Waitt v. Waitt

406 A.2d 395 (1979)

Kathleen WAITT v. Richard WAITT.

No. 186-78.

Supreme Court of Vermont.

September 10, 1979.

*396 McCarty & Rifkin, Brattleboro, for plaintiff.

Richards & Lawlor, P. C., Springfield, for defendant.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

PER CURIAM.

This is an appeal from an order in a contested divorce case denying the plaintiff's motion for a new trial, V.R.C.P. 59, and her motion for relief from the final judgment on the basis of newly discovered evidence, fraud on the part of the defendant, and the negligence of her previous counsel, V.R.C.P. 60(b)(2), (3) and (6).

The plaintiff's motion for a new trial was filed eleven days after final judgment was entered, which is one day beyond the period specified in V.R.C.P. 59(b). The trial court properly denied the motion.

A motion for relief from judgment under V.R.C.P. 60 is addressed to the discretion of the trial court, and is not subject to appellate review unless it clearly and affirmatively appears from the record that such discretion was withheld or otherwise abused. Kotz v. Kotz, 134 Vt. 36, 40, 349 A.2d 882, 885 (1975). The record before us demonstrates no abuse of discretion.

Affirmed.