained length of time under circumstances prejudicial to the party asserting laches' ")(quoting Wieck v. District of Columbia Board of Zoning Adjustment, 383 A.2d 7, 11 (D.C.1978)); Brown v. Dyer, 489 A.2d 1081, 1084 (D.C. 1985))("undue delay by the plaintiff and prejudice to the defendant resulting from the delay"); Padgett v. Padgett, 472 A.2d at 852 (" 'an undue and unexplained delay on the part of one party which works an injustice to the other party' "); Schmittinger v. Schmittinger, 404 A.2d at 971 (same); Martin v. Carter, 400 A.2d at 329 ("the defendant must have been prejudiced by plaintiff's delay, and plaintiff's delay must have been unreasonable") citing Van Bourg v. Nietze, 128 U.S.App.D.C. 301, 388 F.2d 557 (1967)); and King v. Kitchen Magic, Inc., 391 A.2d at 1187 ("the trial court is to look primarily to the reasons for the delay and to the prejudice suffered by the defendant[ ] as a result of the delay").
These two vital elements lying at the heart of laches are considered, each in turn, as follows:
Even considering its temporal extent, the simple fact of delay alone is insufficient to justify the intercession of a laches defense to an otherwise facially meritorious claim -- even if the movant otherwise has equitable standing to attempt to raise the bar of laches.
As discussed above, the underlying principle of laches is that "equity will not aid a plaintiff whose unexcused delay, if the suit were allowed, would be prejudicial to the defendant." Beins v. District of Columbia Bd. of Zoning Adjustment, 572 A.2d at 126 (emphasis added). The correlative rationale is that "[i]f a . . . [party] without good reason waits a long time before asserting his claimed right, with the consequence that many witnesses are . . . [unavailable], he might have difficulty maintaining his burden of proof, or a heavier burden of proof might be imposed upon him . . . But where the fundamental . . . right has been denied, . . . [one] should not be precluded from relief [simply] because he cannot satisfy a court that he had good cause for any delay in seeking it." United States v. Hamid, 531 A.2d 628, 632 (D.C. 1987)(citing Farnsworth v. United States, 98 U.S.App.D.C. 59, 63, 232 F.2d 59, 63 (1956)); see also Interdonato v. Interdonato, 521 A.2d at 1137 ("an unreasonable and unexplained delay"); Woodley Park Community Ass'n v. D.C. Bd. of Zoning Adjustment, 490 A.2d at 639 (" `unreasonable and unsatisfactorily explained length of time' "); and American Univ. Park Citizens Ass'n v. Burka 400 A.2d at 741–42 (and cases cited)("must show that . . [the] delay was undue, unexplained, and inexcusable").
Such variations, gradations, and nuances, of course, will vary case-to-case. Because, therefore, " `staleness' [i]s not "inherent in `[t]he length of time in and of itself," such a determination requires a " `careful exercise of judicial discretion.' " Granville v. Hunt, 566 A.2d 65, 68 (D.C. 1989) (initially quoting other sources). Consequently, a court "must separately assess the reasonableness of the delay." Beins v. District of Columbia Bd. of Zoning Adjustment, 572 A.2d at 126. This can only be done "by looking `to the entire course of events' " in each case. Id. at 127 (emphasis added); see also Goto v. D.C. Bd. of Zoning Adjustment, 423 A.2d at 925 ("to determine the validity of a laches defense, we look to the entire course of events").
In particular, in cases involving "interpersonal matters," i.e., non-commercial or non-tort events, therefore, a court's determination is especially lenient and indulgent in countenancing an otherwise significant delay. Thus,
Major v. Shaver, 88 U.S.App. D.C. at 149, 187 F.2d at 212 (quoting Horton v. Horton, 63 App. D.C. 375, 376, 72 F.2d 831, 832 (1934)) (emphasis added). Such leniency has historically been exercised in favor of permitting claims in domestic relations cases. See, e.g., Clark v. Clark, 535 A.2d at 879-80 (wife's delay in bringing suit against husband under settlement agreement should not be barred, inasmuch as she delayed suit based upon a "high degree of confidence in Mr. Clark which may have delayed the suit's initiation"); District of Columbia ex rel. W.J.D. v. E.M., 467 A.2d at 462-63 (" `[T]he period for obtaining support granted . . . to illegitimate children must be sufficiently long in duration to present a reasonable opportunity for those with an interest in such children to assert claims on their behalf.' " (quoting Pickett v. Brown, 462 U.S. 1, 99-100 (1983)); Samuels v. Samuels, 173 A.2d 214, 215 (D.C.Mun.App. 1961) (a wife's claim should be viewed with leniency and delay should be a bar only in extreme cases and would not be presumed even where, as here, a wife's delay of 21 years after separation before her first demand for support was filed) (and cited cases showing other time periods in which laches was denied, ranging over 10, 15, 25 or even 30 years).
The law is clear, therefore, that the "length of delay itself is not decisive." Beins v. District of Columbia Bd. of Zoning Adjustment, 572 A.2d at 126. Thus, "a court of equity will look with some indulgence upon mere delay, from which no material injury has occurred." King v. Kitchen Magic, Inc., 391 A.2d at 1187 (citing George v. Ford, 36 App. D.C. 315, 333-34 (1911); M. & G., Inc. v. Jackson, 612 A.2d 186, 190 (D.C. 1992) ("We agree that the delay in filing suit was not unreasonable under these circumstances."). Consequently, "(w)here there has been no inexcusable delay in seeking a remedy and where no prejudice to the defendant has ensued from the mere passage of time, there should be no bar to relief." King v. Kitchen Magic, Inc., 391 A.2d at 1187 (citing Gardner v. Panama Railroad, 342 U.S. at 31).
As a result, aside from the Respondent's unclean hands in causing most of the delay at issue himself, by his own lassitude and deviousness, he could not prevail upon his mere nudum dictum that the Petitioner waited nearly eighteen years to file this suit. (Resp. Mem. At 1 & 2). This is, in part, because the relationship of the parties, in and of itself, would be presumptively indulged in such a case, absent affirmative evidence against the Petitioner, of which there is none on this record.
The final issue thus becomes one of what prejudice, if any, stems from the delay involved in the case.
The linchpin of this aspect of the doctrine of laches is "that `equity will not aid a plaintiff whose unexcused delay, if the suit were allowed, would be prejudicial to the defendant.' " American Univ. Park Citizens Ass'n v. Burka, 400 A.2d at 740 (quoting Russell v. Todd, 309 U.S. at 287). Indeed, in this regard, our Court of Appeals has had occasion to hold that " `[t]he principal element in applying the doctrine of laches is the resulting prejudice to the defendant, rather than the delay itself.' " Goto v. District of Columbia Bd. of Zoning Adjustment, 423 A.2d at 925 (emphasis added); see also Beins v. District of Columbia Bd. of Zoning Adjustment, 572 A.2d at 128 ("Unquestionably, prejudice is the primary factor in a determination of laches.") (Emphasis added).
To make matters even more layered and subtle, it turns out that there are "[t]wo kinds of prejudice [which can] support a laches defense." One is that a "[p]laintiff's delay in filing suit may have resulted in a loss of evidence or witnesses supporting defendant's position," and the other is that "the defendant may have changed [his or her] position in a manner that would not have occurred but for plaintiff's delay." Interdonato v. Interdonato, 521 A.2d at 1138 (citing Gull Airborne Instruments, Inc. v. Weinberger, 224 U.S. App. D.C. 272, 278, 694 F.2d 838, 844 (1982) (citation omitted)) (emphasis added); see also Jasper v. Carter, 451 A.2d at 49 (referring to the same duality of prejudice).
There are, of course, cases -- and domestic relations cases, at that -- in which such prejudice has been found, thus vindicating a laches defense which had been properly raised. See, e.g., Kerrigan v. Kerrigan, 642 A.2d at 1326-327 (noting an 8-year delay and the age (71) of the prejudiced party, the court found with particularity that he had "changed [his] position in a manner that would not have occurred but for plaintiff's delay"). Such a material prejudice, in short, must be affirmatively shown -- not simply argued or left to the realm of mere possibility or sheer speculation. See Jasper v. Carter, 451 A.2d at 49 ("A merely speculative possibility that evidence or testimony which would support appellant's position was lost or unavailable due to appellee's delay in enforcing her claims is insufficient to establish the type of prejudice which would merit the application of laches."). Nothing of that nature, however, has been shown by the Respondent herein.
The element of prejudice having been set in the prime position for the determination of laches, however, it must also be noted that the degree of prejudice varies directly as to the time lapse involved in the delay itself. Thus, " `if the delay is lengthy, a lesser showing of prejudice is required.' " Warren v. Chapman, 535 A.2d at 861 (quoting Gull Airborne Instruments, 224 U.S. App. D.C. at 277, 694 F.2d at 843); see also United States v. Hamid, 531 A.2d 628, 632 (D.C. 1987) ("delay may deplete the strength of the petitioner's claim, but does not operate to bar the claim"); King v. Kitchen Magic, Inc., 391 A.2d at 1187 ("The length of time which must have passed in order for laches to apply varies with the circumstances of each case. No rigid rule, such as a specific statute of limitations, controls in a case where fraud is an issue." (citing Holmberg v. Armbrecht, 327 U.S. 392, 396 (1946) and George v. Ford, 36 App. D.C. 315, 333 (1911)).29
Here, however, the Respondent has shown no prejudice whatsoever (nor has he raised any issue of fraud against him). Rather, he has relied on bald and baseless assertions, while steadfastly failing to provide any evidence of his own, as is shown more fully below.
Whatever the cause, explanation, or justification of the delay in filing this suit, the fact is that here the record is utterly bereft of any evidence whatsoever -- largely because the Respondent himself has either declined or failed to produce it -- that he suffered any prejudice at all. See, e.g., Clark v. Clark, 535 A.2d at 880 ("Not only is there nothing to suggest his ability to present evidence was adversely affected by the delay, but there is no evidence that he had changed his position in a manner that otherwise would not have occurred."); Brown v. Dyer, 489 A.2d at 1084 ("Nowhere has he made any showing that he was prejudiced by appellee's delay in filing suit.").
Indeed, as pointed out above, the Petitioner's delay in this matter stemmed from the Respondent's absenting himself and his own affirmative misrepresentations that he would be forthcoming with financial support for their child. He cannot now, with hands so layered with uncleanliness, be heard to claim that the delay alone, much less the delay without prejudice to him, constitutes a laches defense. See National Capital Housing Authority v. Douglas, 333 A.2d 55, 57 (D.C. 1975) ("It is apparent . . . that any prejudice suffered . . . was largely self-imposed.").30
Although, as noted above, in invoking a laches "defense," the Respondent did not attempt to show that the Petitioner had defrauded him (as in fraud in the inducement or fraud in the facturm) as to claimed paternity (an issue which, in any event, is obviated by the positive DNA/HLA paternity test results herein), fraud was adequately shown in this case; it was the fraud perpetrated by the Respondent himself upon the Petitioner in "lulling" her into the very delay in filing this action of which the Respondent himself now so baselessly complains. See Interdonato v. Interdonato, 521 A.2d at 1137 ("When actual fraud is involved, as alleged in this case, `relief will be barred only where the delay has worked to the disadvantage of the defendant.' ").31
That there was fraud and misrepresentation by the Respondent himself against the Petitioner and that she relied upon it, is clear and convincing from this record.32 All the elements of fraud in the inducement are present here, viz., (1) one or more false representations to the other party (2) with regard to a material fact, (3) made with the knowledge of their falsity, (4) with the intent to deceive, and (5) the other party's action (or inaction) in detrimental reliance on the knowingly and materially false and deceptive misrepresentations. See Park v. Sandwich Chef, Inc., 651 A.2d 798, 801 (D.C. 1994); Hercules & Co., Ltd. v. Shama Restaurant Corp., 613 A.2d 916, 923 (D.C. 1992) (same elements); Himmelfarb v. Greenspoon, 411 A.2d 979, 983 (D.C. 1980) (same elements in intra-family case of testamentary contest). The element of "misrepresentation" includes not only affirmatively making knowingly false statements but also the passive ` "[n]ondisclosure of material information . . . especially where there is a duty to disclose.' " Haynes v. Kuder, 591 A.2d 1286, 1290 (D.C. 1991) (quoting Pyne v. Jamaica Nutrition Holdings, Ltd., 497 A.2d 118, 131 (D.C. 1985)) 33 Here, the Petitioner's putative "consent" to the Respondent's inaction was induced by Respondent's repeated and false promises that he would ultimately do his duty to the child and by his cajoling the Petitioner to refrain from taking any affirmative action on behalf of their child. Consent obtained by such fraudulent inducement is not "voluntary." See J.M.A.L.v. Lutheran Social Services of National Capital Area, Inc., 418 A.2d 133, 135 (D.C. 1980) ("for consent to be valid, it must be given `voluntarily;' for example, it cannot be induced by `fraud' ").
In this matter, the Respondent clearly engaged in fraud, deceit, and misrepresentation by affirmatively misleading the Petitioner, or by "lulling" her, into inaction for years prior to the filing of this suit -- only then to complain about the "delay" and to seek equity via laches. Indeed, Respondent's material misrepresentations and continuation of delay persisted even after this suit had been filed by his repeated failures to appear for court hearings and his continuing failures to produce discovery materials to the Petitioner, to say nothing of his failures to obey the orders of the Court to make temporary child support payments. In view of these facts, the Respondent simply cannot be permitted to continue to benefit from the fraud and delay that he himself has occasioned for over two decades now. See Peterson v. Davis, 88 U.S.App. D.C. 128, 186, F.2d 537 (1950)("misrepresentation by one of the defendants had induced plaintiff, without true understanding of her acts. . . and Sustained [the] finding that plaintiff had acted with diligence in bringing suit upon discovery of actual facts"); Dick Murphy, Inc. v. Holcer, 61 App. D.C. 65, 66, 57 F.2d 431, 432 (1932)(" `The [equitable] maxim applies. . . where there has been, as there was here, actual fraud on the part of the" ' respondent.). Cf F.W. Berens Sales Co., Inc. v. McKinney, 310 A.2d 601, 603 (D.C. 1973)("defendant induced the plaintiff to enter into a compromise settlement of his lawsuit and then collaterally attacked the consent judgment after it had been approved and entered by the court")(citing Research Corp. v. Pfister Associated Growers, 318 F.Supp. 1405, 1407 (N.D. Ill. 1970)).
