Donley v. Donley

Donley v. Donley  (95-463); 165 Vt 619; 686 A.2d 943

[Opinion Filed 3-Oct-1996]


                               ENTRY ORDER

                      SUPREME COURT DOCKET NO. 95-463

                            SEPTEMBER TERM, 1996


Debra Donley                         }     APPEALED FROM:
                                     }
                                     }
     v.                              }     Windsor Family Court
                                     }
David Donley                         }
                                     }     DOCKET NO. F198-8-92WrFa


       In the above-entitled cause, the Clerk will enter:

       Defendant appeals the family court's denial of his motion to set aside
  a relief-from-abuse order.  We affirm.

       In August 1992, plaintiff, who is defendant's sister and rented an
  apartment in the home of the parties' mother, obtained a relief-from-abuse
  order based on an incident in which defendant physically attacked her and
  threatened to kill her.  The order required defendant to stay away from his
  sister, and permitted defendant to visit his mother at her home only within
  a three-hour period every other Sunday afternoon.  As a result of the
  incident, defendant was also charged with aggravated domestic assault.  A
  jury acquitted him of that and lesser-included offenses in June 1993.  In
  January 1994, defendant's sister obtained an extension of the abuse-
  prevention order "until further order of the court," with the same
  conditions.  In June 1995, defendant was served with a summons for
  violating the order when he remained at his mother's residence beyond the
  allotted time.  In July 1995, defendant filed a motion to set aside the
  order, claiming that (1) there had been a substantial change of
  circumstances since it was issued; (2) the unlimited duration of the order
  was unlawful; (3) the jury acquittal was res judicata as to whether he
  abused his sister, and the extended order placed him in double jeopardy for
  the same offense; and (4) his sister had lacked standing to obtain the
  order.  The family court denied the motion, rejecting each of these
  arguments.  On appeal, defendant raises only the latter two arguments. 
  First, he claims that because his sister is not a family or household
  member as defined in 15 V.S.A. § 1101(2), she lacked standing to obtain the
  abuse-from-relief order, and thus the court lacked jurisdiction to issue
  it.  Second, he claims that the issuance of the extended order based on the
  same incident for which he had been previously acquitted of domestic
  assault charges violated the principles of res judicata and placed him in
  double jeopardy.

       We first note that although defendant seeks to set aside a prior
  order, he provides no grounds to do so as set forth in V.R.C.P. 60(b).  See
  V.R.F.P. 9(a) (except as provided in this rule or by statute, rules of
  civil procedure shall apply to actions to prevent abuse).  A person who is
  the subject of an abuse-prevention order may seek modification of the order
  based on a change of circumstances, 15 V.S.A. § 1103(d), but here, rather
  than seeking modification based on changed circumstances, defendant seeks
  to set aside the January 1994 order by challenging its validity on
  jurisdictional and other legal grounds.  Accordingly, he must satisfy Rule
  60(b).

       Because defendant's motion to set aside was filed more than one year
  after the order was issued, he cannot proceed under subsections (1), (2),
  or (3) of the rule.  See V.R.C.P. 60(b) (motion shall be made within
  reasonable time, and for reasons (1), (2), and (3) not more than

 

  one year after order was entered).  Subsection (5) is not relevant.  Nor do
  subsections (4) (judgment is void) or (6) (any other reason justifying
  relief) provide the relief defendant seeks, at least with respect to his
  jurisdictional claims.  Rule 60(b) "`is not intended to function as a
  substitute for a timely appeal.'"  Richwagen v. Richwagen, 153 Vt. 1, 3,
  568 A.2d 419, 420 (1989) (quoting Tetreault v. Tetreault, 148 Vt. 448, 451,
  535 A.2d 779, 781 (1987)).  A judgment is not void on standing or
  jurisdictional grounds when a party had a prior opportunity to contest on
  those grounds but failed to do so.  See 11 C. Wright et al., Federal
  Practice and Procedure § 2862, at 331 (2d ed. 1995) (if party had
  opportunity to contest jurisdiction and failed to do so, jurisdiction
  cannot be attacked collaterally under Rule 60(b)(4)); Nemaizer v. Baker,
  793 F.2d 58, 65 (2d Cir. 1986) (even if court did not rule on exercise of
  jurisdiction, if parties could have challenged court's power to hear case,
  then res judicata principles bar them from later challenging jurisdiction
  collaterally under Rule 60(b)(4)); see also 13A C. Wright et al., Federal
  Practice and Procedure § 3531.15, at 106 (2d ed. 1984) (collateral attack
  for want of standing should be rejected; other jurisdictional defects do
  not establish that judgment is void, and standing should be no different). 
  For the same reason, Rule 60(b)(6), which normally affords relief only
  under extraordinary circumstances, is unavailing here with respect to
  defendant's jurisdictional claims.  11 C. Wright et al., Federal Practice
  and Procedure § 2864, at 357, 359-60 (2d ed. 1995) (it is generally not
  permissible to use Rule 60(b)(6) to remedy failure to appeal; if reasons
  for seeking relief could have been considered before, then motion will be
  granted only when extraordinary circumstances are present).

       In any event, defendant's standing argument has no merit because it
  relies on the definition of "family and household members" that was
  abandoned in 1992 when 15 V.S.A. § 1101(2) was amended.  See 1991, No. 135
  (Adj. Sess.), § 14.  Under the amended statute, the term "family members"
  is not defined and thus retains its plain and commonly accepted meaning. 
  See Shetland Properties, Inc. v. Town of Poultney, 145 Vt. 189, 194, 484 A.2d 929, 932 (1984).

       Finally, even assuming Rule 60(b) is an acceptable avenue of relief
  for defendant's double jeopardy argument, the argument is without merit. 
  While there are criminal consequences for violating relief-from-abuse
  orders, the abuse-prevention proceeding itself is unquestionably civil and
  remedial rather than punitive in nature.  See Rapp v. Dimino, 162 Vt. 1, 4,
  643 A.2d 835, 836 (1993) (Vermont's abuse-prevention statute "is designed
  to provide immediate relief to victims of domestic abuse"); 15 V.S.A. §
  1103(b), (c) (plaintiff shall have burden of proving abuse by preponderance
  of evidence; relief available to complainant is injunctive in nature). 
  Therefore, the issuance of an abuse-prevention order based on an incident
  for which the abuser was acquitted of criminal charges does not violate
  double jeopardy.  Cf. State v. Strong, 158 Vt. 56, 60, 63, 605 A.2d 510,
  512, 514 (1992) (issue of whether defendant was twice punished for same
  conduct turns on whether court action is properly categorized as remedial
  or as deterrence and retribution; license suspension proceeding is not
  criminal prosecution for purposes of double jeopardy because Legislature
  intended license suspension to be civil proceeding, rules of civil
  procedure apply, civil evidentiary standard of proof applies, and no
  criminal sanction is imposed through the proceeding).  Defendant's
  acquittal of domestic assault charges under a beyond-a-reasonable-doubt
  standard did not preclude the family court, under a
  preponderance-of-the-evidence standard, from extending an abuse-prevention
  order to protect the complainant's safety, even though the same conduct led
  to the order and the criminal charges.

       Affirmed.



     BY THE COURT:



     _______________________________________
     Frederic W. Allen, Chief Justice

     _______________________________________
     Ernest W. Gibson III, Associate Justice

     _______________________________________
     John A. Dooley, Associate Justice

     _______________________________________
     James L. Morse, Associate Justice

     _______________________________________
     Denise R. Johnson, Associate Justice