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Rule 8 – Magistrates Proceedings

May 14, 2021 | Family Law, Vermont

(a)Applicability. This rule governs the proceedings held by magistrates, under 4 V.S.A. Chapter 10.
(b)In General. Rules 4.0–4.3, shall provide the procedure under this rule, except as set forth below.
(c)Trial Procedure. Witnesses shall be sworn. Hearings shall be electronically recorded. The magistrate shall assist the parties in developing relevant and reliable evidence, and shall inform parties who appear pro se of their right to appeal to the family court.
(d)Evidence. The Vermont Rules of Evidence shall apply to magistrate proceedings, 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.
(e)Remedies. In addition to any remedy provided by Family Court Rule 4 and the applicable Vermont Rules of Civil Procedure, any party may by motion seek the remedies provided for in Act 220 of the Laws of 1990.
(f)Time Periods in Which to Complete Proceedings. All proceedings to establish or enforce child support before a magistrate shall be completed within three months of the filing of the initial pleading.
(g)Appeals.

(1)In General. The appellate jurisdiction of the family court shall be invoked in the manner and subject to the conditions provided in the Vermont Rules of Appellate Procedure, except as set forth in this rule.
(2)Appellate Rules Not Applicable. The following Vermont Rules of Appellate Procedure shall not apply: Rules 3(e) (Docketing Statements), 5 (Appeals Before Final Judgment), 6 (Discretionary Appeals), 7 (Bond), 9 (Release in Criminal Cases), 10 (The Record on Appeal), 11 (Transmission of the Record), 12 (Docketing the Appeal; Filing of the Record); 13 (Direct Appeals from Probate Courts and Administrative Agencies), 21 (Extraordinary Relief), 27(c) (Single Justice), 28 (Briefs), 30 (Printed Case), 31 (Filing Briefs) and 32 (Form of Briefs).
(3)Appellate Procedure.

(A)In General. All references in the Vermont Rules of Appellate Procedure to the superior or district court shall be deemed references to the magistrate; all references to the Supreme Court shall be deemed references to the Family Division.
(B)V.R.A.P. 10(a). The record on appeal shall consist of the papers and exhibits filed with the magistrate, the magistrate’s decision, a statement of the questions which the appealing party wishes to have determined, and the tape of the magistrate’s hearing. The appellant shall file and serve the statement of questions within 14 days after the filing of the notice of appeal.
(C)V.R.A.P. 27. In lieu of briefs, memoranda of law shall be filed in the Family Division. Memoranda shall be supported by a statement of the particular grounds on which they are based as required by and subject to V.R.A.P. 27 (Motions). Appellant’s memorandum and any supporting papers shall be filed and served on appellee as provided in Rule 5(b) of the Vermont Rules of Civil Procedure within 30 days after the statement of questions is filed and served. Appellee may file and serve on the appellant in accordance with Civil Rule 5(b) a reply memorandum and any supporting papers within 21 days of the date of delivery or mailing of appellant’s memorandum. Notwithstanding V.R.A.P. 27(d), five copies of papers need not be filed. With their memoranda of law the parties may also submit such written transcriptions of the magistrate’s hearing as they deem appropriate. The Family Division judge also may order any party to pay for or produce such written transcriptions of the magistrate’s hearing as the judge deems appropriate, and may award the expense thereof as a cost to the prevailing party.
(D)V.R.A.P. 34. Either party may request an opportunity for oral argument, or the court may order oral argument to be had on its own motion.
(4) Appeal shall be solely on the record, except that where, for good cause shown, the record is found to be incomplete additional evidence may be submitted and review shall be de novo.
(h)Motions by Magistrates or the Family Court. A motion by the magistrate or the family court under 15 V.S.A. ยงยง 462, 463 shall be made in open court or, if in writing, conform to V.R.C.P. and 78.

Vt. R. Fam. Proc. 8

Added Sept. 28, 1990, eff. Oct. 1, 1990; amended Aug. 22, 1991, eff. Nov. 1, 1991; Jan. 20, 1992, eff. March 2, 1992; July 30, 1993, eff. Sept. 1, 1993; Aug. 29, 1995, eff. Dec. 1, 1995; June 11, 2013, eff. Aug. 12, 2013; Aug. 25, 2016, eff. Dec. 5, 2016; amended Sept. 20, 2017, eff. Jan. 1, 2018.

Reporter’s Notes-2018 Amendment

Rule 8(g)(3)(B) is amended to change its 15-day time period 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.

Reporter’s Notes-2016 Amendment

V.R.F.P. 8(b) is amended for conformity with the simultaneous abrogation of former V.R.F.P. 4 and promulgation of restyled and reorganized V.R.F.P. 4.0–4.3. See Reporter’s Notes to those rules.