Enforcement (or Defending Enforcement) of Family Court Orders (July 2016)

Material for Charleston School of Law lecture, July 2016

Although not really cognized as such, family court orders are a court of equity’s creation of private law. While applicable South Carolina civil or criminal code sections set limits on conduct for all citizens or some class of citizens, a family court order sets rights and responsibilities for the parties subject to that particular order. And the consequences of not following such orders are powerful:

An adult who wilfully violates, neglects, or refuses to obey or perform a lawful order of the court may be proceeded against for contempt of court. An adult found in contempt of court may be punished by a fine, a public work sentence, or by imprisonment in a local correctional facility, or any combination of them, in the discretion of the court, but not to exceed imprisonment in a local correctional facility for one year, a fine of fifteen hundred dollars, or public work sentence of more than three hundred hours, or any combination of them. S.C. Code Ann. §63-3-620.

The tool of contempt sanctions puts police powers in the hands of private citizens. Ultimately, if one party does not follow a family court order, the other party may be able to have that party incarcerated. Yet, while it may occasionally surprise our clients, family court orders are not self-enforcing. Even support orders handled by the family court’s bookkeeping clerks will sometimes benefit from the use of private counsel to be enforced. Knowing how to enforce family court orders (or defend enforcement of these orders) is a skill every family court practitioner must master. The tool for enforcement is a rule to show cause.

In 2012, South Carolina implemented Family Court Rule 14, setting forth procedures for Rules to Show Cause:

(a) For Contempt of Court. Except for direct contempt of court, contempt of court proceedings shall be initiated only by a rule to show cause duly issued and served in accordance with the provisions hereof.

(b) Issuance; Form. A rule to show cause for contempt of court shall be issued by a Family Court judge, except as provided by Rules 24 and 27, SCRFC. The rule to show cause shall be signed by the issuing judge with the date of issuance and shall require the responding party to appear in court, at a clearly stated date, time and place, to show cause why the responding party should not be held in contempt and why permissible relief requested by the moving party should not be granted.

(c) Affidavit or Verified Petition. No rule to show cause shall be issued unless based upon and supported by an affidavit or verified petition, or unless issued by the judge sua sponte. The supporting affidavit or verified petition shall identify the court order, decree or judgment which the responding party has allegedly violated, the specific act(s) or omission(s) which constitute contempt, and the specific relief which the moving party is seeking. Such court order, decree or judgment shall be attached to the affidavit or certified petition.

(d) Notice. The rule to show cause, and the supporting affidavit or verified petition, shall be served, in the manner prescribed herein, not later than ten days before the date specified for the hearing, unless a different notice period is fixed by the issuing judge within the rule to show cause. In an emergency situation, the notice period of ten days may be reduced by the issuing judge.

(e) Service. The rule to show cause shall be served with the supporting affidavit or verified petition by personal delivery of a duly filed copy thereof to the responding party by the Sheriff, his deputy or by any other person not less than eighteen (18) years of age, not an attorney in or a party to the action.

(f) Return. If at the contempt proceeding the responding party intends to seek counsel fees and costs, or other appropriate relief permitted by law, then he shall serve a return to the rule to show cause prior to the commencement of the hearing, unless a Family Court judge requires a return to be served at some other time. The responding party’s failure to serve a return does not relieve the moving party from the burden of establishing contempt of court.

(g) Hearing Procedure. The contempt hearing shall be an evidentiary hearing with testimony pursuant to the Rules of Evidence, except as modified by the Family Court Rules. At the contempt hearing, the moving party must establish a prima facie case of willful contempt by showing the existence of the order of which the moving party seeks enforcement, and the facts showing the respondent’s noncompliance. The moving party shall satisfy the burden of proof required by law for the specific nature of contempt before the court. Once the moving party establishes a prima facie case, the respondent is entitled to present evidence of a defense or inability to comply with the order. If requested, the Court may allow reply testimony. The Court may impose sanctions provided by law upon proper showing and finding of willful contempt, and may award other appropriate relief properly requested by a party to the proceeding.

The form for family court rules to show cause, SCCA415, can be downloaded at: http://www.judicial.state.sc.us/forms/word/SCCA415.dot.

