COLORADO COURT OF APPEALS                                        2017COA94


Court of Appeals No. 16CA0259
Jefferson County District Court No. 88DR2670
Honorable Christine M. Phillips, Judge


In re the Marriage of

Josephine Marie Kann, n/k/a Josephine Marie Voshell,

Appellee,

and

Bruce Allen Kann,

Appellant.


              ORDER AFFIRMED IN PART, REVERSED IN PART,
                AND CASE REMANDED WITH DIRECTIONS

                                 Division III
                          Opinion by JUDGE WEBB
                        Booras and Freyre, JJ., concur

                          Announced July 13, 2017


J. Matthew DePetro, Greenwood Village, Colorado, for Appellee

Pelegrin & Radeff, P.C., Andrew N. Hart, Lakewood, Colorado, for Appellant
¶1    In a post dissolution of marriage proceeding, should laches be

 recognized as a defense to collection of spousal maintenance

 arrearages or interest on arrearages? This question is undecided in

 Colorado and no clear majority rule has emerged among courts of

 other states. We conclude that laches should be recognized as a

 defense to collection of both arrearages and interest.

¶2    Therefore, we reverse the trial court’s order in part and

 remand for further proceedings on laches and its potential impact

 on the court’s maintenance and attorney fees awards. However, we

 affirm rejection of the waiver and estoppel defenses to collection.

                 I. Facts and Procedural Background

¶3    The decree dissolving the marriage between Bruce Allen Kann

 (husband) and Josephine Marie Kann, now known as Josephine

 Marie Voshell (wife), was entered in 1989.

¶4    Under the terms of the parties’ separation agreement, which

 the trial court incorporated into the decree, husband agreed to pay

 wife lifetime maintenance of no less than $1200 per month. The

 agreement also provided that in the event of a breach, the prevailing

 party would be entitled to recover costs, expenses, and reasonable

 attorney fees. Although husband was unrepresented in the


                                   1
 dissolution proceeding, he has never disputed that he knew of and

 understood these terms.

¶5     For the next twenty-six years, husband never paid

 maintenance and wife never asked him to do so. But in 2015,

 suddenly things changed.

¶6     Wife retained counsel and sought entry of judgment for

 $520,636.32 — $289,200 in unpaid maintenance and $231,436.32

 in interest. She also requested a maintenance modification if the

 court did not award her the full judgment. Husband denied any

 obligation to pay maintenance. He raised three affirmative

 defenses: waiver, estoppel, and laches. Alternatively, he asked that

 if wife received her full judgment, the court should terminate his

 maintenance obligation.

¶7     The court held a hearing. Wife and husband (now also

 represented by counsel) testified. In lengthy oral findings and

 conclusions, the court

      concluded that under the decree, husband was obligated to

       pay maintenance;

      held that Colorado law does not recognize husband’s laches

       defense;

                                   2
        found that husband had failed to meet his burden of proof on

          the waiver and estoppel defenses; and

        enforced the full $520,636.32 judgment against him.

¶8        Going forward, the court decreased wife’s lifetime maintenance

  award from $1200 to $800 per month. Finally, it awarded wife her

  attorney fees as the prevailing party under the separation

  agreement.

¶9        Husband appeals these findings and conclusions. Wife

  concedes preservation.

         II. Application of Laches in Proceedings to Enforce Past Due
                        Spousal Maintenance Payments

¶ 10      Husband primarily contends he should have been able to raise

  laches in defending against wife’s claim for past due spousal

  maintenance and interest. We hold that laches may be raised as a

  defense to both an unpaid spousal maintenance award and any

  accrued interest.

                       A. Standard of Review and Law

¶ 11      The availability of an affirmative defense is a question of law

  subject to de novo review. In re Marriage of Johnson, 2016 CO 67,

  ¶ 9.



                                       3
¶ 12   No Colorado case has addressed whether laches applies in a

  proceeding brought solely to collect maintenance arrearages and

  interest. But several cases have addressed this defense in

  proceedings to enforce combined support (child support and

  maintenance) or child support awards. See Hauck v. Schuck, 143

  Colo. 324, 327, 353 P.2d 79, 81 (1960) (child support); Jenner v.

  Jenner, 138 Colo. 149, 151, 330 P.2d 544, 545 (1958) (combined

  support); Hamilton v. Hamilton, 104 Colo. 615, 618-19, 94 P.2d 127,

  128 (1939) (same); Price v. Price, 80 Colo. 158, 160, 249 P. 648, 649

  (1926) (same); In re Marriage of Meisner, 807 P.2d 1205, 1207 (Colo.

  App. 1990) (child support).

¶ 13   Those cases have held that while laches is an available defense

  when a party brings a contempt citation to punish nonpayment of

  support, see, e.g., Price, 80 Colo. at 160, 249 P. at 649, it is not

  available in actions to collect past due support, see, e.g., Hauck,

  143 Colo. at 327, 353 P.2d at 79; Jenner, 138 Colo. at 151, 330

  P.2d at 545; see also Frick v. Frick, 500 P.2d 373, 374 (Colo. App.

