May 24, 2024: Rights Responsibilities and Runoff

I have no idea if this is accurate 
but it seems to fit

By Andy Delaney

No opinions issued on May 17, 2024. On Friday, May 24, SCOV issued two. 

First, we deal with an appeal from a parental-rights and responsibilities (PR&R) order. The trial court awarded sole legal and physical PR&R to mom, with a parent-child contact order giving father roughly equal time. In a nutshell, dad took the kids to California, intending to enroll them in school where they could be close to his family. Mom went to California and took daughter back with her, leaving son behind to avoid trouble. This resulted in son being angry with mom. In determining parental rights and responsibilities, the trial court found that dad's trip to California (and "attempted coup") qualified as abuse. Dad, naturally, takes issue with this finding and appeals, arguing for reversal due to clear error.

Just because I can, we're going to take a detour and acknowledge one of the top 100 punk songs of all time. California Über Alles by the Dead Kennedys. The only thing this has to do with this case is the word "California." We now return to our regularly scheduled programming.    

First, SCOV deals with mom's motion to dismiss for lack of jurisdiction because the PR&R order was not a final order. SCOV acknowledges that this is technically true but that while the appeal was pending the family division did enter a final divorce order, SCOV has already spent a lot of time on this appeal, and so, SCOV suspends the rules and reaches the merits. SCOV does note that it doesn't appreciate trial courts issuing piecemeal orders and warns against this "disturbing trend" in family cases. 

On the merits, SCOV agrees with dad that the trial court went overboard when it classified the California trip as abuse. Dad's actions were with the kiddos' best interests in mind. There really was no clear evidence of "abuse" in this case. But dad's victory is mostly symbolic because SCOV concludes that there was enough in the record to support the trial court's determination of PR&R without the finding of abuse. And so, SCOV reverses the abuse finding but affirms the rest. Centeno v. Centeno, 2024 VT 30. 

Second, we have an appeal from denial of a Rule 60 motion. For simplicity, we'll call the parties "upstream farm" and "downstream neighbor." Upstream farm installed tile drains on its property which lower the water table to help with growing crops and also put a lot of extra water (and other things) onto downstream neighbor's property. Downstream neighbor brought claims for trespass and nuisance. It sought and was eventually granted an injunction preventing upstream farm "from allowing water, and any particles it carries, from flowing from the discharge points of Defendant’s drain tile system into the public ditches and culverts westerly of Defendant’s land." Upstream farm did not make a timely appeal. 

Enter the Rule 60 motion a year later. In the motion, upstream farm argued that several post-judgment factual and legal changes justified relief. Long story short, the trial court found none of it compelling, persuasive, or correct. And so, upstream farm appeals. 

On appeal, SCOV reasons that the trial court did not abuse its discretion in denying the motion for relief from judgment. First, SCOV notes that upstream farm is just factually wrong when it claims that the injunction pertains to "all" water that falls on the land and is "impossible" to comply with. The injunction deals only with the tile drain system discharge, and was not objected to in a timely manner. On the it's-way-too-expensive-to-comply front, SCOV applies a similar rationale, reasoning that a Rule 60 motion is not an opportunity to relitigate issues that could have been dealt with before. Thus, the expense and hardship of compliance with the injunction, standing alone, doesn't provide grounds for Rule 60 relief. There's also an EPA compliance action that upstream farm argues justifies relief. However, this action was known during trial and SCOV doesn't see it as a basis to grant Rule 60 relief under the circumstances. And there's no final agreement with the EPA that would put us into preemption land. SCOV notes that the argument fails in this regard as premature. Similarly, SCOV rejects upstream farm's argument that the new right-to-farm law—which was enacted after the trial court's decision in this case issued and provides a rebuttable presumption against nuisance if four elements are met —provides grounds for relief because upstream farm doesn't meet the necessary elements. 

Finally, SCOV rejects upstream farm's we-should-have-gotten-an-evidentiary-hearing argument on the basis that it didn't provide a reasonable basis for Rule 60 relief in its motion and also showed no prejudice. Because an evidentiary hearing on a Rule 60 motion is discretionary, there's no error there either. This one gets affirmed. Aerie Point Holdings, LLC v. Vorsteveld Farm, LLC, 2024 VT 29.