Rule 60.Relief from a judgment or order

Reporter’s Notes—2006 Amendment: Rule 60(b) is amended for conformity with the Federal Rules and to establish internal consistency within the Vermont Rules of Civil and Appellate Procedure. See Reporter’s Notes to simultaneous amendments of V.R.C.P. 50(b) and (c).

Reporter’s Notes: This rule is substantially identical to Federal Rule 60. The rule is intended to provide the sole means of obtaining relief from a judgment after the time for a motion under Rule 59 has run. Rule 60(a), providing for relief “at any time” from clerical mistakes and other oversights and omissions in the record, is in accord with prior Vermont case law. See St. Pierre v. Beauregard, 103 Vt. 258, 152 A. 914 (1931); Putney v. Brookline, 126 Vt. 194, 225 A.2d 388 (1967). Rule 60(b) replaces all existing modes of obtaining relief from a judgment on grounds such as mistake, fraud, or newly discovered evidence, with two alternative procedures: (1) a motion under the rule; (2) an independent action for such relief. The following means of obtaining such relief were available in prior Vermont practice: (1) A petition or motion within two years after rendition of a default judgment to have such judgment set aside on grounds of accident, fraud or mistake. 12 V.S.A. § 2353 (now superseded). (2) A petition to the Supreme Court for a new trial in a term after that in which judgment was rendered, available for one year after judgment for questions of law and two years after judgment for questions of fact such as newly discovered evidence. 12 V.S.A. §§ 2354, 2356 (now superseded). (3) A writ of audita querela to have set aside a judgment obtained through the fraud or misconduct of the other party. See Walter v. Foss, 67 Vt. 591, 32 A. 643 (1895); Deal v. Powell, 88 Vt. 404, 92 A. 648 (1914); 12 V.S.A. §§ 3901-3907 (now superseded). (4) A writ of review within three years after rendition of a default judgment without notice against an absent defendant. 12 V.S.A. §§ 917-922 (now superseded). (5) The court’s “inherent power, for sufficient reasons, to order a final judgment vacated, the cause brought forward and opened for further proceedings,” where none of the foregoing statutes applied. Horicon v. Langlois Estate, 115 Vt. 81, 84, 52 A.2d 888 (1947). See Haskins v. Haskins Estate, 113 Vt. 466, 35 A.2d 662 (1944). See also Wellington v. Wellington, 124 Vt. 401, 205 A.2d 568 (1964). (6) In chancery, bills of review and bills in the nature of bills of review. 12 V.S.A. § 4613 (now superseded). See Philbrick v. Johnson, 91 Vt. 270, 100 A. 110 (1917); Fillmore v. Morgan’s Estate, 94 Vt. 87, 108 A. 841 (1920); Mead v. Arms, 3 Vt. 148 (1830). (7) Independent actions in chancery to enjoin or set aside judgments on grounds not available in an action at law. See Putney v. Brookline, 126 Vt. 194, 225 A.2d 388 (1967); Paddock v. Palmer, 19 Vt. 581 (1847); Delaney v. Brown, 72 Vt. 344, 47 A. 1067 (1900). The provisions of Rule 60(b) are in general comparable to the foregoing devices. The six grounds of relief under the rule include most of those previously recognized in Vermont practice, as well as a general catch-all provision in clause (6), designed to give the court the flexibility to see that the rule serves the ends of justice. Note that Rule 60(b)(3) rejects the distinction, recognized in Fillmore v. Morgan’s Estate, 94 Vt. 87, 108 A. 841 (1920), between fraud that was “extrinsic,” or collateral, to the action and which justified vacation of judgment and “intrinsic” fraud (that related to the subject matter of the action), which did not justify such relief. The distinction was hard to apply and led to undesirable results. See 3 Barron & Holtzoff, Federal Practice and Procedure § 1326 (Wright ed. 1958). The time limit of one year for motions based on mistake, newly discovered evidence, and fraud is shorter than the two years formerly allowed to bring proceedings on such grounds under 12 V.S.A. §§ 2353, 2354, 2356, and it is a time limit that may not be extended under Rule 6(b). Where real injustice might result from the shorter time, however, other alternatives remain open to the party. The rule expressly states that there is no limit to the power of the court to set aside a judgment for fraud upon the court or to entertain an independent action. Moreover, the federal courts have used Rule 60(b)(6) to provide relief in cases of extreme hardship which might literally be thought to be within the one-year limit of clauses (1)-(3). See 3 Barron & Holtzoff § 1330. Note that in contrast to motions under Rule 59, a motion under Rule 60(b) does not suspend the operation of the judgment or have any effect on finality. Contrary to prior Vermont practice under 12 V.S.A. §§ 2363, 2364 (now superseded), there is no discretion in the rules to order a stay on a Rule 60 motion made after the automatic stay provided in Rule 62(a) expires. See Reporter’s Notes to Rule 62. The former procedure for writ of review within three years after a default judgment under 12 V.S.A. §§ 917-922 has been superseded, but, by way of compromise, execution may not be levied on a default judgment for one year. See Reporter’s Notes to Rule 62. Note also that Rule 55(c) specifically permits reopening judgment after default on grounds appropriate under Rule 60(b). Vermont follows Maine in abolishing the writ of review. This is a departure from the federal rule, which saves review proceedings in property actions under 28 U.S.C. § 1655. The final sentence of Rule 60(b) expressly abolishes several nonstatutory remedies, including writs of coram nobis and coram vobis. Although such writs were not known to Vermont practice, the manner in which the Supreme Court treated an application for a writ of coram nobis in In re Garceau, 124 Vt. 220, 202 A.2d 266 (1964), suggests that, without specific abolition, they might be found available in a proper case. Annotations Generally. Burden of proof. Clerical mistakes. Construction with other laws. Default judgment. Discretion of court. Excusable neglect. Failure to appeal. Failure to present evidence. Findings and conclusions. Fraud or other misconduct. Hearing. Independent action. Interlocutory orders. Newly discovered evidence. Other reason justifying relief. Scope of relief. Surprise. Tactical decisions. Time. Zoning cases. Generally. A settlement agreement that is incorporated into a final judgment can be disturbed pursuant only to the procedures set forth in subdivision (b) of this rule. Bidgood v. Town of Cavendish, 2005 VT 64, 179 Vt. 530, 878 A.2d 290, 2005 Vt. LEXIS 148, cert. denied, 546 U.S. 1062, 126 S. Ct. 801, 163 L. Ed. 2d 628, 2005 U.S. LEXIS 9066 (2005) (mem.). Rule governing relief from judgment is not an open invitation to reconsider matters concluded at trial, but should be applied only in extraordinary circumstances. John A. Russell Corp. v. Bohlig, 170 Vt. 12, 739 A.2d 1212, 1999 Vt. LEXIS 228 (1999). Procedural rule allowing relief from judgment is properly invoked to prevent hardship or injustice and thus is to be liberally construed and applied. Bingham v. Tenney, 154 Vt. 96, 573 A.2d 1185, 1990 Vt. LEXIS 50 (1990). A motion for relief under subdivision (b) of this rule is not intended to function as a substitute for a timely appeal. Richwagen v. Richwagen, 153 Vt. 1, 568 A.2d 419, 1989 Vt. LEXIS 208 (1989). A motion for relief from judgment under subdivision (b) of this rule is not intended to function as a substitute for a timely appeal. Tetreault v. Tetreault, 148 Vt. 448, 535 A.2d 779, 1987 Vt. LEXIS 540 (1987). Motions under subdivision (b) of this rule are properly addressed only to the trial court. Moore v. Beecher, 145 Vt. 659, 482 A.2d 1225, 1984 Vt. LEXIS 543 (1984) (mem.). Free, calculated, deliberate choices are not to be relieved from. In re Norris Trust, 143 Vt. 325, 465 A.2d 1385, 1983 Vt. LEXIS 533 (1983). Burden of proof. Party seeking modification of consent decree relating