          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.

________________________________/

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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