Kotz v. Kotz, s. 66-75

• Decision Date: 02 December 1975
• Docket Number: 163-75,Nos. 66-75,s. 66-75
• Court: Vermont Supreme Court
• Parties: Betty J. KOTZ v. Russell H. KOTZ.

Page 882

349 A.2d 882

134 Vt. 36

Betty J. KOTZ v. Russell H. KOTZ.

Nos. 66-75, 163-75.

Supreme Court of Vermont.

Dec. 2, 1975.

Weber, Fisher, Perra & Gibson, Brattleboro, for plaintiff.

Fred I. Parker of Langrock & Sperry, Middlebury, for defendant.

Before, BARNEY, C. J., SMITH, DALEY and LARROW, JJ., and SHANGRAW, C. J. (Ret.), Specially Assigned.

DALEY, Justice.

The plaintiff, in a civil action brought in the Bennington Superior Court, obtained a judgment against the defendant by default. No appeal was taken within the period prescribed by V.R.A.P. 4(a), and the judgment became final. The defendant then sought relief from final judgment under V.R.C.P. 60(b) on the following grounds: (1) mistake, inadvertence or excusable neglect; (2) the prior judgment upon which said judgment is based has been vacated; and (3) general principles of equity.

On February 25, 1975, the court, upon consideration of the record, representations of counsel, memoranda and rules of court entered an order denying the motion. From this order, the defendant appealed and the cause was transferred to this Court in accordance with our Rules of Appellate Procedure.

Thereafter, new counsel for the defendant by a document entitled 'Motion to Reconsider-Motion to Vacate' requested the trial court to reconsider its February 25, 1975, order denying the previous motion for relief at a time when it was to hear other motions, not material here. Counsel for the plaintiff was not made aware of this motion until he appeared at the courthouse on April 1, 1975, for hearing on the other motions. The trial court, however, proceeded to hear the so-called motion to reconsider.

On May 29, 1975, it issued an order granting reconsideration. In the same order, it vacated and struck the default judgment and placed the cause on the calendar for a hearing on the merits. The court stated as grounds for its action that 'prior counsel inadvertently failed to file an answer as the result of a misunderstanding on his part'. From this order, the plaintiff appeals. Both appeals were consolidated for hearing before us.

The question posed by the plaintiff's appeal is one of first impression: 'Does a trial court have jurisdiction to entertain a motion for relief under V.R.C.P. 60(b) while an appeal from its previous order denying relief is pending in this Court?'

V.R.C.P. 60(b), substantially identical to F.R.C.P. 60(b), is silent upon this point. The rule is intended to provide the sole means of obtaining relief from a judgment after the time for a motion under V.R.C.P. 59 (New Trials; Amendment of Judgments) has run.

V.R.C.P. 55(c) also provides that if a judgment by default has been entered, the court, for good cause shown, may set it aside in accordance with Rule 60(b). Both our rule and the federal rule provide for relief from final judgment. When adopted in this State, the rule replaced all existing modes of obtaining relief from a judgment on grounds such as mistake, fraud or newly discovered evidence. For the grounds of relief and procedure, see V.R.C.P. 60(b); and for a discussion of previous modes of obtaining relief, see V.R.C.P. 60, Reporter's Notes.

As both parties concede, the power of the trial court to grant relief from judgment prior to appeal, or when an appeal has not been taken, is unquestionable. As to its power to do so when a cause is pending in the appellate court, both they and the federal decisions on this point differ widely. For a discussion of this question and the procedures adopted by various United States Circuit Courts of Appeal, see 11 C. Wright and A. Miller, Federal Practice and Procedure: Civil § 2873, at 263-66, and cases cited. See also 7 Moore's Federal Practice and Procedure § 60.30, at 417-33, and cases cited.

In this jurisdiction, it has long been the rule established by judicial decision that when a proper notice of appeal from a final judgment or order of the lower court is filed the cause is transferred to this Court, and the lower court is divested of jurisdiction as to all matters within the scope of the appeal. Downer v. Battles, 103 Vt. 201, 152 A. 805 (1930); Alfred v. Alfred, 87 Vt. 542, 90 A. 580 (1914). For exceptions to this rule, see V.R.C.P. 62(d); McDonough v. Snow Construction Co., 131 Vt. 436, 447, 306 A.2d 119 (1973). For this reason alone, we hold that the trial court, in the absence of a remand, possessed no authority or jurisdiction to entertain, much less grant, any relief from final judgment while the denial of the very same requested relief was pending in this Court.

In effect, the procedure indulged in by the trial court, and adopted by the defendant, when it overturned its previous ruling was to act as an appellate body without any authority to do so. As late as the April Term, 1975, in Economou v. Economou, Vt., 340 A.2d 86, we condemned trial court rulings amounting to horizontal appeals. We find no authority for a motion for reconsideration, or even reconsideration without motion, of a court order when jurisdiction of the subject has passed from the hands of the trial court; and in this case, under the circumstances, we would have reversed such action as an abuse of the trial court's discretion. Our holding, however, does not so require.

We realize that there are and undoubtedly will be cases where a 60(b) motion may well serve both the interests of justice and finality of judgment while a cause is pending in this Court. As previously stated, the United States Circuit Courts of Appeal faced with the same problem have adopted varying procedures depending upon their holdings relative to the jurisdiction of the district court when a cause is pending in the appellate court. See Smith v. Pollin, 90 U.S.App.D.C. 178, 194 F.2d 349 (1952); Ferrell v. Trailmobile, Inc., 223 F.2d 697 (5th Cir. 1955), and Ryan v. United States Lines Co., 303 F.2d 430, 434, (2d Cir. 1962). The Second Circuit in Ryan commended the following doctrine: During the pendency of an appeal, the district court may consider a 60(b) motion and, if it indicates that it is inclined to grant it, application can then be made to the appellate court for a remand. The logical consequence is that the district court may deny a motion for relief although it cannot grant it until there has been a remand.

We have considered the various interpretations of the rule made by the federal courts in light of established practice in this jurisdiction and are of the...