Titus v. Titus

Full title: Jane K. Titus v. Ralph L. Titus

Court: Supreme Court of Vermont

Date published: May 12, 1970

266 A.2d 432 (Vt. 1970)

266 A.2d 432

Opinion

No. 5-70

Opinion Filed May 12, 1970

Appeal and Error — Final Judgment

Order entered in matrimonial proceeding during nisi period which granted libellant's petition to vacate a divorce previously awarded her, had the force and effect of a final judgment and was subject to review in supreme court by notice of appeal. 12 V.S.A. § 2382.

Appeal from matrimonial proceeding. Chittenden County Court, Billings, J., presiding. Motion to dismiss appeal denied.

Lisman Lisman, Burlington, for Plaintiff.

Joseph S. Wool, Burlington, for Defendant.

Present: Holden, C.J., Shangraw, Barney, Smith and Keyser, JJ.

Per Curiam.

The libellee in this matrimonial proceeding has filed a notice of appeal from an order of the Chittenden County Court during its September Term, 1969. The order was entered during the nisi period and granted the libellant's petition to vacate a divorce previously awarded her at the same term of court. The court which struck the decree was differently constituted than the one which granted the divorce and was sitting in second session, as provided in 4 V.S.A. § 111.

The libellant has moved to dismiss the appeal. She contends that the order is not a final determination of the cause and is not subject to review without permission of the lower court, required by 12 V.S.A. § 2386.

The order which aggrieves the appellant is based on his wife's petition that the divorce, decree nisi, be stricken so that she may discontinue her action against him. No cross-libel had been presented by the libellee. After hearing and findings of fact, the court, by written order, vacated the prior decree and declared it to be null and void. Had no appeal been taken, this order would have ended the action and the cause would have passed out of court.

With this capability, the determination had the force and effect of a final judgment within the settled doctrine of Beam v. Fish, 105 Vt. 96, 97, 163 A. 591. As such, it is subject to review by this Court by notice of appeal, as provided in 12 V.S.A. § 2382.

Appellee's motion to dismiss the appeal is denied.