As noted above, inasmuch as the determination of laches is principally a matter of law for the Court to determine, emerging from its role as factfinder in equity, not only does this Court conclude as matter of law that the delay in this case was engendered by the conduct of the Respondent himself, and is therefore excused on behalf of the Petitioner, but it also concludes that no prejudice has obtained to the Respondent by this delay. Indeed, effectively, the Respondent has actually benefited (and continues to benefit into the immediate future) from over twenty years' interest-free use of the money which the law deems to have been his neglected daughter's in the first place. See Clark v. Clark, 535 A.2d at 880 ("The trial judge found that Mr. Clark had failed to establish either element . . . [of laches]."); Interdonato v. Interdonato, 521 A.2d at 1138 ("Thus, the second element of the defense of laches was not established either. . . ."); Brown v. Dyer, 489 A.2d at 1084 ("Appellant has met neither requirement. . . [of laches]."); Jasper v. Carter, 451 A.2d at 48 ("We need not consider whether appellee's delay in enforcing her claim as undue and unexplained nor whether the decedent lacked `clean hands' since we conclude that the trial court correctly ruled that appellant failed to establish that injustice would result from enforcement of the decedent's support obligations."); Schmittfinger v. Schmittinger, 404 A.2d at 971 ("We need look only to the. . . [prejudice] element, as we find that there occurred no injustice to the other party."); and Martin v. Carter, 400 A.2d at 330 ("Thus the prejudice here, while real, is not overwhelming."). As the Supreme Judicial Court of Massachusetts recently ruled in a similar case,
Child Enforcement Div. of Alaska v. Brencke, 675 N.E.2d 390, 396-97 (Mass. 1997)(footnotes and citations omitted) (emphasis added). This Court concurs entirely.
Thus, in conclusion, even if the Respondent's ability to raise a defense as to child support survives, the admonished sanction for his continuing contumacy, supra, would preclude it. Beyond that, however, the Court therefore concludes as a matter of law and equity that laches is not a valid defense in this case. In short, where a movant has failed to show "the principal element," viz., unjustified and real prejudice to himself stemming from the delay involved, his defense must fail and the case is to proceed on its merits as brought.
Having disposed of the technical legal issue of laches, the Court is constrained to make additional observations in this case because the arguments actually and impliedly raised by this Respondent in a particularly dramatic set of temporal facts, resound those which the Court has heard raised, almost as a general rule, by protesting, indignant, and truculent fathers in other child support cases that come before it. The underlying principle of paternal responsibility to a child as a pre-existing duty, irrespective of technical legal defenses -- the overarching idea that parental duty is endemic and transcends time, happenstance, and technicalities -- merits voicing and defense. This Court sets it forth herein as its view of this jurisdiction's "public policy" in this regard.
Fundamental Parental Duty. By now it is fundamental that "[t]he provision of adequate child support surely ranks high among the priorities of a civilized nation." Fitzgerald v. Fitzgerald, 566 A.2d 719, 720 (D.C. 1989). Drawing upon the research done by Judge Stephen F. Eilperin of this Court, we know from classic sources of the law dating well back into the previous century that this is basically because " ` "[t]he wants and weaknesses of children render it necessary that some person maintain them, and the voice of nature has pointed out the -- parent as the most fit and proper person. The laws and customs of all nations have enforced this plain precept of universal law. . . " ' " Nelson v. Nelson, 548 A.2d 109, 112 (D.C. 1988)(quoting Judge Eilperin's Memorandum Order in that case below, in turn quoting 2 Kent's Commentaries on American Law 182-83 (1854)); also Mims v. Mims, 635 A.2d 320, 322 (D.C. 1993)("A parent has the responsibility to meet the child's basic needs as well as to provide additional child support above the basic needs level."); and Shanks v. DuPont, 28 U.S. 242, 263 (1830)("In the course of nature, man[kind] has need of protection and improvement long before he is able to reciprocate these benefits. These are purchased by the submission and services of our parents.").
Fundamental Paternal Duty. Inasmuch as maternity is virtually always a fait accompli in terms of parentage, the basic issue of controversy in such cases becomes that of paternity. The prospect and potential of paternity have been addressed by the nation's Highest Judicial Authority in the following terms:
Lehr v. Robertson, 463 U.S. 248, 262 (1983)(emphasis added). But the Supreme Court also emphasized that " `[p]arental rights do not spring full-blown [merely] from the biological connection between parent and child. They require relationships more enduring.' " Id. at 260 (quoting Caban v. Mohammed, 441 U.S. 380, 397 (1979)). As our Court of Appeals has quoted with favor, "children are not static objects. They grow and develop, and their proper growth and development require more than day-to-day satisfaction of their physical needs. Their growth and development also require day-to-day satisfaction of their emotional needs, and a primary emotional need is for permanence and stability [which stems from knowing who their actual father is] . . . ."
Appeal of H.R., 581 A.2d 1141, 1162 (D.C. 1990)(quoting scholarly authority).
Independent Legal Obligation. As to a father's duty in particular, in the District of Columbia, as elsewhere, it has long been the established rule that the obligation of a father to support his minor children is one imposed by law, as distinguished from simply a moral duty. See, e.g., Fuller v. Fuller, 247 A.2d 767, 770 (D.C.Mun.App. 1968) (" `The duty of the natural father of an illegitimate child to support his child is a continuing one. It is one imposed by law, not by morality. . . .' "); Edmonds v. Edmonds, 146 A.2d 774, 775 (D.C.Mun.App. 1958) ("It has long been the established rule of this jurisdiction that the duty of a father to support his minor children is a duty imposed by law as distinguished from simply a moral obligation."), and Dicks v. United States, 72 A.2d 34, 35 (D.C.Mun.App. 1950) ("The moral obligation of the father to support his illegitimate child is converted by the statute into a legal obligation. . . ."). In this regard, our Supervisory Court "has long since and many times held that "equity [alone] will compel a father to support his children . . . quite apart from apparent restrictions in the statut[ory law]." Creamer v. Creamer, 482 A.2d 346, 352 (D.C. 1984). Indeed, the independent paternal obligation to provide child support is a matter of current national "public policy," as embodied in federal statutory law. See the Child Support Enforcement Act, 42 U.S.C. §§651-667 and the amended enhancements thereto by subsequent legislation, 18 U.S.C. §228, inter alia (criminal penalties for failure to pay past due child support); see also; Brown v. United States, 579 A.2d 1158, 1161 (D.C. 1990) (noting this statutory authority as embodying national public policy).34
Child Support Obligation from Birth to Majority. As noted above, this parental/paternal obligation begins at the birth of the child. W.M. v. D.S.C., 591 A.2d at 843 ("Today we join the courts in other jurisdictions which recognize that a child's needs begin at birth.").35 As a general rule, this duty continues until the child reaches the age of majority, Nelson v. Nelson, 548 A.2d at 111 and Buffer v. Butler, 496 A.2d 621, 622 (D.C. 1985), which under our statutory law for this purpose is age twenty-one. D.C. Code §30-401.36
Wedlock Immaterial to Birth. This obligation to support minor children is shared by both parents and applies to children born out of wedlock as well as to children born within wedlock. Under our law, each child, regardless of the circumstances of birth, "is the legitimate child of its father and mother." D.C. Code §§16-908, 16-916(a), & 30-320.37 Taken together, these statutory provisions reflect an intent to treat children born out of wedlock the same as children born in wedlock. See W.M. v. D.S.C., 591 A.2d at 842 and Cyrus v. Mondesir, 515 A.2d 736, 738 (D.C. 1986).
Father's Affirmative Duty to Come Forward. As to all children born here, therefore, under the Lehr rubric, supra, it is (or should be) now recognized that a father has a responsibility to affirmatively come forward and "grasp" his "opportunity interest" in shouldering the obligations of being a parent. See In re T.M., 665 A.2d 207, 210 (D.C. 1995) (both citing this authority) and Appeal of H.R., 581 A.2d at 1192. Measured against this basic premise, it is also well-settled that an unwed father who is seeking an extraordinary remedy in the face of a record of not having lived up to that obligation, is entitled to special consideration in family law only when he otherwise " `demonstrates a full commitment to the responsibilities of parenthood by `com[ing] forward to participate [as best he can] in the rearing of his child. . . .' " In re Baby Boy C., 630 A.2d 670, 673 n. 11 (D.C. 1993) (quoting Lehr, supra, at 261) (emphasis added); see also In re J.F., 615 A.2d 594, 597 (D.C. 1992) (affirmative duty of "coming forward"); and Matter of L.W., 613 A.2d 350, 355 (D.C. 1992) (same). This principle, traditionally applicable to otherwise "willing" fathers who (however tardily) affirmatively wish to be heard as to their children's welfare, should also be applicable to paternity and support cases.
Father's Duty "Unqualified" By Mother's Conduct. It is just as significant to note in this regard that the parental duty of child support is an "unqualified obligation," viz., one which does not vary as to its inception, but only as to its application (i.e., the ability of the parent to shoulder it) Graham v. Graham, 597 A.2d 355, 358 (D.C. 1991)("In this jurisdiction, parents . . . have `an unqualified obligation to contribute to the support of their children.' ")(quoting Burnette v. Void, 509 A.2d 606, 608 (D.C. 1986)(citing D.C. Code §16-916).
The term "unqualified" means, among other things, that the father's duty is pre-existent and is not dependent upon a mother's devotion to, or the dereliction of, her own corresponding duty to the child; nor is it excused because of her affirmative misconduct toward the father or toward others. Thus, as our ' local federal court of appeals had occasion to note over a generation ago,
Jackson v. Jackson, 107 U.S.App. D.C. 255, 260, 276 F.2d 501, 506 (1960)(quoting Commonwealth ex rel. Firestone v. Firestone, 45 A.2d 923, 924 (Pa. 1946)); see also Emrich v. McNeil, 75 U.S.App. D.C. 3, 8, 126 F.2d 841, 846 (1942)("That the mother has supported the child and the child has had support does not affect the duty of the father to render it, relieve him of the burden, or deprive the court of power to compel him to discharge it, as he should have done, or to force him to reimburse the mother for what she has expended on that account.").38
Child Support Duty Cannot Be Bargained Away. The presumption of the endemic obligation of a parent to support his children is virtually irrebuttable, so much so that not even any putative "settlement agreement" between the parents can divest the one or the other (or the Court) thereof. See, e.g., Alves v. Alves, 262 A.2d 111, 117 (D.C. 1970)(" `It requires no citation of authority for the propositions that the father has a legal obligation to support his minor children; that neither parent, by agreement of their own, can oust the jurisdiction of the court to award a larger amount than agreed upon, and that the court, in arriving at its decision, will be governed by the present needs of the children and the father's ability to provide for them.' ")(quoting Blumenthal v. Blumenthal, 155 A.2d 525, 526-527 (D.C.Mun.App. 1959)); see also Barnett v. Barnett, 243 A.2d 51, 53 (D.C. 1968)("Even assuming this to be so [i.e., the mother's putative agreement to waive child support payments], a father's obligation to support a minor child cannot be waived by agreement between the parents.")(citing Webb v. Daiger, 173 A.2d 920, 922 (D.C.Mun.App. 1961)); and Emrich v. McNeil, 75 U.S.App.D.C. at 310, 126 F.2d at 844 ("A father who is a party to such a proceeding cannot, by contract or otherwise, avoid, or relieve himself from, his primary obligation to maintain a minor child.").
Summary of Child Support Obligations. In sum, then, it seems scarcely less surprising than it has become necessary at this point in time, for the Court to be called upon to hold, as it does in this and in all cases similarly situated, (1) that there is a fundamental, endemic, irreducible parental duty in all civilized societies to provide for children brought into life in that society by parents, either willing or unwilling, (2) that a father's child support responsibility in particular has long since been transformed by our statutory and case law from a moral duty into an independent legal obligation, (3) that this parental/paternal obligation, begins, at the very least, with the birth of the child and continues absent other competing circumstances) until the child reaches the age of majority or becomes legally emancipated, in this jurisdiction at the age of twenty-one, (4) that these parental obligations attend to children regardless of the circumstances of their birth or the state of wedlock vel non of their parents, (5) that once a mother gives birth and her child reposes with her, there is an affirmative duty on the part of the known father, without having to be compelled to do so, whether by service of process, court order, or other legal means, to affirmatively come forward and grasp his paternal relationship with his child, assume his parental obligation of support, and provide for the child to the best of his ability, if he knows of the birth of the child and has no significant reason to doubt that he is the child's father, (6) that this affirmative duty is independent and irrespective of any other problems which may exist between the parents, regardless of any misconduct of the mother toward the father or toward others, and aliunde of the fact that the child may otherwise be provided for by the mother or by others, and, finally (7) that this paternal duty cannot be shirked or excused by either parent's negligence, the mere passage of time, or any putative bargain or agreement between the parents.
The compliance of the Respondent in this particular case with the foregoing long-settled legal precepts in the area of "paternity and support law" will now be considered by applying them to the facts as found by the Court in the instant case.
Respondent's position is that he never received any "notification" from the Petitioner as to his paternity status or his child support obligation stemming therefrom. (Resp. Mem. at 1). Speaking in the third person in his post-hearing submission regarding the child whom he now knows to be his daughter, the pro se Respondent is unintentionally revealing when he argues that "[i]t is no coincidence that during those first sixteen . . . years of the child's life, Petitioner felt content to keep it her secret as to who the father of her child was, and never offered or attempted to cause the child to have any visitation with the father, of who[m] apparently Petitioner knew the identity without doing anything." (Resp. Mere. at 2)(emphasis added). Respondent further argues that even after making initial contact with him, Petitioner "did nothing to pursue her claim of paternity for another two years." (Resp. Mem. at 1 & 2). He argues, in essence, that since he was allegedly never called upon, he therefore has no duty to his child, then or now.
Such argument completely ignores every single precept of extant paternity-child support law as set forth in the previous subsection of this Memorandum Opinion. To begin with, as the Court pointed out above, the obligation of parental support for a child is pre-existent, independent, and "unqualified" as to either any (mis)conduct of the mother or by sources of support from elsewhere. Thus, as the Respondent points out in her post-hearing submission," [n]otification and demand are not prerequisites to the seeking of child support payments . . . . No notice or demand is required before an interest in child support vests." (Pet. Resp. at 3).39
This attitude might be excusable, or even understandable, if the father did not know, or had no reason to know, of the birth of the child and therefore did not inquire after his child. As noted above, however, the entire record herein literally belies any such postulation. The record in this case is pungent with evidence that the Respondent was, in fact "notified" -- and years ago. Despite the Respondent's self-serving choice of terminology, the paternity of T.L.O. was never a "secret." The record clearly reveals that from at least the day of this child's birth the Respondent knew -- or at least had no reason to doubt -- that he was her father. He knew of the pregnancy which had occurred in an ongoing relationship in which he had also no basis, on this record, to suspect infidelity by the mother. He knew of the birth, and indeed, held his child on the day she came home from the hospital. He knew of the "connection" because she bore his name on her birth certificate. He knew of the relationship because his own brother and other kinfolk "took the child into the family." He knew of the need because the mother sought him out and made repeated direct and indirect requests for financial assistance; indeed, common sense (to say nothing of common decency) should have informed him of this need.
