*1
ment,
thing
if the trial
suspended
but one
is clear:
term for
an indeterminate
205(a).
impose indeterminate
court intended to
§
sentences. 28 V.S.A.
terms,
imposing
probation
the order
impose a
11. If the court intended to
only mean-
“concurrent” terms was not
begin
probationary sentence that would
pre-
impossible.
ingless,
do not
only
of incar-
to run
after the sentence
the trial court intended
sume
completed, it could have
ceration was
By
impose
impossible
order-
sentence.
by clearly expressing that intent.
done so
probation
“concurrent” with
to be
Supreme
As the United States
Court
imprisonment,
trial
sentence
nearly
century ago, “[sentences
noted
only
impose
court could
have intended
fair
in criminal cases should reveal with
probation, as authorized
fixed terms of
court and ex-
the intent of the
205(a),
§
or the word “concurrent” would
misapprehensions by
clude
serious
have had no effect.
those
must execute them.” United
who
presume
that sen-
14. Because we
Daugherty, 269
States v.
U.S.
multiple
imposed
tences
offenses
practice
If it
is the DOC’s
the same time are concurrent absent
interpret putatively “concurrent” sen-
language
contrary, Kasper,
to the
clear
like Mr. Francis’ in the manner it
tences
here,
137 Vt. at
did
such sentences do not reveal
ambiguity
length
as to the
because the
any certainty
punishment
what
probation
facts, Mr. Francis’
must be construed
actually
person will
face. On these
favor,
probationary
Mr. Francis’
uncertainty must be resolved in fa-
such
interpreted
sentences should
prisoner. Accordingly,
vor of the
we con-
commencing
being
for definite terms
began to
his
clude that defendant
serve
imposition.
on the date of their
He must
probationary
terms at the time
against his sus-
therefore receive credit
imposed, and must
therefore receive
pended
spent
for the time he
sentences
spent
credit
them for the time he
custody
three-to-five-year
on his
sentence.
stalking conviction.
incarcerated on his
Accordingly, Mr. Francis’
¶ 12.The sentence also leaves uncertain
granted,
ment motion should have been
imposing
whether the trial
“sus-
ordered,
and his release
based on a maxi-
sentences,
pended” yet “concurrent”
aggregate
years.
mum
sentence of five
impose
probation
meant to
indefinite
court,”
“until
last
further order
probation
or terms of
that would last
periods.
for the stated
See 28 V.S.A.
205(a) (2000)(allowing
suspend
§
was bound his 2003 judgment.” V.R.C.P. Silver, (mem.). circumstances. Schubach 1975) (need (Pa. flexibil However, apply A.2d “does not outweighs ity zoning need for proceedings as an inflex to administrative Zoning Carrier, Marks v. judgments); In of 155Vt. ible rule of law.” Providence, (1990). the Bd. 110, 113 Although of of (R.1.1964) 761, 763 (zoning board must be “generally principles of claim applications to reconsider apply in other areas of able cases as circumstances). law,” changed On the other id. hand, enjoy “successive-application property is a dis must some doctrine” owners developed spe tinct rules use of in the level of cifically zoning proceedings. Beach land. In re Crescent nearby 140, 141, 224 A.2d (“[The successive-application doctrine] we articulated the suc- cessive-application technically narrowly as follows: im not to be planning “zoning commission board or posed, yet enforced to the extent may not entertain a second may property be settled and interests property concerning after a the same stable, protected property owners denied, un- has been harassment”). change of conditions less a substantial and fi 10. This balance or other considerations ha[s] occurred appli nality incompatible with a strict materially affecting the re- the merits of preclusion, which “is cation quest the first have intervened between protect tended to the courts applications.” 155 Vt. at and second relitigation.” from the burden (citations quotations A.2d at 113 Atkins, Russell omitted). Therefore, planning “a commis- 333, 335 preclusion is a Claim (or acting sion a court rigid that ends *3 commission) applica- may grant a second equitable regard considerations. to ap- plan approval the tion for site when County Fair Faulkner v. Caledonia substantially changed plication has been 10, 178 Vt. 869 respond objections in to raised so as to Applying requirements the strict original application.” Id. the Under preclusion zoning decisions to doctrine, applicant may an be relieved responses changing prohibit to cir would upon denial from a But in Vermont communities. cumstances showing application that a successive “ad- changes zoning applications allowing prevented ap- dresses all concerns that according respect to denials prior application.” proval of the erratic, encourage unpredictable would 2006VT 4. This standard successive-application doc land use. The from, frequently more is different applying general compromise, trine is a than, exceptions to flexible the six narrow allowing preclusive principles while Rule carved out adaptation changing to circumstances. successive-application 9. The competing attempt is an to balance the Nehemiah concerns of zon- (1998); Stowe Club hand, zoning ing decisions.2 On the one 33, 38, Highlands, 687 A.2d responsive changing to decisions must be (1996). However, independent an 105 rules, successive-application the doctrine, permit finality” “flexibility to Act 250 The concerns of 37-38, Id. extensively requests. amendment treated in the con In re permitting. at 105. text of Act 250 The Environmental Court’s was free to file succes- application sive with Review Board requires applicant the that a move successive 60(b) without first relief. judgment for relief from However, proper approval require filing a successive show that the successive Board, point