In re Marriage of Gallo.
2024 COA 86. No. 23CA0873. Past Due Child Support—Affirmative Defenses—Promissory Estoppel.
August 8, 2024
In 2007, the district court dissolved the parties’ marriage and ordered father to pay $1,250 per month in child support. Shortly thereafter, father told mother he had health issues that affected his ability to work, but he never filed a motion to modify the child support order. In 2008, mother sent father an email stating that, based on his health issues, he didn’t have to pay her child support. Father paid no child support to mother. In 2023, shortly before the child’s emancipation, mother moved for a judgment against father for $233,025, which was the total principal amount of past due child support. Mother also requested post-judgment interest. In response, father asserted an affirmative defense of promissory estoppel based on his detrimental reliance on mother’s statements in her 2008 email. Neither party requested a hearing. Based on the filings, the district court concluded that mother’s email was not a promise, so father failed to establish the first element of promissory estoppel. The district court found in mother’s favor and awarded her the full amount of past due child support and post-judgment interest.
On appeal, father argued that the court of appeals should recognize promissory estoppel as an affirmative defense under the facts of this case. Promissory estoppel is typically asserted as a claim for relief, not as an affirmative defense. Father provided no legal authority or a viable rationale to explain why promissory estoppel should be allowed to defeat a claim for the principal amount of past due child support. And based on public policy considerations, the Colorado Supreme Court has held that laches is not available as an affirmative defense to such a claim. Applying Supreme Court case law on laches’ applicability to claims for child support, the court concluded that promissory estoppel is not a viable defense to a claim to collect the principal amount of past due child support. Accordingly, the district court did not err in rejecting father’s defense.
Father also contended that the district court erred by finding that mother’s statements in her email were insufficient to satisfy the first two elements of promissory estoppel. However, parents lack authority to unilaterally waive or modify a child support order, so as a matter of law, even if mother’s email functioned as a promise, father could not have reasonably or legally relied on it. And the record supports the district court’s factual finding that mother’s email did not constitute a promise but was meant to temporarily accommodate father’s health and work circumstances. Therefore, the district court did not err by concluding that mother’s email did not constitute a promise.
The order was affirmed.