2013 VT 36


Coles v. Coles (2011-322)
 
2013 VT 36
 
[Filed 24-May-2013]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by
mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont
05609-0801, of any errors in order that corrections may be made before this
opinion goes to press.
 
 

2013 VT 36

 

No. 2011-322

 

Suzanne Coles


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Washington
  Unit,


 


Family Division


 


 


Tedley
  Coles


June Term, 2012


 


 


 


 


Brian
  J. Grearson, J.


 

Lauren S. Kolitch, Waitsfield, for
Plaintiff-Appellee.
 
Gregory W. McNaughton, Barre, for Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund,
Burgess and Robinson, JJ.
 
¶ 1.            
BURGESS, J.   Tedley Coles
(Father) challenges the trial court’s denial of his motion to reopen the time
in which to file an appeal from a maintenance and child support order.  He
asserts that his motion was timely under Vermont Rule of Appellate Procedure
4(c).  We affirm.  
¶ 2.            
The record indicates the following.  Father and mother divorced in
February 2010, and father was ordered to pay child support and spousal
maintenance.  In September 2010, father moved to modify his child support
obligation.  Mother moved both to dismiss father’s motion and to modify
father’s maintenance obligation.  The court held a hearing on these
motions in December 2010.  In a February 22, 2011 order, the court
decreased father’s child support obligation, but increased his spousal
maintenance obligation, resulting in a net monthly increase of eight dollars.
¶ 3.            
The court’s docket entries indicate that this order, along with an
acceptance of service form, was mailed to the parties on Monday, March 14,
2011.[1]
 On Friday, April 7, 2011, father’s attorney moved to reopen the time to
appeal.  He filed a corrected motion on Monday, April 11.  Counsel
relied on Rule 4(c), which provides:
In
any civil action, the superior . . . court, if it finds (a) that a party
entitled to notice of the entry of a judgment or order did not receive such
notice from the clerk or any party within 21 days of its entry and (b) that no
party would be prejudiced, may, upon motion filed within 90 days of entry of
the judgment or order or within 7 days of receipt of such notice, whichever is
earlier, reopen the time for appeal for a period of 14 days from the date of
entry of the order reopening the time for appeal.  
 
