       Third District Court of Appeal
                               State of Florida

                          Opinion filed March 29, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D16-652
                         Lower Tribunal No. 10-31827
                             ________________


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

                                        vs.

                              Robert G. Orban,
                           Appellee/Cross-Appellant.



      An Appeal from the Circuit Court for Miami-Dade County, 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



                                         2
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.


                                           3
         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,


1The trial court initially found the testimony of Ms. Orban’s counsel supported an
award of $222,381.89 in fees and costs of $8420.46 in cost. This totaled
$230,802.35.
2   As to the parties’ incomes, the trial court found:

         [T]here is substantial disparity in the parties’ respective incomes
         insofar as the Former Husband’s income, less court ordered
         obligations, is $336,741.00 and the Former Wife’s income is
         $44,000.00 [for a total of $380,741.00].

To be accurate, $336,741 is 88.44% of $380,741; $44,000 is 11.56% of
$380,741.


                                             4
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




3 While we are well aware that adding $238,924.91 to $284,470.30 amounts to
$523,395.21, for reasons not explained, the court below, after adding $2,122.56 to
the other amounts expended by Ms. Orban to arrive at a total fee for her of
$238,924.91, then deducted that same amount ($2,122.56) from the total amount of
fees she incurred to arrive at a total fee expenditure by both parties of $521,272.65
($284,470.30 plus $238,924.19 - $2,122.56 [with a .72 disparity]).
4The final order actually awards only $134,315.46 to Ms. Orban. That number
accounts for sums previously ordered credited to Mr. Orban as follows:

       88.44% of the $515,272.65 total              =     $461,013.53

       Less Mr. Orban’s entire fees/costs           -     $284,470.30
                                                          $176,543.23

       Less previous credits to Mr. Orban           -     $ 44,350.00
                                                          $132,193.23

       Plus the new attorney fee award              +     $   2,122.56

       Total awarded to Ms. Orban                         $134,315.[79]

We take no issue with the missing 33 cents.

                                            5
      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 appropriate
      inquiry of whether one party has the need for such fees and the other
      party has the ability to pay them.


                                         6
Accord Wheeler v. Wheeler, 679 So. 2d 31, 32 (Fla. 4th DCA 1996); see also

Lowman v. Lowman, 724 So. 2d 648, 650 (Fla. 2d DCA 1999) (“Where there is a

substantial disparity between the parties’ incomes, it may be an abuse of discretion

to grant a partial attorneys’ fee award.”); accord Mount v. Mount, 989 So. 2d 1208,

1210 (Fla. 2d DCA 2008) (confirming that in a post-dissolution modification

proceeding “the proper inquiry [when making a fee determination] is whether one

spouse has a need for suit money and whether the other has the ability to pay”);

Kelly v. Kelly, 925 So. 2d 364, 369 (Fla. 5th DCA 2006) (noting husband’s “far

superior financial posture” and the delay tactics he employed and concluding “that

the trial court breached its discretion in not granting Laurie all or most of the fees

and costs expended by her attorney”); Baker v. Baker, 754 So. 2d 754, 755 (Fla. 3d

DCA 2000) (“It is clear from this record that Roland’s significant earnings give

him a far superior ability to pay Addie’s attorney’s fees and costs. The law is clear

that in dissolution cases attorney’s fees and costs are to be borne by the party who

has the greater ability to pay. Accordingly, Roland should pay all of the attorney’s

fees and costs.”) (citations omitted); Heller v. Kuvin, 490 So. 2d 245, 245 (Fla. 3d

DCA 1986) (“While the record demonstrates that both parties have sufficient funds

to pay the wife’s legal fees and costs, it is also apparent that the husband’s ability

to pay these fees is superior to that of the wife . . . . In view of the husband’s

superior ability to pay, we think, and so hold, that the trial court abused its


                                          7
discretion in requiring that the husband pay only $8,000, rather than the entire

$14,000, for the wife’s attorney’s fees.”).

      That is not to say, and we do not hold today, that a trial court in a chapter 61

matter may not award only a portion of the fees and costs incurred by a party. We

hold only that it was error below to apply a formula based on the parties’

respective incomes to determine the amount to be awarded to Ms. Orban. The

error in using a formula was further compounded here by the trial court’s failure to

account for its own finding as to Mr. Orban’s “improper conduct which created

otherwise unnecessary litigation and required unnecessary judicial intervention.”

See Rosen, 696 So. 2d at 700-01. By failing to so account, it would appear that the

only party being discouraged from further litigation was Ms. Orban, who after

being subjected to “improper conduct” by Mr. Orban, which ran up the amount of

fees and costs incurred, was obligated to pick up part of the tab for it.

