This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat.' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-95-2519

In Re the Marriage of:

Judith F. Erickson, petitioner,

Respondent,

vs.

Robert William Erickson,

Appellant.

Filed June 18, 1996

Affirmed

Kalitowski, Judge

Washington County District Court

File No. F32107978

Jeffery J. Jensen, Terpstra, Black, Brandell & Hoffman, 913 Main Street, Elk River, MN 55330 (for Respondent)

Stephen C. Fiebiger, Stephen C. Fiebiger & Associates, Chartered, One Financial Plaza, Suite 1910, 120 South Sixth Street, Minneapolis, MN 55402 (for Appellant)

Considered and decided by Norton, Presiding Judge, Kalitowski, Judge, and Schultz, Judge.*

U N P U B L I S H E D O P I N I O N

KALITOWSKI, Judge

Appellant Robert William Erickson claims the trial court erred by awarding respondent Judith F. Erickson a judgment for support paid by respondent after the child was emancipated and in denying him an evidentiary hearing. We affirm.

D E C I S I O N

I.

Respondent claims this appeal is untimely. Motions for amended findings extend the time to appeal family court judgments to 30 days after service of written notice of filing of an order addressing the motion. Minn. R. Civ. App. P. 104.04, subd. 2. Respondent served appellant by mail with such a notice on October 26, 1995. The time to appeal expired 33 days later, on November 28, 1995. See Minn. R. Civ. App. P. 126.01; Minn. R. Civ. P. 6.05 (three days added to time period if service is by mail). Because appellant filed his appeal on November 28, 1995, the appeal is timely.

II.

The district court found the child emancipated no later than October 1990 because the child had lived on his own, dropped out of school, and reached age 18. Appellant claims the district court erred in interpreting the order setting the support obligation. We disagree. The order states respondent's obligation continues "until the minor child reaches the age of 18 years or graduates from high school, but in no event beyond the age of 20 years, or is otherwise emancipated." Here, respondent's support obligation terminated when the emancipated child reached age 18 and was not in school.

Appellant also claims the district court's emancipation finding is not supported by the record. We disagree. The critical questions regarding emancipation are whether the parent surrendered the legal right to control the child's actions and the degree to which the parent-child relationship has been severed. Cummins v. Redman, 312 Minn. 237, 240, 251 N.W.2d 343, 345 (1977). Appellant's surrender of control over the child and a severance of the parent-child relationship are implicit in the district court's finding that after the child dropped out of high school, he "lived in apartments with other people and supported himself by working." Further, because the trial court found appellant did not show the child was "not capable of self support," appellant's support of the child after the child moved back in with him is not fatal to the finding of emancipation. See In re Fiihr, 289 Minn. 322, 326, 184 N.W.2d 22, 25 (1971) (emancipation may occur even if child lives with parents).

III.

Appellant claims laches precludes respondent from recovering the overpaid support. Laches is an equitable defense to an action brought to enforce a known right after an unreasonable delay which prejudiced the other party. M.A.D. v. P.R., 277 N.W.2d 27, 29 (Minn. 1979). Support obligations should automatically terminate when a child is emancipated. Disrud v. Disrud, 474 N.W.2d 857, 859 (Minn. App. 1991). Here, however, the automatic withholding did not terminate and, within a year of discovering the overpayment, respondent, who lives in Florida, retained Minnesota counsel and started these proceedings. On these facts, we cannot say respondent unreasonably delayed asserting her rights or that appellant is prejudiced by having to repay amounts to which he was not entitled. Further, appellant continued to cash support checks, including amounts for arrears, long after the judgment for arrears was satisfied and after the child moved out of appellant's home, dropped out of school, reached age 18, and moved into an apartment. Thus, appellant lacks the "clean hands" needed to invoke laches. See, e.g., Froats v. Froats, 415 N.W.2d 445, 447 (Minn. App. 1987) ("unclean hands" precludes application of laches).

IV.

Appellant claims he was denied due process of law because the district court denied his request for an evidentiary hearing. Where, as here, a party can submit written arguments and affidavits, lack of an evidentiary hearing does not offend due process. Sieber v. Sieber, 258 N.W.2d 754, 756 (Minn. 1977); see Minn. R. Gen. Prac. 303.03 (d) (absent "good cause," family court motions decided without evidentiary hearings).

Appellant claims he established good cause for an evidentiary hearing by claiming: (1) exhibits were not attached to the papers served on him and he could not examine the arrears calculation of respondent's employer; (2) the affidavit of the child's brother stating the child was emancipated was submitted near the deadline for supplemental filings; and (3) emancipation is a fact question. We disagree. Appellant received the exhibits, including the arrears calculations, long enough before the hearing to prepare to meet them and the affidavit of the child's brother was timely filed. Further, affidavits are a proper basis for resolving fact disputes. See Straus v. Straus, 254 Minn. 234, 235, 94 N.W.2d 679, 680 (1959) (appellate courts defer to trial court resolution of issues raised by conflicting affidavits).

V.

Appellant cites a foreign case to argue voluntary overpayments of support cannot be recovered by the payor. See Tollison v. Tollison, 566 N.E.2d 852, 854 (Ill. App. 1991) ("[t]he general rule is no credit is given for voluntary overpayments of child support"). Minnesota has not adopted the so-called "general rule." In addition, Tollison's "general rule" does not necessarily apply to overpayments caused by wage withholding. Id. Because this case involves automatic wage withholding and does not involve a minor child who would be adversely affected by the repayment, we conclude the "general rule" of Tollison is not applicable.

VI.

Appellant argues the district court erred in terminating withholding because respondent did not follow the procedures in Minn. Stat. ' 518.611, subd. 10(a) (1994). We disagree. Here, under the terms of the support order, respondent's support obligation had terminated and the trial court's entry of an order terminating wage withholding was mandatory. Id.

Affirmed.


Footnotes

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, ' 10.