Holmberg v. Goslant

365 A.2d 250, 134 Vt. 455, 1976 Vt. LEXIS 701

Opinion

Per Curiam.

Plaintiff, divorced from defendant in New Hampshire, sought revision of the custody provisions of that decree in the Superior Court for Windsor County, where defendant, remarried, now resides with her minor child. Defendant, served personally, admitted jurisdiction and countered with a similar request for modification. On its own motion, the trial court dismissed the cause for lack of jurisdiction because it was not a “motion in the original action” under the Reporter’s Note to V.R.C.P. 80 (j).

Our trial courts have original jurisdiction to revise or modify the provisions of a foreign divorce decree relating to custody and support where there is personal jurisdiction of the parties and a claim of substantial change of circumstances rendering the doctrine of res ad judicata inapplicable. In re Cooke, 114 Vt. 177, 41 A.2d 177 (1945); Miller v. Miller, 123 Vt. 221, 186 A.2d 93 (1962); Ford v. Franklin, 129 Vt. 114, 274 A.2d 461 (1971). This jurisdiction is unaffected by the Rules of Civil Procedure. 12 V.S.A. § 1; V.R.C.P. 82.

The order of the Windsor Superior Court dismissing the action for lack of jurisdiction is vacated, and the cause is remanded.