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Rule 80.10 – Orders Against Stalking or Sexual Assault

May 14, 2021 | Civil Procedure, Vermont

(a)Application of Civil Rules.

(1)In General. Except as provided in this rule or by statute, these Rules of Civil Procedure shall apply to actions for orders against stalking or sexual assault filed pursuant to 12 V.S.A. §§ 5131 – 5138.
(2)Rule Modified. Rule 58 of the Vermont Rules of Civil Procedure shall apply to actions under this rule, except that a judgment need not be set forth on a separate document and is effective only when it is in writing, signed by the judge, and entered as provided in Rule 79(a).
(b)Content of Complaint. A complaint seeking relief under this rule shall state whether there are any proceedings in any other court pending between the parties, whether any orders from such proceedings are in effect, the court in which such proceedings are pending, and the names of the attorneys who have entered their appearance in such proceedings. The plaintiff shall provide an address and telephone number for notification purposes, which shall not be provided to any person without the written consent of the plaintiff.
(c)Emergency Relief. Temporary orders may be issued ex parte, without written or oral notice to defendant or defendant’s attorney, upon motion and affidavit and findings by the court as required by 12 V.S.A. § 5134. If a request for emergency relief is presented to a district or superior judge who is not sitting in superior court, the judge shall accept the request on behalf of the superior court and file the request, documents accompanying the request and the order, if any, in the superior court. If the court determines that the contents of the affidavit are insufficient to support the issuance of a temporary order, the plaintiff shall be entitled to present evidence to the court before the court decides whether to grant or deny a temporary order.
(d) Presentation to Other Judge. When an application for a temporary order under this rule is made to and acted upon by one judge it shall not be presented to any other judge except by direction of the first judge or the Administrative Judge.
(e)Denial of Ex Parte Temporary Orders. When a judge denies an application for temporary order under this rule, the judge shall record the reasons for the denial in writing and shall give the written denial to the plaintiff. In addition, any denial in whole or in part shall inform the plaintiff that, within five business days after entry of the denial on the docket, he or she may request that the court hold a hearing on the complaint after notice to the defendant. Any such hearing shall be scheduled no more than 14 days from the date of the request.
(f)Grant of Order.

(1)All Orders. An order issued under this rule shall contain the name of the court, the names of the parties, the date of the complaint, the findings that support the order, and the date and time of the order and shall be signed by the court. All orders shall bear the following language: “Violation of this order is a crime subject to a term of imprisonment or a fine or both and may also be prosecuted as criminal contempt punishable by fine or imprisonment, or both.” All orders shall also inform the parties that each has the right to receive notice in advance of any hearing that the opposing party will be represented by counsel. “Notice in advance of any hearing” is defined as actual notice provided to the opposing party or their attorney in person, by telephone, or in writing sufficiently in advance of the hearing to permit the other party a reasonable opportunity to obtain counsel.
(2)Ex Parte Orders. If the order was issued ex parte, it shall also state upon its face a date, time and place when defendant may appear to oppose the permanent relief sought in the complaint.
(3)Final Orders. Every order shall clearly inform the plaintiff and defendant that only the court can amend or revoke the order.
(g)Continuances. Notwithstanding Rule 40(c), grounds for continuances and for extension of the terms of any order include lack of notice in advance of any hearing that the opposing party will be represented by counsel. “Notice in advance of any hearing” is defined as actual notice provided to the opposing party or their attorney in person, by telephone, or in writing sufficiently in advance of the hearing to permit the other party a reasonable opportunity to retain counsel. If such notice is not provided to the opposing party, upon request by the unrepresented party or on the court’s own motion, the court shall continue the hearing to a specific date that is the next available hearing date that will allow the unrepresented party a reasonable time to obtain counsel. The court shall extend emergency relief for the duration of the continuance.
(h)Signature on Orders. Orders issued pursuant to 12 V.S.A. § 5131 et seq. shall be signed by the judge during regular court hours or, after regular court hours or on weekends or holidays, or if the judge is not available in person during regular court hours, by a member of the court staff as directed by the judge by telephone.
(i)Orders Granting the Defendant Relief. The court may issue an order granting the defendant relief only upon the filing and service of an affidavit and complaint, or affidavit and motion, executed by the defendant, and upon notice and opportunity to be heard.

