Emery v. Smith, 361 S.C. 207, 603 S.E.2d 598 (Ct.App.2004), is a published September 2004 opinion from the South Carolina Court of Appeals. I was retained to defend an appeal of a family court order requiring Mr. Smith to reimburse his ex-wife (my client) for her 25% share of his military retirement benefits that he had failed to pay her over an approximate ten-year period. At trial in the family court, Mr. Smith had argued that laches barred Ms. Emery’s claim but the family court rejected this defense. Mr. Smith raised the same defense on appeal.
The Court of Appeals again rejected Mr. Smith’s laches defense and held in Ms. Emery’s favor. It found that his failure to notice his ex-wife of his retirement, as required under the parties’ order, barred his laches claim. Because Ms. Emery would not know of her entitlement to retirement benefits until she was informed by Mr. Smith of his retirement, the Court of Appeals found that any delay in enforcing her rights to this retirement was Mr. Smith’s doing, and thus the delay was not unreasonable on her part.
This appeal was part of my inspiration for the lecture The Laches Defense in Family Court.
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