Martin v. Martin

                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 88-555

                             APRIL TERM, 1990


Judith A. Martin                  }          APPEALED FROM:
                                  }
                                  }
     v.                           }          Chittenden Superior Court
                                  }
                                  }
Larry D. Martin                   }          DOCKET NO. S52-85CnD


             In the above entitled cause the Clerk will enter:

     A Rule 60(b)(6) motion for relief from judgment is addressed to the
sound discretion of the trial court and will not be disturbed on appeal
unless it clearly and affirmatively appears from the record that the court
abused its discretion.  Green Mountain Bank v. Magic Mountain Corp., 148 Vt.
247, 247, 531 A.2d 604, 605 (1987).  Defendant filed his 60(b)(6) more than
two years from the date of the filing of the final decree and only after
service of plaintiff's motion for contempt.  In addition to addressing the
merits of the motion for relief from judgment, the trial court denied the
motion on the grounds that it was untimely.  This reason alone is sufficient
to uphold the court's decision on appeal.  Defendant has failed to
demonstrate that the trial court abused its discretion.

     The parties agreed that the court would decide the 60(b)(6) motion
without argument on the record because they had briefed the relevant issues.
However, the parties made no such agreement with respect to the motion to
enforce and for contempt.  After dismissing the motion for relief from
judgment, the court proceeded to grant the motion to enforce and for
contempt without the benefit of a hearing.  Defendant asserts this
constitutes error.  We agree.

     Here, the defendant's failure or refusal to comply with the order of
the court was not an act committed "in the face of the court."  Compare
Andrews v. Andrews, 134 Vt. 47, 49, 349 A.2d 239, 241 (1975) (failure to
execute documents in accordance with final decree was civil contempt
punishable by imprisonment after adequate hearing and opportunity to purge)
with State v. Allen, 145 Vt. 593, 601, 496 A.2d 168, 172 (1985) (swearing at
the court represents direct contempt immediately punishable without evidence
or examination).  Where the essential elements of the contempt offense occur
outside of the presence of the court, due process of law requires that the
contemnor receive notice and a fair hearing.  See Johnson v. Mississippi,
403 U.S. 212, 215 (1971) (per curiam).  V.R.C.P. 80(j) contemplates a
hearing on a motion to enforce a divorce judgment in all instances where an
affidavit has been filed.  The court may deny a motion expeditiously and
without a hearing if the motion is not accompanied by satisfactory
affidavits.  Reporter's Notes, 1987 Amendment, V.R.C.P. 80(j).  Where the
alleged events have taken place out of the court's presence, Rule 80(j) does
not dispense with the hearing guaranteed by the contemnor's right of
procedural due process.  See Walker v. Walker, 123 Vt. 430, 431, 192 A.2d 460, 460-61 (1963) ("A party to a domestic relations proceeding cannot be
adjudged in contempt for an out-of -court failure to abide by a court order,
without an order to show cause and an opportunity to be heard.").

     The dismissal of the Rule 60(b)(6) motion for relief from judgment is
affirmed.  The order granting the motion to enforce and finding defendant in
contempt of court is reversed and remanded for a hearing on that issue.



                                   BY THE COURT:




                                   Frederic W. Allen, Chief Justice


                                   Louis P. Peck, Associate Justice


[ ]  Publish                       Ernest W. Gibson III, Associate Justice

[ ]  Do Not Publish
                                   John A. Dooley, Associate Justice


                                   James L. Morse, Associate Justice