Under Rule 14, the supporting affidavit or verified petition must now “identify the court order, decree or judgment which the responding party has allegedly violated, the specific act(s) or omission(s) which constitute contempt, and the specific relief which the moving party is seeking.” Rule 14(c), SCRFC. Due process would have appeared to have required such notice but previously such information was sometimes lacking in the affidavit or petition.

Rules to show cause now have to be served ten days before the hearing unless the court order issuing the rule specifies otherwise. Rule 14(d), SCRFC. Rules may now be served “by any other person not less than eighteen (18) years of age, not an attorney in or a party to the action.” Rule 14(e), SCRFC. Unlike authorized methods of service for summons and complaints allowed under Rule 4(d)(1), SCRCP, Rule 14(e), SCRFC requires personal service.

Rule 14 also notes a requirement that a return be filed if the defending party is seeking counsel fees and costs: “If at the contempt proceeding the responding party intends to seek counsel fees and costs, or other appropriate relief permitted by law, then he shall serve a return to the rule to show cause prior to the commencement of the hearing, unless a Family Court judge requires a return to be served at some other time.” Rule 14(f), SCRFC. Left unresolved is how long prior to the commencement of the hearing such a return must be served. Is service as the parties are walking into the courtroom sufficient?

Finally, Rule 14 makes reply testimony discretionary, whereas I would have previously considered it mandatory if requested. See Rule 14(g), SCRFC, “If requested, the Court may allow reply testimony.”

Civil Versus Criminal Contempt

Miller v. Miller, 375 S.C. 443, 652 S.E.2d 754 (Ct.App.2007) provides an excellent analysis of the difference between civil and criminal contempt:

The determination of whether contempt is civil or criminal depends on the underlying purpose of the contempt ruling. The major factor in determining whether a contempt is civil or criminal is the purpose for which the power is exercised, including the nature of the relief and the purpose for which the sentence is imposed. The purpose of civil contempt is to coerce the defendant to do the thing required by the order for the benefit of the complainant.
The primary purposes of criminal contempt are to preserve the court’s authority and to punish for disobedience of its orders. If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court.

An unconditional penalty is criminal in nature because it is solely and exclusively punitive in nature. The relief cannot undo or remedy what has been done nor afford any compensation and the contemnor cannot shorten the term by promising not to repeat his offense. If the relief provided is a sentence of imprisonment, it is punitive if the sentence is limited to imprisonment for a definite period. If the sanction is a fine, it is punitive when it is paid to the court. However, a fine that is payable to the court may be remedial when the contemnor can avoid paying the fine simply by performing the affirmative act required by the court’s order.

In civil contempt cases, the sanctions are conditioned on compliance with the court’s order. The conditional nature of the punishment renders the relief civil in nature because the contemnor can end the sentence and discharge himself at any moment by doing what he had previously refused to do. If the relief provided is a sentence of imprisonment, it is remedial if the defendant stands committed unless and until he performs the affirmative act required by the court’s order. Those who are imprisoned until they obey the order, carry the keys of their prison in their own pockets. If the sanction is a fine, it is remedial and civil if paid to the complainant even though the contemnor has no opportunity to purge himself of the fine or if the contemnor can avoid the fine by complying with the court’s order.

The distinction between civil and criminal contempt is critical, because criminal contempt triggers additional constitutional safeguards. Civil contempt must be proved by clear and convincing evidence. In a criminal contempt proceeding, the burden of proof is beyond a reasonable doubt. Intent for purposes of criminal contempt is subjective, not objective, and must necessarily be ascertained from all the acts, words, and circumstances surrounding the occurrence. Prosecutions for serious criminal contempts [in which the court wishes to sentence the defendant to imprisonment of more than six months] are subject to the jury trial protections of the Sixth Amendment.

A civil contempt finding is purgeable: that is once a violating party comes into compliance the sanction is lifted.