  1972) (not published pursuant to C.A.R. 35(f)) (laches released

  husband from enforcement of contempt judgment for support owed

  between 1963 and 1971, but did not apply to enforcement of his


                                      4
  current support obligation). The latter conclusion rests on the

  rationale that a support order is a continuing money judgment. See

  Hauck, 143 Colo. at 327, 353 P.2d at 81.

¶ 14   In Johnson, 2016 CO 67, our supreme court re-examined

  whether laches applies as a defense to recovery of statutory interest

  in a child support enforcement action. The trial court did not have

  the benefit of this decision when it ruled.

¶ 15   Johnson involved a 1983 decree of dissolution that required

  the husband to pay $400 in monthly child support. Id. at ¶ 2.

  Twenty-nine years later, the wife sought and received a judgment

  against him for $23,260.27 in unpaid child support, plus interest.

  Id. at ¶¶ 3, 5. The husband’s laches defense was rejected by the

  magistrate, the trial court on review, and a majority of a division of

  this court. See id. at ¶¶ 3-4, 6; In re Marriage of Johnson, 2014

  COA 145, rev’d, 2016 CO 67.

¶ 16   Specially concurring, Judge Berger opined that laches

  provides “a needed ‘safety-valve’ in unusual cases.” Johnson, 2014

  COA 145, ¶ 21. He pointed to a recent supreme court case,

  Hickerson v. Vessels, 2014 CO 2, holding that laches can be a

  defense to both legal and equitable claims and that “legislatively


                                     5
  prescribed limitations periods do not ordinarily preclude a laches

  defense.” Johnson, 2014 COA 145, ¶ 23 (quoting Hickerson, ¶ 17).

  And he offered that Hickerson’s rationale “is fully applicable, at least

  to the interest component of child support arrearages.” Id. at ¶ 24.

¶ 17   On certiorari review, the supreme court generally agreed with

  the special concurrence. The court noted that Hickerson “cast

  doubt on” the earlier opinions barring laches as a defense to claims

  for interest on past due child support. Johnson, 2016 CO 67, ¶ 21.

  Then it framed this issue by distinguishing between principal and

  interest.

¶ 18   As to principal, the court began by recognizing that child

  support belongs to children, not their parents. Id. at ¶ 22. It

  explained, “as a policy matter, a parent’s delay in enforcing a

  judgment for child support should not prejudice the child’s right to

  parental support.” Id. Unsurprisingly, it adhered to the view that

  laches should not be a defense to principal.

¶ 19   But the court’s approach to interest was more nuanced.

  Citing out-of-state authority, the court recognized the anomaly of a

  “dilatory parent” who “waits until the child has reached the age of

  majority to seek unpaid child support,” a time when the award


                                     6
  might reimburse that parent but would “not cognizably advance the

  child’s welfare.” Id. at ¶ 23. Next, it drew on Price — a contempt

  action — for the proposition that recovering arrearages of alimony

  “amounts simply to a reimbursement of the wife. She is the one

  who reaps the benefit.” Johnson, 2016 CO 67, ¶ 24 (quoting Price,

  80 Colo. at 160, 249 P. at 649). The court synthesized these

  principles by observing that allowing a laches defense to interest

  “would serve the dual purposes of protecting the right of children to

  parental support and encouraging parents to enforce child support

  obligations promptly.” Id. at ¶ 27.

                              B. Application

                                1. Interest

¶ 20   We conclude that Johnson’s rationale applies with equal force

  to proceedings in which a party seeks interest on maintenance

  arrearages. Specifically, only the recipient spouse benefits from

  recovering interest on the arrearage. Allowing laches as a defense

  would encourage prompt assertion of the claim which, as discussed

  below, could grow exponentially over time. And recovering accrued

  interest after a lengthy delay could be a windfall. Cf. Price, 80 Colo.

  at 160, 249 P. at 649 (noting that where the recipient spouse “reaps


                                     7
  the benefit” of a past due recovery, laches should apply “in cases

  where the arrears in alimony relate to alimony for her own

  support”).

                                 2. Principal

¶ 21   Whether laches should be recognized as defense to principal

  presents a harder question. Granted, Johnson declined to apply

  laches to bar collection of the principal amount of child support.

  See 2016 CO 67, ¶ 22. Yet, the policy underpinnings of this portion

  of the opinion do not apply to spousal maintenance. Three

  differences are informative.

¶ 22   First, child support is a right that belongs to and benefits the

  child, not the parent to whom it is awarded. See Samuel J.

