Unclean hands as a defense to contempt

In many of the rules to show cause I prosecute, the opposing party will raise the defense of “unclean hands,” arguing that my client’s failure to fully comply with the terms of the order precludes him or her from any equitably relief in enforcing that order.  In eighteen years of practice, I’ve seen the family court allow a lot of [what I believe is] extraneous evidence of my client’s allegedly contemptuous conduct but never had the court actually deny my client relief by finding “unclean hands.” The problem is that South Carolina case law does a very poor job of addressing how “unclean hands” should be applied to the equitable remedies of contempt actions.

As discussed in Straight v. Goss, 383 S.C. 180,678 S.E.2d 443, 457-58 (Ct. App. 2009) (citations omitted):

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  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.

Thus one requirement of an “unclean hands” defense is that the improper action involves the subject matter at issue to the prejudice of the opposing party.  Mere non-compliance with an unrelated provision of the court order does not appear to give rise to an “unclean hands” defense.  Such tit-for-tat allegations of contempt are best handled by filing one’s own counter rule to show cause.

However for non compliance that actively prevents the opposing party from complying with a court order, “unclean hands” can be a useful defense.   While not explicit, the case of Abate v. Abate, 377 S.C. 548, 660 S.E.2d 515 (Ct.App. 2008), provides a good example of how unclean hands overturned a finding of contempt.  In Abate, the Court of Appeals reversed a finding that Father was in contempt for not giving his child ADHD medications during the summer by finding that Mother’s refusal to comply with the court order by providing information regarding the Child’s treating physicians prevented Father from fully complying with the order.

There are no reported South Carolina decisions in which an appellate court has refused to find contempt of family court under the doctrine of “unclean hands” merely because the opposing party was also not strictly following the court order.  There’s tremendous logic in not applying this doctrine so broadly.  Doing so would allow custodial parents to unilaterally deny visitation merely because the other parent was behind on child support.  Conversely, it would allow non-custodial parents to refuse to pay child support when they were being denied visitation.  “Unclean hands” is too narrow a defense to support such mischief.

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