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Rule 4.3 – Special Procedures

May 14, 2021 | Family Law, Vermont

(a)Procedure Where Divorce, Annulment, and Abuse Prevention Actions Are Pending.

(1)Pending Abuse Prevention Action. If an abuse prevention action brought under Rule 9 is pending in the family division when the complaint for divorce is filed, the plaintiff must so indicate in the complaint.
(2)Prior Abuse Prevention Action. Notwithstanding V.R.C.P. 42(a), if a party to an abuse prevention action subsequently files a complaint for divorce or annulment, the court where the subsequent complaint is filed will immediately consolidate the abuse prevention action with the divorce or annulment action. All orders in effect in the abuse prevention action will continue in effect after consolidation until expressly discharged or modified by the court. For the purposes of 15 V.S.A. § 1108 (enforcement), a temporary or final order issued as part of the consolidated action will be considered an abuse prevention order to the extent that it orders relief provided in 15 V.S.A. §§ 1103 or 1104.
(3)Prior Divorce or Annulment Action. If a party to a Vermont divorce or annulment action subsequently files an abuse prevention action, the court where the abuse prevention action was filed will act on any requests for relief without notice to the other party or for expedited relief pursuant to Rule 9. On motion of either party or the court’s own motion the court will consolidate the abuse prevention action with the prior divorce or annulment action. Upon consolidation, where temporary or final orders are outstanding between the parties in the divorce or annulment action, the abuse prevention complaint will be treated as a motion to modify the outstanding orders.
(4)Motions to Consolidate. In lieu of filing a separate abuse prevention complaint, any party to a divorce under this rule may invoke the court’s authority as provided by 15 V.S.A. ch. 21, and may seek any of the relief provided by that chapter, upon motion pursuant to these rules. If relief is granted pursuant to that chapter, the actions will be deemed to have been consolidated.
(5)Orders in Consolidated Actions. When an abuse prevention action is consolidated with a divorce or annulment action under this subdivision, the abuse prevention provisions of the temporary or final order of the consolidated action will also be entered on the Temporary or Final Order for Relief From Abuse form provided by the Court Administrator’s office. The appropriate order form will be signed by the judge and attached to the front of the order issued pursuant to the consolidated action. Copies of these orders will be filed with the appropriate police and sheriffs departments and the state police district offices in accordance with 15 V.S.A. § 1107. The party at whose request the order was issued may deliver the order for filing to the appropriate law enforcement agencies; the court also will mail copies to each agency. All orders in effect in the abuse prevention action will continue in effect after consolidation until expressly discharged or modified by the court. For the purposes of 15 V.S.A. § 1108 (enforcement), a temporary or final order issued as part of the consolidated action will be considered an abuse prevention order to the extent that it orders relief provided in 15 V.S.A. §§ 1103 or 1104.
(6)Extensions of Abuse Orders in Consolidated Actions. In any consolidated action, at the expiration of the fixed period of time set forth in 15 V.S.A. § 1103(e), in anticipation of that expiration, or after the time period has expired, regardless of the status of the divorce action, the court may extend the abuse order for whatever period of time it deems necessary to protect a party or a party’s child and it may subsequently extend such an order. No showing of change of circumstances is required for an extension. Orders will be entered, signed, and filed as set forth in paragraph (5) of this subdivision.
(b)Action for Wage Withholding.

(1) Except as provided in this subdivision, the Vermont Rules of Civil Procedure apply to actions seeking wage withholding.
(2) Petitions for wage withholding to secure child support, spousal support, and arrearages of child support or spousal support are governed by this paragraph. If a petition is filed seeking both wage withholding for spousal support and wage withholding for child support, or arrearages thereof, the action will be heard entirely by a single superior judge assigned to the family division without any individualized finding under 4 V.S.A. § 463.