Beyond that, however, it is clear from this record that "notifying" the Respondent further would not have resulted in any different reaction, either in terms of child support or visitation, than it has thus far. Indeed, even after he had been formally "notified," served with process, had occasioned repeated delays, taken a frivolous appeal, been adjudicated the father, been ordered to produce discovery documentation, been ordered to pay temporary child support, and even after the filing of post-hearing submissions, the net result forthcoming from the Respondent on all of the foregoing to date has been the same: zero.
In this case, clearly then, it is not that the Respondent did not know of the paternity of the child, as he claims; it is, rather, that the did not want to know and thereby be charged with assuming the moral, temporal, and financial responsibilities that accompany paternity in a civilized community. He therefore draped himself in the transparent cloak of feigned ignorance. This is evidenced by the fact that even now, over three years after he has "learned" that (by a probability of 99.61%) he is the father of this child, he still has not been forthcoming with a cent in child support, despite repeated Orders of the Court that he do so. Thus, rather than ever responding in good faith to the legal precept of a father's affirmative duty to come forward and grasp his relationship interest with, and thence to support his child, the Respondent in this case seems to be laboring under the misbegotten notion that a father has no obligation to support a child whom he knows to be his, unless paternity is formally adjudicated -- or until he is both found (as to location) and found out (as to paternity) -- and, even then, to continue to avoid that obligation at all costs.
This is a serious misperception Which drives paternity and support calendars and which the Court deems pernicious and widespread enough to address specifically. The sub silentio premise of the Respondent's entire argument herein is that it is the mother who has the initial, primary, and continuing responsibility and duty to support her child and that if for any reason she fails to do so, the father is somehow excused by default as having no affirmative duty to even inquire, much less offer, any financial support or other support for his child, until and unless tracked down and forced to do so. He simply misses the point: By so arguing the Respondent reveals that he did nothing himself with regard to his own child for that same amount of time and longer; at least the Petitioner was working day-to-day to support their child, assuming the Respondent's share of the burden on herself in every way. Under these circumstances, the Respondent makes no argument, actual or inferential that, in turn, he would have had any difficulty in locating the mother and child, who have lived in the same place in the Distinct of Columbia for at least the last eight years and whose location would have been known to him through the comparatively frequent contacts of his own brother with the child.40 As has oft been observed, actions -- or in this case inactions -- speak louder than words. See Allen v. United States, 579 A.2d 225, 238 (D.C. 1990) ("[A]s the trial judge recognized, . . . [one may] draw reasonable inferences from . . . [the defendant]'s conduct at a time, if ever there was one, when actions spoke louder than words."); Frankfurt v. District of Columbia, 65 A.2d 197, 199 (D.C.Mun.App. 1949) ("[T]he law recognizes that actions frequently speak louder than words, and that surrounding circumstances may be sufficient to establish an intent. Here the evidence was ample to meet this test.") (footnote omitted); and Hartsough v. Gile, 49 App.D.C. 354, 355, 265 F. 994, 995 (1920) (" `Actions often speak louder, and frequently more truthfully, than words.' ") (quoting Griswold v. Harker, 10 C.C.A. 435, 439, 62 Fed. 389, 393 (1894)).
At the final hearing on this issue, the taped record reveals on retrospection, that the Court closely pressed the issue of the nature, quality, and extent of the Petitioner's attempts to locate the Respondent.41 Reduced to its essence and laced together with ellipses, one of the Counsel for Petitioner, Phillip B. Zipin, Esq., responded, vindicating virtually all the foregoing legal points in a single comprehensive and cogent argument, as follows:
At least there was that initial effort made at the outset to contact him and remind him of his responsibilities and his promises. And then it is a matter of degree . . . . Is she required to do something which might be completely fruitless just so she could say, "Well, I made an effort"? Or, is it the same thing to say, "I made an effort at the outset; when that proved fruitless and I wasn't getting any support, what was the point of doing anything further."? . . . In this case, she had a statutory right and entitlement . . . to have child support payments made from the time that child is born. She didn't have any duty to do other than what she did, is my point . . . . That puts the burden On . . . [the Petitioner] to take affirmative actions, when I think the law places the burden on . . . [the Respondent] to step forth and meet his responsibilities . . . . Doesn't the law say that we're not required to do fruitless acts? . . . [T]he case law . . . [provides] that it is . . . [the Respondent]'s burden to show that there is some overriding reason why it would be unjust or unfair for the Court to award . . . [the Petitioner] child support payments retroactive to the child's birth.
(Tape 1B)(emphasis added).
It turns out that this statement and understanding of the law are exactly correct, as the Court has now found after extensive research, and as set forth above, and that the Court's expressed concern during the hearing about the mother's efforts to locate the father was misdirected. The entire gravamen of that hearing revolved around the imputed efforts -- however ineffectual -- of the mother to track down and impress upon the father the need of their child for his financial support. This, however, inverts the operative legal principle. Both he facts and the law are against it. The facts show that the Respondent did know from the birth of the child -- indeed, before the birth of the child -- that it was his child. The law thereupon imposed the duty of child support upon him. The presumption is that he has the duty to support his known child, either from the time of her birth forward, or from when he is found, retroactively, and the burden is on him to show otherwise. As seen above, however, he has utterly failed to do so, both because he has incurred sanctions in this litigation which will preclude him from offering any such evidence, and even if he were able to present such evidence, it shows that he has not and cannot carry that burden because he has not shown undue and inexcusable delay (having caused it himself) and because he has suffered utterly no prejudice due to that delay (in fact, having benefited from escaping entirely all the financial and other burdens that are implicit in fatherhood) thus far.
In light of these uncontested facts, the Respondent's ostensible protestations that the Petitioner kept the child a "secret" and "eliminated any interaction with her" (Resp. Mem. at 2) ring hollow -- and preposterously so. On this record, there is, in short, utterly no indication that he ever even considered "affirmatively coming forward" in his own right or responsibility. As to the palpably false issue of his putative deprivation of "visitation" with his daughter during these years, Respondent's own conduct makes the figurative shedding of these "crocodile tears" on this record an unmerited slur on reptiles by mere comparison. If he had had any lingering doubt as to paternity, or desire for visitation, or even to make a precatory gesture of good will as to what he even might be able to do for mother and child, he has had over twenty years to act on it; instead, he has forsaken, abandoned, rejected, and squandered that "parental opportunity." It is this irresponsible attitude, this arrested sense of values, this inverted sense of priorities, which congests the paternity and support docket of this and similar courts throughout the nation. And, like wrong in every form, it must be confronted on each and every occasion in which it rears its grotesque head, repudiated in its face, denied the equal dignity of both logical and legal standing, and crushed to the earth by the power that only Courts in our society have to do so.
Finally, to make matters even more repugnant, the Respondent virtually spits in the face of the legal principle of a father's independent obligation to support his child, unqualified by the actions or inactions of the mother. He actually advances the absurd argument against the imposition of retroactive child support that "[i]t is prima facie proof, by the child's very existence, that Petitioner was capable of caring for her child without the payment of support during those first sixteen . . . years of her daughter's life . . . ." (Resp. Mem. at 2-3)(emphasis added). This is a narrow view of paternal child support responsibility, to put it charitably. At worst, it is a constructive admission to the moral vacuum in which he lives his own life. The true facts are, as the Petitioner's Counsel has pointed out, that the "Petitioner has worked hard for the last 18 years to support . . . [T.L.O.] without the benefit of any support from the Respondent. All she seeks is the fair and just compensation owed to . . . [the child] by her father. The Respondent should not be relieved of his statutory obligation to pay child support simply because he expediently denies he knew of . . . [the child's existence]." (Pet. Resp. at 4).42
On this record, as the Court has found, the Petitioner has done everything which could reasonably be expected of her. She has supported the parties' child alone literally every day of that child's existence. She attempted in good faith to locate the Respondent. When she found him, she made reasonable requests for child support. This availing no affirmative response, she filed suit. She has pursued her cause of action diligently and reasonably for three years now. Nothing more was required of the Petitioner then, and nothing more will be required of her now. See generally, Asbell v. United States, 436 A.2d 804, 819 (D.C. 1981)("An attorney is not required to undertake what appears to be fruitless tasks."); Harrington v. Heaney, 101 A.2d 838, 840 (D.C.Mun.App. 1953)("[T]he law does not require the doing of a useless act."); Slater v. Berlin, 94 A.2d 38, 42 (D.C. Mun.App. 1953)(same); and Thompson v. Thompson, 82 U.S.App.D.C. 325, 326, 164 F.2d 705, 706 (1947)("[T]he law does not require [the doing of] a vain thing.").
Thus, when all is said and done, at the end of two decades this case comes down to this: During the course of a five-year "intimate" relationship "without benefit of clergy" between the Petitioner and the Respondent, he impregnated her and she gave birth to his daughter in 1977. After only momentary tarrying, hardly long enough to satisfy even the most rudimentary human curiosity, visiting his child only once on the day she came home from the hospital, the Respondent immediately abandoned her, literally fleeing from her presence as though she were an activated nuclear device ticking toward explosion. Abdicating his responsibilities to her, he literally interposed a continent between himself and his child by moving back to California, where he remained throughout the next two decades of her life. During that time he never provided, or even offered, a dollar's support, a moment's attention, memorialized a single birthday, made a single inquiry, direct or indirect, about his daughter's health, education, status, or welfare, or, insofar as this record shows, ever had even a momentary conscious though about her. Presumably, however, he fed, housed, clothed, entertained, and otherwise provided for himself for the remainder of the 1970's, the entire "me decade" of the 1980's, and now virtually throughout the entirety of the 1990's (in addition to investing his time and money in -- of all things, he says -- night clubs) while his daughter went wanting for paternal attention and support.
Meanwhile, T.L.O.'s mother attempted, with her limited abilities, to locate the Respondent, to be met almost entirely without success, due to his abscondence. When, at long last, she did find him out, he was forthcoming only with hollow, faithless promises of support, which served to place her extended and moribund efforts in suspended animation. After he was finally tracked down and served with process in this matter, the Respondent denied paternity and otherwise engaged in further dilatory tactics, rather than be forthcoming with even marginal support for his child, despite clear and repeated orders of the Court to do so (which were accompanied by equally plain and repeated admonitions as to the sanctions that would ensue for his continuing failures and refusals to comply therewith). Finally, once in court, the Respondent advanced on the most ignoble arguments through which he sought "equitable" relief -- a plea for `fairness," of all things! -- for himself (always the main focus of his concern), never offering so much as a "compromise" of even marginal support for his child in the meantime. To the last, there has been neither time, nor attention, nor money for his only child.
Through all of this, T.L.O. survived, excelled, and succeeded,
despite her father's total abandonment of her. She stayed out of
trouble all her life, graduated from high school, and has enrolled in
college--all due to her mother's lone efforts and without so
much as a sou from her
father.43 On such a record,
arguments such as those advanced by the Respondent herein simply cannot
be allowed to attain even a semblance of credibility, much less
Experience has taught the sad lesson that, regrettably, a child may be meaningless to a man who happens to be her biological progenitor; this, however, does not mean that she is worthless. There is nothing a court can do to instill basic human values in a man who makes it clear from his conduct that he is utterly devoid of them. The Court, alas, cannot force any man to be a good father; it can, though, force him (if necessary) to (re)pay his share of the financial burden which is his duty as a parent. In that context, this and all other cases similarly situated can be reduced to this basic moral and legal premise: A man simply will not be permitted in our society to cause a child to be brought into this world and then walk away from the most fundamental obligation of a parent to support that child as she makes her way through her minority years, simply because no one immediately forces him to live up to that duty; put another way, he will not be expiated from his legal obligation simply because there has been some (even an extended) delay in calling upon him to fulfill it--and certainly not when that delay has been because he has deliberately made himself unavailable.44
Here it is clear to the Court that this Respondent owes his daughter something substantial, which, as far as this and similar cases are concerned, can only be measured in terms of dollars awarded via retroactive child support. Despite the discouraging message which her father's abandonment and neglect of her has imposed upon T.L.O. for every day of her young and struggling life thus far, this Court finds, holds, and publicly proclaims that she is not worthless. In the instant case, the Court will hold this Respondent liable for fulfilling this obligation to his child, especially now, as she attends college, when the need is particularly acute. And he will pay it, in full, as long as this Court sits, because this Court individually will retain continuing jurisdiction over this case in order to assure that, at long last, the Orders and Judgment of the Court will be obeyed and enforced in this matter.
Having determined that the Respondent has no defense to fulfilling his pre-existing duty to support his child, the Court now turns to address the measure of his obligation pursuant to that duty.
1. The Threshold Duty
Petitioner thus seek retroactive child support to the birth of the parties' child. Absent a valid defense, which all of the foregoing shows is the case here, the law and practice in this area virtually entitle her to retroactive support and the Court so rules.
To begin with, as noted above, not only does a father have an implicit obligation to financially support his child from birth to the best of his ability to do so, but it may also be added that "the [known] father of a child born out of wedlock is under an obligation to support the child whether or not there has been a prior adjudication of paternity." W.M. v. D.S.C., 591 A.2d at 843 (citing persuasive authority). Indeed, as our Court of Appeals has noted with favor, in cases such as this one," `[t]here is a greater need for retroactive orders to protect children born out of wedlock than other children because the paternity of . . . a child born out of wedlock is not presumptively established by the fact of marriage and may take some time to be [legally] established.' " Id. at 843 (quoting Dept. of Revenue v. Roe, 560 N.E.2d 1288, 1289 (Mass. 1990)(emphasis added)). Thus, it is because of the fact that paternity of a child born out of wedlock "may take some time to be [legally] established" -- as has decidedly been the case here -- that the prospect of retroactive child support provides an "incentive" to the fair and prompt adjudication of paternity and support. Id.
Moreover, retroactive child support as a concept must be a viable premise not only as a matter of justice but also of judicial economy, else fathers would be encouraged to be dilatory, obstreperous, and otherwise irresponsible in denying and contesting paternity, so as to take advantage of the erosive effect that time would have on the initiation of child support payments.45 To hold otherwise "would create an incentive for men to avoid their obligations by delaying the determination of paternity and that would be contrary to the statutory purposes of providing for the child regardless of the circumstances of birth." W.M. v. D.S.C., 591 A.2d at 843.46
In this area of the law, between 1986 and 1991, the Court of Appeals moved the baseline child support obligation steadily back from the date of adjudication to the date of filing the petition, and finally to the date of birth of the child at issue, See, e.g., Graham v. Graham, 597 A.2d at 357 (whether to make increases in child support retroactive to date mother filed her motion for modification is a matter within the sound discretion of the trial court); Trezevant v. Trezevant, 403 A.2d 1134, 1137-138 (D.C. 1979)(retroactive increase of child support payments); and M.E.S. v. S.E.B., 113 D.W.L.R. 1437 (D.C.Super.Ct. July 17, 1985)(Weisberg, J.)(Court has discretion to award child support in suit to establish paternity retroactively to date suit was filed).