to institutional reform has burden of showing either significant change in factual conditions or in law. J.L. v. Miller, 158 Vt. 601, 614 A.2d 808, 1992 Vt. LEXIS 103 (1992). The party challenging denial of a motion for relief from judgment has the burden of proving an abuse of discretion. Bingham v. Tenney, 154 Vt. 96, 573 A.2d 1185, 1990 Vt. LEXIS 50 (1990). Burden is on appellant to demonstrate that discretion of trial court in denying her motion for relief from judgment was withheld or abused; absent such showing, order of trial court will be upheld. Perrott v. Johnston, 151 Vt. 464, 562 A.2d 459, 1989 Vt. LEXIS 96 (1989). In seeking relief under subdivision (b)(6) of this rule, in the face of a denial by lower court, moving party has burden of proving that denial below was an abuse of discretion. Brady v. Brauer, 148 Vt. 40, 529 A.2d 159, 1987 Vt. LEXIS 450 (1987). The moving party on appeal has the burden of proving that the trial court abused its discretion in deciding a motion for relief from judgment. Reuther v. Gang, 146 Vt. 540, 507 A.2d 972, 1986 Vt. LEXIS 325 (1986). The party challenging a trial court’s denial of a motion for relief from judgment has the burden to prove an abuse of discretion. R. Brown & Sons, Inc. v. International Harvester Corp., 142 Vt. 140, 453 A.2d 83, 1982 Vt. LEXIS 617 (1982); Darken v. Mooney, 144 Vt. 561, 481 A.2d 407, 1984 Vt. LEXIS 516 (1984); Margison v. Spriggs, 146 Vt. 116, 499 A.2d 756, 1985 Vt. LEXIS 355 (1985); Green Mountain Bank v. Magic Mountain Corp., 148 Vt. 247, 531 A.2d 604, 1987 Vt. LEXIS 476 (1987). Timely new trial motion was addressed to trial court’s sound discretion and where plaintiff did not carry his burden of showing abuse of discretion in denial of the motion, made on ground question elicited of witness an answer not contemplated by plaintiff’s interrogatories, supreme court, indulging every reasonable presumption in favor of the denial, would uphold the denial. Meacham v. Kawasaki Motors Corp., 139 Vt. 44, 421 A.2d 1299, 1980 Vt. LEXIS 1392 (1980). Clerical mistakes. Provision for relief from judgment for the reasons of mistake, inadvertence, surprise, or excusable neglect does not operate to protect a party from tactical decisions which in retrospect may seem ill advised. Sandgate School District v. Cate, 2005 VT 88, 178 Vt. 625, 883 A.2d 774, 2005 Vt. LEXIS 260 (2005) (mem.). Trial court did not abuse its discretion under subdivision (b)(1) of this rule by determining that an order of the Department of Taxes was premised on a mistake, that new information revealed that an element of estoppel preventing the Department from collecting land gains and property transfer taxes was not met and, therefore, affirming the determination of the Commissioner on the liability of taxpayers. Murphy v. Department of Taxes, 173 Vt. 571, 795 A.2d 1131, 2001 Vt. LEXIS 426 (2001) (mem.). Where appeal had been perfected to supreme court, proper procedure for correcting defective order arising from omission of assistant judge’s signature was by remand to trial court for a determination as to whether the findings contained in the order reflected the beliefs of the assistant judge. Jack C. Keir, Inc. v. Robinson & Keir Partnership, 150 Vt. 648, 552 A.2d 403, 1988 Vt. LEXIS 135 (1988) (mem.). Error in method of calculating interest on a judgment was an error in substantive law, not a clerical or mathematical error as contemplated by subdivision (a) of this rule. Greenmoss Builders, Inc. v. Dun & Bradstreet, Inc., 149 Vt. 365, 543 A.2d 1320, 1988 Vt. LEXIS 43 (1988). Subdivision (a) of this rule envisions giving relief from minor errors; errors that affect substantial rights of the parties are outside the scope of the rule. State v. Champlain Cable Corp., 147 Vt. 436, 520 A.2d 596, 1986 Vt. LEXIS 437 (1986). Under subdivision (a) of this rule, if a court does not render judgment, or renders one that is imperfect or improper, it has no power to remedy any such error or omission by treating it as a clerical mistake. State v. Champlain Cable Corp., 147 Vt. 436, 520 A.2d 596, 1986 Vt. LEXIS 437 (1986). The correction of a clerical error under subdivision (a) of this rule does not extend the time for taking on appeal of the underlying judgment. State v. Champlain Cable Corp., 147 Vt. 436, 520 A.2d 596, 1986 Vt. LEXIS 437 (1986). Error by trial court in awarding plaintiff “costs of action” while intending to award attorney fees was not a minor error which could be corrected under the auspices of subdivision (a) of this rule. State v. Champlain Cable Corp., 147 Vt. 436, 520 A.2d 596, 1986 Vt. LEXIS 437 (1986). Where error in order of trial court was more than clerical, motion under this rule to correct a clerical error was more appropriately brought under V.R.C.P. 52(b) as a motion to amend findings and judgment. Veino v. Veino, 136 Vt. 367, 392 A.2d 417, 1978 Vt. LEXIS 634 (1978). Motion to correct clerical error under this rule was improperly denied where court, in modifying divorce decree, misconstrued original decree for payments of $30 per week as one for payments of $30 per week per child. Veino v. Veino, 136 Vt. 367, 392 A.2d 417, 1978 Vt. LEXIS 634 (1978). Construction with other laws. Family court had power to modify divorce judgment, during appeal, by correcting error in calculation intended to equalize parties’ investments in bed and breakfast inn. Stalb v. Stalb, 168 Vt. 235, 719 A.2d 421, 1998 Vt. LEXIS 248 (1998). Appellee’s argument that the Vermont Motor Vehicle Arbitration Board had the authority to reopen their case pursuant to V.R.C.P. 60(b) is erroneous because the rules of civil procedure do not apply to Board hearings and the express legislative appeal scheme found in 9 V.S.A. § 4176 forecloses any analogy to Rule 60(b). Cyr v. Subaru of America, Inc., 162 Vt. 226, 647 A.2d 706, 1994 Vt. LEXIS 63 (1994). Subdivision (b) of this rule deals exclusively with relief from final judgments and does not govern relief from denial of a motion for summary judgment under V.R.C.P. 56. Morrisville Lumber Co. v. Okcuoglu, 148 Vt. 180, 531 A.2d 887, 1987 Vt. LEXIS 482 (1987). The doctrine of res judicata does not preclude a litigant from making a direct attack under this rule upon a judgment before the court which rendered it. Cliche v. Cliche, 143 Vt. 301, 466 A.2d 314, 1983 Vt. LEXIS 531 (1983). Subdivision (b) of this rule deals only with relief from final judgments, not the interim notice of decision provided for in V.R.C.P. 52. Bouffard v. Bouffard, 135 Vt. 22, 370 A.2d 190, 1976 Vt. LEXIS 599 (1976). Default judgment. Courts have given default judgments full effect, and a compulsory counterclaim omitted from an action that terminates in a default judgment will be barred from any subsequent suits. Given that compulsory counterclaims are conclusively adjudicated by a default judgment, a counterclaim arising from the same transaction as the underlying complaint, such that a judgment in the action would be res judicata as to that counterclaim, can constitute a meritorious defense for the purpose of a motion to set aside a default judgment. LaFrance Architect v. Point Five Dev. S. Burlington, LLC, 2013 VT 115, 195 Vt. 543, 91 A.3d 364, 2013 Vt. LEXIS 118 (2013). Default judgment issued without opportunity to be heard is not favored over one rendered after full hearing, and relief ought not to be denied for insufficient reasons. Brady v. Brauer, 148 Vt. 40, 529 A.2d 159, 1987 Vt. LEXIS 450 (1987). Trial court abused its discretion in denying defendant’s motion for relief from judgment where the trial court had not provided defendant with the statutorily required three days’ notice before entering a default judgment against her. Reuther v. Gang, 146 Vt. 540, 507 A.2d 972, 1986 Vt. LEXIS 325 (1986). In formulating discretionary ruling on a motion for relief from a default judgment, trial court should consider whether the failure to answer was the result of