(A)Petition. A petition for wage withholding pursuant to 15 V.S.A. § 780 et seq. must set forth the petitioner’s name, and, if different, the name of the person legally entitled to receive child or spousal support, the defendant, the defendant’s employer(s), if known, and any other information required by law.
(B)Service and Filing of Petition. The court or the Office of Child Support will serve a copy of the petition on the defendant either:

(i) in person in accordance with V.R.C.P. 4; or
(ii) by certified mail, return receipt requested with instructions to deliver to addressee only. If acceptance of service is refused, the court may serve the obligor by sending the petition to the obligor by ordinary first-class mail and by certifying that such service has been made. In the alternative, the court may provide for mail service as provided in V.R.C.P. 4(f) and (l).
(C)Notice of Hearing; Objections. A plaintiff who seeks wage withholding must submit a blank notice of hearing to the court together with the petition, for completion by the clerk and service with the petition. A hearing date will be scheduled within 14 days of the filing of the petition. A party who objects must present the objection at the hearing provided for in the notice of hearing. If the Office of Child Support has notified the obligor to commence wage withholding pursuant to 15 V.S.A. § 782(f), the obligor must file any objection and a request for hearing within 20 days of receiving the notification.
(D)Findings and Order. The court’s ruling will, if contested, contain findings and conclusions, must in all cases contain a separately captioned order, and must also be served on each party and the registry in accordance with V.R.C.P. 5. The order will contain the information required by 15 V.S.A. § 785.
(c)Grandparent Visitation. Whenever custody or visitation of a minor child is in issue in an action subject to Rule 4.0 and 4.1, a child’s grandparent may, in accordance with V.R.C.P. 5, request visitation rights with the grandchild. The grandparent is not a party to the proceeding but may be called as a witness by the court and, when called, will be subject to cross-examination by the parties. A grandparent who has visitation rights has the right to move under Rule 4.2 to enforce or modify a judgment with respect to those visitation rights.
(d)Property Masters.

(1)Appointment by the Court. In any action subject to Rule 4.0 where equitable division of the marital estate or spousal maintenance is in issue, the court may appoint a master to determine the following matters:

(A) The value of any items of tangible property such as household furnishings;
(B) The value of assets and liabilities, including but not limited to the value of businesses owned by either or both parties;
(C) The amount of each party’s annual income from all sources;
(D) The amount of each party’s annual living expenses.
(2)Appointment by Agreement. In any action subject to Rule 4.0 where equitable division of the marital estate or spousal maintenance is in issue, the court, with the agreement of the parties, may appoint a master to determine the matters set forth in paragraph (1) of this subdivision and also to determine the fair allocation of the marital estate between the parties and an award of spousal maintenance if appropriate.
(3)Compensation and Necessary Expenses. The compensation and necessary expenses to be allowed to a master will be fixed by the court.

(A) In an appointment pursuant to paragraph (1) of this subdivision, such compensation and necessary expenses will be paid by the state, except that if

(i) the distribution of property is contested and governed by 15 V.S.A. § 751 and the value of the property to be distributed exceeds $ 500,000; or
(ii) one or both parties seek an award of maintenance under 15 V.S.A. § 752 and the parties have nonwage income of $ 150,000 or more, excluding up to $ 500,000 of income from the sale of a primary residence or jointly owned business, the court may order the compensation and necessary expenses of a master to be shared by the parties, with the shares specified in the order.
(B) In an appointment pursuant to paragraph (2), such compensation and necessary expenses will be paid by the parties as agreed or ordered by the court.
(4)Powers. The order of reference to the master may specify or limit the master’s powers and may direct the master to report only on particular issues or to do or perform particular acts or to receive and report evidence only and may fix the time and place for beginning and closing the hearings and for the filing of the master’s report.
(5)Proceedings.

(A)In General. V.R.C.P. 53(d) governs proceedings before a master appointed pursuant to this subdivision, so far as applicable.
(B)Evidence. The Vermont Rules of Evidence apply to proceedings before a master, except that evidence not admissible under those rules may be admitted if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs and is not precluded by statute or privilege.
(C)The Record. The master will maintain a taped record of the hearing and a log of all exhibits.
(6)Report.

(A)In General. V.R.C.P. 53(e)(1) and (4) govern the report of a master appointed pursuant to this subdivision, so far as applicable.
(B)Objections; Effect of Master’s Report.

