Appeal from Superior Court, Bennington Unit, Family Division,
John W. Valente, J.
Weitz, Pro Se, Brookline, Massachusetts, Plaintiff-Appellee.
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.
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
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
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
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. 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
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 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. ...