mistake or inadvertence, whether the neglect was excusable under the circumstances, and whether the defendant has demonstrated any good or meritorious defense to the plaintiff’s claims. Desjarlais v. Gilman, 143 Vt. 154, 463 A.2d 234, 1983 Vt. LEXIS 478 (1983). The denial of relief from a default judgment should have strong support and the court should be indulgent in opening decrees entered by default. Vahlteich v. Knott, 139 Vt. 588, 433 A.2d 287, 1981 Vt. LEXIS 539 (1981); Brady v. Brauer, 148 Vt. 40, 529 A.2d 159, 1987 Vt. LEXIS 450 (1987). Where trial court apparently concluded the defendant’s failure to file an answer to plaintiff’s complaint was not the result of mistake or inadvertence and that the neglect was not excusable, and defendant did not demonstrate in the trial court any good or meritorious defense to the claim, upon which default judgment was entered, no abuse of discretion was demonstrated in denial of motion for relief from final judgment and the denial would be affirmed. Kotz v. Kotz, 134 Vt. 36, 349 A.2d 882, 1975 Vt. LEXIS 324 (1975). Discretion of court. Superior court’s order reforming parties’ noncompetition agreement, which was part of a stipulated settlement and court order in a prior lawsuit between the parties, reversed because the doctrine of res judicata precluded either party from collaterally attacking the agreement, at least without a demonstration that the criteria of subdivision (b) of this rule had been met. Johnston v. Wilkins, 2003 VT 56, 175 Vt. 567, 830 A.2d 695, 2003 Vt. LEXIS 138 (2003) (mem.). The trial court’s decision on a Rule 60(b) motion is committed to the sound discretion of the court and will stand on review unless the record indicates that such discretion was abused; it was not an abuse of discretion for family court not to provide father with a second opportunity to present the evidence that he would have presented at trial had he been present at trial. Lyddy v. Lyddy, 173 Vt. 493, 787 A.2d 506, 2001 Vt. LEXIS 284 (2001) (mem.). Trial court has discretion to vacate or remand a consent judgment in a divorce case at any time. Elmore v. Elmore, 159 Vt. 278, 617 A.2d 159, 1992 Vt. LEXIS 129 (1992). Trial court’s ruling on a motion under subdivision (b) of this rule is discretionary and will not be overturned unless record clearly and affirmatively indicates that discretion was withheld or otherwise abused, although supreme court has power in its discretion to remand a case to prevent a failure of justice when circumstances warrant. Courtyard Partners v. Tanner, 157 Vt. 638, 595 A.2d 287, 1991 Vt. LEXIS 114 (1991) (mem.). The decision on a motion for relief from judgment is committed to the sound discretion of the trial court and will stand on review unless the record clearly and affirmatively indicates that such discretion was withheld or otherwise abused. Bingham v. Tenney, 154 Vt. 96, 573 A.2d 1185, 1990 Vt. LEXIS 50 (1990). Motion for relief from judgment is addressed to discretion of trial court and will not be disturbed on appeal in absence of abuse of discretion. Slansky v. Slansky, 150 Vt. 627, 556 A.2d 94, 1988 Vt. LEXIS 219 (1988). Where defendant husband claimed that because of effect of medication he did not sign property division stipulation freely and voluntarily, and trial court found that he was not confused, that a long period had elapsed before his motion under subdivision (b) of this rule, and that the agreement was not so lopsided as to indicate that he did not know what he was doing, trial court’s denial of motion was not abuse of discretion. Slansky v. Slansky, 150 Vt. 627, 556 A.2d 94, 1988 Vt. LEXIS 219 (1988). Motion under subdivision (b) of this rule is addressed to discretion of trial court and will not be disturbed on appeal in absence of abuse of discretion. Leiter v. Pfundston, 150 Vt. 593, 556 A.2d 90, 1988 Vt. LEXIS 234 (1988). A motion for relief from judgment under this rule is addressed to the discretion of the trial court, and is not subject to appellate review unless it clearly and affirmatively appears from the record that such discretion was withheld or otherwise abused. Pella Products, Inc. v. Krutak, 150 Vt. 81, 549 A.2d 1059, 1988 Vt. LEXIS 109 (1988). A motion for relief from judgment pursuant to subdivision (b) of this rule is addressed to the discretion of the trial court, and its ruling will not ordinarily be disturbed on appeal unless it clearly appears from the record that such discretion was withheld or abused. George v. Porter, 149 Vt. 661, 546 A.2d 797, 1988 Vt. LEXIS 75 (1988) (mem.). Rulings on motions brought under subdivision (b) of this rule are discretionary and will not be reversed unless abuse of discretion is demonstrated. Nobel/Sysco Food Services, Inc. v. Giebel, 148 Vt. 408, 533 A.2d 1195, 1987 Vt. LEXIS 625 (1987). Where the trial court dismissed a complaint for failure of the plaintiff to comply with discovery orders, the trial court did not abuse its discretion in denying plaintiff’s motion for relief of judgment, filed under subdivision (b) of this rule, where the record indicated that the trial court properly performed its role as overseer of the discovery process and then prepared a detailed and well supported order denying the motion. R. Brown & Sons, Inc. v. International Harvester Corp., 142 Vt. 140, 453 A.2d 83, 1982 Vt. LEXIS 617 (1982). A motion for relief of judgment is addressed to the discretion of the trial court and is not subject to appellate review unless it clearly and affirmatively appears from the record that such discretion was withheld or otherwise abused. Zinn v. Tobin Packing Co., 140 Vt. 410, 438 A.2d 1110, 1981 Vt. LEXIS 628 (1981); R. Brown & Sons, Inc. v. International Harvester Corp., 142 Vt. 140, 453 A.2d 83, 1982 Vt. LEXIS 617 (1982); Desjarlais v. Gilman, 143 Vt. 154, 463 A.2d 234, 1983 Vt. LEXIS 478 (1983); Darken v. Mooney, 144 Vt. 561, 481 A.2d 407, 1984 Vt. LEXIS 516 (1984); Estate of Emilo v. St. Pierre, 146 Vt. 421, 505 A.2d 664, 1985 Vt. LEXIS 397 (1985); Reuther v. Gang, 146 Vt. 540, 507 A.2d 972, 1986 Vt. LEXIS 325 (1986); Green Mountain Bank v. Magic Mountain Corp., 148 Vt. 247, 531 A.2d 604, 1987 Vt. LEXIS 476 (1987); Pella Products, Inc. v. Krutak, 150 Vt. 81, 549 A.2d 1059, 1988 Vt. LEXIS 109 (1988). The granting of a motion for relief from judgment is within the discretion of the trial court and will not be disturbed on appeal unless that discretion is abused or withheld. Dudley v. Snyder, 140 Vt. 129, 436 A.2d 763, 1981 Vt. LEXIS 590 (1981). Motion for relief from judgment pursuant to this rule is addressed to the discretion of the trial court and is only available for review when abuse is made to appear. Bardill Land & Lumber, Inc. v. Davis, 135 Vt. 81, 370 A.2d 212, 1977 Vt. LEXIS 560 (1977); Vahlteich v. Knott, 139 Vt. 588, 433 A.2d 287, 1981 Vt. LEXIS 539 (1981). The power to grant relief from a final judgment rests solely in the sound discretion of the trial court, and a discretionary ruling of the trial court is not subject to review on appeal unless it clearly and affirmatively appears that such discretion has been abused or withheld. Kotz v. Kotz, 134 Vt. 36, 349 A.2d 882, 1975 Vt. LEXIS 324 (1975); Waitt v. Waitt, 137 Vt. 374, 406 A.2d 395, 1979 Vt. LEXIS 996 (1979). Excusable neglect. Remand of eviction order was appropriate to prevent failure of justice where defendants’ defenses appeared strong, defendants’ negligence in failing to appear for trial was not culpable, defendants were unrepresented and motion under subdivision (b) of this rule was made promptly within appeal period. Courtyard Partners v. Tanner, 157 Vt. 638, 595 A.2d 287, 1991 Vt. LEXIS 114 (1991) (mem.). Counsel’s careless ignorance of the rules of procedure is not the sort of excusable neglect contemplated by subdivision (b) of this rule, and it is no abuse of discretion to deny a motion to vacate dismissal in such a situation. Margison v. Spriggs, 146 Vt. 116, 499 