In civil contempt cases, the sanctions are conditioned on compliance with the court’s order. The conditional nature of the punishment renders the relief civil in nature because the contemnor can end the sentence and discharge himself at any moment by doing what he had previously refused to do. If the relief provided is a sentence of imprisonment, it is remedial if the defendant stands committed unless and until he performs the affirmative act required by the court’s order…. Those who are imprisoned until they obey the order, carry the keys of their prison in their own pockets. If the sanction is a fine, it is remedial and civil if paid to the complainant even though the contemnor has no opportunity to purge himself of the fine or if the contemnor can avoid the fine by complying with the court’s order.

Miller v. Miller, 375 S.C. 443, 652 S.E.2d 754, 761 (Ct.App. 2007)

In addition to contempt sanctions, the party proving the other party’s contempt is entitled to attorney’s fees and costs for documenting the contempt under the theory of “compensatory contempt.”

Courts, by exercising their contempt power, can award attorney’s fees under a compensatory contempt theory. Compensatory contempt seeks to reimburse the party for the costs it incurs in forcing the non-complying party to obey the court’s orders. In a civil contempt proceeding, a contemnor may be required to reimburse a complainant for the costs he incurred in enforcing the court’s prior order, including reasonable attorney’s fees. The award of attorney’s fees is not a punishment but an indemnification to the party who instituted the contempt proceeding. … The court is not required to provide the contemnor with an opportunity to purge himself of these attorney’s fees in order to hold him in civil contempt. The award of attorney’s fees is not part of the punishment; instead, this award is made to indemnify the party for expenses incurred in seeking enforcement of the court’s order.

Abate v. Abate, 660 S.E.2d 515, 520, n. 4 (S.C. App. 2008) (citations omitted).

Elements of Civil Contempt Proof

Because civil contempt carries serious sanctions, there are numerous procedural protections afforded a party who has allegedly violated a contempt order. “Contempt results from a willful disobedience of a court order.” Lindsay v. Lindsay, 328 S.C. 329, 345, 491 S.E.2d 583, 592 (Ct.App. 1997). Willful disobedience requires an act to be “done voluntarily and intentionally with the specific intent to do something the law forbids, or with the specific intent to fail to do something the law requires to be done; that is to say, with bad purpose either to disobey or disregard the law.” Spartanburg Co. Dep’t of Soc. Servs. v. Padgett, 296 S.C. 79, 82-83, 370 S.E.2d 872, 874 (1988). A party seeking a contempt finding for violation of a court order must show the order’s existence and facts establishing the other party did not comply with the order. Hawkins v. Mullins, 359 S.C. 497, 501, 597 S.E.2d 897, 899 (Ct. App. 2004). “The language of the commands must be clear and certain rather than implied” in order to support a finding of contempt for violation of a court order. Welchel v. Boyter, 260 S.C. 418, 421, 196 S.E.2d 496, 498 (1973). “In order to sustain a finding of contempt, the record must be clear and specific as to the acts or conduct upon which such finding is based.” Whetstone v. Whetstone, 309 S.C. 227, 420 S.E.2d 877, 881 (Ct. App. 1992). Where the moving party’s actions frustrate the other parties’ compliance with the order, the other party should not be held in contempt. Abate, supra, 660 S.E.2d at 518 (where mother prevented father from determining identity of child’s physicians, it was abuse of discretion to hold father in contempt for failing to consult with child’s psychiatrist before giving child drug holiday).

“Charges of constructive contempt are brought by a rule to show cause which must be based upon an affidavit or verified petition. The failure to support the rule to show cause by an affidavit or verified petition is a fatal defect.” Toyota of Florence, Inc. v. Lynch, 314 S.C. 257, 442 S.E.2d 611, 617 (1994) (citations omitted). “In a proceeding for contempt for violation of a court order, the moving party must show the existence of the order and the facts establishing the respondent’s noncompliance.” Brasington v. Shannon, 288 S.C. 183, 341 S.E.2d 130, 131 (1986). “Due process requires that a litigant be placed on notice of the issues which the court is to consider.” Bass v. Bass, 272 S.C. 177, 249 S.E.2d 905, 906 (1978). Thus, any verified complaint or affidavit in support of the rule should plead the existence of the court order and the facts establishing non-compliance.

