Rule 8.Magistrates Proceedings

REPORTER'S NOTES--2022 AMENDMENT: Rule 8(h) is amended to eliminate the reference to V.R.C.P. 78 (Motion Day), which was abrogated by order of June 7, effective August 9, 2021. All relevant provisions of the former V.R.C.P. 78 are now incorporated in V.R.C.P. 7. See Reporter's Notes to 2021 amendment of V.R.C.P. 7(b) and abrogation of V.R.C.P. 78.

REPORTER'S NOTES--2018 AMENDMENTS: 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.

REPORTER'S NOTES--2013 AMENDMENT: Rule 8(g) is amended to eliminate the requirement that the provisions of V.R.A.P. 10-12 concerning notice of completion of the record apply in an appeal from a magistrate's decision to the Family Division. These provisions are inappropriate for magistrate appeals and in fact are frequently not complied with. The record in a magistrate appeal to the Family Division is quite different from the record in an appeal to the Supreme Court in that nothing has to be physically delivered from one location to another and therefore a transcript of the proceeding does not have to be prepared. In short, all of the documents and audio or video tapes that comprise the record in a magistrate appeal as described in Rule 8(g)(3)(B) are right there at the court house where the appeal is filed. Thus, it is unnecessary for the clerk to send notice to the parties that the record is complete when it is probably complete as soon as the notice of appeal is filed. Instead, V.R.A.P. 10 through 12 are now listed as appellate rules that are not applicable, the reference to V.R.A.P. 28 concerning briefs is eliminated as superfluous, and the 30 days for filing the memoranda required in lieu of briefs runs from the filing of the statement of questions rather than completion of the record.

REPORTER'S NOTES--1995 AMENDMENT: Rule 8(g)(3) is amended to clarify and make uniform the practice regarding certain procedural steps incident on appeals from magistrates to the Family Court. The amendment of Rule 8(g)(3)(B) requires appellant to file and serve the statement of questions within 15 days after filing the notice of appeal. Early filing of the questions is essential if the opposing party and the Family Court judge are to be able to determine what is in issue in preparation for the appeal. The 15-day deadline assures that submission of the statement will not delay completion of the record. Cf. V.R.C.P. 72(c), 73(c) (in probate and small claims appeals, statement of questions to be filed within 30 days). Rule 8(g)(3)(C), as amended effective September 1, 1993, is further amended to provide a 21, rather than 15, day deadline for the filing of the appellee's reply memorandum. Rule 8(g)(3)(D) is added to make clear that oral argument on the appeal is discretionary with the court. This provision departs from V.R.A.P. 34, as modified by V.R.A.P. 33, 33.1, under which oral argument in some form is available as of right in all actions except small claims actions unless the parties agree to submit the case for decision on the briefs. See V.R.A.P. 34(g).

REPORTER'S NOTES--1993 AMENDMENT: Rule 8(g)(3)(C), as added effective March 2, 1992, is amended to make clear the means by which an opposing party is to receive an appellant's appeal memorandum and to establish the time for response. The rule as adopted incorporated V.R.A.P. 27, which requires service on the opposing party pursuant to V.R.A.P. 25 and allows seven days for a response. In light of the large number of pro se litigants, it is desirable both to spell out the procedure directly in the present rule and to allow a longer time for the response. Service of both the appellant's and the appellee's memorandum is to be in accordance with V.R.C.P. 5(b), which requires service upon the attorney of a represented party and provides that service is to be made “by delivering a copy to the attorney or party or by mailing it to the attorney or party at the attorney or party's last known address or, if no address is known, by leaving it with the clerk of court.”

