In a February, 2019 decision, the Appellate Division, Second Department, foiled the cooperative efforts of previously-divorced parties, by their settlement of post-judgment issues, to avoid an interim fee award to the ex-wife’s counsel to prosecute an appeal.
In Rhodes v. Rhodes, the parties were married in 1993, had three children, and divorced in 2008. In 2013, the ex-husband successfully moved to modify the parties’ custody arrangement and, in a December, 2014 order, was granted residential custody of the children. The ex-wife appealed from that order.
In May 2015, the ex-wife moved for interim appellate attorney’s fees and costs. In an August 25, 2015 order, Former Suffolk County Supreme Court Acting Justice Marlene L. Budd granted that motion, awarding the ex-wife $20,000 in attorney’s fees and costs “for the prosecution of the appeal, with leave to apply for additional sums upon the completion of the appeal.” The ex-husband was directed to pay those attorney’s fees and costs to the ex-wife’s then-attorney, Karyn A. Villar, PLLC (hereinafter Villar), within 20 days of the order.
When payment was not made, on September 23, 2015, Villar moved to hold the ex-husband in civil contempt of the fee order. The ex-husband cross-moved for leave to renew his opposition to the ex-wife’s prior motion for interim appellate attorney’s fees and costs. The ex-husband attached to his cross motion a stipulation of settlement dated September 28, 2015, in which the parties agreed that the ex-wife would waive payment of attorney’s fees and costs owed by the ex-husband pursuant to the August, 2015 order. The ex-wife retained new counsel, and thereafter cross-moved to impose sanctions against Villar, arguing that Villar’s contempt motion was punitive and an abuse of process.
In an order dated March 7, 2016, Suffolk County Supreme Court Justice Carol MacKenzie (1) denied Villar’s motion to hold the ex-husband in civil contempt, (2) vacated the August, 2015 interim fee award and denied a fee, and (3) granted the ex-wife’s cross motion to impose sanctions against Villar, directing Villar to pay the ex-wife’s new attorneys $2,500. Villar appealed.
The Second Department reversed, holding that the lower court should have granted Villar’s motion to hold the ex-husband in civil contempt.
Here, Villar established that an order was in effect that unequivocally directed the ex-husband to pay Villar $20,000 in interim appellate attorney’s fees and costs within 20 days of the order. It was undisputed that the ex-husband had knowledge of the terms of that order. He did not comply with the order. Moreover, Villar demonstrated that the drafting the ex-wife’s appellate brief had begun and compensation for legal services was owed before Villar was discharged.
The ex-wife’s subsequent decision to waive attorney’s fees and to discharge Villar did not preclude Villar from collecting fees incurred before discharge without cause. Villar was entitled to payment for its work despite the parties’ settlement and attempt to waive attorney’s fees and costs. The subsequent settlement and withdrawal of the appeal did not constitute new facts “that would change the prior determination,” and the court should have denied the ex-husband’s cross motion for leave to renew (CPLR 2221[e]).
The Appellate Division remitted the matter to the Supreme Court to determine the amount of the attorney’s fees and costs that Villar was owed by the ex-husband, “taking into consideration factors such as when the ex-wife directed Villar to stop working on the appeal, when the ex-wife discharged Villar, the complexity of the issues involved, and the reasonableness of counsel’s performance and the fees under the circumstances.
The Second Department also disagreed with Justice MacKenzie’s determination to impose sanctions against Villar for pursuing the contempt motion. Sanctions were not warranted in this case. There was no evidence in the record to support a finding that Villar pursued the contempt motion frivolously or to harass the parties for settling their case (see 22 NYCRR 130-1.1[c]).
Karyn A. Villar, PLLC, of Hauppauge, NY, represented itself. Janice G. Roven, of Manhattan, represented the ex-wife. Amy Cobert Haber, of Cobert Haber & Haber, of Garden City, represented the ex-husband.