  Stoorman & Assocs., P.C. v. Dixon, 2017 CO 42, ¶ 12; see also

  Johnson, 2016 CO 67, ¶ 22. Thus, if a parent fails to enforce a

  child support award for their child, the child suffers. See Johnson,

  2016 CO 67, ¶ 26.

¶ 23   In contrast, maintenance is not awarded as a matter of right,

  but may be granted only under circumstances specified in the

  statute. See In re Marriage of Wagner, 44 Colo. App. 114, 116, 612

  P.2d 1147, 1148 (1980); see also § 14-10-114(1)(a)(II), C.R.S. 2016


                                      8
  (trial court may award maintenance if one spouse needs it and the

  other spouse can pay). And because maintenance benefits solely

  the spouse to whom it is awarded, Stoorman, ¶ 12, the only person

  who suffers from failing to enforce a maintenance judgment is that

  spouse.

¶ 24   Second, child support mitigates potential harm to children

  from dissolution of the marriage by approximating the financial

  benefits a child would have enjoyed in an intact household. See

  §§ 14-10-104.5, 14-10-115(1)(b)(I), C.R.S. 2016; see also In re

  Marriage of Nimmo, 891 P.2d 1002, 1007 (Colo. 1995). In other

  words, child support effectively maintains the child’s standard of

  living after the divorce. Thus, failing to enforce such an award

  would result in a decreased standard of living for the child. See

  Nimmo, 891 P.2d at 1007.

¶ 25   Maintenance, however, is primarily concerned with providing

  that the basic needs of a disadvantaged spouse are met; it ensures

  that the lesser-earning spouse has means to pay for food, clothing,

  and shelter. See In re Marriage of Ikeler, 161 P.3d 663, 669 (Colo.

  2007); In re Marriage of Mirise, 673 P.2d 803, 804 (Colo. App. 1983).

  Maintenance does not guarantee that spouses enjoy an equal


                                    9
  lifestyle forever. See In re Marriage of Antuna, 8 P.3d 589, 595

  (Colo. App. 2000). So, if the recipient of a spousal maintenance

  award has significantly delayed attempting to enforce the award, a

  fair inference could arise that the spouse does not need the

  underlying award to meet basic needs.

¶ 26   Third, the duration and potential accrual of child support and

  maintenance awards differ. While in most cases child support

  terminates when the child turns nineteen, see § 14-10-115(13)(a),

  maintenance can continue over the payee spouse’s lifetime. See

  § 14-10-114(3)(e); Wagner, 44 Colo. App. at 116, 612 P.2d at 1148.

  As a result, unpaid maintenance awards can accrue to exorbitant

  amounts, while unpaid child support accruals will usually be more

  limited.

¶ 27   Johnson did not need to reconcile these differing policy

  considerations because it addressed only child support. Still, they

  loom large over this proceeding. Even so, we look beyond Johnson.

¶ 28   We begin by returning to Jenner, 138 Colo. 149, 330 P.2d 544,

  the only other supreme court case that has tangentially addressed

  this specific issue. Of course, “we are bound by the decisions of the

  Colorado Supreme Court.” Pressey ex rel. Pressey v. Children’s


                                   10
  Hosp. Colo., 2017 COA 28, ¶ 31. But a closer look shows Jenner to

  be distinguishable.

¶ 29   In Jenner, the wife secured a judgment against the husband

  for nonpayment of a combined maintenance and child support

  award. 138 Colo. at 150, 330 P.2d at 544. The husband admitted

  nonpayment but asserted laches as a defense. Id. at 150, 330 P.2d

  at 545. Citing Lowell’s Estate v. Arnett, 104 Colo. 343, 347, 90 P.2d

  957, 959 (1939), and Hamilton, 104 Colo. at 618-19, 94 P.2d at

  128, the supreme court limited laches to contempt proceedings.

  Jenner, 138 Colo. at 151, 330 P.2d at 545. So, unlike the case

  before us, Jenner involved both maintenance and child support.

¶ 30   With only this much for guidance, we turn to cases from other

  jurisdictions that have considered the laches defense in actions to

  enforce maintenance. This issue has been addressed in most

  jurisdictions. While a clear majority rule has not emerged, the

  competing rationales are noteworthy.

¶ 31   Roughly half of the jurisdictions appear to hold that laches is

  not a defense in a proceeding to enforce a money judgment like

  maintenance. See, e.g., Cartron v. Cartron, 565 So. 2d 656, 659

  (Ala. Civ. App. 1990); Lantz v. Lantz, 845 P.2d 429, 432 (Alaska


                                   11
  1993), overruled on other grounds by State v. Dean, 902 P.2d 1321

  (Alaska 1995); Heisley v. Heisley, 676 S.W.2d 477, 477-78 (Ky. Ct.

  App. 1984) (citing Ryan v. Ryan, 219 N.W.2d 912, 916 n.2 (Minn.

  1974)); Nicholas v. Nicholas, 841 So. 2d 1208, 1212 (Miss. Ct. App.

