Susan M. Rorrer f/k/a Susan M. Orban, Appellant/Cross-Appellee,
Robert G. Orban, Appellee/Cross-Appellant.
final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County Lower
Tribunal No. 10-31827 Spencer Eig, Judge.
Valle Stokes, for appellant/cross-appellee.
& Rosen and Norman S. Segall, for
WELLS, ROTHENBERG and LAGOA, JJ.
M. Rorrer f/k/a Susan M. Orban (Ms. Orban, herein) appeals
from a final order awarding attorneys' fees and costs in
this post-dissolution proceeding. The former husband, Robert
G. Orban, cross-appeals the same determination. Because we
find that the trial court erred in applying its own formula
rather than the requirements set out in section 61.16 of the
Florida Statutes and controlling case law including Rosen
v. Rosen, 696 So.2d 697 (Fla. 1997), and Canakaris
v. Canakaris, 382 So.2d 1197 (Fla. 1980), we reverse.
determination regarding an appropriate award of
attorney's fees in proceedings for dissolution of
marriage, support, or child custody begins with section
61.16." Rosen, 696 So.2d at 699. That section
in part provides:
(1) The court may from time to time, after considering the
financial resources of both parties, order a party to pay a
reasonable amount for attorney's fees, suit money, and
the cost to the other party of maintaining or defending any
proceeding under this chapter, including enforcement and
modification proceedings and appeals. In those cases in which
an action is brought for enforcement and the court finds that
the noncompliant party is without justification in the
refusal to follow a court order, the court may not award
attorney's fees, suit money, and costs to the
§ 61.16(1), Fla. Stat. (2016).
purpose of this section is to ensure that both parties will
have a similar ability to obtain competent legal counsel.
Canakaris v. Canakaris, 382 So.2d 1197 (Fla.
1980)." Rosen, 696 So.2d at 699. As the
Rosen court went on to explain, "[i]n
Canakaris, we noted that it is not necessary that
one spouse be completely unable to pay attorney's fees
for the trial court to require the other spouse to pay those
fees. In other words, to ensure that both parties have
similar access to competent legal counsel, the trial court
must look to each spouse's need for suit money versus
each spouse's respective ability to pay."
over four years of extensive litigation followed the
parties' dissolution of marriage during which the trial
court addressed a number of issues concerning the
parties' four children and the alimony Mr. Orban had been
ordered to pay. Ultimately, Ms. Orban sought to be
compensated for the attorney's fees and costs she had
incurred relating to this post-judgment litigation.
final fee order, the trial court specifically found that
"the Former Husband's improper conduct . . . created
otherwise unnecessary litigation and required unnecessary
judicial intervention." The order also observed that Mr.
Orban had a "far superior financial ability to pay
professional fees, including attorney fees and costs."
Rather than relying on the financial condition of each spouse
and Mr. Orban's litigious behavior to arrive at a fee
award, the trial court decided to apply a formula of its own
making in an effort to, by its own observation, act as a
"disincentive" to future litigation:
[By the court]: [T]he court in general, as I mentioned
yesterday, does not, even though the petitioner is seeking a
100 percent of her fees, the court does not like to award a
100 percent of fees because it forms a disincentive for a
party to economize if somebody else is paying all of their
fees. I prefer to allocate fees and costs as on the
percentage basis of the disparity in income between the
to this end, the trial court in its initial fee order first
amalgamated the parties' fees by adding Ms. Orban's
fees and costs ($230, 802.35)to Mr. Orban's fees and costs
($284, 470.30) for a total of $515, 272.65, and then ordered
each party to be responsible for a portion of that amount
approximately equal to the percentage each contributed to
their joint income. Specifically, Mr. Orban was ordered to
pay 89% and Ms. Orban was ordered to pay 11% of the total
expended by both parties ($515, 272.65) for attorneys'
fees and costs. Mr. Orban also was ordered to pay an
additional $6, 000 to Ms. Orban's new counsel.
the trial court, using the same methodology used in the
initial order, issued an amended fee order. This order first
determined that the correct amount of attorney's fees and
costs incurred by Ms. Orban was $238, 924.91 (the initial
$230, 802.35, plus the $6, 000 award to her new attorney in
the original order, as well as $2, 122.56 in additional fees
she had incurred). The court then added this amount ($238,
924.91) to the amount incurred by Mr. Orban ($284, 470.30) to
arrive at a fee total for both parties of $521,
272.65. The court then applied a more exact
formula based on the precise percentage each party
contributed to their joint income (88.44% for Mr. Orban,
11.56% for Ms. Orban) to obligate Mr. Orban to pay a total of
$178, 665.65 of Ms. Orban's $238, 924.91 in fees and
allocation, aimed as it was at encouraging the parties to
economize in litigation, we find to be contrary not just to
the goal enunciated long ago in Canakaris "that
neither spouse pass automatically from misfortune to
prosperity or from prosperity to misfortune, " but also
to the requirements of section 61.16. Canakaris, 382
So.2d at 1204. As this court found in Gomez v.
Gomez, 642 So.2d 107, 107-08 (Fla. 3d DCA 1994), use of
a "report [that] concluded that because appellee earned
sixty eight percent (68%) of the parties' total income,
he should be made to pay only sixty eight (68%) of the fees
and costs of both parties, " was improper because
"it is well established in dissolution cases that
attorneys' fees and costs are to be borne by the party
who has the superior or greater financial ability to
pay." Our sister court in Widder v. Widder, 673
So.2d 954, 955 (Fla. 4th DCA 1996), similarly rejected the
use of such formulas:
At bar, the trial court erred as it did not appropriately
consider the relative financial circumstances of the parties
in assessing whether to award fees to the former wife.
Rather, the trial court used a method of apportioning the
attorney's fees in accordance with the same percentages
of child support they were required to pay as per the final
judgment and section 61.30, Florida Statutes (1991). . . .
While we are sure that the trial court was well meaning in
trying to mold a solution . . . this was still not the method
envisioned by the legislature for awarding fees in
post-dissolution proceedings under section 61.16, even when
the issues involve the parties' children. . . . [T]he fee
determination must still be made by considering the relative
financial circumstances of the parties as per section 61.16
and the cases interpreting it, and using the ...