This issue was addressed in the unpublished opinion of the 1^st Division of the Court of Appeals in Marriage of Krogseth on May 16, 2011.  In that case, the father claimed that the ex-spouse received $389 per month of his child support for daycare that never occurred for 84 months.

The appellate court reviewed RCW 26.19.080 which provides for reimbursement if the overpayment amounts to at least 20% of the obligor’s annual daycare expense.  Since the mother was not incurring any daycare expense for this period, the father was justified in bringing this action.

A further issue arose in the Krogseth case relating to whether the father was sitting on his rights for an extended period of time.  The appellate court was asked to consider the argument that if the father had sought a modification or adjustment of his child support years ago, the court would have been presented with the issue of daycare and the increased amount of basic support.  In other words, the mother claimed that the total amount of child would have increased and the father would not have been entitled to $32,000+ of overpaid day care.  The appellate court sent the case back to the trial court to look at this issue.

What do we get from this case?  Don’t sit on your rights.  The equitable defenses of laches and equitable estoppel may bar a right to reimbursement.  You can have a right to reimbursement  but if you don’t timely act, you may lose that right.