This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-99-1961

 

In Re the Marriage of:

Gwendolyn J. Pollard,
n/k/a Gwendolyn J. Smith, petitioner,
Appellant,

vs.

William S. Pollard,

Respondent.

 

Filed July 3, 2000

Affirmed in Part and Reversed in Part

Davies, Judge

 

St. Louis County District Court

File No. F567623241

 

 

Arne D. Anderson, 308 Board of Trade Building, 301 West First Street, Duluth, MN 55802 (for appellant)

 

David R. Oberstar, Fryberger, Buchanan, Smith & Frederick, P.A., 700 Lonsdale Building, 302 West Superior Street, Duluth, MN 55802 (for respondent)

 

††††††††††† Considered and decided by Davies, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.


U N P U B L I S H E D†† O P I N I O N

DAVIES, Judge

A 1968 dissolution stipulation stated that child support and maintenance would be reduced 1/7th as each of the seven children was emancipated.† The judgment entered on that stipulation stated, however, that only child support would be reduced.† In 1969, respondent William S. Pollard moved to conform the judgment to the stipulation.† The district court never ruled on the motion, but respondent nonetheless reduced maintenance as if the motion to conform had been granted and stopped paying maintenance entirely in 1979, when the partiesí youngest child was emancipated.

In 1999, appellant Gwendolyn J. Pollard (n/k/a Gwendolyn J. Smith) sought maintenance arrears; the district court denied her motion.† Respondent, at the same time, renewed his 1969 motion to conform the judgment to the stipulation; that motion was granted.† We affirm in part and reverse in part.

FACTS

Appellant and respondent were divorced in January 1968 under a signed stipulation that provided for alimony (maintenance) and child support.† The partiesí signed stipulation reads in relevant part:

[A]s each minor child becomes self-supporting, married or attains the age of 21 years, said support and alimony payments shall be reduced by one-seventh.

 

In the filed stipulation, and in the filed findings of fact and conclusions of law, the phrase ďand alimonyĒ was blackened out by pen, without being initialed.† The filed judgment did not include the phrase at all.† The record does not indicate who blacked out the phrase.†

In January 1969, respondent brought a motion to conform the judgment to the stipulation, that is, to correct the alleged mistake in omitting the blacked-out phrase.† At the time, counsel for the parties met in chambers with the district court judge.† The judge then wrote a letter confirming that the omission was inadvertent and offering suggestions on how the parties might proceed.† The record does not contain either a formal adjudication on the motion to conform the judgment or information on whether the parties settled the issue.†

Respondent paid support and spousal maintenance until 1979, when the seventh child became emancipated.† Each time a child became self-supporting, married, or turned 21, respondent reduced by 1/7th the amount of monthly child support and maintenance obligations he paid.

At no time from 1969 through 1998 did appellant contest respondentís 1/7th reduction in his maintenance payments to her.† But in early 1999, appellant brought a motion seeking maintenance arrearages and respondent renewed his 30-year-old motion, seeking the same relief as in 1969.† In September 1999, the district court determined that the doctrine of laches applied to appellantís claim for maintenance arrearages and denied her motion.† The district court determined that respondentís motion to correct a clerical mistake in the 1969 filings remained before the court because the motion had never been ruled on or dismissed.† The district court granted respondentís 30-year-old motion and ordered that the 1969 judgment was to be read to include the blacked-out phrase.† This appeal follows.

D E C I S I O N

I.

 

††††††††††† Laches is an equitable defense to an action raised to enforce a known right after an unreasonable delay prejudicing the other party.† M.A.D. v. P.R., 277 N.W.2d 27, 29 (Minn. 1979).† The standard of review of the district courtís decision regarding laches is whether the court abused its discretion.† In Re Marriage of Opp, 516 N.W.2d 193, 196 (Minn. App. 1994), review denied (Aug. 24, 1994).

The doctrine of laches is based on a public policy to discourage stale claims.† St. Paul, M. & M. Ry. Co. v. Eckel, 82 Minn. 278, 282, 84 N.W. 1008, 1009 (1901).† Laches depends on the circumstances of each case, the nature of the claim, and whether the delay has been unnecessary and unreasonable.† Id.† Determining whether a delay is inexcusable is closely related to determining whether a party suffered prejudice from the delay.† Goodman v. McDonnel Douglas Corp., 606 F.2d 800, 807 (8th Cir. 1979).

If only a short period of time has elapsed since the accrual of the claim, the magnitude of prejudice required 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.

 

Id.† Generally, prejudice in a laches case ďstems from such factors as loss of evidence and unavailability of witnesses, which diminish a defendantís chances of success.Ē† Id. at 808 n.17.

The district court in 1999 found that from 1969 until 1979 respondent paid spousal maintenance as if the judgment allowed him to reduce maintenance payments by 1/7th as each child was emancipated.† At no time during those 10 years did appellant contest the maintenance reductions.† For more than 20 years after receiving the final maintenance payment, appellant did not assert that stopping maintenance payments violated the 1969 judgment.

††††††††††† This record supports the district courtís conclusion that appellant waited unreasonably before seeking relief.† Although an express finding of prejudice is advisable to support a finding of laches, the district court here did not abuse its discretion in applying laches.† Respondent is currently incapacitated and living in a nursing home and thus cannot personally defend against appellantís claim.† The original district court judge and the original attorneys for both parties are now dead.† The lengthy delay and unavailability of witnesses are sufficient to establish prejudice as a matter of law.† The district court did not abuse its discretion in applying laches.† We affirm.

II.

††††††††††† Although moot, we choose to address respondentís motion to conform the judgment to the stipulation.† We fear a failure to address the issue might be perceived as approval of the district court decision.

Respondent did not pursue his motion after he filed it in 1969 or after the partiesí attorneys conferred informally with the court.† A party is deemed to have abandoned a motion, waiving any claims thereon, when the party conducts no discovery, requests no hearings, and presents no evidence to support the motion.† Hicks v. Hicks, 533 N.W.2d 885, 886 (Minn. App. 1995).† Because respondent did not act on his motion within a reasonable time after filing it in 1969, he abandoned it.† And a new motion at this time is, in this context, both moot and untimely.† The district court erred in modifying the judgment.† We reverse that portion of the order.

††††††††††† Affirmed in part and reversed in part.