Vt. R. Civ. P. 80.10

Adopted Sept. 29, 2006, eff. Oct. 1, 2006; amended March 13, 2008, eff. May 12, 2008; amended July 1, 2016, eff. Sept. 12, 2016; amended Sept. 20, 2017, eff. Jan. 1, 2018.

Reporter’s Notes-2018 Amendment

Rule 80.10(e) is amended to extend its 10-day time period to 14 days consistent with the simultaneous “day is a day” amendments to V.R.C.P. 6.

Reporter’s Notes-2016 Amendment

Rule 80.10(e) is amended consistent with the amendment of V.R.F.P. 9(e), effective September 21,2015, to provide that the denial of a stalking or sexual assault order under Rule 80.10 must inform the plaintiff that a request for hearing may be entered within five business days after the order is entered on the docket.

The amendment is intended to expedite proceedings for holding a hearing when an ex parte temporary relief from abuse order has been denied by requiring that the written denial must inform the plaintiff that the request for hearing must be filed within five business days after entry of the denial on the docket. The time period is stated as “five business days” for the benefit of self-represented litigants. It is consistent with Rule 6(a), which provides that a five-day period does not include Saturdays, Sundays, or legal holidays.

Reporter’s Notes-2006 Emergency Amendment

Rule 80.10 is added to implement the provisions of 12 V.S.A. §§ 5131 – 5138, added by Act 193 of 2005 (Adj. Sess.), § 1, effective October 1, 2006, giving the Superior Court jurisdiction of proceedings on requests for orders against stalking and sexual assault sought by persons other than family or household members. The rule is based on V.R.F.P. 9, which covers relief from abuse proceedings brought by family or household members in Family Court. Variations from the Family Rule are noted below. The Reporter’s Notes to provisions of that rule and its amendments that have not been changed may provide interpretive guidance to the present rule.

Rule 80.10(a) does not include V.R.F.P. 9(a)(2) making V.R.C.P. 79.1 regarding appearance of attorneys inapplicable. There seems to be no obvious reason why attorneys filing for civil stalking or sexual assault orders should not follow normal appearance rules.

Rule 80.10(b) includes a requirement for information about any pending court case similar to that of V.R.F.P. 9(b). The disclosure requirement includes all types of proceedings in all Vermont courts, as well in courts of other jurisdictions. The rule follows the Family Rule in maintaining the confidentiality of plaintiff’s location.

Rule 80.10(c) substitutes “superior” for “family” court as appropriate. Like V.R.F.P. 9(c), the rule provides the opportunity to present additional evidence to the court if the emergency request is denied. In Rule 80.10(f)(2), the provision of V.R.F.P. 9(f)(2) for modification prior to the date set for hearing is omitted as inapplicable. The two criteria which support modification prior to hearing under the Family Rule (possession of the home and child custody) do not apply to stalking or sexual assault orders against persons who are not family or household members. Similarly, the provisions of V.R.F.P. 9(f)(3) concerning parent-child contact are not carried forward in Rule 80.10(f)(3).

V.R.F.P. 9(g), covering modification of emergency orders concerning child custody or possession of the home, is also omitted as inapplicable. Parties subject to an ex parte order under Rule 80.10(c) may seek modification or dissolution under Rule 65(a).

Rule 80.10(g) is virtually identical to V.R.F.P. 9(h)

Rule 80.10(h) is identical to V.R.F.P. 9(i), with additional language to take account of the fact that not all superior courts have judges available in person at all times. Thus, some emergency orders will be signed by clerks on behalf of judges in other locations during regular court hours.

Rule 80.10(i) is identical to V.R.F.P. 9(j), except that provision for cases in which an action has been filed under V.R.F.P. Rule 4 is omitted as inapplicable.

V.R.F.P. 9(k), providing for automatic child support proceedings is omitted as inapplicable.

Reporter’s Notes-2008 Amendment

Rule 80.10, promulgated as an emergency rule by order of September 29, 2006, effective October 1, 2006, is now made permanent. See Reporter’s Notes-2006 Emergency Amendment.