  2003); Richter v. Richter, 126 N.W.2d 634, 637 (N.D. 1964);

  Strickland v. Strickland, 650 S.E.2d 465, 470 (S.C. 2007); Bennett v.

  Commonwealth, 422 S.E.2d 458, 463 (Va. Ct. App. 1992); Wall v.

  Wall, 410 N.W.2d 593, 595 (Wis. Ct. App. 1987).

¶ 32   In rejecting laches outright, several of these jurisdictions

  appear to have an applicable statute of limitations that bars its

  application or they do not recognize an equitable defense to a legal

  claim, like a money judgment accruing under a divorce decree. See,

  e.g., Lantz, 845 P.2d at 432 (ten-year statute of limitations is the

  “sole line of demarcation” to recover maintenance arrearages)

  (citation omitted); Ryan, 219 N.W.2d at 916 n.2 (equitable defenses

  are not available in an action based on accrued payments due

  under a divorce decree).

¶ 33   But many other jurisdictions allow a payor spouse to assert

  laches in maintenance enforcement proceedings. See, e.g.,

  Medeiros v. Medeiros, 514 S.W.3d 504, 508 (Ark. Ct. App. 2017)


                                    12
  (noting that laches is specifically permitted by Ark. Code Ann.

  § 9-17-607(5) (2017)); Fromm v. Fromm, 948 A.2d 328, 333 (Conn.

  App. Ct. 2008); Frazier v. Frazier, 616 So. 2d 575, 579 (Fla. Dist. Ct.

  App. 1993) (holding also that equitable proceedings to enforce

  alimony and child support orders are not barred by a statute of

  limitations); Brochu v. McLeod, 148 A.3d 1220, 1226 (Me. 2016);

  Rybinski v. Rybinski, 53 N.W.2d 386, 388 (Mich. 1952); Clarke v.

  Clarke ex rel. Costine, 821 A.2d 104, 109 (N.J. Super. Ct. App. Div.

  2003).

¶ 34   The rationale of these cases appears to be that the facts of

  each case should determine whether the defense applies. See, e.g.,

  Frazier, 616 So. 2d at 579.

¶ 35   Review of these authorities has brought us full circle. Recall,

  Colorado Supreme Court precedent does not prevent us from

  holding that a payor spouse may raise laches as a defense to a

  claim for maintenance arrearages as well as for accrued interest.

  And Johnson has removed an impediment to doing so — the flawed

  comparison to child support cases.




                                    13
¶ 36     Based on the rationales advanced by courts elsewhere, the

  following considerations persuade us that allowing laches under

  these circumstances is the better reasoned view:

        the only applicable statutory limitations period — twenty years

         under section 13-52-102(2)(a), C.R.S. 2016 — does not

         preclude maintenance arrearages from mounting to exorbitant

         levels;

        this statute of limitations does not foreclose recognizing

         laches, see Hickerson, ¶ 9;

        applying laches no longer turns on the distinction between

         legal and equitable actions, Johnson, 2016 CO 67, ¶ 20;

        our supreme court has noted that “[e]quity by its very nature

         is applied on a case-by-case basis,” Cedar Lane Invs. v. Am.

         Roofing Supply of Colo. Springs, Inc., 919 P.2d 879, 884 (Colo.

         App. 1996); and

        our supreme court has also expressed unbridled confidence in

         trial courts to weigh conflicting evidence, see People in Interest

         of A.J.L., 243 P.3d 244, 250 (Colo. 2010) (“Thus, while a trial

         court may properly attach more weight to more recent

         evidence, whether it should do so is necessarily determined by

                                       14
       its assessment of witness credibility, and its analysis of the

       sufficiency and probative value of the evidence presented at

       trial. Therefore, the decision of whether to afford more weight

       to more recent evidence falls squarely within the discretion of

       the trial court.”) (citation omitted).

¶ 37   To be sure, merely recognizing husband’s laches defense does

  not mean that it will succeed. While the trial court held that laches

  did not apply to either principal or interest, in the alternative it

  made limited findings that husband had failed to meet his burden

  of proving this defense. Even so, for the reasons discussed in the

  following section, we further conclude that a remand is required.

                         C. Scope of the Remand

¶ 38   Considering the elements of laches outlines the need for a

  remand.

                           1. Laches Elements

¶ 39   Laches shields a party from untimely claims. See SCA

  Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC, 580

  U.S. ___, ___, 137 S. Ct. 954, 960 (2017). As an equitable doctrine,

  it may be asserted to deny relief to a party whose unconscionable




                                     15
  delay in enforcing a right has prejudiced the adverse party. See

  Hickerson, ¶ 12.

¶ 40   A laches defense comprises three elements: (1) full knowledge

  of the facts by the party against whom the defense is asserted; (2)

  unreasonable delay by that party in pursuing an available remedy;

  and (3) intervening reliance by and prejudice to the party asserting

  the defense. Id.