Then, in Cyrus v. Mondesir, 515 A.2d 736, 738 (D.C. 1986), the Court of Appeals ruled that retroactive child support to the date of filing of the support petition was available to children, regardless of the marital status of their parents (particularly, the Court also held, inasmuch as this was a necessary predicate to the effective implementation of the then-operative Uniform Reciprocal Enforcement of Support Act (URESA)). Ruling that "trial judges in their discretion may award support retroactive at least to the time a support petition is served," the Court of Appeals justified that holding on the premise that "[t]he relevant statutes are . . . broadly enough worded to warrant retroactive application and we are not inclined to interpret them in a manner less favorable to children born out of wedlock than [to] children born to married parents." Id. at 737-38.
Finally, in the classic case of W.M. v. D.S.C., supra, the Court of Appeals made this point abundantly clear:
W.M. v. D.S.C., 591 A.2d at 843-44 (citations omitted)(emphasis added). So it is here.
The governing rationale for the Court's overdue ruling in W.M., supra, was that "[t]he fortuity of gender cannot determine the extent of a parent's obligation to his or her child. In effect, therefore, there is a rebuttable presumption arising from the statutory obligation of support in favor of awarding retroactive child support for a child born out of wedlock." Id. at 843-44 (citing D.C. Code § 16-9§16.1(1)).
At the same time, however, it is equally clear that "[w]henever a court concludes that a parent's support payments should be made retroactive to the child's birth, the amount of those payments should be limited to a fair share of only those expenses that were actually made by the other parent, and only those expenses that the court deems to have been reasonable." J.A.W. v. M.D.E., 591 A.2d at 849; see also Wright v. Wright, 386 A.2d at 1195 ("A father has a duty to support this needy children, but that duty is commensurate only with his ability to do so. An order of child support may not be used to penalize an errant father through the imposition of harsh financial terms.") and Patton v. Patton, 187 A.2d 899, 900 (D.C. 1963)("commensurate with his ability to pay").
Nevertheless, the operative rule remains that "[i]f the father has some other demonstrable reason for being excused from that duty, . . . the burden must fall on the father to persuade the court to excuse him." J.A.W. v. M.D.E., 591 A.2d at 848 (emphasis added). On this record the burden of persuasion has not been carried by the Respondent. He does no more than rotely protest that he is "unemployed,"an ipse dixit accompanied by no documentation, evidence, support, explanation, or other corroboration. Likewise, it is also unaccompanied by any indication of any effort to correct that putative condition. It is well settled that neither a voluntary reduction of income nor voluntary unemployment will excuse a father from this his pre-existent and continuing duty to provide child support payments. See generally, Lewis v. Lewis, 637 A.2d 70, 73 (D.C. 1994)(voluntary reduction of income or self-imposed curtailment of earning capacity ordinarily does not affect spouse's obligation to pay child support)(citing D.C. Code §16-916.1); Knaveries v. Knaveries, 626 A.2d 867, 869-70 (D.C. 1993)(father's voluntary accumulation of obligations to various creditors does not entitle him to reduction in his child support obligation, since his claimed inability to pay is self-inflicted).
Here the Petitioner asks for only $25 a day in retroactive child support to the birth of the child and then asks only that the Respondent pay one-half of that. As discussed below, the Court finds this figure, adjusted by inflation, to be more than "reasonable" under the J.A.W. standard, supra. For three years now, since the filing of this case, however, the Respondent (a high school graduate with college credits) has been insisting that he is, by choice and trade, a "night club manager," and that he has been unable thus far to "jump start" that career, and that therefore he cannot make even partial, temporary child support payments, he says. (Tape 2A). That is as it may be. If this particular "calling" in life, however, does not permit the Respondent to fulfill what are now his court-ordered responsibilities, he has an affirmative obligation -- a phrase which should be now be familiar to him -- to seek other means of legitimate income.47 A father who claims, for example, that he is a blacksmith in a world of imported foreign automobiles will simply not be heard to insist that he is and remains "unemployed" and therefore cannot meet his child support obligation.
Thus far, as with his obligations in this matter from the outset, the Respondent has chosen to shirk his responsibility to produce any evidence whatsoever that would either justify a given level of support or would excuse him from it, in whole or in part. As seen above, he was repeatedly admonished that this course of conduct would result in the forfeiture of any such "defense" and his being deemed to have conceded whatever reasonable amount of child support that the Petitioner could adduce through affirmative evidence and that the Court could legally impose. The Court new turns, at long last, to do just that
Having determined that the Respondent must pay both current and retroactive child support, the next step is a determination of what precisely those payments should start out to be and their terms and timing. See Plumley v. Plumley, 465 A.2d 393, 395 (D.C. 1983)("detailed findings a prerequisite to an award of child support"). The law expressly provides that "[t]he [child support] guidelines shall be applied presumptively," D.C. Code §16-916.1(b)(8) & (1), absent certain exceptions which the Court does not find here.48 Petitioner may proceed pursuant to D.C. Code §16-916.1(f), which permits the Court to order retroactive child support based either on a respondent's income during the past years at issue or based on his current income.49 Unfortunately, however, no guideline calculations can be conducted as to the Respondent in this matter because, as noted above, he has steadfastly failed and refused to provide any such information which would enable this task to be accomplished. Obviously, however, he cannot be heard or allowed to benefit from that (mis)conduct. The Court must therefore determine his child support obligations based on what record exists before it in this matter, viz., the request and documentation submitted by the Petitioner.
As seen, in the Court's Findings of Fact, supra, the Respondent's gross annual income as been imputed to be at least $40,750 as of 1996. At the same time, the record shows that he has no other child support obligations. As of 1995 (when this suit was filed), the Petitioner providentially estimates that the cost of raising her daughter has been only the comparatively paltry sum of $25 a day -- and she only asks that Respondent pay his share, i.e., merely one-half of that -- and then only for the first 17 years and nine months of T.L.O's life, i.e., up to the date of filing suit, together with the temporary child support of $400 a month already ordered by the Court in June 1995 (but never paid by the Respondent), plus prospective child support for the remaining four months of T.L.O.'s technical legal minority, i.e., to September 6, 1998.50 Finally, she asks that she be awarded her reasonable and necessary attorney's fees as against the Respondent in the amount of $17,749.89, i.e., through December 31, 1996. (Pet. Mem. at 8-9) (Pl. Ex. 2).
The Court believes that, in all fairness, however, this award of retroactive child support must take notice and account of that silent, pernicious, and relentless thief: inflation. Indeed, the insidious sub rosa effect of inflation is such a constant and catholic force, that the Court also concludes that it may take judicial notice of it. See, e.g., People's Counsel of District of Columbia v. Public Service Com'n, 414 A.2d 516, 519 (D.C. 1980) ("judicial notice may be taken of the fact that, in these times of galloping inflation, undue delays in . . . proceedings have the result of reducing the effective rate increase awarded"); Tupling v. Britton, 411 A.2d 349, 353 (D.C. 1980) ("In these times of recurrent inflation, we see no reason why this court may not take judicial notice of the fact that unwarranted delays caused by frivolous appeals can reduce the effective recovery by an appellee because of inflation."); District of Columbia v. Barriteau, 399 A.2d 563, 566-69 (D.C. (1979) (factfinder may consider impact of future inflation in arriving at future loss of income in personal injury cases) (and cases cited); and Potomac Elec. Power Co. v. Public Service Com'n, 380 A.2d 126, 138 (D.C. 1977) (criticizing administrative agency for failure to take inflation into account in awarding relief, finding that "[t]he exclusion of the most recent available data from consideration and evaluation by the . . . [factfinder] was arbitrary in nature, confiscatory in effect, and made its decision one which is inconsistent with both reason and the evidence").
This is because "[i]nflation has become a fact of life within the experience of everyone. It has continued to a greater or lesser extent throughout most of our lifetimes. Most people have found it necessary to reckon with this in their own financial planning for the future." District of Columbia v. Barriteau, 399 A.2d at 567 (quoting Seaboard Coast Line Railroad v. Garrison, 336 So.2d 423, 424 (Fla.App.1976))(footnote omitted); see also Brown v. Hecht Co., 78 U.S. App.D.C. 98, 103, 137 F.2d, 689, 694 (1943)("Inflation is infectious and cumulative."); Matter of the Estate of Burton, 541 A.2d 599, 603 n.4 (D.C. 1988)(" `The increase in the family allowance compensates for the effects of inflation.' "); and Washingtion Gas Light Co. v. Public Service Com'n of District of Columbia, 450 A.2d 1187, 1221 (D.C. 1982)"No party disputes the fact that . . . that inflation is likely to remain an economic reality in the near future."). This concept has particular application to domestic relations/child support cases as well. See, e.g., Scholla v. Scholla, 92 U.S. App.D.C. 9, 14, 201 F.2d 211, 216 (1953)("Seldom, especially in these days of inflation, will it be impossible to show that with the passage of time there has been a substantial change in the needs of the wife or children, or in the ability of the ex-husband to support them.").
Considering the effects of inflation, therefore, a daily, constant, "flat rate" simply cannot fairly be applied for each and every year from 1995 (when the sum was estimated), either back to 1977 (the birth of the child) or forward to 1998 (when the child attains majority). Rather, the daily rate would decrease as one went back in time, and then increase from 1995 onward. Thus, if in 1995, the Petitioner states that the total daily cost of raising her child comes to $25 a day, then based on readily available public statistical information, cf. Fed.R.Evid. 201 (judicial notice), that sum in 1977 would be completely accounted for in terms "purchasing power" by approximately $9.60 in "1977 dollars" and would, in turn, increase proportionately above $25 for the years 1996 to 1998 (when the child reaches majority and payments would cease under the law). The These "inflation-adjusted" sums are reflected in the following table to that effect:51
Year Relevant 1995 Value Father's Father's No. Days Of$25 1/2 Share Annual Share 1977 113* 9.59 4.79 541.27 1978 365 10.21 5.10 1861.50 1979 365 10.98 5.49 2003.85 1980 366** 12.25 6.12 2239.92 1981 365 13.90 6.95 2536.75 1982 365 15.33 7.66 2795.90 1983 365 16.28 8.14 2971.10 1984 366 16.80 8.40 3074.40 1985 365 17.53 8.76 3197.40 1986 365 18.16 9.08 3314.20 1987 365 18.50 9.25 3376.25 1988 366 19.17 9.58 3506.28 1989 365 19.95 9.97 3639.05 1990 365 20.91 10.45 3814.25 1991 365 22.04 11.02 4022.30 1992 366 22.97 11.48 4201.68 1993 365 23.66 11.83 4317.95 1994 365 24.37 12.18 4445.70 1995 365 25.00 12.50 4562.50 1996 366 25.62 12.81 4688.46 1997 365 26.39 13.19 4814.35 1998 251*** 27.31 13.65 3426.15 Totals 7,669 73,351.21
In round numbers, this total of $73,350 in inflation-adjusted child support obligations divided by the 7,770 days of T.L.O.'s legal minority, comes out to a pathetic average of slightly more than $9.50 a day. Thus, for less than ten dollars a day -- literal "lunch money" -- the Respondent has squandered his legal and moral duty to his only child. It is time -- long overdue -- that Respondent pay it. The only remaining issue in this regard is that of the terms of said payments.
The `law of the case" in this matter (as of the Court's Order of June 25, 1995, supra) has been a finding that the Respondent can pay at least $400 a month in child support. It is true, of course, that this previous ruling -- particularly due to the fact that it was a pendente lite order -- is not resolutely binding on this Court for final judgment purposes. See Crane v. Crane, 614 A.2d 935, 939 n.12 (D.C. 1992)("It could also (or instead) be argued that the husband's present challenge to the pendente lite award is barred by the law of the case. `Under the law of the case doctrine, appellate courts generally adhere to a ruling made on a prior motion or appeal . . . . That doctrine, however, is discretionary. It "merely expresses the practice of courts generally to refuse to reopen what has been decided, [and is not] a limit to their power." " '))(brackets in original)(citation omitted); see also Huggs v. Huggs, 90 U.S.App.D.C. 237, 238 n.2, 195 F.2d 771, 772 n.2 (1952) ("It is suggested by the appellant that the court's denial pendente lite of appellee's motion for maintenance on her own behalf, by reason of laches, became the law of the case; but this was prior to final hearing when the evidence was more fully developed. Consequently, the question of laches remained open for reconsideration and decision.").
But the Respondent's conduct in this case thus far has shown utterly no basis that would entitle him to any "equitable presumption" or "benefit of a doubt." In fact, just the contrary is true. The Court therefore declines to reconsider the previous ruling at this $400 monthly level for two reasons. First, there is utterly nothing on this record, either in fact or in equity, to cause the Court even to begin to consider reducing or staying this finding, largely because, as seen above, the Respondent himself has steadfastly failed to product any such evidence. Beyond that, as also discussed in detail above, there is utterly no basis to reconsider the laches argument, inasmuch as the Respondent has shown neither undue or unexplained delay nor any prejudice to himself because of that delay. As also noted above, the Respondent has forfeited any such defense because he refused to provide relevant documentation on that very subject. This all-too-common tactic in paternity-support cases, of a father's refusing to divulge his income, thus minimizing, if not altogether obviating, his child support payments, is a cancer on the system which will not be excised unless the Court resolutely refuses to permit it to metastasize.
At a minimum, therefore, the Respondent's $400-a-month child support obligation shall continue unabated and will be applied in that amount (as discussed more fully in the following section) on a "retroactive" basis. The Court finds this particularly appropriate because this record shows that this Respondent has been "indulged" -- and has, indeed, indulged himself -- in every way. To begin with, the per diem child support payments requested were set at an extremely low level and the Respondent has only been asked to pay half of that.52 Moreover, that comparatively small figure has been "adjusted" for inflation and, finally, he has been "forgiven" twenty-one years of interest on that resultant total heretofore.53
Retroactive child support payments in the continuing amount of $400 a month will therefore be ordered in this case.54 Henceforth, however, this sum will bear interest at the legal judgment rate until paid in full.
The happenstance timing of the final resolution of this matter, coming as it does within one month of the attainment of legal majority of the child at issue herein, occasions a "recalibration" of the technical child support "categorization" in a manner which this Court deems most practicable to all concerned.
To begin with, Respondent's Motion to Suspend Child Support Payments technically remains before the Court. He has already engaged, however, in "self-help" by withholding payments (again, interest-free) for the 785 days between the filing of that motion and the issuance of the Final Judgment Order herein. On that record, said motion will be denied nunc pro tunc to the date of its filing, by a separate order.
