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Rule 4.2 – Motions After Judgement

May 14, 2021 | Family Law, Vermont

(a)Applicability. This rule applies to all post-judgment proceedings in actions for divorce under Rules 4.0 and 4.1 except motions for relief under V.R.C.P. 59 or 60, motions to intervene and for relief from a judgment of parentage under Rule 4.3(b)(1), and actions seeking wage withholding under Rule 4.3(b)(2). Notwithstanding the pendency of an appeal, the court may entertain motions under this rule as provided in Rule 12(d).
(b)Motion and Service. Any proceedings under this rule to modify or enforce the judgment in an action for divorce must be made on motion and supported by affidavit. Copies of the motion and affidavit must be served in the same manner as a complaint by the appropriate method provided in this subdivision.

(1)Cases Not Involving Minor Children.

(A) Except as provided in paragraph (2), service of a motion not involving minor children must be made on the party, and not the party’s attorney, whether the party is within the state or not, by one of the following methods:

(i) by personal service;
(ii) by registered or certified mail, return receipt requested, with delivery restricted to the addressee;
(iii) by delivery to the party by any method chosen by the moving party with a request that the responding party waive service by any other method. The motion with a request must be accompanied by the notice of hearing or case manager’s conference if applicable and a waiver of service form. The responding party must sign and date the waiver of service and return it to the court no later than 21 days from the date the documents were delivered, or 60 days from that date if the documents and request are delivered to the responding party outside a state or territory of the United States. If the party served responds, that party must do so within 21 days of the date that the party signed the waiver or, if the waiver is undated, within 21 days of the date that the waiver is filed with the court. Failure to comply with a request to waive service may result in the imposition of costs, including reasonable attorney’s fees, against the responding party for expenses incurred in effecting service by another means; or
(iv) by ordinary mail or by publication or both, if the court so orders on a showing by a party that service cannot with due diligence be made by any of the other methods permitted by this paragraph.
(B) If a hearing is to be held, the clerk will serve notice of the hearing by first-class mail on each party.
(2) Cases Involving Minor Children. In proceedings for modification or enforcement of a judgment for child support, maintenance supplement, or parental rights and responsibilities, service must be made on the party, and not the party’s attorney, whether the party is in the state or not, as provided in Rule 4.1(a)(2). When a party seeks modification or enforcement of other provisions of a judgment simultaneously with modification or enforcement of child support, maintenance supplement, or parental rights and responsibilities, service must be made as provided in that paragraph.
(3)Party’s Location Unknown. In any child support enforcement proceeding under this rule, upon sufficient showing that diligent effort has been made to ascertain the location of a party, the court may deem service sufficient if service has been made by delivery of copies of the motion, affidavit, and written notice of hearing to the most recent residential or employer address filed with the court pursuant to Rule 4.1(b)(2) by one of the following methods:

(A) mailing to the party by certified mail, return receipt requested and delivery restricted to the addressee, the expense being paid by the moving party; or
(B) if the certified mail pursuant to subparagraph (A) is refused by the party, mailing to the responding party by ordinary first-class mail and certifying that service has been made.
(c)Affidavits.

