MCKELLAR VS. MCKELLAR (CHILD SUPPORT)

Statutes cited

Key holdings

Practitioner summary

Equitable defenses such as estoppel or waiver may be asserted by the obligor in a proceeding to reduce child support arrearages to judgment (Parkinson v. Parkinson, 106 Nev. 481, 483, 796 P.2d 229, 231 (1990)). Waiver requires an intentional relinquishment of a known right, may be express or implied from conduct, and presents a question of fact. Substantial evidence supported the finding of no waiver: the obligee repeatedly requested payment and offered to forgive support only in exchange for a stepparent adoption the obligor refused; the roughly 14-year delay was but one non-dispositive factor. On retroactivity, the court applied the general presumption favoring prospective application unless the legislature clearly manifests a contrary intent or its intent cannot otherwise be satisfied (Convention Properties v. Washoe Co. Assessor, 106 Nev. 400, 402, 793 P.2d 1332, 1333 (1990); Holloway v. Barrett, 87 Nev. 385, 390, 487 P.2d 501, 504 (1971)). The legislature had considered and deleted a subsection expressly making the amendment retroactive - instructive of intent (citing Crespin v. Kizer and State v. Barnard) - and prospective application advanced the legislative goal of eliminating the limitations period going forward. The 1987 amendment therefore does not apply retroactively, and NRS 11.190 bars claims already time-barred at commencement. Affirmed in part, reversed in part, and remanded to determine the amount of arrearages owed.

In plain language

James 'Kim' McKellar was ordered in a 1974 divorce to pay $300 per month in child support for the parties' daughter, plus medical and educational expenses. He stopped paying in July 1977. Nearly 14 years later, in 1991, his ex-wife (Metzler) filed to collect the arrearages. A referee found no waiver and awarded her more than $122,000 in arrearages, interest, expenses, and fees, which the district court upheld. On appeal the Nevada Supreme Court addressed two issues. First, on waiver: the court affirmed the finding that Metzler had not waived her right to collect. Although she waited almost 14 years, delay alone is not dispositive; she had consistently demanded payment and, in 1983, even offered to forgive support if McKellar would consent to the daughter's adoption by her new husband, which McKellar refused. Second, on the statute of limitations: the court held that the 1987 amendment to NRS 125B.050, which eliminated the limitations period for collecting child support arrearages, does not apply retroactively. The general six-year statute (NRS 11.190) therefore bars any arrearages already time-barred when Metzler filed. The court affirmed the no-waiver finding, reversed the retroactive application of NRS 125B.050, and remanded to recalculate the amount owed.