The net effect of this ruling, however, coming as it does within one month of T.L.O.'s twenty-first birthday, is that virtually all of the child support which the Respondent owes will become "retroactive." Therefore, rather than "parse out" child support obligations among the categories of "retroactive child support," "back child support," and "prospective child support," the Court will stay the effect of its Judgment Order until September 7,1998 (the day after T.L.O. attains majority). In this manner, the Respondent's entire child support obligation will fall into the single category of "retroactive child support," which will effectuate an easier administrative processing of his case for all concerned.55 Notably, these amounts are collectable by immediate attachment and execution without the necessity of separate action, pursuant to D.C. Code §15-301 et seq. and 16-541 et seq. See Jasper v. Carter, 451 A.2d at 4th9 n.4.56
This punctuating issue need not detain this ruling much further. The general "American Rule" in civil litigation is that each party must bear his or her own attorney's fees and costs, absent a contractual or statutory basis for requiring the one party to pay such expenses for the other. See generally, Safeway Stores, Inc. v. Chamberlain Protective Services, Inc., 451 A.2d 66, 68 (D.C. 1982). Moreover, up to the point of good-faith response to litigation, "a court must scrupulously avoid penalizing a party for a legitimate exercise of the right of access to the courts. `A party is not to be penalized for maintaining an aggressive litigation posture, nor are good faith assertions of colorable claims or defenses to be discouraged." Synanon Foundation, Inc. v. Bernstein, 517 A.2d 28, 37 (D.C. 1986) (quoting) Lipsig v. National Student Marketing Corp., 214 U.S. App. D.C. 1, 3-4, 663 F.2d 178, 180-81 (1980)).
Yet, two factors militate against that traditional presumption here. First, D.C. Code §16-916(c) expressly allows for the awarding of attorney's fees in child support cases.57 Second, the Court has already concluded that but for this litigation the Respondent would not even be addressing, much less resolving, his primary parental responsibility -- adequate financial support of his daughter. The issues thus become (1) the justification for the manner in which the Plaintiff conducted himself in this case, (2) the Petitioner's ability to pay her own attorney's fees, (3) the Respondent's ability to pay said fees on the Petitioner's behalf and, if he is determined able to do so, (4) what amount of attorney's fees, if any, he should be required to pay.
Because of the inherently emotional and volatile nature of domestic relations and child support cases in particular, one of the factors which the Court must consider in awarding attorney's fees is "whether the litigation had been oppressive or burdensome to [the opposing party]." McDiarmid v. McDiarmid, 649 A.2d 810, 817 (D.C. 1994); Singer v. Singer, 623 A.2d 1226, 1229 (D.C. 1993) ("the court did in fact consider the duration and cost of the litigation"). Liability must therefore be apportioned and parsed out for that segment of the case with falls under that exception, based upon the following findings and conclusions:
In this case the Court has found that the Respondent needlessly prolonged this litigation and should therefore bear the responsibility for the attendant unwarranted fees and costs to the Petitioner. See Dom.Rel.R. 1 ("These Rules . . . . shall be construed to secure the just, speedy and inexpensive determination of every action."). In such circumstances, the Court may "shift fees" as a sanction under the "bad-faith exception" to the "American Rule," not only under the " `court's equitable power concerning relations between the parties . . . [but also] a court's inherent power to police itself.' " Dalo v. Kivitz, 596 A.2d at 40 (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991)); Tydings v. Tydings, 567 A.2d 886, 889 (D.C. 1989)(fee-shifting).58
As seen in vivid detail in the foregoing sections of this Memorandum Opinion, the Petitioner's claim on behalf of the parties' child has been meritorious and complete in every aspect. The Respondent's reaction has been to deny, delay, and defy the entire legal process which his own neglect of his parental obligations necessitated in the first place. He has occasioned repeated court hearings, engaged in a frivolous appeal, demanded needless paternity tests, refused to comply with discovery orders, and required additional time and expense to obtain court orders to that effect, which he defied anyway. He has failed and refused to pay any temporary child support and, at long last, has drawn out this most basic and completely meritorious lawsuit, with all its concomitant attorney's fees and expense to the Petitioner, all while he has proceeded recklessly pro se. As pointed out earlier, after 1,146 days of delay from the first scheduled hearing in this matter (June 30, 1995), no justifiable rational, excuse, or contrary representation has been made as to the Respondent's conduct in this matter.
On this record, it is clear and convincing to the Court that, but for Petitioner's legal efforts through Counsel, Respondent would never have met his basic responsibilities in this matter and that it is unlikely, almost to a certainly, that any of the affirmative results obtaining herein would have accrued to the parties' child at the hands of the Respondent if he had been left to his own devices and moral conscience. Instead, these results obtained through the actions of Petitioner and her lawyer. Rather than relying, for example, upon the Office of Corporation Counsel to bring and prosecute this action, Petitioner retained private counsel to vindicate the best interests of the child. (Pl. Exs. 2B & 2C). It is Fundamental that the "constitutional guarantees given to 'life, liberty and property' are in the professional keeping of lawyers." Schware v. Board of Bar Examiners, 353 U.S. 232, 247 (1957). When all is said and done, this, after all, is the primary purpose and service which lawyers provide to the community and they must be fairly compensated for it. This is particularly apt for impecunious clients, but "[t]he need of counsel is the same, whatever the economic status of the accused." McNeal v. Culver, 365 U.S. 109, 118 (1961).59 To demur in compensating an attorney for work necessitated in availing such results is to discourage the taking of such cases in the future, with a concomitantly desultory effect on the rights of parents and children who have need for services which only members of the Bar an provide in such circumstances.
Considering the relatives abilities of the parties herein to pay these fees, coupled with Respondent's conduct of the litigation, the Court concludes that Respondent should be required to pay for the unwarranted delay which he has caused in the case. The extent of that liability is discussed in subsection 3, infra, after the discussion of the Respondent's ability to pay the fees and costs, as immediately follows.
Unlike child support payments themselves, there is no requirement that the ability to pay attorney's fees be based on "gross income." This determination follows a similar procedure for such a calculation approved sub silentio in Galbis v. Nadal, 626 A.2d, 30 n.6 (D.C. 1993); see also , W.M. v. D.S.C., 591 A.2d at 837 (father's income tax refund considered in calculation his annual income for child support purposes); Anderson v. Anderson, 449 A.2d 334, 336 (D.C 1982)(proper to consider respondent's ability to sustain himself in determination to pay attorney's fees); and Grasty v. Grasty, 302 A.3d 218, 221 (D.C. 1973)("the trial court's determination of appellant's net income was . . . absolutely essential to a proper resolution of the issues raised as to his ability to pay . . . child support . . . and attorney's fees and expenses").
As noted above, the Respondent has been indulged in every way in this matter, not just over the twenty-one years of T.L.O.'s life thus far, but also during this litigation, in which he has been spared (or has spared himself) from paying anything whatsoever, even in temporary child support. His overall contribution has been "inflation adjusted," and, even at that, comes to less than 12% of his imputed typical gross annual income. He has no other child support obligations and, finally, he has failed to file so much as a simple financial statement which would set forth any competing considerations in the regard. In contrast, the Petitioner has been required to work and sustain the child, her pursuit of the Respondent, and this litigation, all in their entirety thus far. The equities not only permit, they virtually demand, that the Respondent is in a better position to pay the costs of the needless and dilatory legal proceedings which his neglect has necessitated in this matter. The Court therefore finds that the Respondent is currently in a better position that is the Petitioner to bear the financial burdens of child support and attorney's fees and court costs, particularly when the costs of the delay are mostly ascribable to his conduct in this case. This justifies "fee shifting" to the Respondent. See McDiarmid v. McDiarmid, 649 A.2d at 817 (court must consider "[the paying party's] ability to pay, and the earning capacity of both parties' ")(brackets in original)(quoting Sanders v. Sanders, 602 A.2d 663, 669 (D.C. 1992)); Singer v. Singer, 623 A.2d at 1229 ("the respective earning capacities of the parties, and appellant's ability to pay some part of appellee's counsel fees"); Tydings v. Tydings, 567 A.2d at 889 (comparison to the other spouse's [sic] ability to pay"); Broadwater v. Broadwater, 449 A.2d 286, 287 (D.C. 1982) ("ability to pay").
Petitioner has submitted a request which seeks attorney's fees in the amount of $17,749.89 as of December 1997, including expenses in the modest amount of approximately $807.43, for over three years of litigation thus far. (Pl. Ex. 2) A close review of each "line item" does not reveal any "extraordinary" fee or cost which is unreasonable on its face. Nor does the Respondent point to ant such item(s), except to challenge the award of attorney's fees and costs as a concept.
The Court finds these fees to be reasonably incurred in the performance of necessary work, competently done. See generally, McDiarmid v. McDiarmid, 649 A.2d at 817 ("In awarding attorney fees . . ., the trial court [should] consider . . . `the quality of the services rendered, counsel's skills, the result of the litigation, [and] the difficulty of the case,' " inter alia.); Steadman v. Steadman, 514 A.2d 1196, 1200 (D.C. 1986)(same factors); Rachal v. Rachal, 489 A.2d 476, 478 (D.C. 1985)(same factor); Broadwater v. Broadwater, 449 A.2d at 287 (factors to be considered in awarding attorney fees include . . . quality and nature of services necessity for services, and results obtained"); Wood v. Wood, 360 A.2d 448, 492 (D.C. 1976)(same factors); and Lyons v. Lyons, 295 A.2d 903, 906 (D.C. 1972)(same); cf. Ritz. v. Ritz, 197 A.2d 155, 157 (D.C. 1964)("trial court is not bound by any mathematical computation of time consumed multiplied by some hourly rate").
This award of attorney's fees against the Respondent herein is legally justifiable if, for no other reason, than to require the Respondent to provide the necessities for his child. See, e.g., Paine v. Paine, 267 A.2d 356, 357 (D.C. 1970) (as a part of his legal duty to support his minor children, a father is liable for the necessaries furnished them). As was found in a similar case over half a century ago, this Court is
Simonds v. Simonds, 81 U.S.App.D.C. 50, 53, 154 F.2d 326, 329 (1946).
This sum is to be paid in addition to the current child support obligation at the additional rate of $100 a month by wage withholding order.60 The finding that Respondent must pay these fees thus also becomes effectively a judgment in this amount against him. See Elam v. Monarch Life Ins. Co., 598 A.2d 1167, 1169 (D.C. 1991).
Petitioner's claims in this case, meritorious and complete in all aspects, have been totally vindicated, albeit only after two decades of delay occasioned by the Respondent's conduct and three years of litigation and expense. Both Petitioner and her daughter have been extremely patient in the face of all the forces which have acted to delay the accomplishment of justice. The not-so-benign neglect of this child's father, the implicit delay in the then-extant interstate child support superstructure, the delays in the overloaded Paternity and Support Branch in this Court, and the delays in the undersigned's hearing and trial schedule have all militated against swift and efficient judgment in this case. But, at least, it has not been justice denied. Courts, in the final analysis, are the conscience of a civilized society. They exist to protect the rights of the unpopular, the oppressed, the weak, and, where children are concerned, the defenseless. The pernicious attitude that a parent has no duty, financial or otherwise, to a child until he is tracked down, wrestled to the ground, and forced to surrender resources, must be interdicted at the outset. To tolerate such a concept is to encourage it. Equally unacceptable is Respondent's apparent belief that if, for whatever contrived reason, if he cannot pay all of the court-ordered child support, he should not pay any. The time has come for judgment. This is it.
The Court admonishes the Respondent that this is not merely an esoteric or precatory pronouncement on the state of the law or the state of this case. This Court means for these retroactive payments to be paid in full. The Respondent has had over two decades to meet and resolve these most fundamental duties to his child and over three years now since this Court specifically ordered him to begin providing barely marginal remedial payments in that regard and not only has he failed to do so, but he has also taken strenuous steps to avoid them. Whether the Respondent makes any attempt to salvage his relationship with his daughter is his concern (if any). That he has necessitated this suit and this Judgment Order is the Court's business, and it intends to see to it that its Order is enforced.
In this regard, it is also extremely significant to note that enhancing the purpose and effect of this enforcement in "interstate" cases such as this one (where the Petitioner resides in the District of Columbia and the Respondent resides in California) are the recently-enacted child support enforcement provisions pursuant to the Child Support Recovery Act of 1992. Codified in part at 18 U.S.C. §228 (see n.34, supra), this statute now provides for federal criminal penalties for willful failure to pay court-ordered child support obligations.61 See particularly, United States v. Collins, 921 F.Supp. 1028 (W.D.N.Y. 1996) (unsuccessful challenge to the effect of this code provision by California-resident father in criminal proceedings brought against him in New York for failure to pay state court-ordered child support payment there).
Finally, in this regard, the Respondent is further admonished that the Court will not tolerate his causing additional needless delay in this matter. Specifically, no motion to reconsider, or to stay, or to suspend child support payments, will even be entertained (nor will it even require a response and concomitant legal expense by the Petitioner) unless it is accompanied with documentation and "trial-worthy" evidence supporting it; in short, a naked request will be unavailing, either to delay collection on this judgment or to effectuate any other delay in the case. Finally, the Court rules that neither will any petition for review stay this judgment unless it is accompanied by the required supersedeas bond in the amount of 150% of the judgment amount herein (or a bond in the amount of $110,026.81). See Dom.Rel.R. 62-I; cf. Fellens v. Alamo Rent-A-Car, 124 D.W.L.R. 253 (Feb. 12, 1996) (D.C. Super.Ct.) (Goodbread, C.) (stay of execution pending review by a Superior Court Judge is denied in small claims judgment where defendant is non-resident with no assets in D.C. and would be granted only if supersedeas bond is provided).
Consistent with the teachings of our Court of Appeals, this Court's final duty is to inform the parties of their right to review and appeal. See Speight v. United States, 558 A.2d 357, 358 n.2 (D.C. 1989) ("In the interest of justice and to assure orderly procedure, the hearing commissioner should inform the parties of their right to review and the time limitations thereon."); see also L.A.W. v. M.E., 606 A.2d 160, 161 (D.C. 1992) (to same effect).
The rulings of D.C. Superior Court Hearing "Commissioners are "final judgments" of this Court. See D.C. Code §11-721(a)(1); Civil Rule 73(a) ("make findings and enter final judgments and orders in a civil case"); Speight v. United States, 558 A.2d at 358-59 ("final judgments"); Fitzgerald v. Fitzgerald, 566 A.2d 719, 722-23 (D.C. 1989) (same); Artl v. United States, 562 A.2d 633, 634 (D.C. 1989) (same). The decision of Hearing Commissioner is a judgment of the Court subject to review by superior judicial officers. See D.C. Code §11-1732(a) & (j)(5); Canada v. Management Partnership, Inc., 618 A.2d 715, 717-18 & n.4 (D.C. 1993) (jurisdiction of Hearing Commissioners in Small Claims Court rooted in an express statutory grant implemented by court rule). Any party aggrieved by the entry of this Judgment Order has the right to seek review before a Judge of the Superior Court and following that procedure to appeal the Judge's decision to the District of Columbia Court of Appeals.
