Zambito-Austin v. Jordan
Zambito-Austin v. Jordan (98-206); 169 Vt. 589; 732 A.2d 747
[Opinion filed 07-May-1999]
[Motion for Reargument denied 14-Jun-1999]
ENTRY ORDER
SUPREME COURT DOCKET NO. 98-206
APRIL TERM, 1999
Cynthia Zambito-Austin } APPEALED FROM:
}
}
v. } Franklin Family Court
}
Dennis Jordan }
} DOCKET NO. 17-10-95 Frur
In the above-entitled cause, the Clerk will enter:
Two Vermont orders, issued in 1983 and 1984, terminated defendant's
obligation under an earlier Pennsylvania order to pay child support to
plaintiff for the parties' minor child. In 1995, the Office of Child
Support brought this action under V.R.C.P. 60(b) for relief from the
judgments on the ground that the Vermont court did not have jurisdiction in
1983 and 1984 to enter the judgments. The magistrate agreed, vacated the
two Vermont orders, reinstated a previous Pennsylvania child support
order, and calculated an arrearage for over ten years of child support.
The family court affirmed the magistrate's decision. We reverse.
Although unartfully drafted, defendant's pro se brief argues that the
V.R.C.P. 60(b) motion was not filed within a reasonable time after the
entry of judgment in 1983 and 1984. He maintains that (1) some of the
records to support his case are no longer in existence and (2) he gave up
all rights to visitation with his child in exchange for termination of his
child support obligation, which cannot be remedied so many years after the
fact. The Office of Child Support provides no grounds under V.R.C.P.
60(b) for setting aside the 1983 and 1984 orders and presents no argument
on the lengthy delay in seeking relief. It maintains merely that the
Vermont court had no subject-matter jurisdiction in 1983 and 1984 to
vacate or modify the pre-existing Pennsylvania child support order.
V.R.C.P. 60(b) governs motions for relief from a final judgment. The
rule sets forth six reasons for which the court may relieve a party from
final judgment. For the first three reasons, the motion must be filed
within one year after entry of the judgment. Thus, the Office of Child
Support cannot proceed under any of these subsections. See Donley v.
Donley, 165 Vt. 619, 619, 686 A.2d 943, 945 (1996) (mem.). For the other
three reasons, the motion must be filed "within a reasonable time."
V.R.C.P. 60(b). Thus, the Office of Child Support must show that its
motion is based on one of these three reasons and that the motion is
brought within a reasonable time. See id.
Generally, a V.R.C.P. 60(b) motion is addressed to the sound
discretion of the trial court and will not be disturbed on appeal unless
it clearly appears that the court abused its discretion. See Martin v.
Martin, 154 Vt. 651, 651, 578 A.2d 110, 111 (1990) (mem.). In this case,
neither the magistrate, nor the family court addressed V.R.C.P. 60(b). We
do not remand for the magistrate to exercise this discretion, however,
because it was unreasonable as a matter of law to wait over ten years,
absent any adequate explanation, to seek to set aside the 1983 and 1984
judgments. Compare id. at 651, 578 A.2d at 111 (V.R.C.P. 60(b)(6) motion
filed two years after final decree and after motion for contempt was
untimely); Bouroughs v. Bouroughs, 132 Vt. 34, 37, 316 A.2d 522, 523
(1974) (four years is not reasonable time in which to seek relief from
final divorce decree that did not order any alimony) with Greenmoss
Builders, Inc. v. Dun & Bradstreet, Inc., 149 Vt. 365, 369, 543 A.2d 1320,
1323 (1988) (several year delay from trial court decision not
unreasonable where defendant pursued appeal to United States Supreme Court
and filed motion within two months of entry of that judgment). The Office
of Child Support presents no explanation for the lengthy delay.
Moreover, the Office of Child Support sets forth no reason under
V.R.C.P. 60(b) for relief from judgment. It merely maintains that the
Vermont court lacked subject-matter jurisdiction to enter the 1983 and
1984 orders. Jurisdictional claims should generally be brought by timely
appeal; V.R.C.P. 60(b) is not intended to substitute for such an appeal.
See Donley, 165 Vt. at 619, 686 A.2d at 945. A judgment is not void on
jurisdictional grounds when a party had an opportunity to contest those
grounds but failed to do so. See id. at 620, 686 A.2d at 945; see also In
re B.C., ___ Vt. ___, ___, 726 A.2d 45, 50 (1999) (judgment is not void for
lack of subject-matter jurisdiction under V.R.C.P. 60(b)(4) unless court
lacked jurisdiction over entire category of cases). Because the V.R.C.P.
60(b) motion fails to set forth any reason for relief recognized by the
rule and because it was not brought within a reasonable time, it was an
abuse of discretion to set aside the 1983 and 1984 orders.
Reversed.
BY THE COURT:
_______________________________________
Jeffrey L. Amestoy, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
James L. Morse, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