A.2d 756, 1985 Vt. LEXIS 355 (1985). A late-filed affidavit sufficient to defeat summary judgment does not justify relief under this rule if it asserts facts that were known prior to judgment. Margison v. Spriggs, 146 Vt. 116, 499 A.2d 756, 1985 Vt. LEXIS 355 (1985). Failure to appeal. Plaintiff’s pro se status did not excuse his failure to appeal original dismissal order, his additional failure to appeal the denial of his request to reopen, or his dilatory Rule 60(b) motion filed four months later. Altman v. Altman, 169 Vt. 562, 730 A.2d 583, 1999 Vt. LEXIS 43 (1999) (mem.). Although motion under subdivision (b) of this rule was not intended to function as a substitute for a timely appeal, court would consider claims of mother in custody dispute in light of her lack of representation, her alleged mental instability, and the fundamental nature of rights at stake. Bigelow v. Bigelow, 168 Vt. 618, 721 A.2d 98, 1998 Vt. LEXIS 337 (1998) (mem.). Failure to appeal an adverse judgment did not foreclose relief from judgment where motion for such relief was clearly filed within reasonable time period as required by the rule. Bingham v. Tenney, 154 Vt. 96, 573 A.2d 1185, 1990 Vt. LEXIS 50 (1990). Failure to present evidence. Mere failure to present evidence would not provide a basis for relief from judgment under subdivision (b)(1) of this rule. Olde & Co. v. Boudreau, 150 Vt. 321, 552 A.2d 793, 1988 Vt. LEXIS 166 (1988). Findings and conclusions. Where a hearing is required on a motion under subdivision (b) of this rule, the court’s decision must state such findings and conclusions as will enable the supreme court to determine the basis for the decision and how the court has used its discretion. Goshy v. Morey, 149 Vt. 93, 539 A.2d 543, 1987 Vt. LEXIS 596 (1987). While findings of fact and conclusions of law are not essential in ruling on a motion for relief from judgment, it is a useful practice, particularly where the motion raises apparently complicated issues of fact and the movant is pro se; at the very least, the court in such a case must give an indication as to the basis for its decision, unless it is clear on the face of the record. Vermont Investment Capital, Inc. v. Kramer, 148 Vt. 632, 533 A.2d 1193, 1987 Vt. LEXIS 523 (1987) (mem.). Where appeal was brought from denial of a motion for relief from judgment entered by default in mortgage foreclosure proceeding, court was unable to determine validity of claim of abuse of discretion by trial court since trial court’s findings were equivocal and inadequate for purposes of review. Merchants National Bank v. Considine, 135 Vt. 416, 377 A.2d 1390, 1977 Vt. LEXIS 643 (1977). Fraud or other misconduct. Wife’s post-divorce motion for relief from judgment was time-barred under Vt. R. Civ. P. 60(b)(3) where she alleged that her husband fraudulently failed to disclose assets, such that a trial court properly dismissed the matter without a hearing; the type of fraud alleged was not within the exception of Rule 60(b)(6) for fraud on the court for purposes of avoiding the time-limitation. Olio v. Olio, 2012 VT 44, 192 Vt. 41, 54 A.3d 510, 2012 Vt. LEXIS 48 (2012). Where evidence of father’s fraud was clear and convincing, if not overwhelming, the family court acted well within its discretion in upholding the magistrate’s order finding fraud on father’s part and dismissing his motion to modify child support. Gavala v. Claassen, 2003 VT 16, 175 Vt. 487, 819 A.2d 760, 2003 Vt. LEXIS 17 (2003) (mem.). Allegation of fraud classified by appellant under subdivision (b)(6) of this rule was viewed as falling under subdivision (b)(3) and was thus subject to time limit of one year from entry of judgment. Perrott v. Johnston, 151 Vt. 464, 562 A.2d 459, 1989 Vt. LEXIS 96 (1989). Duress, asserted as a ground for relief, was clearly within subdivision (b)(3) of this rule and was therefore subject to the one-year time limitation contained in subdivision (b). Levinsky v. State, 146 Vt. 316, 503 A.2d 534, 1985 Vt. LEXIS 443 (1985). Where, in action for trespass involving disputed boundary lines, defendants had instituted a third party action, which was subsequently dismissed by stipulation, against their grantor for damages sustained by them, subsequent motion for relief from judgment entered against defendants could not be interpreted as encompassing a complaint of fraud against a third party, and thus was not within the provision of this rule barring motions not filed within one year after entry of judgment, since the complaint in support of the motion made no reference to revival of the third party action and made no allegation of third party impropriety. Alexander v. Dupuis, 140 Vt. 122, 435 A.2d 693, 1981 Vt. LEXIS 562 (1981). Where judgment was entered in favor of bailee of rented crawler-tractor, extensively damaged by fire while being used by bailee, on basis of stipulation of facts entered into by bailor, without knowledge of previous accidental fires which had occurred at other job sites where bailee had been employed, the trial court, in denying bailor’s motion for relief from judgment and in finding no fraud, despite fact that bailee, in answering pre-trial interrogatories, filed a false answer to a specific inquiry as to his involvement with fires at other work sites, exercised its discretion on grounds and for reasons clearly untenable and to an extent clearly unreasonable. Bardill Land & Lumber, Inc. v. Davis, 135 Vt. 81, 370 A.2d 212, 1977 Vt. LEXIS 560 (1977). Hearing. As no motion was made to modify the parties’ underlying divorce order, the trial court did not err in failing to hold a hearing prior to requiring the wife to sign a waiver of survivorship benefits in the husband’s pension in order to correctly reflect the property distribution from the parties’ divorce, which was implemented by an erroneous Qualified Domestic Relations Order that awarded her such benefits. Breslin v. Synnott, 2012 VT 57, 192 Vt. 79, 54 A.3d 525, 2012 Vt. LEXIS 53 (2012). In a condemnation case, a landowner’s statement in its motion to amend the final judgment that it was prepared to demonstrate to the court that a material change in value of the subject property had occurred through the expert testimony of its consultant did not suffice as a request for a hearing. In its motion for reconsideration, the landowner similarly argued that it was entitled to a jury determination of the increase of value of its property, but it never requested a hearing on the merits of its motion. In re Chittenden Solid Waste District, 2012 VT 10, 191 Vt. 593, 44 A.3d 753, 2012 Vt. LEXIS 10 (2012) (mem.). In a condemnation case involving a solid waste district, the trial court properly denied the landowner’s motion to amend the final judgment without a hearing when the landowner was given multiple opportunities to proffer evidence upon which a jury could evaluate whether a sand pit increased materially in value between the date of valuation and the date of the tender of compensation, but repeatedly failed to provide evidentiary support for its request to amend the final judgment. The judge was similarly within her discretion to deny the landowner’s motion for reconsideration, which the landowner submitted without any timely supporting evidence. In re Chittenden Solid Waste District, 2012 VT 10, 191 Vt. 593, 44 A.3d 753, 2012 Vt. LEXIS 10 (2012) (mem.). Where plaintiff did not state with particularity the grounds for relief under subdivision (b) of this rule, nor did it provide a sufficient reason for its failure to file a response, the court did not err when it denied its motion for relief from judgment without a hearing. Sandgate School District v. Cate, 2005 VT 88, 178 Vt. 625, 883 A.2d 774, 2005 Vt. LEXIS 260 (2005) (mem.). The trial court did not abuse its discretion by granting judgment without holding a hearing or making findings where plaintiffs’ motion under subdivision (b)(6) to reopen a boundary