(i) In an action where the master has been appointed by agreement pursuant to paragraph (2) of this subdivision, if the parties have waived the right to object to the acceptance of the report, the master’s findings of fact and conclusions of law will be conclusive on the parties, subject to the court’s approval.
(ii) In any other action, any party may, within 14 days after being served with notice of the filing of the report, serve written objections on the other party. Any party may, within 30 days after service of written objections by either party or, if no timely written objections have been served by either party, within 30 days after service of notice of the filing of the report, move the court for action on the report and any timely written objections to it. Whether or not a timely motion is filed, the court, with or without hearing, must review the report. In reviewing the report, the court must accept the master’s findings of fact so long as they are supported by substantial evidence and may accept, modify, or reject the master’s conclusions of law and recommendations. On the basis of that review, the court may adopt, modify, or reject the report in whole or in part, may receive further evidence, or may recommit it with instructions.
(e)Parent Coordination.

(1)Appointment of Parent Coordinator. In an action under Rules 4.0 and 4.1 in which parental rights and responsibilities have been adjudicated, and determination, modification, or enforcement of parent-child contact is a substantial issue, the court, at the request of a party or on its own motion, may appoint a parent coordinator if to do so will serve the best interests of the children and one or more of the following conditions is impeding the resolution of parent-child contact issues:

(A) A high level of conflict between the parents;
(B) Domestic abuse in the relationship;
(C) Substance abuse on the part of either or both parties; or
(D) Any other condition that in the opinion of the court significantly impedes the resolution of parent-child contact issues.
(2) Order of Referral. If the court determines that parent coordination may be in the best interests of the children pursuant to paragraph (1) of this subdivision, the court may issue an order of referral to parent coordination that requires the parties to meet with a designated parent coordinator for an initial intake and informational meeting. The order will:

(A) Designate a specific individual qualified as provided in paragraph (9) of this subdivision to serve as parent coordinator for the purpose of resolving issues related to parent-child contact in accordance with protocols established by administrative order of the Supreme Court;
(B) Direct each parent to contact the parent coordinator for the purpose of setting up an initial intake and informational meeting; and
(C) Delineate the scope of the parent coordinator’s recommendations to include one or more of the following: Modification of the conditions of parent-child contact designed to improve compliance (e.g., communication between parents, pick-up and drop-off protocols, supervision requirements); minor schedule changes consistent with the percentage of time the child spends with each parent under the current parent-child contact order; modification of schedule and percentage of time spent with each parent. In post-judgment cases, the judge will not order recommendations that include modifications in the percentage of time spent with each parent unless a party has filed a motion to modify parent-child contact and the judge has determined that the moving party has made a prima facie case for a real, substantial, and unanticipated change of circumstances.
(3)Intake and Informational Meeting. At the intake and informational meeting, the parent coordinator will interview each parent individually as required under subparagraph (5)(C) of this subdivision. If the parent coordinator determines that the case is appropriate for parent coordination and the parties agree to engage in the parent coordination process, the parent coordinator will submit to the court a signed parent coordination agreement and a proposed appointment order. The parent coordinator will inform the court if the parent coordinator determines that the case is not appropriate for parent coordination or the parties do not agree to engage in the process or fail to attend the intake meeting.
(4)Parent Coordination Order. Upon the filing of a stipulation and proposed order, the court will issue a parent coordination order. The order will:

(A) Designate a specific individual qualified as provided in paragraph (9) of this subdivision to serve as parent coordinator for the purpose of resolving issues related to parent-child contact in accordance with protocols established by administrative order of the Supreme Court;
(B) Delineate the scope of the parent coordinator’s recommendations to include one or more of the following: Modification of the conditions of parent-child contact designed to improve compliance (e.g., communication between parents, pick-up and drop-off protocols, supervision requirements); minor schedule changes consistent with the percentage of time the child spends with each parent under the current parent-child contact order; modification of schedule and percentage of time spent with each parent. In post-judgment cases, the judge will not order recommendations that include modifications in the percentage of time spent with each parent unless a party has filed a motion to modify parent-child contact and the judge has determined that the moving party has made a prima facie case for a real, substantial, and unanticipated change of circumstances;
(C) Direct each parent to contact the parent coordinator for the purpose of setting up further meetings; and
(D) Set a date for a status conference ten to twelve weeks from the date of the order or at another mutually agreed-upon time.
(5) Duties of the Parent Coordinator.

