Attorney Fee Arrangement. Photo: Africa Studio/Shutterstock.com

A Florida appellate court has overruled an order issued by the former Miami-Dade judge now serving as South Florida’s top prosecutor.

The Third District Court of Appeal ruled on Wednesday that U.S. Attorney for the Southern District of Florida Ariana Fajardo Orshan erred in issuing a contempt order against Robert Orban during her time as a Miami-Dade Circuit judge. Orban, the respondent in dissolution of marriage proceedings with his ex-wife Susan Rorrer, submitted an appeal after Fajardo held him in contempt for failing to make timely payments on outstanding attorney fees.

The appellate panel reversed and remanded Fajardo’s order, finding that the trial court abused its discretion with the decision. The Third DCA reasoned its decision in part because “Mr. Orban was not given the opportunity to purge the sanction imposed upon him.”

“Because the trial court did not make findings as to Mr. Orban’s ability to pay or his willful violation of the fee orders and did not include a purge provision in its contempt order, we reverse,” the opinion said. As recounted in Wednesday’s order, the Third DCA had previously ruled against Orban in March 2017 when it granted Rorrer’s motion for attorney fees against her former partner. Orban subsequently failed to make the payments required of him by the lower court’s orders, prompting Rorrer to enter a motion for sanctions against him.

The Third DCA’s opinion noted Orban satisfied his fee obligations by the time an evidentiary hearing was held on Rorrer’s motion in July 2018.

Read the opinion:

“At the hearing, Mr. Orban, who was not represented by counsel, was current on all his fee obligations and testified about his inability to pay,” the opinion said. Although the hearing concluded with Fajardo finding Orban to be in contempt and ordering him to pay an additional $3,877.50 in attorney’s fees within thirty days, the appellate court singled out his testimony on his efforts to pay the fees on time.

“Mr. Orban provided evidence and testimony that he attempted to fulfill his obligations,” the opinon said, noting he “maxed out the credit lines on his property, borrowed money from his family, declared bankruptcy, borrowed against his life insurance policy, and fell behind on the mortgage to his home.”

The order added, “The trial court seemed to acknowledge Mr. Orban’s inability to timely pay by allowing him a grace period within which Mr. Orban could submit subsequent payments to Ms. Rorrer. But ultimately, the trial court found Mr. Orban in contempt and sanctioned him without making findings as to his ability to pay or whether he willfully violated the Fee Orders. This was error.”

U.S. Attorney for the Southern District of Florida Ariana Fajardo Orshan. Courtesy photo

The appellate court also ruled the lower court’s order neglected to provide a means for Orban to purge the sanction constituted “reversible error.”

Rorrer’s appellate counsel, Cynthia Greene with Young, Berman, Karpf & Gonzalez’s Miami office, declined to provide comment without consulting her client. Joanne Garone, the Pembroke Pines-based lawyer who represented Rorrer in trial court, did not immediately return requests for comment.

Coral Gables litigator Normal Segall represented Orban before the Third DCA. The Lubell & Rosen partner said the appeals court “got it right.”

“The judge didn’t give any reason for her decisions and didn’t make any findings as to why he was in contempt, probably because he wasn’t,” Segall said. “In the decision you could see what evidence Mr. Orban put on … She shouldn’t have held him in contempt, but she did.”

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