Sandra L. Penland (Warren)
John W. Warren, Jr.
Appeal from Superior Court, Windsor Unit, Family Division
Elizabeth D. Mann, J. Sandra L. Penland (Warren), Pro Se,
West Lebanon, Plaintiff-Appellee.
Buckholz, Quechee, for Defendant-Appellant.
PRESENT: Reiber, C.J., Skoglund, Robinson and Carroll, JJ.,
and Morris, Supr. J. (Ret.), Specially Assigned
1. Husband appeals the trial court's denial of husband
and wife's joint motion to modify their final divorce
order. The issue in this case is whether the trial court has
jurisdiction under Vermont Rule of Civil Procedure 60(b)(6)
to modify a property-division order based on the agreement of
the parties after the divorce order has become absolute. We
hold the court does have jurisdiction, and accordingly we
reverse and remand.
2. Husband and wife divorced in 2011. Under their final
stipulated property division, they each received fifty
percent of husband's pension from the Vermont Teachers
Retirement System. Husband transferred a half-interest to
wife by means of a Qualified Domestic Relations Order (QDRO),
and she has received regular payments since the divorce.
3. Sometime after the divorce became final, husband received
a medical diagnosis that precluded employment and shortened
his life expectancy. His inability to work increased his need
for his full pension income. Because husband's pension is
tied to his life, husband's health issues meant wife
would lose her income from husband's pension if he
predeceased her, and she might not receive the full value of
her interest as contemplated in the final divorce order.
Therefore, the parties agreed to modify the final property
division in a way they believed would be mutually beneficial.
Husband obtained an actuarial valuation of the remainder of
his pension. Husband agreed to pay wife one-half of the
remaining value of his pension in a lump sum from his share
of his mother's trust. In exchange, wife agreed to have
the full value of husband's pension restored to him so
that he would receive the full benefit of the pension income.
4. In August 2017, the parties filed a joint motion pursuant
to Vermont Rule of Civil Procedure 60(b)(6) to modify the
final divorce order in accordance with this agreement. The
court denied the motion, stating it lacked jurisdiction to
modify the property division in a final divorce order and the
parties could form an independent contractual arrangement. In
November 2017, the parties filed a second joint motion to
modify the final divorce order according to the same terms,
and the court again denied the motion on the same basis.
5. Husband appeals this order, and wife agrees with and
supports husband's request for relief. The parties argue
that the court abused its discretion in denying their joint
motion under Rule 60(b)(6) because a modification is
necessary to prevent hardship and injustice to the parties.
They also note that their motion was filed within a
reasonable time and the other subcategories of Rule 60(b) do
6. We review a court's exercise of discretion in denying
a request for relief under Rule 60(b)(6) for an abuse of
discretion. Richwagen v. Richwagen, 153 Vt. 1, 3-4,
568 A.2d 419, 420 (1989) (reviewing decision regarding Rule
60(b)(6) request to modify property division in divorce order
for abuse of discretion). However, here the court declined to
exercise its discretion because it found, as a matter of law,
that it lacked jurisdiction to modify the property division.
Whether the court has authority to exercise its discretion is
a legal issue that we review de novo. Youngbluth v.
Youngbluth, 2010 VT 40, ¶ 9, 188 Vt. 53, 6 A.3d 677
(reviewing legal issue implicated in property-division order
7. Under Rule 60(b), "the court may relieve a party . .
. from a final judgment, order, or proceeding" for
several enumerated reasons, such as mistake, V.R.C.P.
60(b)(1), and fraud, V.R.C.P. 60(b)(3). Rule 60(b)(6)
authorizes relief for "any other reason justifying
relief from the operation of the judgment." The
subsection is available only where the other criteria under
Rule 60(b) do not apply. Olio v. Olio, 2012 VT 44,
¶ 14, 192 Vt. 41, 54 A.3d 510. Rule 60(b)(6) is a
"general catch-all provision" that is
"designed to give the court the flexibility to see that
the rule serves the ends of justice." Reporter's
Notes, V.R.C.P. 60. Although the rule "is to be
liberally construed to prevent hardship or injustice,"
its reach is limited. Olio, 2012 VT 44, ¶ 14.
The rule "does not protect a party from tactical
decisions which in retrospect may seem ill advised,"
Rule v. Tobin, 168 Vt. 166, 174, 719 A.2d 869, 874
(1998) (quotation omitted), and it is not an "open
invitation to reconsider matters concluded at trial,"
John A. Russell Corp. v. Bohlig, 170 Vt. 12, 24, 739
A.2d 1212, 1222 (1999) (quotation omitted). "We must be
concerned about the certainty and finality of judgments so
that litigation can reach an end." Richwagen,
153 Vt. at 4, 568 A.2d at 421; see also Youngbluth,
2010 VT 40, ¶ 10 (emphasizing that "Vermont places
great emphasis on the finality of property divisions").
8. But Rule 60(b)(6) is available and appropriately used to
provide relief from a final property-division order where
"extraordinary circumstances" justify relief
"to prevent hardship or injustice." Wilson v.
Wilson, 2011 VT 133, ¶ 5, 191 Vt. 560, 38 A.3d 50
(mem.) (quotations omitted). This opportunity for relief
applies to final property divisions in divorce orders as it
does to other final orders and judgments. See id.
¶¶ 5-6 (affirming that court can modify divorce
order under Rule 60(b)(6) only if there are "unusual
circumstances" that "would warrant relief from a
judgment generally" (quotations omitted)).
9. We have previously reviewed trial court decisions
regarding requests for relief from final property divisions.
For example, in Wilson, the husband requested relief
under Rule 60(b)(6) from his obligation under the property
settlement to pay property taxes and insurance on the marital
home due to his loss of employment. 2011 VT 133, ¶ 3.
After a hearing, the trial court denied the motion because it
"found no extraordinary circumstances warranting
relief." Id. ¶ 4. We affirmed, stating
that the trial court "carefully considered husband's
claims" and "its denial of relief was entirely
within its discretion." Id. ¶ 6.
Similarly, in Richwagen, the Court held that the
trial court had discretion to consider whether to modify a
property division under Rule 60(b)(6) and affirmed the
court's finding that no basis for modification existed.
153 Vt. at 3-4, 568 A.2d at 420-21. These cases indicate that
"extraordinary circumstances warranting relief" may
be rare, but the court does have ...