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Rorrer v. Orban

Florida Court of Appeals, Third District

March 29, 2017

Susan M. Rorrer f/k/a Susan M. Orban, Appellant/Cross-Appellee,
v.
Robert G. Orban, Appellee/Cross-Appellant.

         Not final until disposition of timely filed motion for rehearing.

         An Appeal from the Circuit Court for Miami-Dade County Lower Tribunal No. 10-31827 Spencer Eig, Judge.

          Damary Valle Stokes, for appellant/cross-appellee.

          Lubell & Rosen and Norman S. Segall, for appellee/cross-appellant.

          Before WELLS, ROTHENBERG and LAGOA, JJ.

          WELLS, Judge.

         Susan 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.

         "Any 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 noncompliant party.

§ 61.16(1), Fla. Stat. (2016).

         "The 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." Id.

         Here, 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.

         In the 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 parties.

         Apparently 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)[1]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.[2] Mr. Orban also was ordered to pay an additional $6, 000 to Ms. Orban's new counsel.

         Thereafter, 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.[3] 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 costs.[4]

         This 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 ...

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