More Categories

Rule 12 – Stay of Proceedings to Enforce a Judgment

May 14, 2021 | Family Law, Vermont

(a) Automatic Stay Prior to Appeal; Exceptions.

(1)Automatic Stay. Except as provided in paragraph (2) of this subdivision and in subdivision (c), no execution shall issue upon a judgment nor shall proceedings be taken for its enforcement until the expiration of 30 days after its entry or until the time for appeal from the judgment as extended by Appellate Rule 4 has expired.
(2)Exceptions. Unless otherwise ordered by the court, none of the following orders shall be stayed during the period after its entry and until an appeal is taken:

(A) In an action under Rule 4 of these rules, an order relating to parental rights and responsibilities and support of minor children or to separate support of a spouse (including maintenance) or to personal liberty or to the dissolution of the marriage;
(B) An order of involuntary treatment, involuntary medication, nonhospitalization, or hospitalization, in an action pursuant to 18 V.S.A. chapter 181;
(C) Any order of disposition in a juvenile case, including an order terminating residual parental rights; or
(D) Any order in an action under Rule 9 of these rules for prevention of abuse, including such an action that has been consolidated or deemed consolidated with a proceeding for divorce or annulment pursuant to Rule 4(n).

The provisions of subdivision (d) of this rule govern the modification or enforcement of the judgment in an action under Rule 4 of these rules, during the pendency of an appeal.

(b) Stay of Execution on Default Judgment. Execution in a personal action shall not issue upon a judgment by default until it has been served on the defendant by personal service or by mail by the methods provided in Civil Rule 4(f) for a summons and complaint served outside the state. If the court finds that service cannot with due diligence be made by either of the above methods, based on a motion and affidavit filed by the plaintiff, it shall order service by publication by the method provided in Civil Rule 4(g). A motion to set aside a default judgment shall operate as a stay of execution until it is decided.
(c) Order for Immediate Execution. In its discretion, the court on motion may, for cause shown and subject to such conditions as it deems proper, order execution to issue at any time after the entry of judgment and before an appeal from the judgment has been taken or a motion made pursuant to Civil Rules 50, 52(b), 59, or 60, but no such order shall issue if a representation, subject to the obligations set forth in Civil Rule 11, is made that a party intends to appeal or to make such motion. When an order for immediate execution under this subdivision is denied, the court may, upon a showing of good cause, at any time prior to appeal or during the pendency of an appeal order the party against whom execution was sought to give bond in an amount fixed by the court conditioned upon satisfaction of the damages for delay, interest, and costs if for any reason the appeal is not taken or is dismissed, or if the judgment is affirmed.
(d) Stay Pending Appeal.

(1)Automatic Stay. In any action in which an automatic stay prior to appeal is in effect pursuant to paragraph (1) of subdivision (a) of this rule, the taking of an appeal from a judgment shall operate as a stay of execution upon the judgment during the pendency of the appeal, and no supersedeas bond or other security shall be required as a condition of such stay.
(2)Other Actions.

(A) When an appeal has been taken from a judgment in an action under Rule 4 of these rules in which no stay pursuant to paragraph (1) of subdivision (a) of this rule is in effect, the court in its discretion may, during the pendency of the appeal, grant or deny motions for modification or enforcement of that judgment.
(B)

(i) When an appeal has been taken from an order of involuntary treatment, nonhospitalization, or hospitalization, in an action pursuant to 18 V.S.A. chapter 18, the court in its discretion may, during the pendency of the appeal, grant or deny applications for continued treatment, modify its order, or discharge the patient, as provided in 18 V.S.A. §§ 7617, 7618, 7620, and 7621.
(ii)

(I) If an order of involuntary medication is appealed, the appellant may file a motion in the Family Division to stay the order during the pendency of the appeal. A motion to stay filed under this subparagraph (B)(ii)(I) shall stay the involuntary medication order while the motion to stay is pending.
(II) The Family Division’s ruling on a motion to stay filed under subparagraph (B)(ii)(I) may be modified or vacated by the Supreme Court upon motion by a party filed within seven days after the ruling is issued. If the appellant is the moving party, the order for involuntary medication shall remain stayed until the Supreme Court rules on the motion to vacate or modify the stay. A motion to vacate or modify a stay under this subparagraph (B)(ii)(II) shall be determined by a single Justice of the Supreme Court, who may hear the matter or at his or her discretion refer it to the entire Supreme Court for hearing. No further appeal may lie from the ruling of a single Justice in matters to which this subparagraph applies. The motion shall be determined as soon as practicable and to the extent possible shall take priority over other matters.
(C) When an appeal has been taken in a juvenile case, the court retains jurisdiction during the pendency of the appeal to modify or vacate its order under 33 V.S.A. § 5113 and to enforce its order under the provisions of 33 V.S.A. §§ 5107, 5115-5119, 5202, 5205, 5292, 5322.
(D) When an appeal has been taken from any order in an action under Rule 9 of these rules for prevention of abuse, including such an action that has been consolidated or deemed consolidated with a proceeding for divorce or annulment pursuant to Rule 4(n), the court retains jurisdiction during the pendency of the appeal to extend, modify, vacate, or enforce its order.

The court shall certify forthwith to the Supreme Court any order entered under this paragraph (2).

(e) Continuance of Attachment. An attachment of real or personal property or an attachment on trustee process or a bond given to vacate any such attachment or to release the defendant from arrest shall, unless dissolved by operation of law, continue during the period of any stay of execution of the judgment ordered by the court or arising by operation of this rule or other provision of law, during the time within which an appeal may be taken from the judgment, and during the pendency of any appeal. When a judgment has become final by expiration of the time for appeal by dismissal of an appeal, or on certificate of decision from the Supreme Court, or by the expiration of any applicable stay of execution or the issuance of an order for immediate execution, any such attachment or bond shall continue for 60 days if the judgment is for the plaintiff but shall be dissolved forthwith if the judgment is for the defendant.
(f) Power of Supreme Court Not Limited. The provisions in this rule do not limit any power of the Supreme Court during the pendency of an appeal to suspend, modify, restore, or grant an injunction or to make any order appropriate to preserve the status quo or the effectiveness of the judgment subsequently to be entered.

Vt. R. Fam. Proc. 12

Added Aug. 22, 1991, eff. Nov. 1, 1991; amended 1997, No. 114 (Adj. Sess.), §4a; Nov. 29, 2000, eff. March 1, 2001; amended Dec. 17, 2008, eff. Jan. 1, 2009; Feb. 24, 2010, eff. April 26, 2010; July 16, 2014, eff. July 16, 2014 (Emergency Amendment) and Dec. 11, 2014, eff. Feb. 13, 2015 (Permanent).