dispute was totally lacking in merit and the reason the trial court denied the motion was manifest. Letourneau v. Hickey, 174 Vt. 481, 807 A.2d 437, 2002 Vt. LEXIS 218 (2002) (mem.). Generally, a hearing should precede a decision on a motion to set aside a judgment order. Blanchard v. Blanchard, 149 Vt. 534, 546 A.2d 1370, 1988 Vt. LEXIS 65 (1988). A court may deny a motion to set aside a judgment order without a hearing when it finds the motion totally lacking in merit. Blanchard v. Blanchard, 149 Vt. 534, 546 A.2d 1370, 1988 Vt. LEXIS 65 (1988). Where, during the course of a full evidentiary hearing on defendant’s motion for an order of approval for a writ of attachment, substantial evidence was presented which was also applicable to the merits of defendant’s motions to modify and set aside the judgment, trial court properly denied defendant’s motions to modify and set aside without a separate hearing. Blanchard v. Blanchard, 149 Vt. 534, 546 A.2d 1370, 1988 Vt. LEXIS 65 (1988). Where there has been a dismissal by default or in the nature of nonsuit, court deciding a motion under subdivision (b) of this rule must hold a hearing to allow oral argument and, if necessary, the taking of evidence, unless the issues have been fully argued, and evidence taken is applicable, in the ruling on the underlying dismissal or default. Goshy v. Morey, 149 Vt. 93, 539 A.2d 543, 1987 Vt. LEXIS 596 (1987). Denial of motion filed pursuant to this rule, without a hearing, was warranted where the motion was totally lacking in merit. A.M. Varityper, Division of A.M. International, Inc. v. Rabbo, 146 Vt. 471, 505 A.2d 671, 1986 Vt. LEXIS 316 (1986). Where it appears on the record that a full evidentiary hearing was held on disputed issues at the time of a hearing on a motion under this rule, supreme court will not require that a second, separate hearing be held, and to the extent that this holding is inconsistent with the court’s holding in Smith v. Smith, 139 Vt. 234, 427 A.2d 378 (1981), that a trial court ruling on a motion under this rule could only vacate an improper judgment and remand for new trial, not modify the judgment in any way, that case is overruled. Cliche v. Cliche, 143 Vt. 301, 466 A.2d 314, 1983 Vt. LEXIS 531 (1983). When a motion for relief from judgment sets up facts which, even if proved, would lead to a denial of the motion, failure of the trial court to hold a full hearing on the motion does not result in a denial of due process of law. Alexander v. Dupuis, 140 Vt. 122, 435 A.2d 693, 1981 Vt. LEXIS 562 (1981). Independent action. The independent action clause in subdivision (b) of this rule preserves the historical authority of courts of equity to reform judgments in special circumstances. Levinsky v. State, 146 Vt. 316, 503 A.2d 534, 1985 Vt. LEXIS 443 (1985). An independent action to set aside a judgment, filed pursuant to subdivision (b) of this rule, failed in the absence of evidence that mistake, accident or fraud prevented the defendant from presenting a meritorious defense in the original proceeding. Levinsky v. State, 146 Vt. 316, 503 A.2d 534, 1985 Vt. LEXIS 443 (1985). An independent action in the context of subdivision (b) of this rule is not a new action on the identical grounds as a dismissed action, but contemplates different grounds or different relief on the basis of provisions of subdivision (b). Cody v. Estate of Cody, 134 Vt. 113, 352 A.2d 684, 1976 Vt. LEXIS 607 (1976). Interlocutory orders. Upon a motion to revise an interlocutory order, it is within the plenary power of the court to afford such relief as justice requires, and not within the restrictive provisions of this rule which applies only to final judgments. Dudley v. Snyder, 140 Vt. 129, 436 A.2d 763, 1981 Vt. LEXIS 590 (1981). Prior to becoming final as defined in V.R.C.P. 54(b), an interlocutory order or judgment is left within the plenary power of the court that rendered it to afford such relief as justice requires, and is not within the restrictive provisions of this rule, allowing motion for relief from a final judgment to be made, for specific reasons stated in the rule, within one year of the entry of judgment. Brown v. Tatro, 136 Vt. 409, 392 A.2d 380, 1978 Vt. LEXIS 763 (1978). Newly discovered evidence. In a medical malpractice action, trial court’s denial of plaintiffs’ motion for a new trial based on newly discovered evidence was not an abuse of discretion where both parties had presented substantial evidence in support of their respective experts’ opinions, which also served to undermine opinions to the contrary, and additional evidence such as a subsequent case study offered by plaintiffs, while potentially helpful, would be cumulative on this point and thus should not operate to relieve them from final judgment. Pirdair v. Medical Center Hospital of Vermont, 173 Vt. 411, 800 A.2d 438, 2002 Vt. LEXIS 55 (2002). Rule providing relief from judgment based on newly discovered evidence is not designed to afford parties simply a second, better opportunity to litigate issues already contested and decided in a previous proceeding. Pirdair v. Medical Center Hospital of Vermont, 173 Vt. 411, 800 A.2d 438, 2002 Vt. LEXIS 55 (2002). Family court did not abuse its discretion in denying wife’s post-judgment motion to reopen evidence or amend judgment, where there was no showing why wife’s proffered evidence could not have been presented during trial. Stalb v. Stalb, 168 Vt. 235, 719 A.2d 421, 1998 Vt. LEXIS 248 (1998). Subdivision (b)(2) of this rule, providing that a court may relieve a party from a final judgment on the basis of newly discovered evidence, does not operate to afford parties a chance to relitigate matters in which there was ample time to prepare, nor does it afford relief from tactical decisions which later prove to be ill advised. Darken v. Mooney, 144 Vt. 561, 481 A.2d 407, 1984 Vt. LEXIS 516 (1984). Although appellate court would not hear motion to remand to lower court on alleged basis of newly discovered evidence, it did make determination that an intermediate remand for hearing by trial court would not be appropriate where such evidence was discovered prior to appellant’s motion for permission to appeal and while matter was still pending below and motion could have been addressed to trial court. First National Bank of Boston v. Avtek, Inc., 134 Vt. 392, 360 A.2d 80, 1976 Vt. LEXIS 687 (1976). Other reason justifying relief. There was no error in the trial court’s denial of a town’s motion for relief from judgment, as any damages ultimately awarded by the trial court on remand principally compensated a resident for the violation of his constitutional rights and not for the classification of a road except insofar as that decision was part of the town’s pernicious discrimination. To the extent that the town claimed the hardship stemmed from its ownership interest in the road right-of-way, this argument also failed. In re Town Highway No. 20, 2012 VT 17, 191 Vt. 231, 45 A.3d 54, 2012 Vt. LEXIS 18 (2012). It was error to grant defendants relief from a default judgment under the omnibus clause of the rule regarding relief from judgment. The default judgment was entered due to mistake or inadvertence, and a subsequent agreement did not relieve the moving party of the burden to seek relief from the judgment. Pierce v. Vaughan, 2012 VT 5, 191 Vt. 607, 44 A.3d 758, 2012 Vt. LEXIS 6 (2012) (mem.). Trial court did not abuse its discretion in determining that a husband’s claims of financial hardship were insufficient to warrant relief from an order of property division under the rule allowing relief from judgment in extraordinary circumstances. No fraud or coercion or other special circumstance was present. Wilson v. Wilson, 2011 VT 133, 191 Vt. 560, 38 A.3d 50, 2011 Vt. LEXIS 136 (2011) (mem.). Defendant in a breach of warranty case did not oppose a motion in limine to exclude evidence of insurance relating