73 A.3d 681
Vt.2013Background
- Divorced in Feb. 2010; ordered to pay child support and spousal maintenance.
- Feb. 2011 order: child support decreased, spousal maintenance increased, net +$8.
- Order mailed to parties on March 14, 2011.
- Father moved to reopen appeal time on April 7, 2011; corrected April 11, 2011.
- Court denied reopening; ruling focused on whether notice was received within 21 days and whether immunity to timely appeal applied.
- Rule 4(c) allows reopening if notice not received within 21 days and no prejudice, with a 90-day filing window.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 4(c) receipt means actual receipt within 21 days. | Coles argues receipt occurs when order is not received within 21 days. | Coles bears burden to show lack of notice within 21 days; mail delivery suffices. | No; receipt is delivery to address, not mere non-opening. |
| Whether attorney’s vacation excuses late filing under Rule 4(c). | Coles contends vacation caused delay; mail arrival was outside his control. | Vacation/excusable neglect cannot override jurisdictional time limits. | Jurisdictional time limits not excused by attorney vacation; no relief under Rule 4(c) or 4(d). |
| Whether the motion would be timely if receipt was later than 21 days. | If receipt occurred April 4, 2011, motion was timely under 7-day rule. | Receipt must occur within 21 days; later receipt does not cure untimeliness. | Not timely under Rule 4(c); burden on movant to prove timely receipt. |
Key Cases Cited
- Khor Chin Lim v. CourtCall Inc., 683 F.3d 378 (7th Cir. 2012) (receipt is delivery to address or counsel; not delayed by unread mail)
- In re Town of Killington, 176 Vt. 60 (2000) (excusable neglect in administrative delays not allowed to enlarge appeal period)
- Bergeron v. Boyle, 176 Vt. 78 (2003) (vacation/office delays not excusable neglect; strict view of deadlines)
- In re Lund, 177 Vt. 465 (2004) (excusable neglect standards applied narrowly; strict time limits)
- Bull v. Pinkham Eng’g Assocs., 752 A.2d 26 (2000) (excusable neglect limits in Vermont appellate practice)