Kendall v. Kendall: Requirement of Express Rule 24(a)(2) Analysis for Nonparty Intervention in Post‑Judgment Divorce Enforcement

I. Introduction

The Vermont Supreme Court’s entry order in Michelle Kendall v. James Kendall (Jere S. Kendall), No. 25‑AP‑140 (Dec. Term 2025), arises out of a post‑judgment divorce enforcement dispute in which a third party—the husband’s brother, Jere S. Kendall (“brother”)—sought to participate in proceedings to protect his asserted property interests.

The underlying divorce between Michelle Kendall (“wife”) and James Kendall (“husband”) incorporated a bankruptcy settlement that contemplated the transfer of several pieces of real estate to brother. When wife later sought to enforce the $50,000 property settlement, she requested liens and potential sales not only of husband’s property but also of property held by brother and family trusts.

Brother sought to be joined or to intervene under Vermont Rules of Civil Procedure 19 and 24, arguing that his property interests were directly threatened. The family division denied his motions in a single sentence: “There are only two parties to this divorce.” On appeal, the Supreme Court reversed and remanded, holding that the trial court’s order was legally insufficient because it failed to engage with the governing standards for intervention and joinder.

Although the decision is an entry order from a three‑justice panel and thus expressly nonprecedential, it nonetheless clarifies and reinforces several important procedural principles:

• Family division courts must apply the usual V.R.C.P. 24(a)(2) standards for intervention even in divorce cases.
• It is error to deny intervention solely on the premise that “there are only two parties to this divorce.”
• Trial courts must provide a reasoned explanation reflecting engagement with timeliness and substantive intervention factors; a bare, conclusory denial is not reviewable.
• Third parties with asserted property interests potentially affected by post‑judgment divorce enforcement must be given a meaningful opportunity to be heard if they meet Rule 24(a)(2) criteria.

II. Summary of the Supreme Court’s Entry Order

A. Core Issue on Appeal

The central issue was whether the family division erred by denying brother’s motion to be joined or to intervene in the post‑judgment divorce enforcement proceedings without any analysis under V.R.C.P. 24(a)(2) (and, potentially, V.R.C.P. 19(a)(2)), and by relying solely on the statement that “there are only two parties to this divorce.”

B. Holding

The Vermont Supreme Court reversed the family division’s order. It held that:

• The trial court’s one‑sentence denial failed to reflect any engagement with the required Rule 24(a)(2) intervention analysis (or with timeliness), leaving the Supreme Court unable to conduct meaningful appellate review.
• The mere fact that only two spouses are “statutory parties” to a divorce does not preclude a third party from becoming a party through intervention if Rule 24(a)(2) is satisfied.
• Under existing Vermont law, Rule 24’s standards apply in divorce cases; therefore, the court was required to analyze brother’s intervention motion under these standards and to explain its reasoning.

C. Disposition

The Supreme Court:

• Reversed the family division’s order denying the motion to join/intervene; and
• Remanded the matter for the family division to reconsider brother’s motion and to issue an order that sets forth the basis for its conclusion under Rule 24(a)(2), including timeliness and the substantive intervention factors.

The Court expressly declined to decide:

• Whether a nonparty may move for joinder under Rule 19; and
• Whether, on the current record, brother’s motion was timely or substantively adequate under Rule 24(a)(2).

III. Factual and Procedural Background

A. Divorce, Bankruptcy, and the “Global” Settlement

Husband and wife were divorced in October 2018. Their final divorce order incorporated a bankruptcy court decision approving a settlement among:

• Wife;
• Husband; and
• Husband’s brother, Jere S. Kendall.

That settlement provided:

• Wife’s share of the marital property was fixed at $50,000, payable from proceeds subject to distribution under husband’s bankruptcy plan.
• Upon completion of the bankruptcy plan, husband was to:
  • Convey six specified properties in Barnet, Vermont, to brother; and
  • Grant brother a joint tenancy in a seventh Barnet property.

Thus, the settlement intertwined:

• Wife’s claim to a monetary property settlement;
• Husband’s obligations under a bankruptcy plan; and
• Brother’s claim to ownership interests in multiple parcels of real estate.

B. Wife’s First Enforcement Motion and Brother’s First Joinder Motion

In July 2023, wife moved to enforce the final divorce order, alleging that husband had not paid the promised $50,000. She requested:

• An order compelling payment within thirty days; and
• As a penalty for nonpayment, the placement of liens on properties:
  • Belonging to husband,
  • His associated trusts, and
  • Brother’s properties.

In November 2023, brother responded by moving to be joined as a party pursuant to V.R.C.P. 19(a)(2)(i) and (ii). He argued:

• Wife’s enforcement motion created a real risk that liens would be imposed on his properties.
• Joinder was necessary to:
  • Allow him to defend his own property interests; and
  • Avoid exposing husband to the risk of double or inconsistent obligations toward wife and brother.

