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