(A) The parent coordinator will review the case file before the initial intake and informational meeting with the parties.
(B) The parent coordinator will hold the initial intake and informational meeting with each party separately at the courthouse or a facility with comparable security. All subsequent meetings with the parties will be held separately and at such a facility unless the parties and the parent coordinator agree to hold joint meetings.
(C) The parent coordinator will conduct an initial intake and informational meeting as described in paragraph (3) of this subdivision. At the initial meeting with each party, the parent coordinator will explain the purpose and process of parent coordination, inform the parties that information gained by the parent coordinator in the process will not be confidential, and outline the rights of the parties and the fees for the service.
(D) If at any time the parent coordinator determines that parent coordination proceedings should be terminated, the parent coordinator will report that fact to the court, and the matter will be set for a status conference.
(E) After meeting with both parties, if the parties agree, the parent coordinator will file a stipulation signed by both parties authorizing the parent coordinator to obtain confidential information concerning the children from professionals and others who have worked with the children. If the parties do not agree, the parent coordinator or a party may request that the court issue an order permitting the parent coordinator to obtain such confidential information.
(F) The parent coordinator may meet with the children, the parties’ attorneys, other professionals involved with the children, and family members or others who know the children well.
(G) If the parties agree on a parent-child contact plan, the parent coordinator will draft a stipulation that, if signed by each patty, will be filed with the court prior to the date set for the status conference.
(H) If the parties cannot agree on a parent-child contact plan, the parent coordinator will submit a report to the court, including a narrative summary of the parent coordinator’s meetings with the parties and others and detailed recommendations for a parent-child contact plan. The recommendations of the parent coordinator must not exceed the scope delineated in the parent coordination order. The report will be filed with the court and mailed to the patties at least 14 days prior to the date set for the status conference.
(6)Objections. A party who objects to the parent-child contact plan proposed by the parent coordinator must file written objections with the court within 14 days after the mailing to the parties of the parent coordinator’s report and recommendations.
(7)Status Conference. At the status conference, if there is a stipulation, the court will review the plan, may revise it, and will issue a final order for parent-child contact based on the stipulated plan and any revisions. If there is no stipulation, the court will consider the parent coordinator’s report and any objections. If there are no longer contested issues, the court may issue a final order for parent-child contact based on the parent coordinator’s recommendations and any revisions that the court may make. If there is no stipulation or report, or if contested issues remain, the court will set the matter for hearing. Pending the hearing, the court may issue a temporary order for parent-child contact based on the parent coordinator’s recommendations, if any.
(8)Hearing. At the hearing, the parent coordinator may be called by either party or the court to testify, provided that the parent coordinator will not be permitted to testify to statements made by a party that would otherwise be inadmissible as an offer of compromise under V.R.E. 408. Following the hearing, the court will issue a final parent-child contact order.
(9)Training and Qualifications of Parent Coordinators. The Supreme Court will provide by administrative order for qualifications and training of parent coordinators that will enable them to carry out all of their responsibilities under this subdivision.
(f) Enforcement of Orders to Pay Money.

(1) Except as provided in paragraphs (2) and (3), in any proceeding under Rules 4.0-4.3, the provisions of a final order or judgment for the payment of money may be enforced in the Family Division by writ of attachment pursuant to V.R.C.P. 4.1(g) or by trustee process pursuant to V.R.C.P. 4.2(i) and (j).
(2) Actions for wage withholding pursuant to 15 V.S.A. §§ 780-800 are governed by Rule 4.3(b).
(3) Actions to enforce a final order or judgment for the payment of money in foreclosure proceedings pursuant to V.R.C.P. 80.1 (I), and by statute, are by separate action in the Civil Division.

Vt. R. Fam. Proc. 4.3

Adopted Aug. 25, 2016, eff. Dec. 5, 2016; Dec. 15, 2016, eff. Feb. 20, 2017; amended Sept. 20, 2017, eff. Jan. 1, 2018.
Former Rule 4 was abrogated and replaced by Rules 4.0–4.3, eff. Dec. 5, 2016; amended June 12, 2020, eff. August 18, 2020; amended July 13, 2020, eff September 14, 2020.

Reporter’s Notes-2018 Amendments

Rule 4.3(d) and (f) are amended to extend their 10-day time periods to 14 days, consistent with the simultaneous “day is a day” amendments to V.R.C.P. 6, which adopts the day-is-a-day counting system from the Federal Rules. See Reporter’s Notes to simultaneous amendments of V.R.F.P. 1. Rule 4.3(b)(2)(C) is amended for consistency with 15 V.S.A. § 782(c), as amended by Act 11 of 2017, and 15 V.S.A. § 783(a)(4).