Right to Review. The decision of a Hearing Commissioner is subject to review by a Judge of the Superior Court on filing the appropriate notice and motion in writing within thirty days of the entry of this Order. See D.C. Code §11-1732(k); Family Rules D(e). The Rule expressly requires that "[t]he motion for review shall designate the order, judgment, or part thereof for which review is sought, shall specify the grounds for objection to the hearing commissioner's order, judgment, or part thereof, and shall include a written summary of any evidence presented before the hearing commissioner relating to the grounds for objection. "Civil Rule 73(c)(1).
The standard for a Superior Court Judge's review of a Hearing Commissioner's order or judgment is the same as that of the Court of Appeals in reviewing a Superior Court Judge's ruling. See Weiner v. Weiner, 605 A.2d 18, 20 (D.C. 1992) (" `The standard of review of a hearing commissioner's decision . . . is the same as applied by the Court of Appeals on appeal of a judgment or order of the Superior Court . . . . [and] may not be set aside except for errors of law unless it appears that the judgment or order is plainly wrong, without evidence to support it, or an abuse of discretion.' "); Civil Rule 73(b) (same language); cf D.C. Code §17-305(a) (Court of Appeals may not set aside the judgment in a non-jury case "unless it appears that the judgment [of the trial court] was plainly wrong or without evidence to support it"); see also Simms v. District of Columbia, 612 A.2d 215, 220 (D.C. 1992) (applying a "harmless error" standard to the ruling of a Hearing Commissioner).
Both review and appeal are limited, however, to the record as adduced at trial before the Hearing Commissioner; nothing new can be introduced by way of evidence or testimony. Thus, "[t]he standard of review of a hearing commissioner's judgment by a Superior Court Judge is the same as that applied by the Court of Appeals . . . of a judgment of the Superior Court; namely, a judgment may not be set aside except for errors of law unless it is `plainly wrong and without evidence to support it.' " Zvirblis v. Butler, S.C. No. 122 1-96 (Feb. 9, 1998) (per Weisberg, J.)(citing Super.Ct.R.Civ.P. 73(b)). Only after a complete review by a Superior Court Judge may a case be taken to the Court of Appeals.
Right to Appeal. Consequently, no appeal can be made directly from the ruling of a Hearing Commissioner to the District of Columbia Court of Appeals. A prerequisite to the right of appeal is that the litigant must first have gone through the "review process" before a Superior Court Judge. See Civil Rule 73(b); D.C Code §11-1732(k) (An "appeal to the District of Columbia Court of Appeals may be made only after a judge of the Superior Court has reviewed the order or judgment."); Bratcher v. United States, 604 A.2d 858, 859 (D.C. 1992) (noting five previous opinions to this effect); Artl v. United States, 562 A.2d at 635-36; Dorm v. United States, 559 A.2d 1317, 1318 (D.C. 1989); Speight v. United States, 558 A.2d at 360.
Therefore, failure to timely file a petition for review, failure to state the grounds with sufficient specificity, or failure to comply with any other pertinent rule, may result in the waiver of the right to review by a Superior Court Judge and, with it, a forfeiture of any right to appeal to the Court of highest jurisdiction in the District of Columbia. See Civil Rule 73(c)(7); Domestic Relations Rule D(b).
By way of summary, the separate Orders of the Court to issue herewith, will provide for the following:
1. Respondent's Motion to Suspend the payments of temporary child support will be DENIED nunc pro tunc to date of filing.
2. Petitioner's Motion for Retroactive Child Support will be GRANTED on that basis.
3. Respondent will be required to pay retroactive child support from September 6, 1977 to September 6, 1998, the dates covering the entire legal minority of the child at issue herein.
4. Judgment will enter in favor of the Petitioner on behalf of the child at issue in this matter for said retroactive child support in the amount of $73,351.21, for said period.
5. This sum shall be payable by wage withholding order from the Respondent at the rate of $400 (four hundred dollars) a month.
6. This judgment shall carry the full judgment rate of interest from date of effective judgment until paid in full.
7. Judgment will also enter in favor of the Petitioner and against the Respondent for her reasonable attorney's fees and expenses in the total amount to date of $17,749.89.
8. Petitioner will also be awarded her court costs and filing fees associated with bringing this action, pursuant to Dom.Rel.R. 54.
9. Said costs are to be paid by additional wage withholding order in the supplemental amount of $100 a month until paid in full, then at that additional rate until the attorney's fees are paid in full.
10. This Judgment will be stayed until September 7, 1998, at which time it will have full legal force and effect for all purposes appertaining thereto, under the plenary category "retroactive child support."
11. In order to assure that the purpose and effect of this and companion Orders in this case be swiftly and efficiently effectuated, the undersigned will retain jurisdiction of this case for all pertinent purposes within the jurisdiction of this Court until further Order, if any.
12. No motion to reconsider, stay, or suspend this and any other Orders herein, filed by the Respondent will even be considered by this Court unless it is accompanied by documentation and "trial-worthy" evidence in proper form.
13. To that end, therefore, the Petitioner will not be required even to respond in any way (thus incurring additional legal expense and inconvenience) to any filings by the Respondent until and unless, upon receiving and evaluating same, this Court issues an Order requiring her to do so.
14. No stay pending review will be granted on this judgment unless the Respondent posts the required supersedeas bond, pursuant to Domestic Relations Rule 62-I, in the amount of 150% of the judgment principal herein, or in the amount of $110,026.81.
SO ORDERED this 19th day of August, 1998.
RONALD A. GOODBREAD
(Signed in Chambers)
Lloyd A. Malech, Esq.
1015 Eighteenth Street, N.W.
Washington, D.C. 20036
Phillip B. Zipin, Esq.
GAGLIARDO & ZIPIN
1010 Wayne Avenue
Silver Spring, Maryland 20910
3516 Jasmine Avenue
Los Angeles, California 90034
1 This is a "private" or "independent" action, meaning that the case was not brought by the Government in order to obtain recompense from the father for its having provided "public assistance" to the mother (custodian) -- commonly called a "IV-D" case pursuant to the requirements of Title IV-D of the Social Security Act indirectly requiring parental payment of child support. See 42 U.S.C. §666(a)(2)(A). Put another way, T.L.O.'s mother has supported her daughter on her own, all her life, without help from either the child's father or government.
2 Although the Respondent did not directly challenge jurisdiction or service, he did note in his Answer that "having not been personally served," he would need a 30-day continuance from the date of the hearing (the same date on which he caused his Answer to be filed), "to allow Defendant to properly defend himself hereunder." (Answer at 2 ¶ 8). Apparently, within the context of the posture of the case at that early stage, this request did not seem unreasonable to the Court (Doyle, C.), particularly concerning a Respondent who was literally a continent away from the forum jurisdiction, and the implicit motion for a continuance was granted. (Jacket entry of 7/3/95).
3 These discovery devices, copies of which were filed in the jacket (although there was no requirement to do so), sought information from the Respondent which included, inter alia, his employment history for the previous three years, income, benefits, and other emoluments of his employment, efforts to seek, gain, and hold employment for the previous two years, business interests, amount and location of any cash, checking and savings accounts, stocks, bonds, life insurance policies, trusts, estates, retirement plans, real estate, automobiles, and other personalty, holdings of value, accompanying liabilities and expenses, including any other children, marriages, and information regarding any criminal record, together with requests for production of relevant documents with regard to all the foregoing.
4 A hearing on "DNA/HLA Review" had been set for October 20, 1995, but the Respondent telephoned the Clerk's Office from California to say that, because of "flight problems," he could not attend that hearing. Consequently, the Petitioner's motion for adjudication of paternity was denied without prejudice and the first of two bench warrants occasioned by the Respondent's conduct issued. The case was continued to November 17, 1996, for what was then scheduled as an ex parte hearing to determine paternity and establish child support.
5 Also at the November 17th hearing, the Respondent signed a consent order agreeing to comply with all outstanding discovery within 30 days and to recompense the Petitioner in the amount of $600 for the cost of the paternity tests which had proven her threshold contention in this case, despite his earlier denial of paternity. The single shard of credibility surviving on his behalf on this record is that, prior to the final hearing in this matter in December 1996, he did, apparently, recompense the Petitioner in full for the cost of those tests, as he was ordered to do. (Tape 2A).
6 Respondent occasioned an additional delay when, on February 16, 1996, his failure to appear for a financial review hearing resulted in the issuance of a bench warrant for his arrest. An additional but unforeseen delay occurred when, after a hearing on April 12, 1996, after which the matter was taken under advisement by the Court (King, C.), the hearing had to be rescheduled and argued de novo on June 19, 1996, because, inadvertently, no tape recording had been made of the April hearing. The Respondent appeared for the financial review hearing on June 19, 1996, and also signed notice to appear the next day.
7 At the June 19th hearing, Respondent had also signed a notice to appear for financial review on September 19, 1996. The accompanying contempt hearing, originally scheduled before a Judge of the Court, was continued by mutual consent to the same date.
8 The previously set date of September 19th was continued to September 20th and then to September 25th. (See jacket entries for 9/16/96 through 09/25/96).
9 Unfortunately for all concerned, the undersigned improvidently scheduled the hearing on the merits for October 16, 1996, which proved to be a conflict with another court obligation, and (with prior notice to the parties) said hearing had to be re-scheduled to December 4, 1996.
10 Further unforeseen and unfortunate delay occurred between the submission of post-hearing briefs and the issuance of this ruling because -- apparently due to a "sticker" on the face of the jacket associated with the Respondents misbegotten appeal in July 1996 -- the jacket was mistakenly sent to the Appeals Coordinator's Office and lost from the "trial track" for about ten months, before it was finally turned over (with all exhibits from the December 1996 hearing) to the undersigned. Since then, his demanding hearing schedules in other Branches of the Court, including the Small Claims Branch, the Traffic Branch, and Preliminary Hearings and Non-Jury Trials in the Criminal Branch, have all acted to occasion the delay in the issuance of this ruling. The Court regrets the delay, but because of its ramifications for other cases similarly situated, this Memorandum Opinion has necessitated independent research and careful consideration of all aspects of this important case until now.
11 In addition to reviewing its "bench notes" taken during the hearing, the Court has listened to the audio tape recordings of that proceeding in arriving at the following Findings of Fact. (These two tape cassettes are now included in the jacket record of this case and are hereinafter cited as Tape 1 or 2, side A or B). In addition, the Court bases these findings on the testimony of the parties who appeared and testified before it, crediting entirely the testimony of the Petitioner. Based on his demeanor and testimony in open Court, as well as the utterly faithless record which he has adduced herein, the Court does not credit the Respondent's version of any of the salient facts in this matter.
12 This would make the date of conception on or about Tuesday, November 30, 1976. See W.M. v. D.S.C., 591 A.2d 837, 840 (D.C. 1991)(court may take judicial notice that the human gestation period "is about 280 days").
13 During the course of the evidentiary hearing, the Court, of course, had the opportunity to evaluate the credibility of both parties from their testimony before, thus appraising the demeanor and attitude of the Respondent (to say nothing of the tenor and content of his pro se pleadings herein). Based thereon, the Court finds that there is ample reason to discredit the Respondent's version of virtually all the salient facts and events involved in this case. As Petitioner's post-hearing submission points out, the Respondent will misrepresent the facts, particularly financial facts, when he believes it will benefit him. (Pet. Mem. at 3 & n.2)(noting the Respondent's admitted misrepresentations of his financial condition in seeking to attract investors to his night clubs)(See Pl. Ex. 3)(night club prospectus by Respondent). A self-styled "night club manager,'the Respondent also admitted that he had fabricated "profit margins" in order to obtain financing for one or more of these nocturnal enterprises and that he had failed to file any tax returns since 1982, even though he did receive income during each of those years. (Tape 2A)(Pet. Mem. at 3)(I.R.S. Code §61)(26 U.S.C. §61(a)). These facts, along with others set forth herein, form the basis for the Court's finding that, in essence, the entire history of the Respondents conduct toward his duties to his daughter has been characterized by deception, misdirection, fabrication, neglect, avoidance, and delay.
14 In this regard, the Court fully credits the Petitioner's testimony that she informed the Respondent of her pregnancy during her first trimester and again within a month of giving birth and that he never questioned either his paternity or the incipiency of the birth. The Court further credits the Petitioner's testimony that the Respondent visited the child on the day she came home from the hospital and discussed her given name (objecting to her middle name but making no protest as to her bearing his last name). (Tape 1A). The Court therefore rejects out of hand the Respondent's utterly incredible testimony at the hearing that he did not even learn of the child's existence until 1993. (Tape 2A).
15 Part of the Petitioner's prayer for relief is that the Court require the Respondent to "sign" T.L.O.'s birth certificate. In the record in this matter, however, is a certified copy of that "Certificate of Live Birth" (No. DC05255) issued by the Department of Human Services of the District of Columbia, and filed on September 29, 1977, which clearly designates the Respondent by first, middle, and last names, age at birth, and place of birth, as the father of this child. "This certified public document," together with the Court's formal Order of December 12, 1995, adjudicating this Respondent to be this child's father, are legally sufficient for any such purpose and the Court will therefore not address this issue further.
16 These "family ties" to the Respondent (which also included contacts with his cousins, aunt, and his own mother), and his imputed knowledge thereof, are further verified by the Petitioner's entirely credible testimony that prior to that time she had had no connection with his family and that these associations arose only through their own kinship of her child with them. (Tape 1B). The Court rejects as a patent falsehood, the Respondent's own testimony in this matter that he never knew that his own brother had a continuing relationship with his child and that her uncle never mentioned it to him. (Tape 2A).
17 It is certainly arguable that the Petitioner could have and should have done more to locate the Respondent during the first 16 years of her daughter's life, prior to actually filing suit. By her own admission, she did practically "nothing" until the child was nearly 12. At a minimum, she did do nothing at all for the first 7 years of her child's life. But, as discussed in more detail below in subsections C. 1.& 2., this is a misdirected and inverted premise, for two reasons. First, it ignores the legal principle that so strong is the presumption that a known father (and Respondent knew that he was, was known to be, and was later proven to be, the child's father at all times relevant herein) has a duty to support his child from birth that, unlike most causes of action, this endemic right vests at the child's birth, regardless of what, if anything, the mother does to locate him. Second, this premise therefore wrongly places the burdeu on the mother to locate the father and likewise completely ignores his legally-imposed duty affirmatively come forward in his own right and offer to shoulder his share of the responsibilities in helping to raise his own child. This false premise, in fact, completely undermines the entire philosophy of the application of most of modern child support law, which, in large measure, is to impress upon errant fathers their basic duty of parenthood. To presume or to argue otherwise, in fact, rewards a father's dereliction of duty to his child. Rather, under a proper application of the law, it becomes a father's burden, when located after all, to show -- as the Respondent herein has failed to do -- some compelling reason as to why he should not be required to assume the obligation toward pro nunc which had been his all along, to provide child support. Here the Respondent essentially argues the mere passage of time. That, in and of itself, is insufficient. This, in fact, is what is at issue in this and all cases similarly situated. Thus, rather than asking why the mother did not do more to locate the father, the proper inquiry is why the father did nothing at all to respond to the known and obvious needs of his child.