¶ 41   Everyone before us agrees that wife knew of the maintenance

  award, yet waited twenty-six years to enforce it. So, we address

  only the reasonableness of her delay and any resulting prejudice to

  husband.

                         a. Unreasonable delay

¶ 42   Unreasonable delay is a question of fact that depends on the

  circumstances of each case. See Keller Cattle Co. v. Allison, 55 P.3d

  257, 261 (Colo. App. 2002). “What may be inexcusable delay in one

  case will not be inconsistent with diligence in another.” See 2 John

  Norton Pomeroy, Pomeroy’s Equity Jurisprudence § 419c, at 175-76

  (5th ed. 1941).

¶ 43   When deciding whether delay is unreasonable, a trial court

  must weigh not only the length of time but also the attendant


                                   16
  circumstances. Loveland Camp No. 83, W.O.W. v. Woodmen Bldg. &

  Benevolent Ass’n, 108 Colo. 297, 305, 116 P.2d 195, 199 (1941).

  Considerations include “the acts and conduct of the party, if any,

  indicating either his assent to or acquiescence in the acts of the

  opposing party of which he then complains, or a waiver of his

  rights, and the nature and character of the property interests

  involved and to be affected.” See Foley v. Terry, 532 P.2d 765, 767

  (Colo. App. 1974) (not published pursuant to C.A.R. 35(f)) (quoting

  Graff v. Portland Town & Mineral Co., 12 Colo. App. 106, 113, 54 P.

  854, 856 (1898)). But no matter how unreasonable the delay, the

  inquiry still shifts to prejudice.

                                b. Prejudice

¶ 44   “Laches in legal significance, is not mere delay, but delay that

  works a disadvantage to another.” Pomeroy § 419d, at 178-79.

  Thus, the party asserting laches has the further burden of

  demonstrating prejudice. Nolan v. Dist. Court, 195 Colo. 6, 9, 575

  P.2d 9, 10 (1978).

¶ 45   In turn, prejudice must necessarily result from justifiable

  reliance on the actions of the opposing party, under the

  circumstances of the case considered as a whole. City of Thornton


                                       17
  v. Bijou Irrigation Co., 926 P.2d 1, 74 (Colo. 1996); see also Pomeroy

  § 419d, at 179 (commenting that prejudice requires a “showing as

  to whether the situation of the adverse party underwent a change

  during the period which elapsed while the complainant delayed

  institution of suit”). Prejudice may be economic, such as liability

  for greater damages or loss of return on investment that a timelier

  lawsuit would likely have prevented. Bristol Co. v. Osman, 190 P.3d

  752, 755 (Colo. App. 2007). Other forms of prejudice include

  detrimental change of position by the defendant or other

  circumstances arising during the period of delay that impair the

  defendant’s ability to defend. See Cullen v. Phillips, 30 P.3d 828,

  833 (Colo. App. 2001).

                           c. Interdependence

¶ 46   The concepts of delay and prejudice do not operate in their

  own separate vacuums but are, instead, interrelated. In Bristol Co.,

  190 P.3d at 755, the division explained as follows:

            A trial court must balance, on the one hand,
            the length of the delay in filing the
            infringement suit and the plaintiff’s
            explanation for the delay, against, on the other
            hand, the prejudice to the defendant resulting
            from the delay. Thus, it involves a weighing of



                                    18
             equities and depends on the trial court’s
             evaluation of the circumstances.

¶ 47   In other jurisdictions, a clear showing of one factor permits a

  lesser showing of the other: “If only a short period of time has

  elapsed since the accrual of the claim, the magnitude of prejudice

  require[d] before the suit should be barred is great, whereas if the

  delay is lengthy, prejudice is more likely to have occurred and less

  proof of prejudice will be required.” Zelazny v. Lyng, 853 F.2d 540,

  543 (7th Cir. 1988) (quoting Goodman v. McDonnell Douglas Corp.,

  606 F.2d 800, 807 (8th Cir. 1979)); see also Batiste v. City of New

  Haven, 239 F. Supp. 2d 213, 225 (D. Conn. 2002) (“Where there is

  no excuse for delay, defendants need show little prejudice; a weak

  excuse for delay may, on the other hand, suffice to defeat a laches

  defense if no prejudice has been shown.”) (citation omitted); Pavlik

  v. State, 637 P.2d 1045, 1048 (Alaska 1981) (“[W]here there is a

  long delay, a lesser degree of prejudice will be required.”).

         2. Application to Trial Court’s Findings on Burden of Proof

¶ 48   Recall, the trial court alternatively found that “even if laches

  were a defense in this particular proceeding, Husband did not prove

  to the Court that he suffered any prejudice as a result of not paying



                                     19
  court ordered maintenance for [twenty-six] years.” Notwithstanding

  deference to trial court factual findings, this “even if” finding is

  insufficient in three ways for us to conclude that husband failed to

  establish laches.

