Rhodes v. Rhodes

169 A.D.3d 841

94 N.Y.S.3d 123

Michelle RHODES, Plaintiff-Respondent,

v.John RHODES, Defendant-Respondent;

Karyn A. Villar, PLLC, Nonparty-Appellant.

2016–03972

Index No. 35758/06

Supreme Court, Appellate Division, Second Department, New York.

Submitted—June 18, 2018

February 13, 2019

Karyn A. Villar, PLLC, Hauppauge, NY, nonparty-appellant pro se.

Janice G. Roven, New York, NY, for plaintiff-respondent.

Cobert Haber & Haber, Garden City, N.Y. (Amy Cobert Haber of counsel), for defendant-respondent.

RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, ROBERT J. MILLER, JOSEPH J. MALTESE, JJ.

DECISION & ORDER

In a matrimonial action, the nonparty, Karyn A. Villar, PLLC, appeals from an order of the Supreme Court, Suffolk County (Carol MacKenzie, J.), dated March 7, 2016. The order (1) denied the motion of Karyn A. Villar, PLLC, to hold the defendant in civil contempt based upon his disobedience of an order of the same court (Marlene L. Budd, J.) dated August 25, 2015, directing the defendant to pay the plaintiff's interim appellate attorney's fees and costs in the sum of $ 20,000, (2) granted the defendant's cross motion, in effect, for leave to renew his opposition to the plaintiff's prior motion for interim appellate attorney's fees and costs and, upon renewal, in effect, vacated the order dated August 25, 2015, and thereupon denied the plaintiff's motion, and (3) granted the plaintiff's motion to impose sanctions against Karyn A. Villar, PLLC, and directed Karyn A. Villar, PLLC, to pay the plaintiff's attorney's fees in the sum of $ 2,500.

ORDERED that the order is reversed, on the law, with one bill of costs, the motion of Karyn A. Villar, PLLC, to hold the defendant in civil contempt is granted, the defendant's cross motion, in effect, for leave to renew his opposition to the plaintiff's prior motion for interim appellate attorney's fees and costs is denied, the order dated August 25, 2015, is reinstated, the plaintiff's motion to impose sanctions against Karyn A. Villar, PLLC, is denied, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings consistent herewith.

The plaintiff and the defendant were married in 1993 and have three children. The parties divorced in 2008. In 2013, the defendant moved to modify the parties' custody arrangement so as to award him residential custody of the children. In an order dated December 22, 2014, the Supreme Court awarded the defendant residential custody of the children and awarded the plaintiff parental access. The plaintiff appealed from that order.

In May 2015, the plaintiff moved for interim appellate attorney's fees and costs. In an order dated August 25, 2015 (hereinafter the August 2015 order), the Supreme Court, in effect, granted the plaintiff's motion, awarding her a total of $ 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 defendant was to pay those attorney's fees and costs to the plaintiff's then-attorney, the nonparty, Karyn A. Villar, PLLC (hereinafter the Villar firm), within 20 days of the order.

On September 23, 2015, the Villar firm moved to hold the defendant in civil contempt of the August 2015 order. The defendant cross-moved for leave to renew his opposition to the plaintiff's prior motion for interim appellate attorney's fees and costs. The defendant attached to his cross motion, inter alia, a stipulation of settlement dated September 28, 2015, wherein the plaintiff and the defendant agreed that the plaintiff would waive payment of attorney's fees and costs owed by the defendant pursuant to the August 2015 order. The plaintiff retained new counsel, and thereafter cross-moved to impose sanctions against the Villar firm, arguing that the Villar firm's contempt motion was punitive and an abuse of process.

In an order dated March 7, 2016, the Supreme Court (1) denied the Villar firm's motion to hold the defendant in civil contempt, (2) granted the defendant's cross motion for leave to renew and, upon renewal, in effect, vacated the August 2015 order granting the plaintiff's motion for interim appellate attorney's fees and costs, and thereupon denied the plaintiff's motion, and (3) granted the plaintiff's cross motion to impose sanctions against the Villar firm, and directed the Villar firm to pay the plaintiff's attorney's fees in the sum of $ 2,500. The Villar firm appeals.

The Supreme Court should have granted the Villar firm's motion to hold the defendant in civil contempt. To prevail on a motion to hold another party in civil contempt, the movant is "required to prove by clear and convincing evidence (1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct" ( El–Dehdan v. El–Dehdan, 114 A..D3d 4, 16, 978 N.Y.S.2d 239 [internal quotation marks omitted]; see Matter of Philie v. Singer, 79 A.D.3d 1041, 1042, 913 N.Y.S.2d 745 ). The movant in a civil contempt proceeding need not establish "that the disobedience [was] deliberate or willful" ( Matter of Philie v. Singer, 79 A.D.3d at 1042, 913 N.Y.S.2d 745 ). "Once the movant establishes a knowing failure to comply with a clear and unequivocal mandate, the burden shifts to the alleged contemnor to refute the movant's showing, or to offer evidence of a defense, such as an inability to comply with the order" ( El–Dehdan v. El–Dehdan, 114 A.D.3d at 17, 978 N.Y.S.2d 239 ).

Here, the defendant disputes the Villar firm's showing only as to the first and third prongs of El–Dehdan v. El–Dehdan , 114 A.D.3d at 16, 978 N.Y.S.2d 239 ). As to the first prong, the Villar firm established "that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect" ( id. at 16, 978 N.Y.S.2d 239 ), by attaching the August 25, 2015, order to the contempt motion, which order unequivocally directed the defendant to pay the Villar firm $ 20,000 in interim appellate attorney's fees and costs within 20 days of the order. As noted, it is undisputed that the defendant had knowledge of the terms of the August 25, 2015, order and that he did not comply with them. Finally, as to the third prong, the Villar firm demonstrated that it had begun drafting the plaintiff's appellate brief and that it was owed compensation for legal services that were performed before the Villar firm was discharged.

The defendant's proffered defenses in response to the Villar firm's showing were without merit. The plaintiff's subsequent decision to waive attorney's fees and to discharge the Villar firm did not preclude the Villar firm from collecting fees that it incurred before it was discharged, so long as it was...