(1)Form. Affidavits required by this rule must set forth specific facts sufficient to warrant the required findings and must be on the affiant’s own knowledge, information, or belief; and, to the extent based upon information and belief, must state that the affiant believes the information to be true.
(2)Affidavits of Income and Assets. When a motion to modify a judgment regarding child support or spousal maintenance is filed, all parties must file affidavits and documents pursuant to Rules 4.0(g)(6) or 4.1(b)(4), as appropriate, regardless of prior disclosures under Rule 4.0(g)(4) during that calendar year. Failure to comply will subject a party to the sanctions set forth in 15 V.S.A. § 662 and V.R.C.P. 37.
(3)Supporting Documents. An affidavit filed pursuant to paragraph (2) must be accompanied by:
— that party’s pay stubs for the four most recent pay periods in which employment income was received, if any;
— monthly income and expense statements or equivalent documents covering the period following a self-employed person’s last-filed income tax return; and
— documentation of all other income received during the period following any person’s last filed income tax return (including social security, workers’ compensation, unemployment compensation, disability, and pensions).
On or before the date when the affidavit must be filed, the parties must exchange tax returns for the two most recent years in which returns were filed, together with all schedules and other documentation that were submitted to the Internal Revenue.
(4)Protective Order. A party may request that tax records or other private information be sealed by filing a motion for protective order under V.R.C.P. 26(c).
(d) Determining a Change of Circumstances. If a hearing is to be held on a motion under this rule to modify a judgment, the court may bifurcate the hearing and first determine and make findings as to whether there has been a real, substantial, and unanticipated change of circumstances; if no such change is found, the court may dismiss the motion without reaching the merits of the action.
(e)Venue.

(1)Place of Hearing. A motion pursuant to this rule must be filed and heard in the county where the original judgment was rendered if the opposing party resides there or if neither party is a resident of the state. Otherwise, the motion may be filed and heard in the county in which either party resides. If motions by opposing parties are filed and are pending simultaneously in different counties that are both appropriate for hearing, the matter may be heard in either county if the parties agree; if the parties cannot agree on a single county for hearing, the court in which the first motion was filed will determine and order where the motions are to be heard.
(2)Responsibilities of Moving Party for Filing Papers. When a motion is to be heard in a county other than that where the original judgment was rendered, it is moving party’s responsibility to file certified copies of the decree or order sought to be modified or enforced, and of the docket sheet, with the clerk of the county where the motion is to be heard prior to the hearing. When the motion is for modification of child support, the moving party must also file certified copies of the affidavit of income and assets and the financial worksheet from the original proceeding.
(f)Automatic Child Support Hearing. If a hearing is to be held on a motion under this rule to modify a judgment, the court may bifurcate the hearing and first determine and make findings as to whether there has been a real, substantial, and unanticipated change of circumstances; if no such change is found, the court may dismiss the motion without reaching the merits of the action. When a judgment for physical responsibility is modified, the court will set a child support modification hearing and provide notice to the parties as provided in Rule 4.1(a)(2). Unless there is good cause, the court will simultaneously issue a temporary order pending the modification hearing, if adjustments to those portions of any existing child support or wage withholding order that pertain to any child affected by the modification are necessary to assure that support and wages are paid in amounts proportional to the modified allocation of responsibility between the parties. A temporary order pursuant to this paragraph does not affect any portion of a payment allocated to arrearages under a child support order. Unless the court orders otherwise, the parties must file and exchange all information and material required under Rules 4.0(g)(6) and 4.1(b)(4). In appropriate circumstances, the court may order a case management conference to be held as provided in Rule 4.1(a)(2)(B).

Vt. R. Fam. Proc. 4.2

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

Reporter’s Notes-2018 Amendments

Rule 4.2 is amended to extend its 20-day time periods to 21 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.

Reporter’s Notes

Rule 4.2 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 4.2 incorporates the provisions of former Rule 4(j) concerning post-judgment motions.

Rule 4.2(a) carries forward the provisions of former Rule 4(j)(1) in restyled format.

Rule 4.2(b) carries forward the provisions of former Rule 4(j)(2) in restyled format. Subparagraph (b)(1 )(A) incorporates the provisions of Rule 4.0(b)(2)(B).

Rule 4.2(c) carries forward the provisions of former Rule 4(j)(3) and (g)(2)(D) (iii) and (F), and (3) in restyled format.

Rule 4.2(d) carries forward the provisions of former Rule 4(j)(4) in restyled format.

Rule 4.2(e) carries forward the provisions of former Rule 4(j)(5) in restyled format.

Rule 4.2(f) carries forward the provisions of former Rule 4(j)(6) in restyled format. Its language was incorporated in 15 V.S.A. § 668(b), enacted by Act 119 of2011 (Adj. Sess.), §7.