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.

2 thoughts 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.

  2. Veto Roley says:

    Until such contempt on the part of the petitioning party is cleansed or purged, contempt should always be a defense to their contempt position. What you are arguing is the highly illogical position that a person should be able to come into a court of equity knowing they have refused to obey the order of the court but demanding the court require the other person to obey said order. If the petitioning party is unwilling to obey the order, why should the other person obey said order.

    Here is how I would answer your questions…
    Q. In claiming “unclean hands” you understand you are claiming that your non-compliance is excused by my client’s past non-compliance?
    Yes. It is illogical for the court to order the other party to comply with its orders when the petitioning party refuses to comply with those orders. For petitioning party to prevail, they must show they are in compliance with the orders. If the responding party does not raise the “unclean hands” defense, it can be assumed the petitioning party is compliant with the court’s directive.

    Q. Are you claiming that if the opposing party has violated the court order, you cannot be held in contempt for violating it?
    At the present, yes. If the petitioning party enters court with unclean hands, they must first clean or purge themselves of their contempt before they can request the Court to enforce the order on the other party. This is what makes contempt equitable — one party, the petitioning who is following the demands of the court can use the court to enforce the responding party to follow those demands, but only if the petitioning party comes to court with clean hands or, if having unclean hands in the past, has cleansed or purged their hands of not following the court. Once the petitioning party is no longer in contempt of the court order they wish to enforce through cleaning or purging their hands, they can seek to have the responding party found in contempt. But, you answer, it’s difficult to “clean” or “purge” hands. Yes, it is. For instance how do you clean or purge the contempt of a custodial parent who has violated the court order on visitation for two years and has, through her contempt, not allowed the non-custodial parent regularly see their child in two years so the custodial parent can file for non-payment of alimony, child support, etc.? It’s difficult and you may have to fashion a new remedy (e.g. a “Motion to Purge Contempt” setting forth your proposals) and let the court decide how to purge such contempt. But, “difficult” does not mean it shouldn’t be done. The petitioning party must come in with clean hands.

    Q. Explain to me how this works? Does this apply to any provision of the court order, or just the provision he violated?
    It’s very simple. It applies to any provision of the court order. In order to enforce a court order through the court, the petitioning party must first show that s/he is not in violation of that court order. Again, if the responding party does not raise the defense of “unclean hands”, this failure to raise the defense should be taken as the responding party’s agreement that the petitioning party does not come into the courtroom with unclean hands. Unclean hands are not permanent and can be “cleaned” or “purged”. In my answer to the previous question, I suggested one such way of getting the court to determine how to clean hands or purge unclean hands.

    Q. Let’s say he violated the order once. Does that mean you can violate it forever and never be held in contempt?
    If s/he continues to violate the order, or if the violation is an ongoing violation, yes. However, if I am also violating the order, the “unclean hands” defense means that I can’t ask the Court to enforce its orders on you. So, it works both ways. Again, if the violation is a one-time event, figure out how to clean the petitioning party’s unclean hands even if you have to have a judge decide on the solution. If the violation is on-going, then have your client STOP violating the court order, clean their hands and purge the violation. As long as you come into a court of equity with clean hands, you don’t have to worry about the “unclean hands” defense. The defense may be, and arguably in states that allow it should be, raised, but your counter to the argument is to show your client has fulfilled his or her obligations to the court and, if they were in violation in the past, they have cleaned their hands of that violation and have purged themselves of violating the court order.

    It is only equitable to demand that the petitioning party is not in violation of the same order they are asking a court to enforce, even if their violation is a different provision from the provision they are trying to enforce.

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