Randall v. Griffin ( 2016 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
MARTHELL RANDALL,
Appellant,
v. Case No. 5D15-3683
WILLIE CARL GRIFFIN, JR.,
Appellee.
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Opinion filed November 10, 2016
Appeal from the Circuit Court
for Orange County,
Sally D. M. Kest, Judge,
Patricia L. Strowbridge, Judge.
Marthell Randall, Orlando, pro se.
No Appearance for Appellee.
EDWARDS, J.
Marthell Randall (“Appellant”) appeals the trial court’s order of contempt against
Willie Carl Griffin, Jr. (“Appellee”). Appellant asserts that the trial court erred in failing to
impose conditions to enforce its order of contempt. We reverse for further proceedings
because the trial court erred when it refused to consider Appellant’s timely motion for
rehearing, which requested inclusion of enforcement provisions.
In 2010, the trial court entered a child support order that required Appellee to pay
Appellant $59.32 per week. In May 2015, Appellant filed a motion for civil
contempt/enforcement of child support against Appellee, asserting that Appellee had not
paid his court-ordered child support obligations. Appellant’s motion requested that the
trial court order Appellee to comply with the child support order; authorize the Department
of Revenue to collect the debt accrued; and, if Appellee is unemployed, order him to make
good-faith efforts to seek employment.
Despite receiving notice, Appellee did not appear at the July 2015 hearing on
Appellant’s motion held before the judicial hearing officer. The hearing officer’s report
and recommendations simply stated that Appellant’s motion was granted and did not
include any enforcement provisions to ensure Appellee complied with his child support
obligations. The trial court adopted and ratified the hearing officer’s recommendations,
but the court’s final order likewise granted Appellant’s motion without providing any
mechanism for enforcing the child support order or facts in support of the trial court’s
decision. Appellant timely served, via mail, her motion for rehearing in which she once
again requested the court include provisions to enforce the court’s child support order.
For reasons unknown, the motion for rehearing did not reach the clerk of the court’s office
in a timely fashion. The hearing officer and trial court refused to consider Appellant’s
motion for rehearing because they deemed it untimely.
Appellant did not brief the issue of the trial court’s refusal to entertain her motion
for rehearing. Appellate courts may not address an issue not raised in the briefs unless
the issue amounts to fundamental error. Bell v. State, 289 So. 2d 388, 391 (Fla. 1973)
(“It is the long standing rule of this Court that when assignments of error are not argued
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in the briefs they will be deemed abandoned unless jurisdictional or fundamental error
appears in the record.”). Appellate courts should limit their application of fundamental
error except in cases that equate to a denial of due process. O’Brien v. Fla. Birth-Related
Neurological Injury Comp. Ass’n, 710 So. 2d 51, 53 (Fla. 4th DCA 1998) (“Our limited
use of this principle in civil cases is, we think, supported by the fact that even in criminal
cases, where a miscarriage of justice has far more serious consequences, the Florida
Supreme Court has held that fundamental error must be ‘equivalent to a denial of due
process.’” (quoting Mordenti v. State, 630 So. 2d 1080, 1084 (Fla. 1994))).
According to the certificate of service, Appellant served her motion for rehearing
by mail seven days after the trial court issued its final order. “A motion for new trial or for
rehearing shall be served not later than [fifteen] days after the return of the verdict in a
jury action or the date of filing of the judgment in a non-jury action.” Fla. R. Civ. P. 1.530(b)
(emphasis added). “[T]he service date, not the filing date, is critical for determining
whether the motion is timely.” Migliore v. Migliore, 717 So. 2d 1077, 1079 (Fla. 4th DCA
1998) (citations omitted). If a motion for rehearing is timely served pursuant to Rule
1.530(b), the trial court should consider its merits. JPMorgan Chase Bank, Nat’l Ass’n v.
Bigley, 120 So. 3d 1265, 1270 (Fla. 3d DCA 2013) (“Should the trial court determine that
the motion was timely filed, it should then consider the merits of [appellant’s] motion for
[rehearing].”).
Appellant’s motion was timely because it was served within the fifteen days
allowed under Florida Rule of Procedure 1.530(b); therefore, the trial court should have
considered the merits of Appellant’s motion. This court can review the issue even though
Appellant did not raise it in her brief because the trial court’s failure to review Appellant’s
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timely served motion denied her due process. Cf. Ocr-EDS, Inc. v. S & S Enters., Inc.,
32 So. 3d 665, 667 (Fla. 5th DCA 2010) (“A rule that would deny a citizen who has timely
sought an appeal [of] his or her right to appeal based upon a proven mistake by a clerk’s
office employee is not consistent with justice or due process.”). Accordingly, we reverse
and remand so that Appellant’s request for the inclusion of enforcement provisions in an
amended contempt and enforcement order can be fully considered.
A trial court entering a civil contempt order based upon failure to pay court-ordered
child support may, but is not required to, include mechanisms for enforcing the order and
underlying obligations. “Once the court finds that a civil contempt has occurred, it must
determine what alternatives are appropriate to obtain compliance with the court order.”
Bowen v. Bowen, 471 So. 2d 1274, 1279 (Fla. 1985). The trial court has broad discretion
in choosing which, if any, enforcement provisions should be ordered. See § 61.14(5)(b),
Fla. Stat. (2015). Here, the trial court determined that Appellee violated his child support
obligations. Based on the record before this court, it appears that Appellee never
responded to Appellant’s contempt/enforcement motions and failed to attend a properly
noticed hearing in which Appellant sought sanctions against him. On remand, when the
trial court entertains Appellant’s motion for rehearing, it should consider whether, under
the circumstances of this case, to include any enforcement mechanisms in its amended
order. Furthermore, the trial court shall comply with Florida Family Law Rule of Procedure
12.615(d) and section 61.14(5), Florida Statutes (2015), by setting forth in the amended
order its findings of fact and reasons for finding Appellee in contempt.
REVERSED AND REMANDED.
TORPY and EVANDER, JJ., concur.
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