Justice Carol Mackenzie

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.


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The Child Support Standards Act authorizes parents to agree to a child support obligation that deviates from the presumptive formula provided in that statute. However, if they are going to deviate from the formula, the parents must state what the obligation would have been if the formula were to be applied, and the reasons why the parties have agreed to deviate.

In its September 26, 2018 decision in Fasano v. Fasano, the Appellate Division, Second Department, held that if one of those reasons no longer applies, such is a “substantial change in circumstances” warranting a new child support determination.

The parties were married in 1993 and have two children together. In October, 2012, the parties entered into a stipulation of settlement of a prior divorce action after which that action was discontinued.

That stipulation provided that although the husband’s monthly child support obligation using the C.S.S.A. calculation would be $1,994.45 on the first $130,000.00 of combined parental income (then, the “cap”) and $2,575.61 on the total combined parental income, the parties had agreed that the husband’s monthly child support obligation would be $1,500.00. The stipulation also provided that there would be no “add-ons” or “additional health costs” added to these child support payments, even though the C.S.S.A. generally provides that each parent’s share of unreimbursed health care expenses is to be prorated in the same proportion as each parent’s income is to the combined parental income.

The stipulation contained an explanation that the deviation from the C.S.S.A. calculation was necessary “to allow the [husband] to retain the marital residence as a place for the children to be with him when they are together” and had “been agreed by the parties to be in the best interests of the children to provide them continuity and stability in their living and educational environments.”


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In its August 24, 2016 decision in Maddaloni v. Maddaloni, the Appellate Division, Second Department, upheld the rulings of Supreme Court Suffolk County Justice Justice Carol Mackenzie that invalidated the all-but-complete maintenance waiver contained in a 23-year-old postnuptial agreement, awarding the wife maintenance for 10 years. The appellate court also upheld Justice Mackenzie’s award to the wife of 25% of the $2,000,000 appreciation during the marriage in the value of the husband’s pre-marital business, Maddaloni Jewelers of Huntington.

The Maddalonis were married in January, 1988. At the time of the marriage, the husband owned several cars, a house, and a jewelry business, and he was in contract to buy a shopping center. On August 22, 1988, less than eight months after the parties were married, they experienced marital difficulties and entered into a postnuptial agreement. Among other things, this agreement provided that, in the event that the parties divorced after the first five years of marriage, the wife agreed to accept the sum of $50,000, payable in five equal annual installments of $10,000, “in full satisfaction of any and all claims of whatsoever kind and nature she may have at that time for past or future support or for distribution of assets.”


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Gavel mainIn its February 18, 2015 decision in Dunleavy v. Dunleavy, the Second Department modified the order of Suffolk County Supreme Court Justice Carol Mackenzie by increasing the wife’s temporary maintenance award from $75 to $784.62 per week.

The Second Department noted that Domestic Relations Law § 236(B)(5-a) sets forth formulas for the courts to