When requested by either party a rule must proceed via testimony. See, e.g., Elvis v. Elvis, 272 S.C. 413, 252 S.E.2d 142, 143 (1979) (without agreement or testimony on the issues, court erred in granting relief on rule). Do not make the mistake of attempting to prove your client’s case via affidavits. Because live testimony is required for rules, make sure the rule is set for enough time to handle the matter. Few things anger judges more than too little time being set for a hearing (thus backing up their dockets).

“Once the movant makes a prima facie showing by pleading an order and demonstrating noncompliance, the burden shifts to the respondent to establish his defense and inability to comply.” Henderson v. Henderson, 298 S.C. 190, 197, 379 S.E.2d 125, 129 (1989); see also Lindsay, supra, 491 S.E.2d at 588 (“[T]he moving party must show the existence of a court order and the facts establishing the respondent’s noncompliance with the order”). In Eaddy v. Oliver, 345 S.C. 39, 42, 545 S.E.2d 830, 832 (Ct.App.2001), a father brought a rule for violation of a visitation order. After father presented a prima facie case, mother presented no evidence or testimony. Because father had made a prima facie case and mother presented no evidence, the Court of Appeals found that the family court had erred in failing to find mother in contempt.

“Civil contempt must be proved by clear and convincing evidence.” Miller, supra, 652 S.E.2d at 761. Finally, a finding of contempt does not require the imposition of sanctions. “Although the Family Court is empowered to find and punish for contempt, there is no requirement that sanctions be imposed upon a finding of contempt. … A determination of contempt is a serious matter and should be imposed sparingly; whether it is or is not imposed is within the discretion of the trial judge, which will not be disturbed on appeal unless it is without evidentiary support.” Sutton v. Sutton, 291 S.C. 401, 353 S.E.2d 884, 889 (Ct.App. 1987) (citations omitted).

Because proving civil contempt requires proving a violation of a court order, proving the Defendant’s violation was “willful,” and proving the elements by “clear and convincing evidence,” one should not reflexively file a rule in any circumstance in which a court order is being violated. In circumstances in which the Plaintiff wants the order enforced but cannot prove a willful violation, a motion to enforce the order is more likely to achieve the desired goal. Motions for supplemental proceedings to enforce or interpret a final order are the proper method of enforcing a final order where the non compliance may be excusable or the order lacks sufficient clarity to find a party in contempt. Supplemental proceedings also allow for discovery if requested. See Rule 69, SCRCP.

Further there are often circumstances in which the Plaintiff is required to undertake an action before the Defendant is required to undertake an action. A common example are orders requiring a custodial parent to present the child’s unreimbursed medical bills to the other parent and then giving the non-custodial parent a set time to pay his share of the bill. If these bills have not been presented to the Defendant a rule is improper, even if the bills have not been paid (and even if the Defendant is aware of the bill). Rather the Plaintiff needs to comply with the order (by supplying the Defendant the medical bills) and then provide the Defendant the proper time to pay before seeking enforcement.

Finally, there may be circumstances in which the Defendant did not have notice of the order being enforced. Service of the order upon the Defendant’s attorney is sufficient to prove notice. See e.g., Koutsogiannis v. BB & T, 365 S.C. 145, 616 S.E.2d 425, 428 (2005) (in the attorney-client relationship, clients are generally bound by their attorneys’ acts or omissions during the course of the legal representation that fall within the apparent scope of their attorneys’ authority). Other times notice can be proven by the Defendant’s course of conduct, such as when the Defendant undertakes actions indicating a knowledge of the order. However, when it is unclear that the Defendant ever received notice of the order make sure the order is served and wait for a subsequent violation before attempting to enforce the order.

South Carolina law is unclear whether an oral ruling from the bench can be enforced via the court’s contempt powers before it is filed as a court order. “[P]ersons who, knowing of oral decisions, violate their provisions, may be held liable for contempt, although the decision has not yet been formulated into an order or writ.” 17 Am Jur 2d Contempt §131, p. 488. However, in Upchurch v. Upchurch, 367 S.C. 16, 624 S.E.2d 643, 646 (2006) (citations omitted), our Supreme Court held:

An order is not final until it is entered by the clerk of court; and until the order or judgment is entered by the clerk of the court, the judge retains control of the case. However, the moment the order is filed by the clerk of court, it becomes the judgment of the court, and fixes the rights of the parties. Stated otherwise, the effective date of an order is not when it is signed by the judge, but when it is entered by the clerk of court.