to the value of burned buses, did not attempt to admit the insurance form for impeachment purposes, and did not object to the instructions that explicitly forbade the jury from considering the insurance information. These decisions precluded defendant from obtaining relief under the catchall provision of the rule governing relief from judgment. Mathieu Enterprises, Inc. v. Patsy's Cos., 2009 VT 69, 186 Vt. 557, 978 A.2d 481, 2009 Vt. LEXIS 102 (2009) (mem.). Catchall provision referring to “any other reason justifying relief” from the operation of a judgment is intended to accomplish justice in extraordinary situations that warrant the reopening of final judgments after a substantial period of time. Such relief was appropriate in a custody case where a Vermont court should have declined jurisdiction in favor of a Canadian court, as the important interest in finality of judgments had to occasionally, in rare cases, yield to the best interests of the child. Miller v. Miller, 2008 VT 86, 184 Vt. 464, 965 A.2d 524, 2008 Vt. LEXIS 98 (2008). Trial court’s discretion was properly exercised in denying defendant’s motion for relief from judgment where there were no extraordinary circumstances warranting relief by virtue of the imposition of civil penalties, despite the absence of a request for such penalties in the complaint. Town of Washington v. Emmons, 2007 VT 22, 181 Vt. 586, 925 A.2d 1002, 2007 Vt. LEXIS 51 (2007) (mem.). Relief from judgment under subdivision (b)(6) of this rule is intended to prevent hardship or injustice and thus is to be liberally construed and applied. Nevertheless, the provision may not be used to relieve a party from free, calculated, and deliberate choices he has made. Sandgate School District v. Cate, 2005 VT 88, 178 Vt. 625, 883 A.2d 774, 2005 Vt. LEXIS 260 (2005) (mem.). Where father failed to demonstrate extraordinary circumstances warranting relief, the trial court did not err in declining to grant father’s motion to set aside a divorce order on the grounds that the order was impossible from the outset. Adamson v. Dodge, 174 Vt. 311, 816 A.2d 455, 2002 Vt. LEXIS 316 (2002). A motion under subdivision (b)(6) of this rule for relief from judgment to prevent hardship is not subject to appellate review unless it clearly and affirmatively appears on the record that such discretion was withheld or abused. Adamson v. Dodge, 174 Vt. 311, 816 A.2d 455, 2002 Vt. LEXIS 316 (2002). Subdivision (b)(6) of this rule may be applied to reopen a final divorce judgment incorporating an unconscionable separation agreement, but, apart from considerations of finality, requests for such relief must be sparingly granted because of the assumption that an agreement reached by the parties is preferable to one imposed by the courts. Riehle v. Tudhope, 171 Vt. 626, 765 A.2d 885, 2000 Vt. LEXIS 383 (2000) (mem.). In an action under subdivision (b)(6) to reopen a divorce case based on plaintiff’s claim that the settlement agreement incorporated into the final divorce order was unconscionable, family court’s findings, including those of the assistant judges, supported the presiding judge’s determination that the motion should be denied because plaintiff failed to demonstrate that the parties’ separation agreement was unconscionable and that she filed the motion within a reasonable time. Riehle v. Tudhope, 171 Vt. 626, 765 A.2d 885, 2000 Vt. LEXIS 383 (2000) (mem.). Employer in action arising from employment dispute was not entitled to prejudgment interest for period prior to January 1992, where parties stipulated that trial court would calculate prejudgment interest from January 1992, which court did, and employer failed to present any reason justifying relief from judgment. John A. Russell Corp. v. Bohlig, 170 Vt. 12, 739 A.2d 1212, 1999 Vt. LEXIS 228 (1999). Mother’s failure to disclose during divorce proceedings that she had sexual relations with another man prior to marriage with plaintiff, and that child was born some ten months after plaintiff’s last sexual encounter with mother, did not amount to fraud upon the court for purposes of vacating judgment under V.R.C.P. 60(b)(6). Godin v. Godin, 168 Vt. 514, 725 A.2d 904, 1998 Vt. LEXIS 406 (1998). Even if the court were to rule that an abuse prevention action should have been stricken because of procedural errors in its formulation, or that the order should have been reopened under subdiv. (b), this action would have had no impact on defendant’s criminal conviction since the order being challenged was no longer in effect, and the relief requested would not have helped defendant in his challenge to his criminal conviction. State v. Mott, 166 Vt. 188, 692 A.2d 360, 1997 Vt. LEXIS 6 (1997). Although parties are often under pressure in contested divorces and normally pressure alone is not sufficient to overturn a court-approved agreement of the parties, there are situations where the normal boundaries of negotiation and compromise are exceeded and the court is justified in refusing to honor such agreements. Where wife feared that husband would harm her if she expressed a view contrary to his; husband physically abused wife on two occasions, emotionally abused her regularly, and threatened her; and wife was mentally exhausted and expressed sense of hopelessness from repeatedly attempting to cooperate with husband to no avail, the totality of the circumstances showed that wife entered into the final stipulation while under duress and that the court did not err in setting aside the stipulation. Putnam v. Putnam, 166 Vt. 108, 689 A.2d 446, 1996 Vt. LEXIS 125 (1996). Court did not err in denying wife’s motion to modify terms of division of marital property in final divorce decree because judgment could not be set aside for changed conditions despite husband’s apparent desire to alter disposition through a suicide note in which he attempted to relinquish all claims he had in property. Valyou v. Estate of Valyou, 162 Vt. 640, 653 A.2d 764, 1994 Vt. LEXIS 159 (1994) (mem.). Central theme of subdivision (b)(6) of this rule is the prevention of hardship. In re Merrill, 157 Vt. 150, 596 A.2d 345, 1991 Vt. LEXIS 155 (1991). Grant of relief from judgment under subdivision (b)(6) of this rule is not subject to appellate review unless it clearly and affirmatively appears from the record that discretion was withheld or otherwise abused. In re Merrill, 157 Vt. 150, 596 A.2d 345, 1991 Vt. LEXIS 155 (1991). Labor Relations Board did not err in considering issues of equity raised by both parties on remand of order awarding grievant back pay. In re Merrill, 157 Vt. 150, 596 A.2d 345, 1991 Vt. LEXIS 155 (1991). Trial court properly denied relief under subdivision (b)(6) of this rule to wife who argued that property distribution upon divorce was unfair and awarded 60% of the property to the husband. Richwagen v. Richwagen, 153 Vt. 1, 568 A.2d 419, 1989 Vt. LEXIS 208 (1989). Although the grounds for relief authorized under subdivision (b)(6) of this rule are broad and the rule must be interpreted liberally to prevent hardship or injustice, there are necessary limits on when relief is available; certainty and finality of judgments must be a concern, so that litigation can reach an end. Richwagen v. Richwagen, 153 Vt. 1, 568 A.2d 419, 1989 Vt. LEXIS 208 (1989). Trial court’s failure to schedule and decide wife’s motion to amend divorce before decree nisi became absolute, which cut off wife’s ability to obtain amendment to findings under V.R.C.P. 52(b), did not warrant relief under subdivision (b)(6) of this rule. Richwagen v. Richwagen, 153 Vt. 1, 568 A.2d 419, 1989 Vt. LEXIS 208 (1989). Catch-all provision of subdivision (b)(6) of this rule is available only when a ground justifying relief is not encompassed within any of the first five classes of subdivision (b). Perrott v. Johnston, 151 Vt. 464, 562 A.2d 459, 1989 Vt. LEXIS 96 (1989). Subdivision (b)(6) of this rule may be