Coles v. Coles

Summary

The Vermont Supreme Court affirmed the denial of a father's motion to reopen the time for appealing a maintenance and child-support order under Vermont Rule of Appellate Procedure 4(c). The court held that notice is received when delivered to the party's or counsel's mailbox, not when the mail is opened, and that an attorney's vacation or failure to open mail does not constitute excusable neglect.

Holdings

1. For purposes of reopening the time to appeal under V.R.A.P. 4(c), notice is received when the order is delivered to the litigant's address or, when represented by counsel, to counsel's address; actual opening or reading of the mail is not required.
2. Father failed to establish that notice did not arrive within twenty-one days of entry and therefore failed to satisfy the threshold requirements of Rule 4(c); he also failed to establish that his motion was filed within seven days after actual mailbox receipt.
3. The court declined to consider father's excusable-neglect argument because it was not raised below; in any event, being away from delivered mail during vacation or failing to open mail, without more, is not excusable neglect.

Questions Presented

1. Whether a party or counsel receives notice of a judgment or order under Vermont Rule of Appellate Procedure 4(c) when the document is delivered to the party's or counsel's mailbox, rather than when it is actually opened or read.
2. Whether father's failure to establish the date the order arrived in the mailbox satisfied Rule 4(c)'s requirements for reopening the appeal period.
3. Whether absence from the office during vacation and failure to open delivered mail constituted excusable neglect under Vermont Rule of Appellate Procedure 4(d).

Disposition

affirmed