18 18 The only positive documentary indication from the Respondent as to his actual income is contained in a 1994 prospectus for the funding of a night club in Los Angeles, California, introduced into evidence by Petitioner (P1. Ex. 3), for which he was a general partner and manager. In that document he sets forth as his proposed annual salary as the club manager, a figure of $60,000 and even then, only for his services on a non-exclusive basis," meaning that he would be free to earn income from other sources as well. (Pl. Ex. 3 at 11). Moreover, the projected profits set forth in the prospectus for the general partner alone are as follows: last quarter 1994 ($18,689), 1995 ($198,842), and 1996 ($222,238), for a total projected income (in addition to his $60,000 annual salary x 2.42 years ($145,200)) of $584,969, or an average income of $20,171 a month over the period of the prospectus. (Id., Appendix)(Tape 2A). This night club opened in 1994, but closed in 1995 Respondent asserted that despite the projected salary and. profits for him, he "never got one single penny." (Id.). Because this is only a prospectus, therefore, the Court is not imputing that level of salary to him as of that time. This is, however, some indication of the "level" of his thinking at the time. We do know, at least, that he can "plan big" -- except when it comes to providing for the needs of his own child. It should not be that difficult for him to envision 1.98% of his "projected" monthly salary from that endeavor, for child support payments, as subsequently ordered herein.
19 This "deductive figure" starts with the $400 a month already ordered herein, measured against the Petitioner's gross annual income of $63,226 for one child at the age of 19, in the year 1996. The "guideline" calculation comes to $400 a month; the "high" monthly figure is $502 and the "low" monthly guideline amount is $298.
20 The Court addresses the Respondent's continuing claim of being "unemployed" in conjunction with his ability to make the court-ordered child support payments, infra in subsection D.2.
21 In this regard, two additional examples from the testimonial record show the Respondent's sense of priorities to his child and to his court responsibilities herein. He testified that in August 1996, he had sold fixtures from his recently-defunct night club for $1,600. He used the money, he said, to pay past-due bills from that business, rather than his court-ordered pendente lite child support as ordered by the Court. (Tape 2A). He also testified that earlier in that year he had disposed of one of his two automobiles, a 1987 BMW (valued at $4,500), by means of forfeiting it as collateral on a $1,000 loan on which he had promised to repay $2,000. (Tape 2A). Apparently, here as well, it had not occurred to him to liquidate this asset to pay the then-delinquent pendente lite child support (or to help his child in lieu of purchasing the second car in the first place). At the very least, however, inasmuch he had been willing to pay a stranger an appalling 100% interest on a modest loan, he should not have much difficulty in comprehending, assuming, and paying the comparatively modest judgment rate of 6% on the total retroactive child support ordered herein.
22 The foregoing finding of fact of the unrebutted DNA/HLA tests establishing the Respondent's paternity of the child at issue herein to a probability of 99.61%, fulfills the equally well-established legal premise that "[b]efore a man can be ordered to support a child, either he must acknowledge his paternity or there must be an adjudication of his paternity. The adjudication that [a respondent is] . . . the father of the child [i]s a necessary step to the order for support . . . ." Harrison v. District of Columbia, 95 A.2d at 333-34; In re Estate of Glover, 470 A.2d 743, 750 n. 16 (D.C. 1983)(discussing standard of proof by preponderance of the evidence and types of proof admissible); and District of Columbia ex rel. W.J.D. v. E.M., 467 A.2d 457, 460, 462-63, 467 (D.C. 1983)(means of proof).
23 In her post-hearing submissions, the Petitioner objects for the record to the Court's having broached the issue itself during the hearing, contending that if the Respondent had not done so, the issue should have lain fallow. (Pet. Mem. at 2, 5) Inasmuch as the Court has, on reflection and research, found against the Respondent on this issue in toto, the error, if any, is harmless. It is true, of course, as the Petitioner points out, that the better practice is that parties should be bound by their own pleadings, cases, arguments, and defenses and that, particularly with what are termed "affirmative defenses" (i.e., those which a defending party has an affirmative obligation to raise if he wishes them considered), see Super.Ct.R.Civ.P. 8(c), the Court should not ordinarily intervene. As the Court of Appeals ruled in a similar matter,
Alder Corp. v. Wesley 355 A.2d 794, 798 (D.C. 1976); see also Lehman v. G.A.C. Finance Corp. of Baltimore, 213 A.2d 246, 247 n. 1 (D.C. 1965)(where bar of statute of limitations was neither pleaded nor raised as affirmative defense at trial, it was effectively waived and could not later be raised).
It may be worth noting, however, that in the typical paternity and support case, wherein the child and the mother are usually represented, directly or indirectly, by a lawyer (either from the government or privately) and the father is typically unrepresented (as here), a court sitting in equity is often led, for the sake of basic fairness, to allow all doors to be opened for potential defenses. Here the glaring lapse of nearly eighteen years' time between the birth of the child and her mother's filing of suit was a temporal delay of sufficient length as to invoke the Court's concern. In the end, therefore, no one can say that the Respondent in this case has not had every consideration possible in determining whether and why he has not lived up to even the most basic responsibilities to his child.
24 While the traditional Black's Law Dictionary (West Pub. Co. 1951) gives essentially the same definition of the term as set forth herein ("principally a question of inequity of permitting (a] claim to be enforced . . . . founded on some change in the condition or relations of the . . . parties"), it is silent on the etymology of the term "laches." The definitive Oxford English Dictionary (Oxford Univ. Press 1971) reveals that it has Norman origin, deriving from the Old French word laschesse, which had the traditional meaning of"[s]lackness, remissness, negligence; also an act or habit of neglect." Cf. Larousse's French-English Dictionary (Pocket Books 1971)(defining the modern adjective lache as "loose, slack, lax, slipshod" and the modem verb latcher as "to release; to slacken, to loosen; to set free, to let go")(The irony, therefore, is that the modem English meaning of this ancient French term, contrary to what one would think, is "unlatched."). The OED sets forth its English Common Law meaning as "[n]egligence in the performance of any legal duty; delay in asserting a right, claiming a privilege, or making application for redress." Significantly, in conjunction with this legal definition, it also recites the companion principle that "[i]t is indeed laid down generally as a maxim, that no laches or negligence shall be imputed to an infant." See generally, District of Columbia v. S.E.B., 467 A.2d 457 (D.C. 1983) and Canterbury v. Spence, 150 U.S.App. D.C. 263, 464 F.2d 772 (1972)(discussing the tolling of the statute of limitations for an infant's cause of action during his minority).
25 The foregoing, of course, presumes initial "standing" of the original plaintiff, petitioner, or movant to begin with. Thus, "in order to invoke laches successfully, one must premise the defense on the fact `that the party to whom laches is imputed has knowledge of his rights, and an ample opportunity to establish them in the proper forum; that by reason of his delay the adverse party has good reason to believe that the alleged rights are worthless, or have been abandoned.' " American Univ. Park Citizens Ass'n v. Burka, 400 A.2d 737, 742 (D.C. 1979)(quoting Galliher v. Cadwell, 145 U.S. 368, 372 (1892)); see also Martin v. Carter, 400 A.2d 326, 330 (D.C. 1979)("laches arises only when a duty to act, whether created by statute, act, or appearance exists"). Thus, even assuming "standing" to have brought the action to vindicate the rights at issue, the finding of "laches" implicates " `a species of estoppel' " or implicitly a "waiver by inaction" of those rights. See King v. Kitchen Magic, Inc., 391 A.2d 1184, 1187-188 (D.C. 1978). But " `waiver will not be inferred from doubtful or ambiguous factors.' " Fleming v. Carroll Pub. Co., 621 A.2d 833, 834 (D.C. 1993)(quoting Central Washington Bank v. Mendelson-Zeller, Inc. 779 P.2d 697, 701 (Wash. 1989)).
26 One permutation on this bedrock principle is that the party seeking the relief must do, or [at least) offer to do, equity before the court in good conscience may grant him the relief sought." Shima v. Shima, 80 U.S.App.DC. 39, 40, 148 F.2d 115, 116 (1945)(emphasis added); see also Brownley v. Peyser, 69 App.D.C. 56, 59, 98 F.2d 337, 340 (1938)(same language). Respondent fails on this score as well, because, insofar as this record disclosed, he has never even "offered" to do anything for his child.
27 Prior to 1940, the doctrines of estoppel and laches were not applicable in such cases. See commentary in Sears v. Sears, 166 A.2d 748,749 (D.C.Mun.App. 1960) and Ruppert v. Ruppert, 77 U.S.App.D.C. 65,67, 134 F.2d 497, 499 (1942), both citing reversal of that policy by Goodloe v. Hawk 72 App.D.C. 287, 291, 113 F.2d 753, 757 (1940).
28 In this vein, the standard of appellate review is as "clearly erroneous" or "without evidence" standard. See Kerrigan v. Kerrigan, 642 A.2d at 1326 ("We have also held that `[wlhether the facts, taken together, are sufficient to sustain the defense of laches . . . is a question of law which [this] court will review without need for deference to the trial court's judgment.' "); Warren v. Chapman, 535 A.2d 856, 861 (D.C. 1987) ("This court . . . will reverse the factual findings of the trial judge [in a claim of laches] only if they are clearly erroneous or without evidence to support them."); Clark v. Clark, 535 A.2d 872, 879 (D.C. 1987) ("clearly erroneous" standard); Padgett v. Pagdett, 472 A.2d at 851 ("In reviewing the trial court's ruling on laches, we must sustain its findings as to `the factual questions bearing on prejudice to the defendant from delay and on the [plaintiff's] earlier awareness of the claim' unless they are clearly erroneous."); and Martin v. Carter, 400 A.2d at 329 ("As an equitable remedy there can be few specific rules governing the application of laches and great respect is due the weighing of the equities made by the trial judge who applies the rule.")(citing Gardner v. Panama Railroad Co., 342 U.S. 29, 30-31 (1951)).
29 Unlike an actual "statute of limitations," which is an arbitrary and technical concept, laches is wholly an equitable one, rooted in the principle of basic fairness in a given situation. See Beins v. D.C. Bd. of Zoning Adjustment, 572 A.2d at 126 ("Fairness, however, will bar application of the doctrine [of laches] where the result would be unjust. For unlike a rule of limitations on an action or a right of appeal, which may operate harshly, laches does not: `[t]he statute [of limitations] frequently works great practical injustice -- the doctrine of laches, never.' ")(quoting Patterson v. Hewitt, 195 U.S. 309, 317 (1904)). Thus, "[b]ecause laches is an equitable principle we should not attempt to draw a bright line here; it would be imprudent (if not a contradiction) in effect to create, on one set of facts, an equitable statute of limitations." American Univ. Park Citizens Ass'n v. Burka, 400 A.2d at 743. Indeed, "laches may bar consideration of an appeal which, for jurisdictional purposes, would be timely, just as laches may bar an equitable claim brought within an applicable statute of limitations." Goto v. District of Columbia Bd. of Zoning Adjustment, 423 A.2d at 925 (citation omitted); see also Holmberg v. Armbrecht, 327 U.S. 392,396-97(1946); Bliss v. Bliss, 60 App. D.C. 237, 239-40, 50 F.2d 1002, 1004-006 (1931); and Amidon v. Amidon, 280 A.2d at 84 (all to the same effect).
50 This case is quite unlike the situation, for example, in Padgett, wherein the husband-father was found to have "made no effort to conceal his whereabouts from appellant after he [had] stopped making payments" and was often in contact with his . . . child." 472 A.2d at 853. The opposite is true of the Respondent here, who did try to conceal himself from the Petitioner and her child, except on those occasions when he affirmatively misled her, so as effectively to extend the delay in her request. He will not be found here by this Court to benefit from his own miscreancy. The Respondent herein also lacks any semblance of such detrimental reliance as, for example, in Amidon v. Amidon, 280 A.2d at 84, in which prejudice was found because the father had financed the education of the child in private schools and might not have done so had he been expected during that period also to have paid the past due child support subsequently requested. As noted above, the Respondent herein provided nothing but excuses and misrepresentations to his child prior to the current legal request by her mother on her behalf. Moreover, he also failed to pay anything whatsoever even in the pendente lite child support ordered after the litigation was ongoing. In short, he can claim no "detrimental reliance" whatsoever.
31 This is one of the reasons that the Court did not find delay to have been "unexplained," or "undue," or unjustified, supra.
32 It is settled that fraud must be proven by a standard of "clear and convincing evidence." See, e.g., Allen v. District of Columbia Bd. of Elections and Ethics. 663 A.2d 489, 496 (D.C. 1995)(public policy case); Darnell v. Darnell, 91 U.S.App.D.C. 304, 306, 200 F.2d 747, 749 (1952)(intra-marriage dispute case); Lockwood v. Christakos, 86 U.S.App.D.C. 323, 325, 181 F.2d 805, 807 (1950)(contract case); and Duckett v. Duckett, 77 U.S.App.D.C. 303, 305, 134 F.2d 527, 529 (1943)(testamentary dispute case).
33 Most of the cases of "fraud" and "detrimental reliance" typically involve a party's taking an action and actually entering an agreement due to fraudulent inducement. The principle applies just as readily, however, to a case, such as this one, where a party omits or refrains from taking an action due to fraudulent inducement. See, e.g., Searl v. Earll, 95 U.S.App.D.C. 151, 154, 221 F.2d 24, 27 (1954)(" `fraud[ulent] . . . facts . . . which induced them to refrain from filing suit' "). The correct way of putting it is that a party "changes his position" due to the fraudulent inducement. See Brewood v. Cook, 92 U.S.App.D.C. 386, 388, 207 F.2d 439, 441 (1953)("one who [fraudulently] . . . induces another . . . to change his position so materially").
34 See further discussion in n.61, infra, regarding the potentially criminal aspects, pursuant to 18 U.S.C. §228, of failure to obey this Judgment Order.
35 Indeed, it has been cogently argued that the duty actually antedates birth. In 1990, our Court of Appeals quoted with favor the ruling of the Supreme Court of Florida that:
Appeal of H.R., 581 A.2d at 1162 (quoting In re adoption of Doe, 543 So.2d 741, 746 (Fla. 1989))(emphasis added).
