Fletcher, In re, 83-554
| Decision Date | 25 May 1984 |
| Docket Number | No. 83-554,83-554 |
| Citation | 144 Vt. 419,479 A.2d 134 |
| Parties | In re Christopher Lee FLETCHER, b/n/f Valerie Shepard. |
| Court | Vermont Supreme Court |
Charon A. True, St. Albans, for plaintiff-appellant.
Arthur A. Heald, St. Albans, for defendant-appellee.
Before BILLINGS, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ. GIBSON, Justice.
Defendant has moved to dismiss plaintiff's appeal on the ground that plaintiff has not filed a certified question of law to be determined by this Court, as required by V.R.A.P. 13(c). For the reasons stated herein, we deny the motion.
V.R.A.P. 13(c) provides:
(c) Record: Probate Appeals. In appeals from a probate court, the record on appeal shall consist of a certified copy of the proceedings appealed from, setting forth the questions of law to be determined by the Supreme Court.
This case, which involves a petition to change the name of a minor child, raises the sole issue on appeal of whether the probate court erred when it concluded that the divorced father had not abandoned the child. Although the issue has been joined in the briefs, the appellant has not filed a certified question of law.
In a parallel rule, V.R.A.P. 13(d) (recently amended *) provided as follows with respect to administrative appeals:
(d) Same: Administrative Appeals. In appeals from administrative boards or agencies, the record on appeal shall consist of the original papers and exhibits enumerated in 3 V.S.A. § 809(e); any transcript of oral proceedings made in accordance with 3 V.S.A. § 809(f); and a certified statement of the question or questions of law to be reviewed prepared by the commissioner or presiding officer of the board or agency.
In a tax appeal the Court addressed the lack of a certified statement of the question or questions of law required by the above rule as follows:
The record originally presented to this Court did not contain the certified statement of the questions of law to be reviewed, as required by V.R.A.P. 13. This is not a jurisdictional shortcoming. The Court may, at its option, allow the record to be completed by a subsequent filing of the certification. See State v. Mahoney, 126 Vt. 258, 259, 227 A.2d 401 (1967). Or, alternatively, the Court may go further and, under the authority of V.R.A.P. 2, dispense with the statement altogether, unless it is coupled to some statutory requirement such as 21 V.S.A. § 672. With no such limitation here, this Court is free to proceed with review in the absence of a statement of the legal issues from the agency, and elects to do so.
Town of Barnet v. Central Vermont Public Service Corp., 131 Vt. 578, 580, 313 A.2d 392, 393 (1973). This approach was reaffirmed by the Court in an appeal from an order of the Human Services Board where the question certified was so broad that the Court elected to disregard it entirely. Hislop v. Department of Social Welfare, 136 Vt. 205, 207, 388 A.2d 428, 429 (1978).
By way of further analogy, "a statement of the question or questions of law sought to be reviewed, ... signed by the judge" is required by V.R.A.P. 5(a) and "a statement setting forth the question of law asserted to be controlling" is required by V.R.A.P. 5(b) whenever an interlocutory appeal is taken from superior or district court. In such cases, this Court is not necessarily limited to the issues certified by the trial court. Bennett Estate v. Travelers Insurance Co., 140 Vt. 339, 344, 438 A.2d 380, 382 (1981); State v. Carpenter, 138 Vt. 140, 144-46, 412 A.2d 285, 288-89 (1980); Reporter's Notes, V.R.A.P. 5 (main volume, 1971).
The purpose of a certified question is to assist the parties and the Court to focus in on the true issues of an appeal. State v. Carpenter, supra, 138 Vt. at 146, 412 A.2d at 289. No such assistance is required in ...
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Estate of Neil, In re
...that petitioner acquired ownership of the parcel of land by adverse possession against his fellow co-tenants. In re Fletcher, 144 Vt. 419, 422, 479 A.2d 134, 135 (1984) (certified questions are only guidelines to the Court). We hold that the probate court erred in its conclusion that petiti......
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In re Guardianship of A.S.
...one which has been fully dealt with in the parties' briefs, we can entertain an appeal without certified questions. In re Fletcher, 144 Vt. 419, 422, 479 A.2d 134, 135 (1984). In this case, as noted, A.S. has briefed a two-part issue on appeal: Did the probate court either exceed its jurisd......
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W.H., In re
...will not hesitate to reach issues outside the scope of a certified question when necessity requires. Id.; see also In re Fletcher, 144 Vt. 419, ---, 479 A.2d 134, 135 (1984). So too, we will narrow the focus of such an inquiry when it appears from the facts or the procedural posture of the ......
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Trust Estate of Flynn, In re, 91-129
...that involved mixed questions of law and fact. See, e.g., In re Estate of Neil, 152 Vt. 124, 565 A.2d 1309 (1989); In re Fletcher, 144 Vt. 419, 479 A.2d 134 (1984). Our decision today does not concern the scope of this Court's jurisdiction over probate matters; we merely refute appellants' ......