Script for defeating the “unclean hands” defense in contempt prosecutions

Posted Saturday, May 28th, 2016 by Gregory Forman
Filed under Contempt/Enforcement of Orders, Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

I don’t believe “unclean hands” is a defense to contempt. If an opposing party seeks to hold my client in contempt for conduct that party has engaged in, I believe proper procedure is to bring one’s own contempt action. If that party’s conduct has prevented my client’s compliance with a court order, I think the proper defense is to acknowledge non-compliance but plead lack of willfulness.

However just because I don’t believe unclean hands is a defense to contempt does not mean that judges or other attorneys agree with me. A few weeks ago, I had to prosecute a contempt action in which the other party pled unclean hands. Because my own client had recently acknowledged contempt on one of the provisions of the order we were seeking to hold that party in contempt on, I was concerned that a judge might agree with her.

Ironically, we had offered to forgo seeking contempt against her if she would waive her requested finding of contempt against my client–an offer she had rejected. I would have been quite upset if, after having my client acknowledge contempt, the other party had avoided a finding of contempt due to my client’s acknowledgment. Thus, in preparing for the hearing, I began developing a script to establish how absurd an unclean hand defense to contempt is:

Q. In claiming “unclean hands” you understand you are claiming that your non-compliance is excused by my client’s past non-compliance?

Q. Are you claiming that if the opposing party has violated the court order, you cannot be held in contempt for violating it?

She answered no but if she’d answered yes, I would have asked, “So if you ever violate the court order, he cannot be held in contempt for violating it?”

Q. Explain to me how this works? Does this apply to any provision of the court order, or just the provision he violated?

Q. Let’s say he violated the order once. Does that mean you can violate it forever and never be held in contempt?

Again if she’d answered yes, I would have turned the question around on her, “So if you violate the court order once, he can violate forever and not be held in contempt?” If she’d answered no I would have then asked, “Let’s say he violated the order once. How may times can you violate before you can be held in contempt?”

When she was done answering my questions, I asked the court to strike her “unclean hands” defense claiming that her answers indicated she was waiving it. Opposing counsel argued otherwise, but the trial judge struck her defense, noting her answers were explicit that my client’s non-compliance could not excuse her non-compliance.

I suppose a party alleging unclean hands could claim that one mere violation by my client would excuse an infinite number of violations by that party. I suppose that party could even claim that the opposite was not the case. However I doubt any judge would find this testimony credible. Further my client could order this portion of the transcript and use it in any subsequent contempt defense.

“Unclean hands” is an absurd defense to contempt because, if it’s a valid defense, once a party violated any provision, even once, that party could no longer enforce the order. If that were the case, few family court orders would remain enforceable for long. A script to highlight this absurdity should be part of every family court attorney’s arsenal when prosecuting a contempt action in which the other party raises an unclean hands defense.

One thought on Script for defeating the “unclean hands” defense in contempt prosecutions

  1. Brilliant legal judo. It’s heartening to hear the legal system is capable of recognizing and striking logically absurd conclusions, even if they fit with precedent. Without logic as an unassailable foundation, society is doomed.

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