36 Although, it should be noted, if the child has "special needs," the parental duty of support may continue beyond the age of twenty-one. See Nelson v. Nelson, 548 A.2d at 115-17 (parents have a duty to support physically or mentally disabled adult children who are unable to support themselves); cf. Negretti v. Negretti, 621 A.2d 388, 391 (D.C. 1993)(ruling that the condition of parties' 24-year-old daughter did not warrant continuation of support beyond her majority was proper in divorce action, even though daughter was "emotionally troubled," where daughter was able to assume responsibility for her own maintenance and support).
37 In 1977, the District of Columbia City Council abolished the traditional distinction between "legitimate" and "illegitimate" children, declaring that [a] child born in wedlock or born out of wedlock is the legitimate child of its father and mother . . . ." District of Columbia Marriage and Divorce Act, D.C. Law 1-107, §105(a), 23 D.C. Reg. §8738 (1977) (codified at D.C. Code §16-908). In the District of Columbia, therefore, all minor children, whether born in wedlock or out of wedlock, are owed a legal duty of support by their parents. D.C. Code §§16-916 & 30-32; see also District of Columbia ex rel. W.J.D. v. E.M., 467 A.2d at 560. This duty of support arises automatically upon the establishment of parentage by sufficient proof. See Felder v. Allsopp, 391 A.2d 243, 246 (D.C. 1978).
38 And, although there is not even a hint of such an allegation in the instant case, it bears noting in this general discussion that, correspondingly, neither is it any defense to holding the father to this "unqualified" duty that the mother may have engaged in affirmative misconduct, either as against the father or otherwise. See Edmonds v. Edmonds, 146 A.2d at 776 (the fact that the mother allegedly deserted the father did not relieve him of his own support obligation for their minor children); Bartlett v. Bartlett 94 U.S.App.D.C. 190, 195 n.21, 221 F.2d 508, 513 n.21 (1954)(extensive treatment of the proposition that the welfare of the child should not be prejudiced by the delictum of a parent); Howard v. Howard, 72 App.D.C. 145, 147-48, 112 F.2d 44, 45-46 (1944)("This child's claim to paternal support, unlike the claim of the wife, is not affected by the merits of controversies, however serious, between the spouses."); Warner v. Warner, 58 App.D.C. 34, 35, 24 F.2d 609, 610 (1928) (" `It has been repeatedly declared in such cases, that the courts do not act to enforce the rights of either parent, but to protect the interest and general welfare of the children.' "); Maschauer v. Downs, 53 App.D.C. 142, 145, 289 F. 540, 543 (1923)("We do not think the conduct of the mother, if improper, should be charged to . . . [the children]."); Wedderburn v. Wedderburn, 54 App.D.C. 193, 295 F. 1014 (1917)(court refused to bar a maintenance award for a child although the wife had deserted the husband, taking the child with her); and Carey v. Carey 8 App.D.C. 528; 531 (1896)("That is a duty which the law imposes upon . . . [the father]; and the law does not recognize violent temper or . . . unreasonable action on the part of . . . [the mother] as dispensing him from the performance of that duty. Least of all can this duty be pretermitted with regard to the helpless children of this unfortunate alliance."); see also Jackson v. Jackson 107 U.S.App.D.C. at 259 n.2, 276 F.2d at 505 n.2 (citations to same premise in various state court decisions); but see Adams v. Adams, 196 A.2d 915,916 (D.C. 1964)("In view of the situation created by the mother, we are of the opinion that the circumstances of the present case carry it beyond the general rule that a father's duty to support his minor children is undiminished by any controversy between the parents or the delictum of the mother.").
39 Respondent himself argues -- and thereby admits -- that "[t]his is not a question of laches; it is a question of equity, due process, the opportunity to be heard, and a complete and utter failure to notify a known father of paternity for sixteen . . . years." (Resp. Mem. at 4)(emphasis added). As noted above, the Respondent has never made any effort whatever on his own initiative to find out about the child of whose birth he knew from the moment she came into the world. This was not because he had any putative concern about her kinship to him or her well-being; rather, it was because he--was afraid of what he would find out about both. The Court continues to be astonished that anyone who knew that he even might have a child who would, perforce, have very real and continuing emotional, social, final, and financial needs in a harsh and uncaring world, would not have the moral compunction -- to say nothing of even basic curiosity -- to even attempt to find out about his child. In the face of this attitude, and because by the time this Judgment Order takes effect, T.L.O. will be 21, and thus able to make her own decisions in the matter, the Court need not address the bogus issue of visitation any further.
40 Petitioner testified that during her long and fruitless wait for any affirmative response from her direct and indirect entreaties for some sort of financial assistance from the Respondent, she did not move her residence. Indeed, she testified, she kept the same address and phone number in the forlorn hope that he might have a change of mind and heart and would attempt to contact her. He never did. (Tape 1B).
41 E.g., "That's what's troubling the Court. Why, for this period, when you did nothing to wring support out of the child's father, why should the father be responsible? . . . In other words, this is the gravamen of the case -- it's fairly clear that this is a waiver, isn't it? . . . It's an equity case; it's a laches issue. She did nothing to track him down and make him pay, and she is, in effect, the agent for the child, why is he responsible for that time period?" (Tape 1A).
42 In point of fact, the governing legal principle is that "the nature of the burden of proof on the mother is confined to offering proper proof of reasonable expenses . . . and not to demonstrating need." W.M. v. D.S.C., 591 A.2d at 843-44.
43 Respondent's sole contribution in this regard, Petitioner testified, was to assert that he had to work his way through his own college years and she should too. (Tape 1B).
44 This "philosophy" is the fundamental equivalent of a father's saying, "I have always known that my child has gone hungry, has been ill-clad, only partially sheltered, hampered in her education, and left to find her own way in life, with only the such limited guidance and support as her struggling mother could provide for her, but, after all, no one ever asked me to do anything for her." The very manifestation of such an attitude demands that a civilized society immediately and invariably reject it, exposing it for the amoral pall that it implicitly seeks to cast over that society's future, if its children were suffered to develop under those circumstances.
45 As noted above, even as it is, although retroactive child support payments may be ordered in full, back to the birth of the child, these payments would still be interest-free pre-judgment. Until final judgment enters, they are without other "penalties" and, even then, are typically ordered to be paid prospectively in small amounts and in attenuated increments, commensurate with the father's (usually limited) ability to make future payments. The net result is that in such cases the child herself would be well into mature adulthood, even if all such payments were timely made -- which itself is rarely accomplished, and then only after a good deal more future litigation in this realm. Still, the first step beyond the threshold on that trek must be made, and this Court is ordering that it be taken in this case today.
46 Other considerations are that (1) the prospective award of retroactive child support payments is an affirmative incentive for a mother alone to utilize more of her own resources for the benefit of the child with a fair degree of expectation of recoupment nunc pro tunc from the father on the award of retroactive support and (2) a concomitant relief in the public assistance to such children when such payments can be awarded as a repayment to the government for public assistance already given to the mother and child(ren). See W.M. v. D.S.C., 591 A.2d at 843 citing the detailed language to this effect in J.A.W. v. D.M.E., 591 A.2d at 848; see also, Cyrus V. Mondesir 515 A.2d at 739.
47 In this role, the Respondent testified, he has been attempting to find a job "managing someone else's club," but that he had been unsuccessful (at least as of the date of the hearing in this matter). He also testified, however, that he has made no effort to find any other kind of work. When pressed by the Court to detail his daily "job search" efforts, he responded that he typically arises each day at about 8:30 a.m., does "nothing" until about noon, whereupon he makes phone calls for an "hour or so" seeking employment contacts, then "not very much else" for the remainder of each day. (Tape 2A). Presumably, he takes weekends and holidays "off." All of this, again, is glaringly revealing of his approach to his responsibilities in this matter.
48 See D.C. Code §16-916.1(1)(1)-(8). The "factors that may be considered to overcome the presumption" include (1) exceptional needs of the child, (2) the income of the noncustodial parent is "substantially less" than that of the custodial parent, (3) collateral terms of a property settlement agreement, (4) "extraordinary hardship" because the noncustodial parent supports another child by the custodial parent, (5) the noncustodial parent needs "a temporary period of reduced child support payment" in order to permit the repayment of a debt, (6) the custodial parent provides medical insurance at "significant" cost, (7), multiple payments for more than one child by the noncustodial parent to the custodial parent, or (8) "[a]ny other exceptional circumstance that would yield a patently unfair result." The Court finds that none of these factors applies here.
49 This comparatively new subsection of the Code, approved December 23, 1994, provides as follows: "Any court order that establishes a retroactive amount of child support or a judgment for unreimbursed public-assistance shall be established in accordance with section 16-916.1 and shall take into consideration either the current earnings and income of the noncustodial parent at the time the order is set or the earnings and income of the noncustodial parent during the period for which retroactive child support or unreimbursed public assistance is sought. To overcome the presumptive support amount, the court may consider the obligor's ability to pay back support and concurrently maintain current payments."
50 Petitioner's computations arrive at the total amount she is seeking, viz., $80,990.63, in retroactive child support. (Pet. Mem. at 8 and Pet. Resp. at 4). The Court is frank to say in dictum that it finds this daily sum to be absurdly low and overly generous to the Respondent and that it would have entertained favorably a claim in the neighborhood of four times that amount. Nevertheless, that is the claim set forth by the Petitioner and the Court is limited by the request before it. See Multi-Family Management, Inc. v. Hancock, 664 A.2d 1210, 1230 (D.C. 1995)("court may consider only the issues raised by pleadings, and judgment may not extend beyond such issues or beyond relief demanded")(bench trial in landlord-tenant case).
51 The "Inflation Calculator" used to compile the following table adjusts any amount of money for inflation, according to the Consumer Price Index ("CPI") for any year(s) from 1800 to 1997. For the years 1800 to 1971, the calculations are based on figures and rates found in Historical Statistics of the United States (GPO 1971); for years from 1972 to 1997, they are based on the Statistical Abstracts of the United States. This "web site" is maintained by S. Morgan Friedman and is found at http://www.westegg.com/inflation/.
52 Moreover, using the $40,750 gross income imputed to him for the year 1996, as an example, the $12.81 inflation-adjusted share of his per diem child support payment for that year shows that it comes to only $375.30 per month on that basis and his total child support assessment for that year shows that typically this obligation is only 11.5% of his imputed gross annual income.
53 Calculations derived from commonly-available "interest tables" show that if the Respondent had paid 21 years of interest, even at the comparatively low "judgment rate" of 6% on this $73,350, he would now owe $129,180.24 ($55,829.24 of which would be interest alone).
54 The Court is also satisfied with this figure as a start in this case based on the express representations of Petitioner's Counsel at the final hearing in this matter that "my client would be satisfied with just a continuation of what Commissioner Berg has ordered, rather than go through the torturous process of trying to infer what income may be [for the Respondent] . . . in light of the fact that the bulk of this award . . . would be in the form of a retroactive child support award . . . [and] given the fact that . . . [she] has received nothing to date." (Tape 1A).
55 This procedure may raise the "technical" question of whether the money which the Respondent must pay should be payable to the Petitioner or to her child, who will, at all times relevant to its payment, be an adult. The Court concludes, however, that it should be payable directly to the Petitioner. This is not only because she brought the suit (on behalf of the child), but also because, technically speaking, throughout her child's entire minority, it was the Petitioner who had to pay all her child's expenses and what the Court is now doing is requiring the Respondent to repay the Petitioner for having shouldered that doubly heavy burden. Finally, based on this record, the Court is fully satisfied that this money will find its way to the benefit of T.L.O., as, indeed, it always has under the trusteeship of her mother. Notably, since the Court has long since (as of June 1996) ordered that the Respondent pay child support, that right has already "vested procedurally," so that it is not in any extinguished by the fact that the entirety of the money will end up-being paid after the child reaches her majority.
56 At the currently-ordered payments of $400 a month, the Court notes, this sum would take over 183 months to pay (over 15 years, or when T.L.O. will be over 36 years old). At the judgment rate of 6%, however, this will result in total payments of $112,127.76 ($38,776.66 of which will be interest alone) and that sum would take 280 month to pay (or 23 years, when T.L.O. will be 44 years of age).
57 This statute provides as follows:
D.C. Code §16-916(c)(emphasis added).
58 Of course, this "bad faith exception `applies only in extraordinary cases.' " General Federation of Women's Clubs v. Iron Gate Inn. Inc., 537 A.2d 1123, 1128 (D.C. 1988). The Court of Appeals has held, by way of example, that the type of "bad faith" conduct which would justify the awarding of attorney's fees would include, but not necessarily be limited to, the filing of a frivolous claim "or in the manner in which a properly filed claim is subsequently litigated." Synanon Foundation, Inc. v. Bernstein, 517 A.2d at 38.
59 One professional put it more plainly when he observed that "[t]he Lawyer is not a salaried social worker. He is dependent for his economic existence upon the receipt of fair remuneration for his services." Herman S. Merrell, Increasing Lawyers' Income: The Practical Law Office Manual No. 2 (1959) at 8.
60 To be clear, this order is for the Respondent to recompense the Petitioner with payments to be made directly to her, not to her lawyer, until the original legal fees have been fully recompensed. The original contract for legal representation was between the Petitioner and her lawyer and it stands separately on its own merits as between them. Counsel's collection of his fees must still be obtained directly from his client on whatever terms may be agreed to as between themselves.
61 In pertinent parts, the relevant federal code subsections define "past due child support payments" as "any amount . . . determined under a court order . . . pursuant to the law of a state [including the District of Columbia] to be due from a person for the support and maintenance of a child . . . that has remained unpaid for a period longer than one year or is greater than $5,000." 18 U.S.C. §§228(d)(1)(A),(B) & (2)(emphasis added). In turn, the same code section provides for criminal prosecution in federal court, in that "[w]hoever willfully fails to pay a past due support obligation with respect to a child who resides in another State [including the District off Columbia] shall be punished . . . in the case of a first offense . . . [by] a fine [of up to $5,000] under this title, [and] imprisonment for not more than 6 months, or both" and for second and subsequent offenses each by "a fine . . . [and] imprisonment for not more than 2 year, or both," id. §§228(b)(1)&(2), in addition to a mandatory assessment for restitution "in an amount equal to the past due support obligation as it exists at the time of sentencing." Id. §228(c). The maximum penalty, therefore, turns delinquent parents into convicted federal felons. The federal prosecutor need only prove "that the obligor knew of the obligation and either had the means to pay the obligation when due or acted to create an insufficiency of funds to pay the obligation." The more recent 1998 amendments create a "rebuttable presumption" to that effect, although allowing of two years' time for unpaid amounts over $10,000. Since 1995, there have been 183 convictions under this statute. See generally, D.Grubbs, Congress Approves New Criminal Penalties in the Prosecuation of Interstate Child Support Cases, XXIX Child Support Quarterly 14 (Summer 1998 No. 3)(discussing "The Deadbeat Parents Punishment Act of 1998").