Opinion
Case Nos. 6D23-1141 6D23-1146 Case No. 6D23-1199
09-01-2023
Syed Imran ALI, Appellant, v. Salsabeel A. KHAN, Appellee.
John N. Bogdanoff, of The Carlyle Appellate Law Firm, Orlando, for Appellant. Nicholas A. Shannin and Carol B. Shannin, of Shannin Law Firm, P.A., Orlando, and Eric Lee Bensen, of Greater Orlando Family Law, LLC, Orlando, for Appellee.
Appeal from the Circuit Court for Orange County. Diana M. Tennis, Judge. Lower Tribunal No. 48-2011-DR-000112-O,
John N. Bogdanoff, of The Carlyle Appellate Law Firm, Orlando, for Appellant.
Nicholas A. Shannin and Carol B. Shannin, of Shannin Law Firm, P.A., Orlando, and Eric Lee Bensen, of Greater Orlando Family Law, LLC, Orlando, for Appellee.
ORFINGER, Associate Senior Judge.
In these consolidated appeals, Syed Imran Ali challenges (1) the denial of his supplemental petitions for modification of alimony, past child support, timesharing, and parental responsibility, and (2) the award of attorney’s fees to his former wife, Salsabeel A. Khan. We affirm the trial court’s rulings on the supplemental petitions for modification. However, we re- verse the attorney’s fee award to Khan and remand for the trial court to consider the parties’ financial positions under section 61.16(1), Florida Statutes (2022).
We have consolidated these appeals for purposes of this opinion.
These cases were transferred from the Fifth District Court of Appeal to this Court on January 1, 2023.
Ali and Khan were divorced in 2013. The final judgment of dissolution ordered Ali to pay alimony and child support. It also established parental responsibilities and timesharing for their minor children. Ali later petitioned the trial court to modify alimony and child support, both unpaid past support and future support, based on an alleged change of circumstances since the 2013 final dissolution judgment. He alleged a change of circumstances because of motorcycle accidents in 2013 and 2020, which he claimed had significantly reduced his income. He also sought modification of the parental responsibility and timesharing terms.
[1] Following hearings on the supplemental petitions for modification, the trial court found that Ali failed to prove any change of circumstances. It determined that the two motorcycle accidents had no effect on Ali’s ability to earn income. Although the trial court agreed to reduce Ali’s future child support obligations, it otherwise denied the supplemental petitions to modify alimony and unpaid past child support. The court also found that Ali did not present sufficient evidence to warrant modification of parental responsibility and timesharing. The trial court’s findings are supported by competent, substantial evidence, and the trial court’s action was not "arbitrary, fanciful, or unreasonable." See Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980). Consequently, we must affirm the rulings on the supplemental petitions for modification.
In a separate order, the trial court awarded Khan her attorney’s fees for defending the supplemental petitions for modification. The trial court made several findings to support its criticism of Ali’s conduct throughout the litigation process. The trial court also concluded that, under the circumstances, it would be unjust to require Khan to have to pay any of her attorney’s fees and ordered Ali to pay all of Khan’s attorney’s fees. However, the court did not assess the fees as a sanction.
[2–5] In dissolution proceedings, section 61.16(1) permits the trial court to award attorney’s fees "after considering the financial resources of both parties." Thus, the primary factor under section 61.16(1) is the parties’ financial resources. Rosen v. Rosen, 696 So. 2d 697, 700 (Fla. 1997); see Standard Guar. Ins. v. Quanstrom, 555 So. 2d 828, 835 (Fla. 1990) (explaining that section 61.16 "requires a judge to consider the needs of the party seeking a fee"). The trial court may also consider secondary factors related to the scope, history, and duration of the litigation; the merits of the parties’ positions; whether the litigation is brought or maintained primarily to harass, or the defense is raised mainly to frustrate or stall; and the existence and course of prior or pending litigation. Rosen, 696 So. 2d at 700. Notwithstanding, "[e]ven in those cases raising issues of inappropriate conduct, the trial court still must consider the parties’ respective need for suit money and ability to pay." Sumlar v. Sumlar, 827 So. 2d 1079, 1085 (Fla. 1st DCA 2002). That is because the purpose of section 61.16(1) is to ensure that the parties possess a similar ability to obtain competent legal counsel. Canakaris, 382 So. 2d at 1205.
[6] Here, it was within the trial court’s prerogative to consider the conduct of the parties and the progress of the litigation. However, the trial court should have also considered the parties’ financial positions, focusing on Khan’s need for an award of fees and Ali’s ability to pay. Because the trial court did not do so, we must reverse the order granting fees to Khan and re- mand for the trial court to reevaluate Khan’s fees request.
Accordingly, we affirm the judgments denying the supplemental petitions for modification but reverse and remand the order awarding attorney’s fees for proceedings consistent with this opinion.
AFFIRMED in part; REVERSED and REMANDED in part.
NARDELLA and SMITH, JJ., concur.