Counsel argued that he did not
receive notice of the order within twenty-one days of its entry, and that there
would be no prejudice to either party should the case be reopened. 
Counsel explained that he was on vacation beginning Thursday, March 17, 2011,
and returned to work on Monday, April 4, 2011.  He indicated that the mail
arrived during his absence and that it was neither his fault nor father’s fault
that the thirty-day appeal period had expired by the time he opened his
mail.  Mother opposed his motion.
¶ 4.            
The court initially granted father’s request without allowing mother
adequate time to respond.  Following a hearing, it granted mother’s motion
for reconsideration and denied father’s request to reopen.  The court
found that father’s attorney failed to show that he had not received notice
within twenty-one days of the court’s order.  It rejected counsel’s
argument that he “received” notice when he returned from vacation and opened
his mail.  The court observed that father’s attorney provided no case law
to support his suggestion that the Legislature intended for attorneys to miss
time limits because of vacations.  For this and other reasons, the court
denied father’s request for relief under Rule 4(c).  Father
appealed.  
¶ 5.            
On appeal, father reiterates his argument that the court’s order was not
“received” under Rule 4(c) within twenty-one days of its entry because he was
not in actual receipt of the order until he returned from vacation on April
4.  Father’s attorney asserts that he could find no precedent analyzing
the meaning of the term “receipt” as used in Rule 4(c), and that it must mean
actual notice.  
¶ 6.            
We reject father’s argument.  Because our rule is substantively
identical to the federal rule (with an exception not relevant here), we look to
federal case law in analyzing the meaning of Rule 4(c).  See Reporter’s
Notes, V.R.A.P. 4 (stating that rule is “substantially identical” to F.R.A.P. 4
with exception that Vermont requires motion be filed within 90 days of judgment
rather than 180 permitted under federal rule “in the interests of finality and
docket control”); Reporter’s Notes, V.R.A.P. 1 (where Vermont rules adopt
provisions from federal rules, federal cases interpreting Federal Rules of
Appellate Procedure are authoritative source for interpretation of Vermont
rules); see also V.R.C.P. 1 (same); Rule v. Tobin, 168 Vt. 166, 169, 719
A.2d 869, 871 (1998) (where Vermont rule of civil procedure was identical to
federal rule, Court looked to federal case law interpreting federal
rule).  We find persuasive a federal court decision analyzing and
rejecting the same argument raised by father here.  See Khor Chin Lim v. Courtcall
Inc., 683 F.3d 378 (7th Cir. 2012).  
¶ 7.            
In Khor Chin Lim, the plaintiff
was out of the country for several months and did not learn about an adverse
court judgment until his return.  He moved to reopen the time to appeal,
arguing that he did not “receive notice” of the judgment until he opened his
mail.  The court rejected this argument, and concluded that a document is
“received” when it is delivered to the litigant’s address, or if the litigant
is represented by counsel, to counsel’s address.  Id. at 380-81
(citing cases reaching similar conclusion).  The court explained that this
is “the normal meaning of receipt in law.”  Id.
at 381.  It found no authority to support the proposition that a
litigant could defer “receipt” of a document by failing to open the envelope
containing it.  In fact, it found that there was case law to the
contrary.  The court explained that neither the text of the rule nor
anything in the committee notes suggested that the word “receive” had an
unusual meaning.  The court emphasized that the time to appeal was limited
by statute, and that the limit was jurisdictional.  As it stated, “[t]he
judiciary is not entitled to add time just because a litigant fails to open or
read his mail.”  Id. at 381.  
¶ 8.            
For the reasons advanced by the federal court, we similarly conclude
that the “receipt” of notice contemplated under Rule 4(c) is receipt in a
party’s mailbox.  Father’s approach would obviate our jurisdictional time
limits, and it would not serve the strong interest in finality of
judgments.  The rule is not designed to allow the trial court to reopen
the time for appeal because an attorney has not opened his or her mail. 
Rather, it allows the trial court to reopen the time for appeal if notice of
the judgment does not arrive, “whether the fault lies with the clerk or the
Postal Service,” Khor Chin Lim, 683
F.3d at 380, or when the notice is received so late as to impair the
opportunity to file a timely notice of appeal, see Advisory Committee
Notes—1991 Amendment, F.R.A.P. 4.  
¶ 9.            
In this case, father argued only that he “received” the order when his
attorney opened his mail.  He did not offer any evidence as to when it
actually arrived in the mailbox.[2] 
He thus failed to prove that he did not receive notice of the court’s decision
within twenty-one days, and he failed to meet the threshold requirements of the
rule.  Even if we concluded that counsel showed that the order did not
reach his mailbox within twenty-one days, the evidence here could not support
the second conclusion necessary to support father’s motion: that counsel filed
his motion pursuant to Rule 4(c) within seven days of the time that it did
arrive in his mailbox.  
¶ 10.         Father
next argues that if his motion is considered untimely, the delay was due to
excusable neglect under Rule 4(d).  Father did not raise this argument
below, and we therefore do not address it here.  See Bull v. Pinkham Eng’g Assocs., 170 Vt. 450, 459, 752 A.2d 26, 33 (2000)
(“Contentions not raised or fairly presented to the trial court are not
preserved for appeal.”).  Even if we were to address it, however, we would
find it without merit.  Jurisdictional time limits do not and cannot
depend on the vagaries of an attorney’s vacation schedule.  Being away from
delivered mail during vacation or otherwise failing to open mail, without more,
is not excusable neglect.  See Reporter’s Notes, V.R.A.P. 4 (explaining
that this Court has applied excusable neglect standard very strictly, “lest
there be a de facto enlargement of the appeal-filing time to sixty days”
(citing In re Town of Killington, 2003 VT 87A, ¶ 17, 176 Vt. 60, 838
A.2d 98 (internal office procedure breakdown not excusable neglect as a matter
of law))); Bergeron v. Boyle, 2003 VT 89, ¶ 22, 176 Vt. 78, 838 A.2d 918
(lawyer’s vacation and internal office procedure breakdown not excusable
neglect); In re Lund, 2004 VT 55, ¶ 7, 177 Vt. 465, 857 A.2d 279 (mem.) (mistaken reading of rule
not excusable neglect).
Affirmed.  

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 
 
 





[1] 
Although it does not affect the resolution of this case, we note our concern
over the unexplained twenty-day delay between the docketing of the trial
court’s order and its mailing to the parties.  See V.R.C.P. 77(d)
(providing that clerk shall give notice to parties of entry of order or
judgment “[i]mmediately,”
but stating that lack of notice of the entry by the clerk “does not affect the
time to appeal or relieve or authorize the court to relieve a party for failure
to appeal within the time allowed, except as permitted in Rule 4”). 
Failure to promptly mail decisions invites needless litigation—as in this
case—and risks prejudice.  


[2] 
While it does not affect our decision in this case, we recognize that it may be
difficult for a party to establish exactly when a court order is received for
purposes of seeking relief under Rule 4(c).  It would be useful for the
Civil Rules Committee to consider establishing rebuttable presumptions on which
parties could rely in proving the date of receipt.  We therefore refer
this issue to the Advisory Committee on the Rules of Civil Procedure.  