See also, Metts v. Mims, 370 S.C. 529, 635 S.E.2d 640, 642 (Ct. App. 2006) (“Until an order is written and entered by the clerk of court, the judge retains discretion to change his mind and amend his ruling accordingly. Therefore, the oral ruling from the bench was not binding upon the parties”). Since Upchruch holds that a court order does not fix the parties’ rights until filed with the clerk of court, the safest procedure is to wait until the ruling is made a filed court order before trying to enforce it.

Additional Goals (other than Enforcement)

In prosecuting a rule, a Plaintiff may have legitimate goals in addition to enforcement of the court order. Those additional goals create strategic considerations on the timing of when the rule will be heard, whether a new action should be filed, the type of contempt sought, and where the rule should be filed.
For example, Defendants frequently live in a different state than where the order was issued. In enforcing a South Carolina support, visitation or custody order against an out-of-state Defendant, it may be advisable to register the order (for enforcement purposes only) in the Defendant’s state of residence and enforce the order there. The alternative is to file the rule in South Carolina, obtain service over the out-of-state Defendant, and then hope the Defendant actually appears in court. If the Defendant is properly served but fails to show up for the rule hearing, the court will issue a bench warrant for the Defendant’s arrest but, since the Defendant lives out-of-state, that bench warrant will have little effect until the Defendant returns to South Carolina.

On the other hand, sometimes the Plaintiff wants to make the Defendant a fugitive from South Carolina. Certainly, final hearings are much easier when the Defendant cannot appear. When there is ongoing domestic litigation, filing a rule against an out-of-state Defendant when there is reason to believe the Defendant will fail to appear frequently leads to the Defendant being made a fugitive at the time of trial (when the Defendant fails to show up for the rule hearing). After a final order is issued in the underlying domestic litigation, the order(s) can then be registered for enforcement in the Defendant’s state of residence.

Sometimes, a rule can be used to encourage settlement or modification of an existing final order. I frequently use civil contempt proceedings to apply pressure to resolve the underlying litigation or to get a party to agree to modify a final custody or visitation order. Often it is the only way to get opposing parties to think realistically about their situation. While “[a] lawyer shall not present, participate in presenting, or threaten to present criminal or professional disciplinary charges solely to obtain an advantage in a civil matter” [Rule 407, SCACR, South Carolina Rules of Professional Conduct, Rule 4.5], this prohibition does not apply to threatening civil contempt. Seeking civil contempt before a final hearing and then negotiating to waive the contempt claim in return for resolution of the underlying case (or using the threat of civil contempt to negotiate a modification of custody or visitation) has resolved many a family court case.

Other times, a finding of civil contempt is desired to prevail on contested issues as part of the underlying litigation. Especially in custody or visitation cases, the judge at the final hearing should be the judge considering a parent’s violation of custody, visitation or child-related restraints in fashioning an appropriate final resolution of these issues. Setting a rule to be heard before trial (rather than at the time of trial) means that a different court and different court order will result from the civil contempt proceeding and from trial. The better strategy is to set such rules for the final hearing.

Where a final order has issued, civil contempt may be used to support a modification of that final order in a new action. While “child custody is not granted to a party as reward or withheld as punishment” [Brown v. Brown, 362 S.C. 85, 606 S.E.2d 785, 788 (Ct.App. 2004)], “the conduct, attributes, and fitness of the parents” are proper considerations in deciding custody. Patel v. Patel 347 S.C. 281,555 S.E.2d 386, 388 (2001). Violations of court orders involving visitation or that expose the child to dangerous or immoral conduct are clearly relevant on the issue of custody.

There is some (weak) authority for the proposition that custody can be changed as part of a rule. See, e.g., Pinckney v. Hudson, 294 S.C. 332, 364 S.E.2d 462 (1988); Jones v. Ard, 265 S.C. 423, 219 S.E.2d 358, 359 (1975). However, when one is attempting to change custody based on a parent’s violation of a custody order, the more proper procedure is to file a new action for modification and have the rule in the old action set at the same time as a motion for temporary relief in the new action. That way the same judge considering the rule can consider the request for a pendente lite modification and can use information obtained during the rule hearing in deciding upon the pendente lite request.

