Osborn v. Osborn, No. 84-113

Docket NºNo. 84-113
Citation519 A.2d 1161, 147 Vt. 432
Case DateNovember 14, 1986
CourtUnited States State Supreme Court of Vermont

Page 1161

519 A.2d 1161
147 Vt. 432
Elizabeth OSBORN
v.
David Dodge OSBORN.
No. 84-113.
Supreme Court of Vermont.
Nov. 14, 1986.

Page 1162

Carl H. Lisman, Mary G. Kirkpatrick, and Michael Marks of Lisman & Lisman, Burlington, for plaintiff-appellant.

[147 Vt. 433] Trine Bech and Frank H. Olmstead of Brownell & Moeser, Norwich, for defendant-appellee.

Before [147 Vt. 432] ALLEN, C.J., and HILL, PECK, GIBSON and HAYES, JJ.

[147 Vt. 433] ALLEN, Chief Justice.

Plaintiff appeals the property settlement, maintenance award and child support order in the parties' divorce decree. The property settlement and maintenance award are vacated and remanded; the judgment is otherwise affirmed.

Plaintiff first contends that the court erred in failing to consider the defendant's inheritance when dividing the marital property. Defendant was a legatee of his mother's estate, which was in probate but had yet to be distributed at the time of the divorce proceeding. Defendant contends that plaintiff never asked the trial court to distribute the inheritance or consider it when dividing the marital property, and therefore did not preserve her claim on appeal.

The plaintiff in her testimony specifically asked for fifty percent of the value of her husband's inheritance, and in her proposed findings of fact asked to have the inheritance considered in the formulation of an appropriate property settlement. Under 15 V.S.A. § 751 the trial court was required to settle the rights of the parties to all of their property, and in so doing to consider the value of the property interests of each party, including the defendant's share of the undistributed inheritance.

Defendant asserts that the plaintiff waived this claim of error by failing to include the claim in her motion to alter the judgment filed pursuant to V.R.C.P. 59(e). A Rule 59(e) motion, however, is not a prerequisite to appeal. Rule 59(e) codified the trial court's inherent power to open and correct, modify or vacate its judgments.

Page 1163

West v. West, 131 Vt. 621, 623, 312 A.2d 920, 921 (1973). A motion under Rule 59(e) suspends the finality of the judgment, and allows the trial court to revise its initial judgment if necessary "to relieve a party against the unjust operation of a record resulting from the mistake or inadvertence of the court and not the fault or neglect of a party." Haven v. Ward Estate, 118 Vt. 499, 502, 114 A.2d 413, 415 (1955). The motion provides a party with an opportunity to take advantage of the court's power to correct a judgment in order to avoid an appeal and its attendant delay. See Gosselin v. Better Homes, Inc., 256 A.2d 629, 633-34 (Me.1969). As the trial court had been apprised of plaintiff's position with respect to the inheritance, the claim of error was preserved for review. V.R.A.P. 3(a).

[147 Vt. 434] Whether a party's share of an undistributed estate may be considered as property under 15 V.S.A. § 751 is a...

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22 practice notes
  • Burton v. Jeremiah Beach Parker Restoration and Const. Mgmt. Corp., No. 09-312.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • July 22, 2010
    ...to "take advantage of the court's power to correct a judgment in order to avoid an appeal and its attendant delay." Osborn v. Osborn, 147 Vt. 432, 433, 519 A.2d 1161, 1163 (1986). Consistent with this purpose, a timely filed Rule 59 motion "suspends the finality of the judgment," id., and t......
  • Northern Sec. Ins. Co. v. Mitec Electronics, No. 07-109.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • August 1, 2008
    ...operation of a record resulting from the mistake or inadvertence of the court and not the fault or neglect of a party." Osborn v. Osborn, 147 Vt. 432, 433, 519 A.2d 1161, 1163 (1986) (quotation omitted). "The `narrow aim' of Rule 59(e) is `to mak[e] clear that the district court possesses t......
  • Drumheller v. Drumheller, No. 07-108.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • March 6, 2009
    ...to ensure the completeness and accuracy of its decision in part "in order to avoid an appeal and its attendant delay." Osborn v. Osborn, 147 Vt. 432, 433, 519 A.2d 1161, 1163 (1986). We recognize that the presence of the court's power may inhibit a party from seeking a correction to an erro......
  • In re SP Land Co., No. 10–332.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 22, 2011
    ...Court's discretion to fully reconsider this question of law on the merits upon Mountainside's Rule 59(e) motion. See Osborn v. Osborn, 147 Vt. 432, 433, 519 A.2d 1161, 1162–63 (1986) (explaining that Rule 59(e) motion allows trial court to revise initial judgment if necessary to relieve par......
  • Request a trial to view additional results
22 cases
  • Burton v. Jeremiah Beach Parker Restoration and Const. Mgmt. Corp., No. 09-312.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • July 22, 2010
    ...to "take advantage of the court's power to correct a judgment in order to avoid an appeal and its attendant delay." Osborn v. Osborn, 147 Vt. 432, 433, 519 A.2d 1161, 1163 (1986). Consistent with this purpose, a timely filed Rule 59 motion "suspends the finality of the judgment," id., and t......
  • Northern Sec. Ins. Co. v. Mitec Electronics, No. 07-109.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • August 1, 2008
    ...operation of a record resulting from the mistake or inadvertence of the court and not the fault or neglect of a party." Osborn v. Osborn, 147 Vt. 432, 433, 519 A.2d 1161, 1163 (1986) (quotation omitted). "The `narrow aim' of Rule 59(e) is `to mak[e] clear that the district court possesses t......
  • Drumheller v. Drumheller, No. 07-108.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • March 6, 2009
    ...to ensure the completeness and accuracy of its decision in part "in order to avoid an appeal and its attendant delay." Osborn v. Osborn, 147 Vt. 432, 433, 519 A.2d 1161, 1163 (1986). We recognize that the presence of the court's power may inhibit a party from seeking a correction to an erro......
  • In re SP Land Co., No. 10–332.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • September 22, 2011
    ...Court's discretion to fully reconsider this question of law on the merits upon Mountainside's Rule 59(e) motion. See Osborn v. Osborn, 147 Vt. 432, 433, 519 A.2d 1161, 1162–63 (1986) (explaining that Rule 59(e) motion allows trial court to revise initial judgment if necessary to relieve par......
  • Request a trial to view additional results

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