         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D16-689
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ARTHUR COLLIN CHERRY,

    Appellant,

    v.

KATHERINE HIETT VIKER,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Leon County.
Stewart E. Parsons, Senior Judge.

                       September 25, 2018

                    ON MOTION FOR REVIEW

PER CURIAM.

     Appellant filed a motion for review in this Court pursuant to
Florida Rule of Appellate Procedure 9.400(c), seeking review of
an order awarding Appellee $7,300 in appellate attorney’s fees.
For the reasons discussed below, we reverse.

    In October 2015, Appellant petitioned the trial court to
modify a parenting plan and change his child support obligation.
During the course of that litigation, Appellee filed a motion
seeking temporary attorney’s fees, and the trial court awarded
her fees totaling $25,000. On appeal of that order, this Court
reversed and remanded because the award was not supported by
competent, substantial evidence. Cherry v. Viker, 197 So. 3d 1292
(Fla. 1st DCA 2016). During the pendency of that appeal,
Appellee filed a motion for appellate attorney’s fees pursuant to
Florida Rule of Appellate Procedure 9.400(b). The same day the
opinion issued reversing the temporary fees award, this Court
issued an order remanding Appellee’s motion for attorney’s fees
to the trial court. That order authorized the trial court to award
appellate attorney’s fees to Appellee if she could prove her
entitlement pursuant to section 61.16, Florida Statutes, and
Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997).

     On remand, the trial court found that the parties had a
relatively equal ability to pay, but held that Appellee was entitled
to fees in equity pursuant to Rosen because the appeal was
unnecessary. Specifically, the court found that after the appeal
was filed, Appellee indicated that if Appellant dismissed the
appeal, she would be willing to set aside the order awarding her
temporary fees and have another hearing on the matter. The trial
court concluded that “[Appellant’s] refusal to accept [Appellee’s]
offer to concede error and set aside the award of temporary fees
forced her to incur appellate fees that were unnecessary and
could have been avoided.”

     We review the trial court’s order awarding appellate
attorney’s fees for an abuse of discretion. See Pellar v. Granger
Asphalt Paving, Inc., 687 So. 2d 282, 284 (Fla. 1st DCA 1997). We
conclude that the trial court abused its discretion when it found
that Appellant’s conduct was a basis to award appellate
attorney’s fees.

     Section 61.16(1), Florida Statutes, which provides for the
award of appellate attorney’s fees in family law cases, states in
part,

    In determining whether to make attorney’s fees and
    costs awards at the appellate level, the court shall
    primarily consider the relative financial resources of the
    parties, unless an appellate party’s cause is deemed to
    be frivolous.

    Thus, pursuant to section 61.16, the relative financial
resources of the parties are the “primary factor” to be considered
when determining which party should receive appellate fees. See
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Rosen, 696 So. 2d at 700. However, because proceedings in
chapter 61 are “in equity and governed by basic rules of fairness,”
the court may consider “other relevant circumstances” when
awarding fees, including “the scope and history of the litigation;
the duration of the litigation; the merits of the respective
positions; whether the litigation is brought or maintained
primarily to harass (or whether a defense is raised mainly to
frustrate or stall); and the existence and course of prior or
pending litigation.” Id. This Court has held that “[a]n award of
fees for inequitable conduct should be rare, and must be
supported by highly specific findings of fact.” Broga v. Broga, 227
So. 3d 239, 241 (Fla. 1st DCA 2017).

     In finding that the trial court abused its discretion in
awarding appellate fees, we note three important factors. First, if
Appellant dismissed his appeal, the trial court would not be
required to set aside its order just because the parties agreed to
set it aside, although it would not be prevented from doing so. See
Helmich v. Wells Fargo Bank, N.A., 136 So. 3d 763, 765 (Fla. 1st
DCA 2014) (noting that trial court may revisit non-final,
interlocutory orders). If Appellant abandoned his appellate
rights, the erroneous order would still be in place. Second,
Appellee is not blameless. Cf. Bane v. Bane, 750 So. 2d 77, 79
(Fla. 2d DCA 1999) (reversing award of attorney’s fees based on
former husband’s “misconduct” where “the record indicates . . .
that the Former Wife was not blameless and her negligence
played a part in the way the case progressed”). Appellant’s
refusal to accept Appellee’s offer to concede error did not prevent
Appellee from conceding error on appeal in this Court. Had
Appellee conceded error, she could have avoided most—if not
all—of her appellate attorney’s fees. * Third, Appellant’s appeal
was successful, and as a result, he is no longer liable for $25,000
in improperly awarded fees. While the fact that Appellant was
successful on appeal alone would not necessarily bar Appellee
from receiving attorney’s fees based on her relative ability to pay,


    *Appellee argued on appeal that the order was supported by
competent, substantial evidence and should be affirmed. She has
never made any concession of error before this Court. She also
sought enforcement of the order below.

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see Lamolinara v. Lamolinara, 85 So. 3d 1147, 1149 (Fla. 1st
DCA 2012), it should be considered in an equitable analysis. Cf.
Broga, 227 So. 3d at 241 (reversing award of appellate and trial
attorney’s fees based on improperly imputed income and noting
that “the former husband obtained relief on the merits in the first
appeal and again in this appeal, which must be taken into
account”). In this instance, the trial court abused its discretion
because equity does not warrant requiring Appellant to pay
Appellee’s appellate attorney’s fees. Accordingly, we reverse.

LEWIS, WETHERELL, and RAY, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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A. Collin Cherry of The Law Office of Collin Cherry, P.L.,
Tallahassee, Appellant.

Emilian “Ian” Bucataru, Tallahassee, for Appellee.




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