The Doctrine of “Clean Hands”
There is a legal defense know as the doctrine of “clean hands.” It can be most easily translated as “S/he did it too” (insert bratty voice here). Anyone who has children or who has been around children is familiar with the commonly used defense.
Johnny comes to you looking for vindication and says: “Suzy took my blanket and she won’t give it back!” You talk to Suzy who says “But he took my doll!”
This scenario plays out in courts all over the country with a slightly different variation of the facts. The clean hands defense most recently reared its head in a case I was involved in regarding hidden income.
I represented Father. We believed that Mother was hiding thousands of dollars in rental income each month, which should be factored into Father’s child support obligation. Mother owned two homes, a rental and the home where she resided. We believed the rental property was owned free and clear and the residential home carried a mortgage. Mother simply stated she had a net rental income of $50/month. She refused to supply the mortgage documents.
We started our pursuit of discovery with a letter to the opposing counsel requesting clarification on the subject and reminding him that the documents and questions we were asking were well within the mandatory disclosures required under rule 49. When we did not receive an answer to the letter, we sent uniform and non-uniform family law interrogatories clearly and unequivocally requesting that Mother supply us with each property she owned, what was owed on each property, who lived in the property, and a rental agreement for any rental property.
While Mother responded to many of the questions within the interrogatories, she did not answer the questions regarding her properties. At this point, we are very close to proving our allegations that she has the additional income through her avoidance. Our next step is to file a motion to compel. This motion asks the court to compel Mother to hand over the information and answer the interrogatory. If it is granted, attorney’s fees are mandatory, meaning Mother will have to pay Father’s attorneys fees associated with the discovery attempts.
On the day of the hearing, we set out to make our case on both the rental income and why Mother should pay Father’s attorney fees due to her failure to comply with the rules and respond to our reasonable requests. Father offers testimony about why he believes Mother is hiding income and why she has acted unreasonably and cost him additional attorneys fees. We have planned well and executed our strategy and the Judge seems to be aligning with our position. Then Mother’s attorney begins cross-examination of Father. The last question he asks is: “Isn’t it true you also have rental income that you have failed to disclose?” It is clear from Father’s face that he does, indeed, have rental income he failed to disclose. Father attempted to explain that it was only very recently acquired, and, it is only a minimal amount of rental income. But the damage was done. The Judge stated he would use both parties income from their AFI. Father would not get attorneys fees and Mother would not be imputed the additional rental income in the child support calculation.
What is the moral of the story? It is essential that you comply with the rules of procedure in family court. Here is a link to the whole set of the rules. Unfortunately, if you miss something, or fail to comply with the rules, the opposing party may use it as a defense. In this case, my client spent thousands of dollars perusing information and attorneys fees. His failure to mention a $30 rental income on his updated AFI, cost him thousands of dollars in overpaid child support and attorneys fees.
For questions on discovery, disclosure or the rules of procedure, give us a call at 480-649-2905.
