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Weitz v. Weitz

Supreme Court of Vermont

May 24, 2019

Sheryl Weitz
v.
Theodore Weitz

          On Appeal from Superior Court, Bennington Unit, Family Division, John W. Valente, J.

          Sheryl Weitz, Pro Se, Brookline, Massachusetts, Plaintiff-Appellee.

          Wendy Fitzsimons of Tepper Dardeck Levins & Fitzsimons, LLP, Rutland, for Defendant-Appellant.

          PRESENT: Skoglund, Robinson, Eaton and Carroll, JJ., and Pearson, Supr. J. (Ret.), Specially Assigned.

          CARROLL, J.

         ¶ 1. In this divorce proceeding, husband appeals an order denying his motion to reopen the case after wife's notice of voluntary dismissal, filed pursuant to Vermont Rule of Civil Procedure 41(a)(1)(i). On appeal, husband argues that: (1) Rule 41(a)(1)(i) "is in direct conflict" with the Vermont Rules for Family Proceedings and is therefore inapplicable to the Family Division; (2) Rule 41(a)(1)(i) was not intended to apply in cases where significant resources have been expended; and (3) that it is inequitable to apply Rule 41(a)(1)(i) in this case due to alleged bad faith and bad acts by wife. We affirm.

         ¶ 2. Wife filed a complaint for divorce from husband in the Family Division of the Vermont Superior Court in June 2016. They have two children and the marital estate contained significant assets. Initially, husband moved to dismiss, seeking to have the case adjudicated in New Hampshire, where they owned one of their homes. However, husband acceded to Vermont jurisdiction before the court held any motion hearing. Shortly thereafter, the trial court entered an interim order directing that neither party "threaten, harass or interfere with the personal liberty" of the other.

         ¶ 3. Over a sixteen-month period, the parties engaged in negotiations, discovery, and mediation. They reported to the court that the primary contested issue was the division of marital property, rather than the allocation of parental rights and responsibilities. During discovery, husband answered two sets of interrogatories and produced personal financial documents, wife gave a deposition, and the parties exchanged differing appraisals of their Vermont home. The court monitored the progress of the case by presiding over five status conferences, none of which lasted more than nine minutes. The parties never presented any substantive argument to the court nor was any testimony or other evidence offered. Husband never filed an answer to the complaint, nor did he file a motion for summary judgment on any issue raised by the complaint.

         ¶ 4. The court scheduled a final hearing for October 16 and 17, 2017. Before the hearing, the parties continued to engage in settlement negotiations, and on October 11, staff from wife's attorney's office emailed the court to alert it that the parties had signed a stipulation to resolve the case pursuant to Rule for Family Proceedings 4.0(e) without the need for a hearing. The representative for wife's attorney reported that the stipulation would be delivered to the court the next day. The court accordingly canceled the final hearing. However, the next day husband's attorney telephoned the court to explain that the stipulation would not be filed. Husband's counsel explained that the agreement to settle the case had "blown up" and the stipulation would not be filed so the final hearing would have to be rescheduled. The court set about rescheduling the hearing.

         ¶ 5. However, on October 27, 2017, wife filed a notice of voluntary dismissal pursuant to V.R.C.P. 41(a)(1)(i). The Vermont Rules of Civil Procedure, including Rule 41, apply to divorce proceedings in the Family Division unless the Rules for Family Proceedings say otherwise. V.R.F.P. 4.0(a)(2)(A). She concurrently served husband with a complaint for divorce in Massachusetts. On the same day, court staff noted in the docket entries that wife had dismissed the case and it was then closed. In response, husband filed a motion to reopen. He argued that Rule 41, which permits voluntary dismissal where a defendant has not filed an answer or motion to summary judgment, did not apply to the Family Division because answers are neither required nor customary in divorce cases. He further claimed that various actions that he had taken during the litigation-entering a temporary stipulation regarding parental rights and responsibilities, responding to and serving discovery requests, and participating in mediation-"effectively" served as answers for the purposes of Rule 41. He also alleged that wife was forum shopping and wasting judicial resources by seeking to litigate their divorce in Massachusetts rather than Vermont at such a late stage of the case.

         ¶ 6. The trial court denied this motion.[1] The court concluded that Vermont Rule of Civil Procedure 41(a)(1)(i) is directly analogous to Federal Rule of Civil Procedure 41(a)(1)(i), which numerous courts have held provides a bright-line rule "unequivocally permitting the unilateral dismissal by plaintiffs before defendants have filed an answer or moved for summary judgment." Husband appeals.[2]

         ¶ 7. The interpretation of a procedural rule is a question of law which we review de novo. State v. Amidon, 2008 VT 122, ¶ 16, 185 Vt. 1, 967 A.2d 1126. The plain, ordinary meaning of a rule controls when it is unambiguous. See State v. Villar, 2017 VT 109, ¶ 7, 206 Vt. 236, 180 A.3d 588 ("In construing a procedural rule, we look first to the rule's plain language, just as with statutory construction."); McClellan v. Haddock, 2017 VT 13, ¶ 13, 204 Vt. 252, 166 A.3d 579 ("Our task . . . is to ascertain and implement the Legislative intent . . . . In determining that intent, our principal source, at least initially, must be the language of the statute itself." (quotation omitted)).

         ¶ 8. Rule 41(a)(1)(i) states that an action "may be dismissed by the plaintiff without order of court by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment." V.R.C.P. 41(a)(1)(i). This language is unambiguous: if an adverse party has not served either an answer or a motion for summary judgment on the plaintiff, then the plaintiff may choose to dismiss the case[3] by filing a notice of dismissal. Use of the permissive term "may" shows that a V.R.C.P. 41(a)(1)(i) dismissal is at the plaintiff's option. And no court order is necessary to effectuate such a dismissal because the case is to be dismissed "by the plaintiff without order of [the] court." Id.; Fed. Nat'l Mortg. Ass'n v. Johnston, 2018 VT 51, ¶ 5, __Vt.__, 189 A.3d 567 ("The language . . . 'without order of court' connotes that as long as a plaintiff makes the filing and the requisite facts are present . . . then the case is dismissed.").

         ¶ 9. The text of Federal Rule 41(a)(1)(i) is identical to that of Vermont Rule 41(a)(1)(i) in all respects relevant to our analysis. And Federal Rule 41(a)(1)(i) has repeatedly been construed as we construe Vermont Rule 41(a)(1)(i): plaintiff's dismissal is self-executing and unconditional absent the service of an answer or summary-judgment motion. Marex Titanic, Inc. v. Wrecked & Abandoned Vessel, 2 F.3d 544, 546 (4th Cir. 1993) ("[D]ismissal is available as a matter of unconditional right, and is self-executing." (emphases added and citations omitted)); Am. Cyanamid Co. v. McGhee, 317 F.2d 295, 297 (5th Cir. 1963) ("So long as plaintiff has not been served with his adversary's answer or motion for summary judgment he need do no more than file a notice of dismissal with the Clerk. That document itself closes the file."); D.C. Elecs., Inc. v. Narton Corp., 511 F.2d 294, 298 (6th Cir. 1975); Winterland Concessions Co. v. Smith, 706 F.2d 793, 795 (7th Cir. 1983); Pedrina v. Chun, 987 F.2d 608, 610 (9th Cir. 1993); 9 C. ...


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