at which the application “addresses all concerns that require- still must fulfill the prevented approval” of the successive-application ments of the doc- prior applications. purpose requir- trine. We fail to see the 2006VT ing a threshold Rule motion to reopen litigation, applying and then successive-application to new Burgess, J., concurring part, above, application. explained As we dissenting part. keeping with the successive-application doctrine is a form judicata approach more flexible to res preclusion specifically to tailored Court, matters before the Environmental Requiring cases. a Rule mo- I concur that the doctrine of successive applies tion traditional claim to application, rather than should cases, undermining purpose govern disposition permit ap- of renewed doctrine. plications judgment after in a contested judgment 12. Neither does a consent further, however, go ease. We should incorporating stipulated agreement dif clarify stipulated judg- that a fer from a full entered after agreement ment cannot undo that with- applying such that the strict parties. out the consent of the other standards to one but Carrier, allowing post- of In rationale justifiable. not the other is have often judgment reapplication com- stipulated agreement indicated that a missions when the is “sub- corporated stantially changed into a court order has the respond so as to preclusive objections original applica- same effect as a final raised in the tion,” See, Pouech, 152, 158, e.g., on the merits. Pouech v. Vt. 582 A.2d (1990), 40, ¶20, inapposite Vt. (“Once by stipulation Here, reached in this case. stipulation incorporated into a parties expressly contracted for a regarding finality concerns specifically excluded a drive- stipulation susceptible be through Any objections record grounds to attack sufficient to the window as judgment.”); overturn a reserved, expressly were resolved (“[T]he ¶8 stipu stipulation litigation. to end the lated settlement has the effect ordinarily 15. “Rule relief is judgment.”); aof In re Estate of Cartmell, 234, 240, unavailable to relieve one from the effects 138 A.2d (1958) (“A stipulation freely Goshy of a made.” up by entered Morey, 149 agreement upon par the court is, least, suggest, by say There is no reason to ties as conclusive remand, that a different result could ob- them as if rendered ap- ordinary tain under the doctrine of successive proceeding.”). course of the En plication. Chicanery might judgments constitute vironmental Court consent necessary exception, but is not claimed in judgments have the same effect as final *4 merits, and the appropriate doctrine is the method of 16. The settlement here allowed the a final proceed project decision. with a modified, order, stalled, requesting that the court might or de- grant legal responsibility. Father her sole feated, Successive but for the settlement. motion, request- also filed modification subject application on the same settled responsibili- legal physical sole matter, in this case ties. window, stipu- should be foreclosed to the Otherwise, hearings No- applicant. party in 4. After in October and lating no family court issued a opposition vember of finding that compromise litigation, written decision modification to settle risk responsibility fingers legal was warranted. party has its fear the other decision, specificfind- the court made its back. crossed behind fact, including findings regarding ings of care, education, counseling, medical visi- contact, 2008VT 138 exchanges, tele- tation summer contact, living phone situations. Emily Eric SOLSAA SOLSAA findings, Based on these the court con- that father “is better suited than cluded necessary to make the [mother] parent vested with legal responsibility” him and awarded legal parental responsibility. sole Emily physical to award father 2008. Mother court declined family responsibility, court’s but did increase father’s Solsaa father, time, awarding evening contact to one and five order to noncustodial Solsaa, legal overnights every period. responsibility Eric for the two-week parties’ argues appeals. two children. Mother that Mother family court’s conclusions and argu- 5. We first address mother’s findings regarding the children’s best in- family findings ments that the court’s are record, supported by not terests are supported by the record and are judge’s preju- but rather are based on the judge’s prejudices. based on the Mother dices, improper it for the specifically argues that the court’s find- family split legal physical ings support of its conclusions that responsibilities because this can be done father is better able to meet the children’s circumstances, exceptional needs, medical and educational and that present are not here. affirm. father is better able to foster the chil- mother, family August relationship 2. In dren’s are not parties’ supported by entered the divorce order record. Mother also stipulation. argues prejudiced Pursuant to this the court was her, physical responsibility mother had for the this bias resulted children, legal findings. shared erroneous responsibility. The order also established reviewing a trial court’s fac- When parent-child contact schedule that al- findings, tual “we view them the generally spend lowed father to at least prevailing party most favorable evenings plus overnights two four in ev- below, disregarding the effect of ery period two-week with the children. evidence, modifying and we will not set findings clearly 3. After the divorce order was en- aside the tered, Butler, Spaulding relationship between mother erroneous.” deteriorated, and father such that Au- omitted). findings gust modify (quotation 2006mother filed a motion to Factual will