REPORTER'S NOTES--1992 AMENDMENT: Subdivision (g) of Family Court Rule 8, governing appeals from magistrates to the family court, is amended. The amendment simplifies and clarifies appellate procedure. Prior to the amendment the rule stated that the Vermont Rules of Appellate Procedure govern appeals to the family court. Subdivision (g)(1) now states that the appellate rules apply “except as set forth in this rule.” Subdivision (g)(2) sets forth particular appellate rules which do not apply. These are Rules 3(e) (Docketing Statements), 5 (Appeals Before Final Judgment), 6 (Discretionary Appeals), 7 (Bond), 9 (Release in Criminal Cases), 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). The listed rules were stricken either because they were irrelevant to appeals from magistrates or because they imposed too much formality, expense and delay. The appellate rules which are not listed remain applicable. Notable among these are V.R.A.P. 8, governing stays pending appeal, and V.R.A.P. 33, governing prehearing conferences and scheduling orders. Note that Civil Rule 52(a)(2), setting forth the “clearly erroneous” standard for appellate review of findings of fact, applies by virtue of Family Court Rules 4(a) and 8(a). Subdivision (g)(3) modifies several of the appellate rules which remain applicable. Subdivision (g)(3)(A) makes explicit that, for purposes of this rule, all references in the Vermont Rules of Appellate Procedure to the superior or district court shall be deemed references to the magistrate and all references to the Supreme Court shall be deemed references to the family court. Subdivision (g)(3)(B) addresses the record on appeal. Vermont Rule of Appellate Procedure 10(a) does not apply. 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. This procedure specifically deletes the requirement of the appellate rules that a transcript be produced as part of the record. The tape recording itself will be the record, as in small claims appeals. See 4 V.S.A. § 466(d) (all magistrates' proceedings shall be electronically recorded) and D.C.C.R. 80.3(i) and V.R.C.P. 73(c) (record on appeal in small claims cases includes tape itself rather than transcript). Production of and payment for a transcript in all cases would impose an unnecessary financial burden. Subdivision (g)(3) also deletes the requirement that a certified copy of the docket entries be prepared by the clerk; the clerk of the magistrate's court is the same as the clerk of the family court, so this is unnecessary. The subdivision also makes explicit that the magistrate's decision which is being appealed from is one of the papers and exhibits which must be included in the record. Subdivision (g)(3)(B) adds one requirement not found in Appellate Rule 10(a). A statement of the questions which the appealing party wishes to have determined must be included. This language is derived from V.R.C.P. 73(c). Subdivision (g)(3)(C) modifies V.R.A.P. 27 and 28. In lieu of the briefs required by V.R.A.P. 28, memoranda of law must be filed in the family court. While memoranda need not meet the requirements imposed by the rule for briefs, memoranda should contain a statement of the particular grounds on which the appeal is based. The requirements of V.R.A.P. 27, on motions, do need to be met. Paragraph (C) also specifies that appellant's memorandum must be filed within 30 days after completion of the record. The same subdivision states that with their memoranda of law the parties may also submit such written transcriptions of the magistrate's hearing as they deem appropriate. Unless the family court orders otherwise, this is optional. The rule treats transcripts as an aid to argument rather than as a necessary part of the record. The family court judge also may order any party to pay for or produce transcripts of whatever parts of the magistrate's proceedings as the judge deems appropriate, and may award the expense thereof as a cost to the prevailing party. Subdivision (g)(4) continues in effect former subdivision (g)(2).

REPORTER'S NOTES--1991 AMENDMENT: This rule is adopted as a permanent rule without change from the Emergency Rule issued September 28, 1990.