Criminal Contempt Sanctions

There may be times when the Plaintiff desires to punish the Defendant for violations of the court order. In such cases, counsel must seek criminal as well as civil contempt findings. Unlike civil contempt, criminal contempt findings will result in sanctions that cannot be purged. I often use criminal contempt when there has been repeated violations of a restraining order or visitation provision in an order. See Seeking criminal contempt for denied visitation.

Requests for criminal contempt sanctions most frequently occur when the nature of the contempt is repeated and cannot be adequately remedied through civil contempt sanctions. For example, a Defendant might have been found in civil contempt and provided a suspended sentence conditioned on future compliance with the court order. The only adequate remedy for subsequent violations of the violated provision of that court order is criminal contempt. This is especially true when the Defendant’s violation of the court order cannot be remedied through mere payment of money (as with violations of child or spousal support orders) but involves interference in the other parent’s relationship with the child or repeated violations of safety issues or moral restraints involving the child.

The primary purposes of criminal contempt are to preserve the court’s authority and to punish for disobedience of its orders. If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court. An unconditional penalty is criminal in nature because it is solely and exclusively punitive in nature. The relief cannot undo or remedy what has been done nor afford any compensation and the contemnor cannot shorten the term by promising not to repeat his offense. If the relief provided is a sentence of imprisonment, it is punitive if the sentence is limited to imprisonment for a definite period. If the sanction is a fine, it is punitive when it is paid to the court. However, a fine that is payable to the court may be remedial when the contemnor can avoid paying the fine simply by performing the affirmative act required by the court’s order.

Miller, supra 652 S.E.2d at 761.

The distinction between civil and criminal contempt is critical, because criminal contempt triggers additional constitutional safeguards. In a criminal contempt proceeding, the burden of proof is beyond a reasonable doubt. Prosecutions for serious criminal contempts are subject to the jury trial protections of the Sixth Amendment. Criminal defendants sentenced to imprisonment of more than six (6) months are entitled to a jury trial. Id at 761-62. Any criminal charge that might lead to incarceration gives an indigent the right to court-appointed counsel. Alabama v. Shelton, 535 U.S. 654 (2002).

Proper Pleading

A good method of drafting the verified complaint or affidavit in support of a rule is to attach the specific order allegedly violated, and specifically reference the language of that order in alleging the violations. For example:

· The January 29, 2016 temporary order in this case prohibits the parties from “exposing the minor child to paramours overnight.” See January 29, 2016 order attached as Exhibit A, p. 2, ¶6.
· On March 12, 2016, the Defendant allowed his current paramour to spend the night in his home while the minor child was present.
· The Defendant’s actions are in violation of the above provision of the court’s January 29, 2016 order.
· The Defendant should be held in contempt for his violation(s) of the court’s January 29, 2016 order, be sanctioned for his contempt, and be made to pay Plaintiff’s reasonable attorney’s fees and costs.
If the contempt is going to be proven through documents, it is best to include those documents as exhibits to the affidavit or verified complaint. For example when seeking reimbursement for the children’s unreimbursed medical bills and the order requires reimbursement within thirty days of receipt of the bill, include the correspondence enclosing the bills and the bills as exhibits to the affidavit or verified complaint. For example:
· The January 29, 2016 temporary order in this case requires the Defendant to reimburse the Plaintiff 50% of the minor children’s unreimbursed medical bills within thirty days of receipt.” See January 29, 2016 order attached as Exhibit A, p. 3, ¶6.
· On March 12, 2016, the Plaintiff mailed the Defendant unreimbursed medical bills for the minor children totaling $348.00. A copy of this correspondence is attached hereto as Exhibit B and copies of the medical bills enclosed are attached as Exhibit C.
· As of June 10, 2016, the Defendant has not reimbursed the Plaintiff any of these bills.
· The Defendant’s actions are in violation of the above provision of the court’s January 29, 2016 order.
· The Defendant should be held in contempt for his violation(s) of the court’s January 29, 2016 order, be sanctioned for his contempt, be made to immediately reimburse the Plaintiff $174.00 for his portion of the minor children’s unreimbursed medical bills, and be made to pay Plaintiff’s reasonable attorney’s fees and costs.