¶ 49   First, because delay and prejudice are interdependent, the

  court could not resolve prejudice without also considering the

  reasonableness of wife’s delay. Failure to do so is especially

  problematic where, as here, the delay was very lengthy. But in its

  “even if” discussion of laches, the court did not specifically address

  whether wife’s delay was reasonable.

¶ 50   True, the court referenced wife’s testimony that she feared

  husband, thought he was controlling, was concerned that he would

  hurt their grandchildren, and had difficulty finding an attorney who

  would take her case. Yet it did so in ruling that wife had not

  expressly waived her right to maintenance. Never did the court tie

  this evidence to its laches determination or find the delay to have

  been reasonable.

¶ 51   Second, while the court took up the prejudice element of

  laches, it did so in the context of husband’s assertion that he “was

  relying on an oral agreement.” The court then explained that


                                     20
  having found no such agreement, “the court cannot find Husband

  was prejudiced by Wife seeking judgment now.” But laches does

  not turn on, in the court’s words, “an oral or implied agreement to

  waive maintenance.”

¶ 52   Third, the court found that “Husband was able to buy and sell

  homes in the ensuing years post-divorce, earn a substantial

  retirement, earn a master’s degree, and live a comfortable lifestyle.”

  But this approach proves too much. After all, because the

  judgment debtor asserting laches will always have retained money

  that would otherwise have been paid to the judgment creditor, that

  gain cannot be the sole basis for declining to find prejudice.

¶ 53   Given all this, we remand for the trial court to reconsider the

  full scope of the laches defense, evaluate both delay and prejudice,

  and address the interdependence between them. The court shall do

  so on the existing record, without taking further evidence.




                                    21
                     III. Other Affirmative Defenses

¶ 54   Husband challenges the trial court’s rejection of his implied

  waiver and estoppel defenses.1 We uphold the trial court’s

  conclusions.

                                A. Waiver

                                  1. Law

¶ 55   Waiver is the intentional relinquishment of a known right, and

  may be implied from a party’s conduct if the conduct is free of

  ambiguity and clearly manifests the intent not to assert the right.

  In re Marriage of Hill, 166 P.3d 269, 273 (Colo. App. 2007).

¶ 56   We review a trial court’s waiver conclusion for an abuse of

  discretion. see, e.g., Shoen v. Shoen, 2012 COA 207, ¶ 12

  (“[Plaintiff]’s choice of law argument raises a question of waiver,

  which we review for an abuse of discretion.”), which means that the

  court has misconstrued or misapplied the law, or makes a decision

  that is manifestly arbitrary, unreasonable, or unfair. See Int’l

  Network, Inc. v. Woodard, 2017 COA 44, ¶ 24.



  1In his briefs, husband clarifies that he does not appeal the trial
  court’s finding of no express waiver.


                                    22
                              2. Application

¶ 57   Husband argues that wife told him that she waived her right

  to maintenance, but in any event, she showed implied waiver by

  failing to raise nonpayment of the award “despite opportunities to

  do so” during the twenty-six years. He points to different occasions

  — baptisms, a funeral, weddings, and some telephone calls — when

  the parties talked to one another and wife could have asked for

  maintenance.

¶ 58   For her part, wife acknowledged seeing husband during the

  twenty-six-year period, but denied that they interacted or

  communicated with one another. She testified that she “always

  planned on getting maintenance at some point,” and that she

  delayed collecting not because of any verbal agreement but because

  she feared husband, for the reasons discussed above.

¶ 59   The trial court resolved the conflicting testimony in wife’s

  favor, finding no express or implied waiver. The court found that

  wife “testified credibly that there was no conversation . . . about

  non-payment of maintenance to her.” It explained that “[h]usband’s

  testimony was vague about the nature of the conversation, where it

  took place, and any details which would convince the Court that


                                    23
  wife was knowingly giving up her right to maintenance under the

  separation agreement.” The court also rejected husband’s

  argument that wife’s twenty-six-year delay signified an implied

  waiver, finding that wife would not have given up “a substantial

  amount of maintenance for a lifetime” when she was “dealing with

  health problems and starting a new business.”

¶ 60   The court had the prerogative to decide which party it believed

  and on this basis to conclude that no implied waiver occurred. See

  A.J.L., 243 P.3d at 250. Because the record supports its

  determination, the court properly exercised its discretion. See

  Shoen, ¶ 12.

                               B. Estoppel

                                  1. Law

¶ 61   The equitable estoppel doctrine may afford relief from accrued

  arrearages. In re Marriage of Beatty, 2012 COA 71, ¶ 13 (child

  support). Before it may be applied as a bar, four elements must be

  proven: (1) the party against whom estoppel is asserted knew the

  true facts; (2) that party intended its conduct be acted on by the

  other party or led the other party to believe that its conduct is so

  intended; (3) the party asserting estoppel was ignorant of the true


                                    24
  facts; and (4) the party asserting estoppel detrimentally relied on

  the other party’s conduct. Jefferson Cty. Sch. Dist. No. R-1 v.

