Unclean hands as a defense to contempt

Posted Friday, October 28th, 2011 by Gregory Forman
Filed under Contempt/Enforcement of Orders, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

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.

3 thoughts on Unclean hands as a defense to contempt

  1. Linda says:

    I had a Judge once find my client in contempt for reducing the alimony he was paying to wife, which amount was reduced by the exact amount of money she stopped paying towards the mortgage (in his name for which SHE was ordered to pay- and which he then began paying directly to the mortgage company) after she was several months behind. He was put in JAIL! Yet when she was contempted for the failure to pay the mortgage, it was “let’s hold this in abeyance until the final hearing and have her part come out of the final settlement”. I get SO SICK of the unfair treatment. It’s such a big lottery depending on which Judge you get.

  2. Pamela Zander says:

    In the middle of a lawsuit filed 4/15/14, from which Cavalry Portfolio Services consistently reported to the credit bureaus I owed $22, 000.00 on a B of A credit card, “paid in full,” my lawyer substituted himself out and now I am instant pro per, because I refused to sign the Settlement Agreement under the Law of New York. I had repeatedly mailed Certified letters under the FDCPA and the CFDCPA, which they ignored. The Answer was filed after 8/19/14, which included the defense of the “dirty hands” against me.
    I have never had a contract with them, cognizant they are using this procedural scheme to avoid the courts determination and prevent material evidence.
    Pamela Zander 760) 617-7989

  3. ron says:

    check out this article about difference between unclean hands And ”Do Equity” Doctrine:

    in my opinion, it is interesting to compare these two articles

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