Reporter’s Notes

Rule 4.3 is adopted as part of the replacement of former Rule 4 by Rules 4.0–4.3 to make the provisions of the former rule more accessible by reorganizing them in a functional order and by “restyling” them. See Reporter’s Notes to simultaneous adoption of Rule 4.0. Rule 4.3 incorporates the provisions offOlmer Rule 4(m)-(s) considered to be “special procedures” within the context of civil family proceedings.

Rule 4.3(a) canies forward the provisions offonner Rule 4(m) and (n) in restyled format.

Rule 4.3(b) carries forward the provisions of former Rule 4(o) in restyled format. Rule 4(o)(4) conceming decrees issued or modified prior to July 1, 1990, has been omitted as obsolete, and other provisions of former Rule 4(o) have been modified to reflect statutory changes made subsequent to the adoption of that rule.

Rule 4.3(c) carries forward the provisions of former Rule 4(p) in restyled format.

Rule 4.3(d) carries forward the provisions of former Rule 4 (r’) in restyled format. Paragraphs (1)-(3) incorporate the language ofthe amendment to former Rule 43(r) promulgated January 11, effective March 11, 2016. V.R.C.P. 53(d) and (e)(1) and (4) are incorporated “so far as applicable” to reflect differences in Family Division practice, including the absence ofjury trial.

Rule 4.3(e) carries forward the provisions of former Rule 4(s) in restyled format.

Reporter’s Notes-2020 Amendment

Rule 4.3(f) is added to provide a uniform procedure in the Family Division for the enforcement of judgments or orders to pay money rendered in Family Division proceedings under V.R.F.P. 4.0-4.3. Paragraph (1) provides that V.R.C.P. 4.1(g) (subsequent or additional attachment) and 4.2(i) (subsequent or additional trustee process) and (j) (trustee process against earnings) apply in the Family Division and may be used to enforce any Family Division judgments or orders for the payment of money, with two exceptions.

The first exception, in paragraph (2), is that statutory wage withholding actions under 15 V.S.A. §§ 780-800 to secure child support or spousal support payments or arrearages (as distinct from generally available post judgment process against earnings under V.R.C.P. 4.2(j) ) will continue to be brought as provided in V.R.F.P. 4.3(b). Orders or judgments to pay money directly to a judgment creditor, issued after a violation of the terms of a Rule 4.3(b) wage withholding order, may be enforceable under new Rule 4.3(f)(1) unless another remedy is prescribed by statute under 15 V.S.A. §§ 780-800.

The second exception, in paragraph (3), clarifies that a foreclosure action to enforce a judgment lien arising from any Family Division order or judgment to pay money must be brought in the Civil Division pursuant to V.R.C.P. 80.1(l). See 12 V.S.A. §§ 2901-2905.

V.R.F.P. 4.0(b)(2)(C) continues to provide that real or personal property may be attached or trustee process may be used in connection with the commencement of a divorce action.

Reporter’s Notes-2020 Amendment

Rule 4.3(b) is amended to delete former paragraph (1) providing for a motion by a nonparty for relief from a parentage judgment. The amendment also deletes references to that motion in the caption and first sentence of subdivision (b), renumbers the amended first sentence as paragraph (1), and deletes the now superfluous caption of paragraph (2).

Former Rule 4.3(b)(1) was added by amendment in 2017 as a narrow response to the concern raised by the Supreme Court in Columbia v. Lawton, 2013 VT 2, 193 Vt. 165, 71 A.3d 1218, that existing law, 15 V.S.A, § 302(a), prohibited such a nonparty action in the absence of a constitutional claim. See Reporter’s Notes to 2017 Amendment. Subsequently, the Legislature enacted the Vermont Parentage Act, 15C V.S.A. §§ 101-809, and repealed the prior statute involved in Columbia. 2017, No 162 (Adj. Sess.), §§ 1, 2. The Act was effective July 1, 2018, § 6, and, per § 5, in certain proceedings before that date. The Vermont Parentage Act is a comprehensive measure, setting forth procedural provisions and means of establishing parentage, and providing requirements of standing and time limits for proceedings by nonparties challenging adjudications, acknowledgements, and presumptions of parentage. Essentially, the Act renders obsolete former Rule 4.3(b)(1), applying the prior legislation considered in Columbia.