  Shorey, 826 P.2d 830, 841 (Colo. 1992).

¶ 62   “Whether the circumstances of a particular case involve

  representation and reasonable reliance giving rise to equitable

  estoppel are questions of fact.” Rocky Mountain Nat. Gas, LLC v.

  Colo. Mountain Junior Coll. Dist., 2014 COA 118, ¶ 30. “Findings of

  fact must be accepted on review, unless they are so clearly

  erroneous as not to find support in the record.” Ward v. Dep’t of

  Nat. Res., 216 P.3d 84, 93 (Colo. App. 2008).

                             2. Application

¶ 63   Husband asserts that he proved all four elements of estoppel:

  (1) wife knew of the maintenance award; (2) wife knew all along that

  she would seek to collect it eventually; (3) he did not know of her

  intention to collect maintenance; and (4) he detrimentally relied on

  wife’s inaction by making life choices that he would not otherwise

  have made had he known that she intended to collect maintenance.

¶ 64   The trial court rejected husband’s estoppel defense, making

  the following findings: (1) husband understood his obligation to pay

  maintenance under the separation agreement; (2) wife never told


                                    25
  him that he did not have to pay maintenance; and (3) husband did

  not detrimentally rely on wife’s assertion that she would not collect

  maintenance.

¶ 65   As for this last finding, the court noted that husband’s

  “non-payment of maintenance is not detrimental reliance.” To the

  contrary, the court described husband as being “substantially

  better off” for not paying any maintenance over the twenty-six

  years, noting that he had a boat, an ATV, retirement funds, a home

  with land and cars; he had obtained a master’s degree; and he

  could take a year off from work to build a custom home. The court

  also found that husband did not explain how he would have acted

  differently had he known wife would collect maintenance.

¶ 66   As with waiver, although contrary evidence may exist in the

  record, the court was free to weigh the evidence as it did and to

  determine that husband did not establish all four elements of the

  defense. See id.; A.J.L., 243 P.3d at 250; Rocky Mountain Nat. Gas,

  LLC, ¶ 30. We perceive no basis on which to disturb the court’s

  rejection of the estoppel defense.

¶ 67   Husband’s emphasis on the lack of findings about wife’s

  intentions does not require a different outcome. The court’s finding


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  that he failed to prove detrimental reliance alone precludes

  estoppel. See Shorey, 826 P.2d at 841 (estoppel requires a showing

  of all four elements); see also Beatty, ¶ 13 (the party claiming

  estoppel must demonstrate detrimental reliance).

                     IV. Modification of Maintenance

¶ 68   Husband contends the trial court erred in modifying rather

  than terminating his maintenance obligation. We are unable to

  resolve this contention because the propriety of the court’s order

  will depend on whether the court awards wife none, part, or all of

  her request for maintenance arrearages plus interest. Therefore, we

  reverse the modified maintenance award and remand for the court

  to reconsider the issue once it has determined whether laches bars

  any of wife’s requested relief.

                  A. Facts and Procedural Background

¶ 69   In the joint trial management certificate, the parties took “all

  or nothing” positions on whether the trial court should continue or

  terminate wife’s maintenance award. Wife sought “a future

  maintenance claim only if she is denied her judgment.” (Emphasis

  added.) Husband “request[ed that the trial court] terminate the

  current maintenance Order if the Court does not find that [his]


                                    27
  affirmative defenses absolve him of his obligation to pay [wife]

  maintenance.” (Emphasis added.) In other words, both parties

  argued that wife should either receive a judgment on past due

  maintenance or continue to receive maintenance going forward, but

  not both.

¶ 70   The parties adhered to the “all or nothing” position during

  closing argument at the hearing. Wife described her motion to

  modify maintenance as “prophylactic.” She reiterated that if the

  court “were inclined not to give us our half million dollar judgment,”

  her maintenance obligation should remain intact going forward.

  With little explanation, husband merely asked that the court “in

  fairness” terminate the award if it rejected his defenses.

¶ 71   For reasons known only to the court, it disregarded these

  positions by enforcing the full judgment against husband and

  ordering him to pay continuing, albeit reduced, maintenance for

  wife’s lifetime.

                     B. Standard of Review and Law

¶ 72   A trial court may modify the maintenance provisions of a

  separation agreement incorporated into a dissolution decree if, as




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  here, the agreement is silent on modification. In re Marriage of

  Udis, 780 P.2d 499, 502 (Colo. 1989).