Where your client is basing a contempt claim upon information that other witnesses will provide at the hearing, use a verified complaint to support the rule, as a verified complaint allows the client to make allegations “upon information and belief.” Where your client has complete knowledge of all allegations supporting the requested finding(s) of contempt, an affidavit should suffice.

Raising Defenses/Filing Returns

A “return” to a rule to show cause must be filed if the defending party is seeking fees or costs. Further there are numerous affirmative defenses that can be raised in a rule. However, affirmative defenses must be plead to be raised. See Rule 14(f), SCFCR. I have successfully prevented testimony on affirmative defenses to a rule when the defending party failed to file a return. If seeking fees in defense of a rule or seeking to raise an affirmative defense, one should file a return. The most common affirmative defenses to rules are lack of notice (described above), lack of willfulness, lack of due process, unclean hands, laches and equitable estoppel.

The lack of due process defense has two distinct aspects. The first aspect is insufficient time to prepare. While rules normally need to be served ten days prior to that hearing, ten days may not give the defending party sufficient time to prepare, especially when that party needs discovery to obtain evidence to support his or her defense. Notice that provides a party insufficient time to prepare is a denial of due process. In State v. King, 306 S.C. 335, 412 S.E.2d 375 (1991), the Supreme Court reversed a finding of contempt where the party had only one hour notice. How much notice is required depends upon the circumstances. Often records will need to be obtained to defend a rule and time will be needed to obtain (and perhaps subpoena) these records. If the Defendant can show good reason to be provided more time to prepare the defense, a due process defense should probably be raised.

Due process should also be raised when the verified complaint or affidavit is insufficient to put the Defendant on notice of what he is required to defend. A rule that simply alleges the Defendant did not pay his share of some unreimbursed medical bills (without noting the bills for which the Plaintiff seeks reimbursement) or alleges that the Defendant disparaged the Plaintiff to the children (without noting when or how) fails to provide the Defendant sufficient notice of what he is required to defend.

“The doctrine of ‘unclean hands’ precludes a plaintiff from recovering in equity if he acted unfairly in a matter that is the subject of the litigation to the prejudice of the defendant.” Wilson v. Landstrom, 281 S.C. 260, 315 S.E.2d 130, 134 (Ct.App. 1984). “[O]ne who comes to the court seeking equity must come with clean hands. ‘He who comes into equity must come with clean hands. It is far more than a mere banality. It is a self-imposed ordinance that closes the door of the court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief.’”Emery v. Smith, 361 S.C. 207, 603 S.E.2d 598, 605 (Ct.App. 2004) citing Precision Instrument Mfg. Co. v. Automotive Co., 324 U.S. 806, 814, 65 S.Ct. 993, 89 L.Ed.1381 (1945).

Again there are two aspects to the “unclean hands” defense. The first aspect is where the Plaintiff’s own behavior has prevented the Defendant from complying with the court order. See e.g., Ingram v. Kasey’s Associates, 340 S.C. 98, 531 S.E.2d 287, 291-92 (2000) (tenant’s misleading promise not to exercise an option to purchase the property and his improper ulterior motive to force the subtenant to pay $40,000 estopped the tenant from seeking specific performance of the option). The second is where the Plaintiff seeks a contempt finding on an issue in which he or she has engaged in the same (or worse) behavior regarding the subject matter at issue.

Laches and equitable estoppel defenses are similar and most often used to defeat enforcement of financial obligations. Laches seeks to void past non-compliance with the order due to one party’s failure to timely enforce the order to the prejudice of the other. Equitable estoppel voids all enforcement of the order because the parties have engaged in a course of conduct that would make enforcement of the order inequitable.

Laches asks the court not to enforce previous violations of an order on the basis that the party seeking enforcement rested on his or her rights to the detriment of the allegedly contemptuous party. The elements of laches are (1) delay, (2) unreasonable delay, and (3) prejudice. Emery, supra, 603 S.E.2d at 602. Further information on the laches defense can be found on my web site at www.gregoryforman.com/html/laches.html.

