Summary
applying Gardner to Rule 60(b) motion
Summary of this case from Sandgate School District v. CateOpinion
No. 63-80
Opinion Filed February 5, 1981
Divorce — Hearing — Motion To Reopen
Where motion with supporting affidavits, to reopen for presentation of additional evidence, hearing resulting in award of child custody to husband in divorce proceeding, stated with particularity the grounds relied upon and was neither frivolous nor totally lacking in merit, denial of the motion without a hearing would be reversed and remand granted for a hearing on the motion.
Appeal from denial, without a hearing, of motion to reopen hearing for presentation of additional evidence. Chittenden Superior Court, Morrissey, J., presiding. Reversed and remanded.
Spencer R. Knapp and Barbara E. Cory of Dinse, Allen Erdmann, Burlington, for Plaintiff.
Wool Murdoch, Burlington, for Defendant.
Present: Barney, C.J., Larrow, Billings and Hill, JJ., and Shangraw, C.J. (Ret.), Specially Assigned
Plaintiff-appellant brought a divorce action. The only real issue at trial was custody of the parties' minor child. A notice of decision awarding custody to the defendant was entered on February 1, 1980. On February 8, 1980, a judgment order was filed incorporating the provisions of the notice of decision.
On February 7, 1980, the plaintiff filed a motion, with supporting affidavits, to reopen the hearing for presentation of additional evidence. The court denied the motion to reopen without holding a hearing.
The plaintiff claims this was error and cites Gardner v. Town of Ludlow, 135 Vt. 87, 369 A.2d 1382 (1977). Although Gardner involved dismissal of a V.R.C.P. 59 motion for a new trial, we can find guidance in that opinion. Gardner held that a hearing should precede a dismissal "unless the motion is patently frivolous or totally lacking in merit." Id. at 92, 369 A.2d at 1385.
The motion in this case stated with particularity the grounds relied upon and was neither "frivolous or totally lacking in merit." We therefore reverse the denial of the motion and remand for the purpose of a hearing on the motion to reopen.
Reversed and remanded.