¶ 73      A modification of maintenance requires a showing of changed

  circumstances so substantial and continuing as to make the

  existing terms unfair. § 14-10-122(1)(a), C.R.S. 2016. To determine

  whether changes are substantial and continuing, the court must

  examine all circumstances pertinent to an initial maintenance

  award, including all relevant circumstances of both parties. See

  Udis, 780 P.2d at 503; In re Marriage of Nelson, 2012 COA 205,

  ¶ 26.

¶ 74      The party seeking a modification has a heavy burden of

  proving that the provisions have become unfair under all relevant

  circumstances. Udis, 780 P.2d at 503. Still, in determining

  whether to continue or modify the maintenance award, a court

  should recognize that such an award may not impoverish the payor

  spouse. Santilli v. Santilli, 169 Colo. 49, 55, 453 P.2d 606, 609

  (1969).

¶ 75      Whether circumstances have sufficiently changed lies within

  the sound discretion of the trial court based on the facts presented.

  Absent an abuse of that discretion, we will not disturb the court’s


                                     29
  ruling. Nelson, ¶ 27. And we must construe the evidence in the

  light most favorable to the prevailing party. Id.

                              C. Application

¶ 76   Because the trial court’s treatment of maintenance ignored the

  parties’ de facto agreement that if wife was awarded the entire

  judgment, she would not receive further maintenance, this portion

  of the order must be set aside. On remand, the court shall

  reconsider this issue. Consistent with the parties’ positions, if wife

  receives a full judgment, the future obligation terminates; but if she

  receives no judgment, the obligation continues.

¶ 77   We recognize, however, a third scenario not contemplated by

  the parties in their “all or nothing” positions — whether to modify or

  terminate future maintenance should the court only partially

  enforce the past due the maintenance award. Granted, “[l]aches is

  a complete defense.” Hazard v. E. Hills, Inc., 45 A.3d 1262, 1271

  (R.I. 2012). Still, this scenario could arise if the court weighed the

  equities differently as between principal and interest.

¶ 78   Under this scenario, the court may exercise its discretion in

  determining whether to continue the maintenance obligation and, if

  so, whether the parties’ current needs and abilities warrant


                                    30
  modification. See In re Marriage of Ward, 740 P.2d 18, 20 (Colo.

  1987). Any order continuing or modifying maintenance must be

  supported by findings of fact and conclusions of law sufficiently

  explicit to give us a clear understanding of the basis of its order.

  See In re Marriage of Rozzi, 190 P.3d 815, 822 (Colo. App. 2008).

¶ 79      Finally, because maintenance awards are based on the parties’

  financial situations when such orders are entered, the trial court

  may take additional evidence of changed financial circumstances as

  it deems appropriate. See In re Marriage of Morton, 2016 COA 1,

  ¶ 14.

                    V. Trial Court’s Attorney Fee Award

¶ 80      Husband contends the trial court erred in awarding wife her

  attorney fees as the prevailing party under the separation

  agreement. The parties concede that the fee award must be set

  aside if we disturb the modification order. We agree and set aside

  the fee award for reconsideration after the court has resolved

  husband’s laches defense.

¶ 81      We reject wife’s argument that on remand the trial court

  should also consider her prior request for fees under section

  14-10-119, C.R.S. 2016. The court did not address this request in


                                     31
  its findings, and wife did not file a cross-appeal challenging the

  court’s omission. For these reasons, wife is now precluded from

  arguing that the court must take up this issue on remand. See

  Leverage Leasing Co. v. Smith, 143 P.3d 1164, 1167-68 (Colo. App.

  2006) (holding that where a party does not file a cross-appeal, they

  may only raise arguments in support of the trial court’s judgment

  that do not seek to increase their rights under the judgment).

                   VI. Appellate Attorney Fee Request

¶ 82   Wife seeks an award of her appellate attorney fees under the

  separation agreement, section 14-10-119, and C.A.R. 39.1.

¶ 83   Because husband’s appeal has succeeded in part, wife is not

  the prevailing party under the separation agreement. Nor is

  husband, because wife succeeded on other issues. We therefore

  deny that request. See C.A.R. 39.1.

¶ 84   However, as the trial court is better equipped to resolve the

  factual issues associated with wife’s section 14-10-119 request for

  appellate attorney fees, we remand this issue for its consideration.

  See Beatty, ¶ 22.




                                    32
                             VII. Conclusion

¶ 85   We reverse those portions of the trial court’s order (1) rejecting

  husband’s laches defense, (2) awarding attorney fees to wife as the

  prevailing party, and (3) modifying husband’s maintenance

  obligation. We remand the case for the court to consider whether

  laches bars wife’s entitlement to maintenance interest or

  arrearages, and then to reconsider the maintenance and attorney

  fee awards based upon its laches determination, as well as wife’s

  claim for appellate attorney fees under section 14-10-119.

¶ 86   In all other respects, the trial court’s order is affirmed.

       JUDGE BOORAS and JUDGE FREYRE concur.




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