REPORTER'S NOTES: This rule is adopted to implement Act No. 221 of the Laws of 1990, creating a family court and magistrates. The primary goal of the statute is rapid establishment and enforcement of child support orders. The statute, following federal regulations, relies upon magistrates to accomplish these goals. See 45 C.F.R. §§ 302.70, 303.101 (setting forth required minimum state laws under the Social Security Act, including expedited processes under which the presiding officer is not a judge). Subdivision (b) of the rule incorporates Family Court Rule 4. That rule, also adopted by emergency order, establishes general procedure for divorce and related actions in the family court. Subdivision (c) adopts verbatim the statutory language for trial procedure found in 4 V.S.A. § 466(d). The rule calls upon magistrates to “assist” the parties in developing relevant and reliable evidence. The magistrate's role is similar to but less pivotal than that of the small claims judge in small claims court. Contrast this wording with D.C.C.R. 80.3(i) (The small claims judge “shall conduct the examination of the witnesses but shall allow the parties or their attorneys to supplement the examination.”). In some cases under this rule the magistrate may not need to conduct the examination of a witness or witnesses, but in other cases this may be necessary if the record is to contain relevant and reliable evidence, particularly where one or both parties are pro se. Subdivision (c) also adds a requirement that the magistrate inform the parties of their right to appeal the magistrate's ruling to the family court. See subdivision (g) of this rule, adapting the Vermont Rules of Appellate Procedure to appeals from the magistrate to the family court. Subdivision (d) incorporates verbatim the statutory evidence rule, 4 V.S.A. § 466(c). The rule and the statute render the Vermont Rules of Evidence applicable but add that evidence which is 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 own affairs and is not precluded by statute or privilege. This is essentially the evidence rule from Vermont's Administrative Procedure Act, 3 V.S.A. § 810(1). The purpose is to allow reliable information into evidence even where an evidence rule would preclude it. This provision, like that calling upon magistrates to assist in developing the evidence, is designed to enable even unrepresented parties to obtain fair and expeditious rulings on child support. Note that this rule is more limited than the evidence rules for small claims proceedings (D.C.C.R. 80.3(i) states that except for the rules on privilege, the Vermont Rules of Evidence do not apply) but broader than the federal “catchall” exceptions to the hearsay rules, F.R.E. 803(24) and 804(b)(5). Subdivision (e) adopts the remedies made available under the new child support enforcement statute, Act 220 of the Laws of 1990. Some of these remedies are not specifically set forth in any preexisting rule of procedure. See, e.g., 15 V.S.A. §§ 791, 796 (arrearage judgment liens, assets held in escrow). The primary enforcement tool under the statute is wage withholding, the procedure for which is set forth in subdivision (o) of Family Court Rule 4. Enforcement of child support generally is within the magistrates' jurisdiction. Compare 4 V.S.A. § 461(a) with 4 V.S.A. § 462(a) (magistrates have jurisdiction to enforce child support, while motion for contempt “shall be heard as expeditiously as possible by the family court”). Subdivision (f) implements the deadlines referred to in 4 V.S.A. § 466(b) as being mandated by federal law. In fact, the timetables contained in the federal regulations do not apply, by their terms, to particular cases. Instead, they state that 90 percent of all requests for establishment or enforcement of child support should be finally disposed of within 3 months of filing, 98 percent within 6 months, and 100 percent within 1 year. 45 C.F.R. § 303.101. The rule states that all cases shall be disposed of by the magistrate within 3 months unless the Administrative Judge for Trial Courts grants an extension. Subdivision (g) is adopted to implement the statutory language on appeals. Section 465 says that appeals shall be on the record to the family court--but it also says that “At the request of a party, the family court shall hear additional evidence.” It would be unacceptably confusing, and counterproductive, for the family court to preside over an appeal which simultaneously is “on the record” and includes live testimony from new witnesses. Appeal “on the record” consists of review to determine if the tribunal below committed an abuse of discretion. Once the family court begins to accept additional testimony, the court will be forced to weigh the credibility of a live witness against the credibility of witnesses in the record; this is an extraordinarily difficult task, if not impossible. Moreover, the effect of allowing live testimony upon request of any party would be to transform almost every “appeal” into a de novo hearing, since litigants will realize that the best way to respond to one live witness is to produce other live witnesses. This will diminish the role of magistrates, squander the resources which have been expended to create magistrates proceedings, and seriously undermine the statutory and federal goal of concluding 90 percent of support proceedings within 3 months and 98 percent within 6 months. The rule, therefore, authorizes submission of additional evidence upon appeal but only when the record from the magistrate is incomplete and good cause has been shown for its incompleteness. An example would be when failure to comply with discovery by one party caused the other party to proceed before the magistrate with incomplete information. The rule also provides that when additional evidence is being submitted review will be de novo, for the reasons noted above. Subdivision (g) also states that the Vermont Rules of Appellate Procedure apply to appeals to the family court, except that pleadings (including notices of appeal) are filed with the clerk of the family court. The manner in which an appeal is heard is a question of procedure, not jurisdiction. The Court may supersede an inconsistent procedural statute in the exercise of rulemaking. State v. Corliss, 145 Vt. 169, 172, 484 A.2d 924, 925-26 (1984). Since one of the goals of the statute and the federal regulations is to finally dispose of requests for child support orders within 3 months of the date of filing of the request (see subdivision (f)), the former practice of obtaining temporary orders of child support and continuing those temporary orders in effect pending the final hearing will not occur under this rule. Most rulings on child support either will be final rulings or will be in effect for a short period of time. Therefore, the thirty-day appeal period applicable to final orders, found in V.R.A.P. 3, generally will apply to magistrates' rulings on child support. The more complex procedures found in the appellate rules for interlocutory appeals will not apply. When a party seeks to change a temporary child support order, generally a motion under V.R.C.P. 60 or a motion to modify under Family Court Rule 4(j) will be appropriate, rather than an appeal. Subdivision (h) makes explicit that when a magistrate or a family court judge makes a motion under §§ 462 or 463, the motion should conform to the civil rules governing motions. A motion may be made orally in open court or may be made in writing. If in writing, it must meet the requirements of V.R.C.P. 7 and the other party must be given the opportunity to respond required by V.R.C.P. 78.