Opinion
No. 2-921 / 02-0412.
Filed December 11, 2002.
Appeal from the Iowa District Court for Jones County, DAVID M. REMLEY, Judge.
Petitioner appeals the district court ruling dismissing her petition for past child support. AFFIRMED.
Douglas Herman of Strittmatter Herman, Monticello, for appellant.
Michael Fay of Fay Law Office, Cedar Rapids, for appellee.
Considered by HUITINK, P.J., and MAHAN and VAITHESWARAN, JJ.
Petitioner appeals the district court ruling dismissing her petition for past child support. We affirm.
Background Facts and Proceedings. Lori Mysak and Jerrold Fowler are the biological parents of Cory J. McBride, born February 7, 1983. Lori and Jerrold dated for approximately two weeks in 1982. Lori later married Larry Joe McBride in October of 1982, and Cody was born during this marriage.
Jerrold was separated from his wife, Madeline, at this time. Jerrold and Madeline later divorced.
Cody lived with his mother from February 7, 1983, until July 6, 1986, with the exception of a six-month period. From July 6, 1986, until late August 1993, Cory lived with Bill and Marla Heeren in Cedar Rapids. The Heerens provided total support, including health insurance, for Cory. They received no money from Lori and were not on State assistance. From late August 1993 until October 8, 1997, Cory resided once again with his mother.
On January 29, 1997, Lori filed a petition to establish paternity against Jerrold. The record is clear that Jerrold was unaware of the paternity possibility until this time. A consent order establishing paternity and current and accrued support was filed October 8, 1997. Jerrold's child support obligation was set at $520 per month. Accrued support was set in the sum of $1040. It is undisputed that Jerrold has paid all support, both current and accrued, as a result of the court order of October 8, 1997. Jerrold also established a relationship with Cory.
On February 7, 2000, Lori filed a petition for past support seeking judgment against Jerrold for an amount equal to "the child support obligation which would have been in place and accruing over the course of the minor child's life if paternity had been established and/or not in dispute at the child's birth." (emphasis added.)
Jerrold filed an answer alleging Cory has been emancipated since December 1999 and Lori was not entitled to any support for the long periods of time in which Cory was not in her care. Following trial, the district court dismissed Lori's petition based upon the equitable doctrine of laches and estoppel by acquiescence. Lori appeals.
Dismissal of Petition. Appellate review of equity actions is de novo. Iowa R.App.P. 6.4. Lori raises the issue on appeal that the district court erred in dismissing her petition because Jerrold did not plead any affirmative defenses.
There is no dispute between the parties that Jerrold did not plead the affirmative defenses of laches or estoppel by acquiescence. An issue not raised in the pleadings is generally considered waived and not considered at trial or on appeal. Folkers v. Britt, 457 N.W.2d 578, 580 (Iowa 1990); City of Clinton v. Loeffelholz, 448 N.W.2d 308, 310 (Iowa 1989). However, when the parties proceed without objection to try an issue not raised in the pleadings, that issue is generally deemed to be properly raised and properly before the district court. Folkers, 457 N.W.2d at 580. We conclude that it is apparent from the record that the parties tried the issues by consent. The district court certainly had the evidence before it to reach a conclusion on the issues of laches and acquiescence. The district court concluded that Lori did not proffer any reasons for delaying paternity proceedings until Cory was almost fourteen years of age. Nor did she explain why the current petition was not filed until Cory's seventeenth birthday. The district court found that Lori "clearly strongly suspected that Jerrold was the biological father of Cory soon after she learned of her pregnancy." In addition, she made statements to Jerrold's estranged wife about the possibility of Jerrold's paternity. She also informed Larry McBride that he was not the father prior to their marriage in 1982. The district court also found that the evidence was devoid of any knowledge on Jerrold's part until the first petition was filed in January 1997. The district court stated:
Jerrold's only child is Cory McBride. Jerrold has been deprived of contact with his only child for the first 14 years of Cory's life. I conclude that Jerrold has been prejudiced by Lori's delay in initiating her claim for paternity and support. The further delay in initiating the action for accrued support is unreasonable, and it would be inequitable to allow Lori to recover additional accrued support based upon a petition filed 17 years after Cory's date of birth. I conclude that the equitable doctrine of laches applies and that Lori's claim should be dismissed.
I conclude that Lori's 17-year delay in filing her claim for additional accrued support is contrary to the policy of stability and conclusiveness. Her delay in filing the current action waived her right to additional accrued support, and she is estopped by acquiescence from pursuing this claim.
We agree with the district court and therefore affirm.