invoked only when a ground justifying relief is not encompassed within subdivisions (b)(1)-(b)(5) of this rule. Olde & Co. v. Boudreau, 150 Vt. 321, 552 A.2d 793, 1988 Vt. LEXIS 166 (1988). Courts should not hesitate to apply subdivision (b)(6) of this rule liberally to prevent hardship or injustice, but beyond such instances, it should only be applied in extraordinary circumstances. Olde & Co. v. Boudreau, 150 Vt. 321, 552 A.2d 793, 1988 Vt. LEXIS 166 (1988). Trial court had authority under subdivision (b)(6) of this rule to amend a judgment to recalculate interest due on the judgment. Greenmoss Builders, Inc. v. Dun & Bradstreet, Inc., 149 Vt. 365, 543 A.2d 1320, 1988 Vt. LEXIS 43 (1988). Court’s grant of relief under subdivision (b)(6) of this rule was proper, where judgment order prepared by plaintiffs’ attorney for the court awarded plaintiffs double damages, since trial court never intended that plaintiffs receive double damages and plaintiffs were in fact entitled to only single damages. Trustees of Net Realty Holding Trust v. AVCO Financial Services of Barre, Inc., 147 Vt. 472, 520 A.2d 981, 1986 Vt. LEXIS 449 (1986). Subdivision (b)(6) of this rule may not be used to relieve a party from free, calculated, and deliberate choices he has made. Estate of Emilo v. St. Pierre, 146 Vt. 421, 505 A.2d 664, 1985 Vt. LEXIS 397 (1985). Failure to grant defendant’s motion for relief from judgment under subdivision (b)(6) of this rule was not an abuse of discretion, where defendants, represented by counsel, had entered into a stipulation that judgment should be entered for plaintiff, and made no direct claim that such stipulation should be disregarded. Estate of Emilo v. St. Pierre, 146 Vt. 421, 505 A.2d 664, 1985 Vt. LEXIS 397 (1985). Catch-all provision of subdivision (b)(6) of this rule is available only when a ground justifying relief is not encompassed within any of the first five classes of subdivision (b). Levinsky v. State, 146 Vt. 316, 503 A.2d 534, 1985 Vt. LEXIS 443 (1985). Relief from judgment under subdivision (b)(6) of this rule is, by its very nature, invoked to prevent hardship or injustice and thus is to be liberally construed and applied. Cliche v. Cliche, 143 Vt. 301, 466 A.2d 314, 1983 Vt. LEXIS 531 (1983); Estate of Emilo v. St. Pierre, 146 Vt. 421, 505 A.2d 664, 1985 Vt. LEXIS 397 (1985); Reuther v. Gang, 146 Vt. 540, 507 A.2d 972, 1986 Vt. LEXIS 325 (1986). Relief under provision of this rule allowing relief for “any other reason justifying relief from the operation of the judgment” is available only when a ground justifying relief is not encompassed within any of the first five classes of the rule and, in addition, such relief can only be granted when proper grounds indicating justification are stated with particularity. Alexander v. Dupuis, 140 Vt. 122, 435 A.2d 693, 1981 Vt. LEXIS 562 (1981). Scope of relief. Such relief is severely limited, but Rule 60(b) may properly provide relief, in the form of vacating and re-entering the judgment for the purpose of enabling a timely appeal, in rare, exceptional circumstances. In determining whether such extraordinary circumstances exist, relevant considerations may include whether the clerk provided notice as required; whether the party had actual notice; whether the relief sought would create prejudice to the other party; whether the moving party acted diligently in attempting to learn the date of the decision; whether the moving party acted diligently after receiving actual notice; and other extraordinary, unique, or compelling circumstances. Brandt v. Menard, 2020 VT 61, 212 Vt. 547, 237 A.3d 1251, 2020 Vt. LEXIS 67 (2020). Trial court erred in its denial of defendants’ motion for relief from judgment seeking termination of a consent decree entered for the purpose of addressing the absence of procedural safeguards against the forced medication of mental health patients because it was superseded by operation of law. J.L. v. Miller, 174 Vt. 288, 817 A.2d 1, 2002 Vt. LEXIS 253 (2002). V.R.C.P. 60(b)(5) is identical to F.R.C.P. 60(b)(5), which holds that federal courts have the power to revoke or modify an injunction which has been turned through changing circumstances into an instrument of wrong; the rule is an application of the United States Supreme Court Swift case which distinguished between “restraints that give protection to rights fully accrued upon facts so nearly permanent as to be substantially impervious to change,” which cannot be modified, and injunctions “that involve supervision of changing conduct or conditions and are thus provisional and tentative,” which can be modified. Boisselle v. Boisselle, 162 Vt. 240, 648 A.2d 388, 1994 Vt. LEXIS 79 (1994). There are no federal cases that define a judgment comparable to the property settlement distribution decree in the instant case as executory, and therefore subject to F.R.C.P. 60(b)(5); other courts presented with attempts to modify property provisions using the state equivalent of F.R.C.P. 60(b)(5) have denied relief, usually by reiterating the inability to modify a property disposition provision. Boisselle v. Boisselle, 162 Vt. 240, 648 A.2d 388, 1994 Vt. LEXIS 79 (1994). This rule under which on motion and upon such terms as are just, a court may relieve a party from a final judgment, order or proceeding calls for setting aside of the judgment and granting a new trial and does not allow a change in an existing order. Cliche v. Cliche, 143 Vt. 301, 466 A.2d 314, 1983 Vt. LEXIS 531 (1983); But see Cliche v. Cliche, 143 Vt. 301, 466 A.2d 314, 1983 Vt. LEXIS 531 (1983). Surprise. Although this rule allows a court to relieve a party or his legal representative of a final judgment for reason of unfair surprise, failure to request a continuance at time of surprise, except under extraordinary circumstances, serves as a waiver of the party’s right to ask for a new trial. Meacham v. Kawasaki Motors Corp., 139 Vt. 44, 421 A.2d 1299, 1980 Vt. LEXIS 1392 (1980). Tactical decisions. Where plaintiff opted not to file any response to defendant’s motion on the pleadings under the assumption that the court would dismiss the motion as it had the defendant’s two previous motions, its tactical decision to rest on that assumption was not the sort of mistake, inadvertence, or excusable neglect contemplated by subdivision (b) of this rule. Sandgate School District v. Cate, 2005 VT 88, 178 Vt. 625, 883 A.2d 774, 2005 Vt. LEXIS 260 (2005) (mem.). Civil rights defendants invoked procedural rule governing offers of judgment in order to obtain a tactical advantage, and their negligence or mistake in failing to specify whether offer included costs and attorneys’ fees did not amount to hardship or injustice entitling them to relief from judgment. Rule v. Tobin, 168 Vt. 166, 719 A.2d 869, 1998 Vt. LEXIS 151 (1998). Relief under subdivision (b) of this rule is ordinarily unavailable to relieve one from the effects of a stipulation freely made. Goshy v. Morey, 149 Vt. 93, 539 A.2d 543, 1987 Vt. LEXIS 596 (1987). While this rule permits relief from judgment for reasons of mistake or inadvertence, it does not operate to protect a party from tactical decisions which in retrospect may seem ill advised. Okemo Mountain, Inc. v. Okemo Trailside Condominiums, Inc., 139 Vt. 433, 431 A.2d 457, 1981 Vt. LEXIS 498 (1981). Trial court did not err in denying a post-trial motion to introduce additional evidence, a letter not offered at trial by the defendant who believed it to be unnecessary because of what was perceived to be the strength of its case in other respects. Okemo Mountain, Inc. v. Okemo Trailside Condominiums, Inc., 139 Vt. 433, 431 A.2d 457, 1981 Vt. LEXIS 498 (1981). Time. When more than six years had passed since the opinion and order in question, a town’s motion for relief from judgment was not filed within a reasonable time. In re Town Highway No. 20, 2012 VT 17, 191 Vt. 231, 45 A.3d 54, 2012 Vt. LEXIS 18 (2012). When a divorce order incorporating a pension stipulation was entered in 2000, the trial court properly denied the husband’s motion for relief from judgment, which was filed in 2007, as untimely. The husband had ample opportunity to challenge the pension provision before and after it was incorporated into the final order, either by filing a timely appeal or by filing a motion to reopen in 2006, when the wife began inquiring about the impending retirement payments; furthermore, the husband’s claim of detrimental reliance on the wife’s representation did not overcome his failure to file his motion in a timely manner. Callahan v. Callahan, 2008 VT 94, 184 Vt. 602, 958 A.2d 673, 2007 Vt. LEXIS 360 (2008), dismissed, 980 A.2d 811, 2009 Vt. Unpub. LEXIS 139 (Vt. 2009) (mem.). Where neither party to a divorce sought to amend the original judgment order under either subdivision (b) of this rule, or V.R.C.P. 59(e), and the judgment was not amended to reflect a stipulated agreement on parentage until more than ninety days after the original order, the amended order was a nullity. Jones v. Murphy, 172 Vt. 86, 772 A.2d 502, 2001 Vt. LEXIS 13 (2001). Delay of over ten years in bringing motion under Rule 60(b) was unreasonable as a matter of law. Zambito-Austin v. Jordan, 169 Vt. 589, 732 A.2d 747, 1999 Vt. LEXIS 88 (1999) (mem.). Plaintiff was not entitled to relief from judgment on grounds of either newly discovered evidence or fraud, misrepresentation or other misconduct of an adverse party, where he filed his motion for relief from judgment approximately six years after date of judgment, and rule required that motion on either ground be made within one year after entry of judgment. Godin v. Godin, 168 Vt. 514, 725 A.2d 904, 1998 Vt. LEXIS 406 (1998). A person who is the subject of an abuse-prevention order may seek modification of the order based on a change of circumstances, 15 V.S.A. § 1103(d); however, where defendant did not seek modification of order based on change of circumstances but sought to set order aside by challenging its validity on jurisdictional and other legal grounds, the motion was denied because it was filed more than one year after the order was issued and was not timely. Donley v. Donley, 165 Vt. 619, 686 A.2d 943, 1996 Vt. LEXIS 121 (1996) (mem.). Where the timing and contents of a party’s motion for reconsideration indicated that it was, for all intents and purposes, a motion to alter or amend the judgment under V.R.C.P. 59(e), which requires a motion to alter or amend to be filed within ten days of judgment and which tolls the time period for filing an appeal pending a ruling on this motion, and not a Rule 60(b) motion for relief from judgment, which does not toll the thirty-day period for filing a notice of appeal, the time period for filing an appeal from the original judgment was tolled, resulting in a timely filing of appeal. Murray v. St. Michael's College, 164 Vt. 205, 667 A.2d 294, 1995 Vt. LEXIS 93 (1995). Trial court properly denied a motion for relief from judgment of divorce, where it was filed more than two years from date of filing of final decree and only after service of plaintiff’s motion for contempt. Martin v. Martin, 154 Vt. 651, 578 A.2d 110, 1990 Vt. LEXIS 111 (1990) (mem.). Test for determining whether trial court could properly find that a motion for relief had been filed within a reasonable time as required by subdivision (b) of this rule is whether trial court exercised sound discretion on this matter given all the factors and circumstances of the particular case. Greenmoss Builders, Inc. v. Dun & Bradstreet, Inc., 149 Vt. 365, 543 A.2d 1320, 1988 Vt. LEXIS 43 (1988). Defendant’s motion for relief from judgment, brought several years after the judgment had been entered, was made within a reasonable time where the delay was almost entirely caused by defendant’s appeal on the merits of the case and no prejudice resulted to plaintiff from the delay. Greenmoss Builders, Inc. v. Dun & Bradstreet, Inc., 149 Vt. 365, 543 A.2d 1320, 1988 Vt. LEXIS 43 (1988). Where defendant’s motion for relief from judgment was brought more than one year after the judgment order, it was untimely. Zinn v. Tobin Packing Co., 140 Vt. 410, 438 A.2d 1110, 1981 Vt. LEXIS 628 (1981). Under subdivision (b) of this rule, motions on any grounds must be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year from entry of judgment, and the one year bar is an absolute one where it applies. Alexander v. Dupuis, 140 Vt. 122, 435 A.2d 693, 1981 Vt. LEXIS 562 (1981). A motion to relieve a party from involuntary dismissal on grounds of mistake, inadvertence, surprise or excusable neglect does not toll the running of appeal time, though such a motion can be treated as a motion for a new trial, which if timely filed will toll the running of appeal time, if the grounds of the motion present facts which could not, with due diligence of counsel, have been placed before the court before the order of dismissal issued. In re Estate of Peloquin, 137 Vt. 559, 409 A.2d 586, 1979 Vt. LEXIS 1099 (1979); R. Brown & Sons, Inc. v. International Harvester Corp., 142 Vt. 140, 453 A.2d 83, 1982 Vt. LEXIS 617 (1982). The one year limit under this rule creates an absolute bar. Brown v. Tatro, 136 Vt. 409, 392 A.2d 380, 1978 Vt. LEXIS 763 (1978). Test for deciding whether trial court properly found that motion for relief from final judgment was not filed within a reasonable time was whether trial court exercised sound discretion under all factors and circumstances, including factor of reasonable time, and decision would be disturbed only for abuse. Brown v. Tatro, 136 Vt. 409, 392 A.2d 380, 1978 Vt. LEXIS 763 (1978). Trial court’s ruling that motion for relief from final judgment was not filed within a reasonable time would not be disturbed on appeal where record on appeal showed movant had knowledge of the newly discovered evidence made the basis of the motion at least 15 months prior to the motion. Brown v. Tatro, 136 Vt. 409, 392 A.2d 380, 1978 Vt. LEXIS 763 (1978). Where wife was personally served notice of divorce action by husband, and subsequent divorce decree contained no alimony provisions, wife’s failure to appear until nearly four years after entry of decree was unreasonable, and acted as a waiver of any claim for alimony at a later date. Burroughs v. Burroughs, 132 Vt. 34, 316 A.2d 522, 1973 Vt. LEXIS 252 (1973). Zoning cases. When an applicant sought to add a drive-through window to his restaurant after having previously stipulated in a court order not to add such a window, he was free to file a successive application with a review board without first filing a motion for relief from judgment. However, proper approval would require that he show that the successive application addressed all the concerns that prevented approval of the drive-through in his prior applications. In re Dunkin Donuts S.P. Approval, 2008 VT 139, 185 Vt. 583, 969 A.2d 683, 2008 Vt. LEXIS 202 (2008) (mem.). When an applicant sought to add a drive-through window to his restaurant after having previously stipulated in 2003 not to add such a window, the Environmental Court’s ruling that the terms of the 2003 court order controlled until the applicant filed a motion for relief from judgment required that a successive applicant move for relief from judgment before filing a successive application with a review board, at which point the applicant still had to fulfill the requirements of the successive-application doctrine. The Court failed to see the purpose of requiring a threshold motion for relief from judgment to reopen litigation, and then applying the successive-application doctrine to the new application; this applied traditional claim preclusion to zoning cases, undermining the purpose of the successive- application doctrine. In re Dunkin Donuts S.P. Approval, 2008 VT 139, 185 Vt. 583, 969 A.2d 683, 2008 Vt. LEXIS 202 (2008) (mem.).