The family division:

• Granted in part wife’s motion, issuing a judgment against husband on three Barnet properties, and authorized wife to record the judgment in land records to create liens; but
• Denied brother’s joinder motion in a one‑sentence order: “There are only two parties to this divorce.”

C. Wife’s Second Enforcement Motion and Brother’s Second Motion to Join/Intervene

In August 2024, wife again moved to enforce the November 2023 order, asserting husband still had not paid the $50,000. She now requested that:

• If husband was unable to pay, the court sell any properties that:
  • Husband owned,
  • Brother owned, or
  • Their family trusts owned,
  to satisfy the judgment.

In March 2025, brother again sought to participate, this time:

• Moving for joinder under Rule 19(a)(2); and
• In the alternative, moving to intervene as of right under V.R.C.P. 24(a)(2).

Brother argued that:

• He was still awaiting the promised property transfers under the global settlement.
• Realistically, the only way husband could pay wife would be to liquidate those very properties, which would:
  • Destroy husband’s ability to satisfy his obligations to brother under the settlement; and
  • Potentially result in the forced sale of property in which brother claimed a direct interest.
• He had a direct, legally cognizable interest in the affected properties that warranted intervention.

Brother relied heavily on Barrup v. Barrup, 2014 VT 116, ¶ 17, 198 Vt. 25, where the Court had affirmed the intervention of a nonparty (the husband’s mother) in post‑judgment divorce enforcement proceedings to protect her interest in an investment account.

The family division again denied brother’s request with a brief order that simply referenced the earlier November 2023 order and reiterated, “there are only two parties to this divorce.” No analysis of Rule 19, Rule 24, or timeliness was provided.

D. Appeal

Brother appealed to the Vermont Supreme Court, arguing that:

• The trial court misapplied Vermont’s intervention and joinder rules by treating the divorce as a closed two‑party proceeding, regardless of the substantial impact on his property interests.
• The trial court’s failure to engage with Rule 24(a)(2) was reversible error.

Notably, neither husband nor wife filed a brief in the Supreme Court.

IV. Legal Framework and Precedents

A. Applicability of Civil Rules in Divorce Cases

Under V.R.F.P. 4.0(a)(2), the Vermont Rules of Civil Procedure generally apply in divorce and other family law matters unless specifically displaced by the Family Rules. Thus, civil rules on joinder (Rule 19) and intervention (Rule 24) govern whether third parties may participate in divorce and post‑judgment enforcement proceedings.

B. Rule 19(a)(2): Required (“Necessary”) Joinder

V.R.C.P. 19(a)(2) provides that a person must be joined as a party if:

the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may either:

• (i) as a practical matter impair or impede the person's ability to protect that interest; or
• (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the person's claimed interest.

The Reporter's Notes to Rule 19 explain that, if this test is satisfied and the person can be served, the court must order joinder, typically on motion of an existing party (often the defendant) or on its own motion. Some federal courts have held that nonparties themselves cannot move for joinder under Rule 19 and must instead proceed via Rule 24.

C. Rule 24(a)(2): Intervention as of Right

V.R.C.P. 24(a)(2) governs intervention as of right by nonparties:

Upon timely application anyone shall be permitted to intervene in an action when the applicant:

• claims an interest relating to the property or transaction which is the subject of the action, and
• is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest,

unless the applicant's interest is adequately represented by existing parties.

Rule 24(a)(2) essentially mirrors Rule 19(a)(2), a point the Court underscored by citing MasterCard Int'l Inc. v. Visa Int'l Serv. Ass'n, Inc., 471 F.3d 377, 390 (2d Cir. 2006), which recognizes that Federal Rules 19(a)(2) and 24(a)(2) are intended to mirror each other.

D. Precedents Cited and Their Role

1. Barrup v. Barrup, 2014 VT 116, 198 Vt. 25

Barrup is central. There, the Court affirmed the grant of a Rule 24(b)(2) permissive intervention motion by the husband’s mother in post‑judgment divorce enforcement proceedings. Wife sought to enforce a final property division that implicated an investment account in which the mother held a documented record interest.

The Court held that:

• Nonparties with a documented legal interest in property over which the divorce court asserts jurisdiction may intervene in post‑judgment proceedings.
• The “usual standards” of Rule 24 apply in divorce cases.

In Kendall, the Court cites Barrup (¶ 17) to emphasize that intervention by nonparties in divorce proceedings is not exceptional; it is contemplated and permitted when the Rule 24 criteria are met.

2. Ihinger v. Ihinger, 2003 VT 38, 175 Vt. 520 (mem.)

In Ihinger, the Court explained that although children are not “statutory parties” to their parents’ divorce:

• They may become parties by satisfying intervention standards under Rule 24.

Ihinger supports the proposition that the identity of “statutory parties” to a divorce (usually the spouses) does not exhaust the set of possible parties. Others—children, extended family, or third parties with property interests—can be added through intervention when proper.