      In sum, the trial court’s errors were multi-fold. It wrongfully combined

the attorney’s fees and costs of the parties and then awarded Ms. Orban only a

portion of that total based on a comparison of her income to Mr. Orban’s rather

than on determination of need and ability to pay. The trial court further

failed to consider or account for Mr. Orban’s documented improper

litigious behavior, to finally rely on the court’s own self-proclaimed vision




                                           8
of how to get litigants to economize on their legal expenses. What resulted

was a calculation that unfairly and impermissibly penalized Ms. Orban.

      This resolution makes it unnecessary for us to address any of the issues

raised on cross-appeal, except that relating to the trial court’s jurisdiction to enter a

fee award where many orders entered during this post-dissolution matter included

no reservation of jurisdiction to do so. Specifically, relying solely on the Fourth

District Court of Appeal’s 1991 decision in Cibula v. Cibula, 578 So. 2d 519 (Fla.

4th DCA 1991) (en banc), Mr. Orban argues that because each of the orders on the

parties’ sixty or so motions filed during this post-decretal proceeding did not

reserve jurisdiction to award attorney’s fees, these matters could not be considered

when entering a fee award:

             Because each post-judgment proceeding stands on its own, it
      was necessary for the Former Wife to prove reasonable fees based
      only upon matters that contained an award of reservation of
      jurisdiction. Attorneys’ fees could not have been awarded for
      anything other than five orders that had a reservation of jurisdiction
      because the trial court lost jurisdiction over the others, and there was
      no evidence of the time spent or reasonability of the time on any of
      those.

      In Cibula, the en banc court concluded that because a number of post-

decretal orders resolving several contempt proceedings failed to reserve

jurisdiction to award attorney’s fees, the trial court was without jurisdiction to later

award fees upon resolution of a pending modification proceeding. In a dissenting

opinion joined in by Judges Letts, Dell, and Farmer, Judge (later Justice) Anstead


                                           9
stated, “I think the legislature meant what it said when it used the broad phrase

‘may from time to time,’ in authorizing trial judges to award fees in dissolution

proceedings, including enforcement actions.            It seems unnecessary, and

impractical, to require a reservation of jurisdiction in an enforcement order.” Id. at

521. Nearly thirteen years later, this same court acknowledged, although in a

different context, that Judge Anstead was indeed correct.

        In Gosselin v. Gosselin, 869 So. 2d 667, 669 (Fla. 4th DCA 2004) (footnote

omitted), the Fourth District confirmed that while many post-decretal orders may

be final for the purposes of appeal, arguably requiring contemporaneous fee

motions and orders, “it [did] not necessarily follow that each of these orders must

be deemed a ‘judgment’” so as to mandate a separate fee order:

              Whether a post-decretal order is final or non-final is a source of
        confusion, even among experts in the field.

               ....

              In this case, many of the orders addressed in the amended
        motion for fees and costs were final orders . . . for purposes of filing
        an appeal. However it does not necessarily follow that each of these
        orders must be deemed a “judgment” within the meaning of Rule
        1.525.[5] That rule contemplates that a single motion for fees must be

5   That rule provides:

               Any party seeking a judgment taxing costs, attorneys’ fees, or
        both shall serve a motion no later than 30 days after filing of the
        judgment, including a judgment of dismissal, or the service of a notice
        of voluntary dismissal, which judgment or notice concludes the action
        as to that party.

                                          10
      filed within thirty days of what is typically the single judgment in a
      case. The drafters of Rule 1.525 likely never contemplated that it
      would be applied to post-decretal orders in marital dissolution cases.
      In such cases, especially where minor children are involved, a final
      judgment of dissolution will, as here, typically result in several post-
      decretal orders accumulating in short order. It would seem both
      awkward and inconsistent with the general practice in this area to
      require separate attorney’s fee motions to be brought each time a post-
      decretal order issues.

             In this regard, we look to the language of section 61.16, Florida
      Statutes, which governs attorney’s fees in dissolution actions. This
      section states that the court “may from time to time” award fees to a
      necessitous party. We note that the “bright-line” purpose of Rule
      1.525 to “resolve the uncertainty surrounding the timing of these
      motions”[] will grow dimmer if parties are routinely required to
      decide whether a particular post-decretal order is sufficiently final to
      constitute a separate judgment under the rule.

             Instead, we adopt a bright-line construction consistent with both
      the simplifying purposes of Rule 1.525 and the practice under Fla. Sta.
      section 61.16, by holding that Rule 1.525 does not apply to post-
      decretal orders in marital dissolution actions. In such cases, so long as
      a party seeks fees within a reasonable time after the post-decretal
      work was performed, such motion will be timely filed.