The Supreme Court, in Ables v. Gladden, 378 S.C. 558, 664 S.E.2d 442 (2008) and Strickland v. Strickland, 375 S.C. 76, 650 S.E.2d 465 (2007) held that laches cannot be used to defeat alimony or child support obligations. Some states recognize two types of laches: one in which the defending party has suffered financial prejudice (that is the delay caused them to make financial plans that did not include the obligation at issue) and one in which the defending party has suffered evidentiary prejudice (that is that due to the delay the defendant party no longer has access to proof of the compliance. Ables and Strickland clearly prevent laches defenses on alimony or child support claims when there is financial prejudice. It is unclear whether these cases foreclose claims of evidentiary prejudice. See Did the Supreme Court limit laches too much in defending back alimony and child support claims?

In South Carolina, the essential elements of estoppel are divided between the estopped party and the party claiming estoppel. As to the party being estopped, the elements are: 1) conduct which amounts to a false representation, or conduct calculated to convey the impression that the facts are otherwise; 2) the intention that such conduct shall be acted upon by the other party; and 3) knowledge of the true facts. In order to claim estoppel, the claiming party must show: 1) a lack of knowledge and the means of knowledge of truth as to facts in question; 2) justifiable reliance upon the conduct of the party estopped; and 3) prejudicial change in the position of the party claiming estoppel. Kelley v. Kelley, 368 S.C. 602, 629 S.E.2d 388, 392 (Ct. App. 2006).

Conclusion

I once prosecuted a rule in which my client was attempting to enforce a provision of her divorce decree requiring her ex-husband to pay her $200,000.00 as her share of his now-defunct partnership. The court order she sought to enforce stated that there was “no set timeframe requirement” on the payment; rather her ex-husband was “permitted to do so at such time as he is able to do so.” Fifteen minutes into the hearing the judge motioned me and opposing counsel to the bench and informed us that he saw no way that the opposing party could ever be held in contempt on this issue. The unspoken hint was that my client might wish to dismiss this portion of the rule before her ex-husband incurred further fees in its defense for which she might be liable.

My client and I had anticipated this concern. We had spent months before filing the rule obtaining financial information on her ex-husband. We had gathered up public records of real estate and vehicle purchases. We had subpoenaed records showing her ex-husband’s expensive vacations to the Carribean and Europe. Prior to filing the rule we had offered her ex-husband a payment plan on the obligation. We were prepared to establish that he “was able to so.”

After showing the court that her ex-husband had sold real estate netting over $1.6 million in equity since the divorce and lived an otherwise lavish lifestyle, we convinced the court that her ex-husband had been able to pay the $200,000.00 but had simply refused to do so. He was found in civil contempt, ordered to pay the $200,000.00 within sixty days and ordered to reimburse my client the bulk of her fees and costs. The point is that even a vague provision of an order can be enforced so long as thought and preparation are given as to how willful non-compliance will be established.

Family court orders do not self-enforce. The ability to enforce (or defend enforcement of) family court orders is as vital a part of a domestic attorney’s practice as the ability to obtain beneficial results in the underlying litigation (i.e., getting good final orders).

Think before seeking enforcement of court orders. Carefully read the order your client seeks to enforce. If your client is required to undertake certain acts before enforcing the order, make sure you can prove those acts are undertaken (if necessary, have your client forgo the rule until these acts are undertaken). Think about what the actual violation is and make sure it is properly and clearly pled. How are you going to prove willfulness? If you have no answer, do not file a rule. Are there affirmative defenses that are likely to be raised? Think about how you will defeat them. If a potential affirmative defense appears strong, consider negotiating a resolution before seeking contempt sanctions.

Think about what your client hopes to achieve by filing the rule. These goals will determine whether the rule should be filed in South Carolina or where the Defendant lives. These goals will determine whether a new action should be filed and whether the rule should be heard as soon as possible or reserved for the merits hearing. Finally, these goals will determine whether criminal contempt sanctions should be pursued.