Third District Court of Appeal

State of Florida 

Opinion filed February 28, 2024.

Not final until disposition of timely filed motion for rehearing.

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No. 3D22-1938

Lower Tribunal No. 17-18681

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Michelle Pimienta,

Appellant,

vs.

David Abraham Rosenfeld,

Appellee.

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

Bernstein, Judge.

Reid Levin, PLLC, and Reid Levin (Boca Raton), for appellant.

Nancy A. Hass, P.A., and Nancy A. Hass (Fort Lauderdale), for 

appellee.

Before EMAS, GORDO and BOKOR, JJ. 

GORDO, J. 
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Michelle Pimienta (“Mother”) appeals a final order granting David 

Rosenfeld’s (“Father”) motion to dismiss the Mother’s supplemental petition 

for modification as to parental responsibility and time sharing and the denial 

of her motion for attorney’s fees. We have jurisdiction. Fla. R. App. 

9.030(b)(1)(A).1

 For the reasons discussed below, we affirm the trial court’s 

dismissal of the Mother’s supplemental petition without further discussion, 

and reverse and remand on the denial of attorney’s fees. 

Throughout the proceedings, the Mother consistently sought attorney’s 

fees based on the Father’s greater ability to pay. Section 61.16(1), Florida 

Statutes, requires that the trial court take into consideration the parties' ability 

to pay when awarding attorney's fees and costs. See Troike v. Troike, 271 

So. 3d 1069, 1073 (Fla. 3d DCA 2019); Gudur v. Gudur, 277 So. 3d 687, 

693-94 (Fla. 2d DCA 2019) (“The trial court cannot deny a request for 

attorney's fees under section 61.16 without making findings as to one party's 

1 The trial court granted the Father’s motion to dismiss without prejudice. 

See GMI, LLC v. Asociacion del Futbol Argentino, 174 So. 3d 500, 501 (Fla. 

3d DCA 2015). “An order that dismisses an action ‘without prejudice’ may 

or may not be a final order depending on whether it unequivocally disposes 

of the case.” Hinote v. Ford Motor Co., 958 So. 2d 1009, 1010 (Fla. 1st DCA 

2007). As reflected within the record, the order on appeal granted the motion 

to dismiss, summarily dismissed any pending motions and disposed of all 

claims. We find this is an appealable, final order. 
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ability to pay an award of fees and the other party's need for the payment of 

fees.”). 

Specifically, after the filing of the supplemental petition, she made 

several motions for attorney’s fees arguing her financial need and the 

Father’s ability to pay fees. The trial court may consider motions for 

attorney’s fees “from time to time,” including during post dissolution

modification proceedings. § 61.16, Fla. Stat.; see Rorrer v. Orban, 215 So. 

3d 148, 152 (Fla. 3d DCA 2017); Juhl v. Juhl, 328 So. 3d 1031, 1032-33 (Fla. 

2d DCA 2021) (“[Section 61.16] does not impose a thirty-day limitation on a 

trial court's postjudgment jurisdiction to consider fee motions.”).

The Mother properly raised motions for attorney’s fees after the final 

judgment dealing with costs of representation incurred based on postdissolution proceedings. However, the trial court summarily dismissed the 

Mother’s requests without making any findings regarding the parties’

respective needs and ability to pay. The order merely provided: 

All other motions filed in this case were either subsumed in the 

amended final judgment or are now moot.

The trial court’s summary denial of the Mother’s motion for attorney’s 

fees, without making any findings regarding the parties’ need and ability to 

pay, is reversible error. See Gudur, 277 So. 3d at 693; Rawson v. Rawson, 

264 So. 3d 325, 332 (Fla. 1st DCA 2019) (“In simply denying [attorney’s] fees 
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without further explanation, the trial court erred.”). Where a motion for 

attorney’s fees is made on the cost of litigation incurred for post-dissolution 

proceedings, the motion cannot be considered moot as contained in the final 

judgment. See generally Herce v. Maines, 317 So. 3d 1211, 1215 (Fla. 2d 

DCA 2021) (recognizing that the order dismissing the former wife's contempt 

motion as moot was final); Baldwin v. Baldwin, 204 So. 3d 565, 567 (Fla. 5th 

DCA 2016) (“An issue is moot when the controversy has been so fully 

resolved that a judicial determination can have no actual effect.”). The failure 

to make such findings constitutes reversible error.

Affirmed in part; reversed in part and remanded for further proceedings 

consistent with this opinion.