      The following year, the Florida Supreme Court adopted Family Law Rule of

Procedure 12.525 which in its entirety provides “Florida Rule of Civil Procedure

1.525 shall not apply in proceedings governed by these rules.” Amendments to the

Florida Family Law Rules of Procedure (Rule 12.525), 897 So. 2d 467 (Fla. 2005).

In doing so, the Supreme Court confirmed that different rules apply in family

matters from those that apply in other civil matters:


Fla. R. Civ. P. 1.525.

                                         11
             We agree that rule 1.525 should not apply in family law
      proceedings. The method of taxation of attorneys’ fees and costs in
      family law cases is quite different from that in civil litigation.
      Whereas the former is based on need and ability of the parties to pay,
      the latter is based on prevailing considerations. Moreover, section
      61.16, Florida Statues (2004), already governs the award of attorneys’
      fees and costs in family law cases. See also Rosen v. Rosen, 696 So.
      2d 697, 699 (Fla. 1997) (noting that “[a]ny determination regarding an
      appropriate award of attorney’s fees in proceedings for dissolution of
      marriage, support, or child custody begins with section 61.16, Florida
      Statutes”).

Id. at 467-68.

      By citing to Rosen, the Court further confirmed its earlier determination that

under section 61.16 “a trial court may from time to time, i.e., depending on the

circumstances surrounding each particular case, award a reasonable attorney’s fee

after considering the financial resources of both parties” as well as “other relevant

circumstances” 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.”

Rosen, 696 So. 2d at 700.

      Post-decretal proceedings commenced in this case almost as soon as the

marriage was dissolved when Ms. Orban filed a verified motion for contempt and

to enforce the marital settlement agreement claiming that Mr. Orban was engaging

in a personal vendetta against her, harassing her and disparaging her to the parties’



                                         12
four minor children. She also claimed, among other things, that he was in arrears

in child support payments. This petition was shortly followed by Mr. Orban’s

petition to modify the final judgment claiming that Ms. Orban was living in a

supportive relationship thereby entitling him to terminate alimony. Thereafter,

motion upon motion to enforce various portions of the marital settlement

agreement, as well as motions to compel discovery and other matters, followed.

While virtually all of these motions requested a fee award, not all of the orders

thereon made a fee award or reserved jurisdiction to do so later.6

         Finally, in 2015, after years of litigating issues related to timesharing,

support, visitation, and many other matters regarding the parties’ children, as well

as litigating issues relating to alimony and discovery related to these matters, the

trial court heard the remaining matters pending between the parties: Mr. Orban’s

petition to modify alimony and his counter-petition to modify timesharing; and Ms.

Orban’s petition to modify the parenting plan for the parties’ children. While both

parties had diligently requested fee awards in their motions throughout these

proceedings, each filed additional fee motions shortly before the final hearing.

         Apparently feeling unconstrained by the argument he currently makes here,

Mr. Orban sought to recover for fees and costs he incurred relating to the many




6   Many of these orders clearly state that they are temporary orders.

                                           13
orders entered throughout the entire proceeding, even those without any fee

provision, arguing in part:

      For three years, the Former Husband has been subjected to vexatious
      litigation by the Former Wife. He is entitled to recover his attorney’s
      fees incurred in defending the same.
Ms. Orban similarly sought an award of attorneys’ fees incurred throughout the

litigation because of “the Former Husband’s improper conduct which created

otherwise unnecessary litigation and required otherwise unnecessary judicial

intervention.” Ultimately, the court below determined, based expressly on Rosen

and section 61.16, that Ms. Orban was entitled to a fee award for the costs she had

incurred “in these post-judgment proceedings.”

      As Rosen and its progeny confirm, the court below clearly had jurisdiction

to consider “the scope and history of [this] litigation; the duration of [this]

litigation; the merits of the respective positions; whether [this] litigation [was]

brought or maintained primarily to harass [or to frustrate or stall]” as well as “the

existence and course of prior or pending litigation” irrespective of whether fee

awards had been addressed in orders entered during this post-decretal litigation.

See Rosen, 696 So. 2d at 700.

      In sum, we conclude that the decision in Cibula does not support a

determination that the court below was without jurisdiction to consider any portion

of these post-decretal proceedings or would be required to parse out individual



                                         14
orders because they did not include a fee award when entering the final fee award

at the conclusion of this proceeding. Rather, under section 61.16 and Rosen, the

trial court was permitted to award Ms. Orban a reasonable amount for the

attorney’s fees and costs she incurred for maintaining or defending the various

matters that occurred all the way up to, and including, the time of the final hearing

in this case.

       Accordingly, we reverse the order under review and remand for entry of a

new fee award based on the criteria set forth in section 61.16 of the Florida

Statutes.




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