3. Grassy Brook Vill., Inc. v. Richard D. Blazej, Inc., 140 Vt. 477 (1981)

Here, the Court noted that Vermont’s Rule 19 is patterned on the federal rule. This underpins the Court’s reliance on federal interpretations of Rules 19 and 24, including the mirroring of Rule 19(a)(2) and Rule 24(a)(2).

4. MasterCard Int'l Inc. v. Visa Int'l Serv. Ass'n, Inc., 471 F.3d 377 (2d Cir. 2006)

Cited to highlight that:

• Federal Rules 19(a)(2) and 24(a)(2) have overlapping language and are intended to mirror each other.
• If a party fails to satisfy Rule 19(a), it could not satisfy Rule 24(a)(2) either.

This supports the Supreme Court’s decision to focus on Rule 24(a)(2) and to treat Rule 19 and Rule 24 as largely interchangeable in terms of substantive criteria in this context.

5. Arrow v. Gambler's Supply, Inc., 55 F.3d 407 (8th Cir. 1995)

This federal case is cited for the proposition that:

• Some courts have held that only parties may move for joinder under Rule 19, and
• A nonparty’s Rule 19 motion may be construed as a request to intervene under Rule 24.

The Vermont Supreme Court declined to decide whether a nonparty can formally move for joinder under Rule 19, because brother also sought intervention under Rule 24, which provided an adequate analytical framework.

6. Agency of Transp. v. Timberlake Assocs., 2020 VT 73, 213 Vt. 106

This case sets out the standard of review:

• Denial of a motion to intervene as of right (Rule 24(a)) is reviewed without deference (de novo) as to the substantive elements.
• However, the timeliness of the intervention motion is a threshold issue entrusted to the trial court’s discretion.

7. State v. Quiros, 2019 VT 68, 211 Vt. 73

Quiros addresses timeliness in intervention:

• Rule 24 requires a “timely application.”
• When a trial court denies intervention but does not address timeliness, the Supreme Court may:
  • Review the issue de novo if the record is sufficient; or
  • Reverse and remand if the record or explanation is inadequate.

In Kendall, the trial court not only failed to address timeliness but also gave no Rule 24(a)(2) analysis at all, making appellate review impossible without speculation.

8. 171234 Canada Inc. v. AHA Water Coop., Inc., 2008 VT 115, 184 Vt. 633

This decision sets forth four factors for evaluating timeliness:

• Power to have sought intervention earlier;
• Progress of the case;
• Harm or prejudice to the plaintiff; and
• Availability of other means to join the case.

These factors guide the trial court’s discretion and, on appeal, the review of whether timeliness was properly assessed. In Kendall, the absence of any discussion of these factors contributed to the Court’s decision to remand.

9. Mohr v. Vill. of Manchester, 161 Vt. 562 (1993) (mem.)

Mohr is critical for the procedural principle it embodies:

• The trial court denied a motion to intervene without explaining why.
• The Supreme Court reversed, noting that while the trial court may deny intervention as untimely or for other reasons, the Supreme Court “cannot review the trial court's exercise of discretion where there is no record of how that decision was reached.”

Kendall applies this logic: when the trial court provides no reasoning, the Supreme Court cannot affirm based on speculation about what the trial court might have thought.

10. In re Cote, 2025 VT 42

The Court reiterates a fundamental principle:

“When this Court is left in a position where it must speculate as to the basis upon which the trial court reached its decision, we will refuse to so speculate.”

This underpins the refusal in Kendall to fill in the missing analysis and instead to remand.

11. Talandar v. Manchester-Murphy, 2024 VT 86

Talandar is cited for the proposition that:

• Where the trial court “failed to meaningfully engage” with a party’s legal argument,
• The Supreme Court will generally decline to address the underlying legal issue for the first time on appeal and will instead remand for consideration.

Again, this justifies the Court’s choice in Kendall to remand rather than decide whether the Rule 24(a)(2) factors were met.

V. The Court’s Legal Reasoning

A. Rule 19 vs. Rule 24: How the Court Framed the Request

Brother initially sought joinder under Rule 19 and later also sought intervention under Rule 24. The Court acknowledged the debate over whether nonparties may move directly under Rule 19 (citing Arrow) but explicitly declined to resolve that question. Instead, it reasoned:

• Brother’s Rule 24(a)(2) motion to intervene was properly before the court.
• Because Rules 19(a)(2) and 24(a)(2) mirror each other, proper application of one would not materially differ from the other in this context.

Hence, the Court proceeded under Rule 24(a)(2), treating it as the operative rule for analysis.

B. Standard of Review and the Problem of an Unexplained Order

The Court emphasized:

• It reviews the denial of intervention as of right without deference to the trial court on the substantive Rule 24(a)(2) elements (interest, impairment, adequate representation).
• It reviews timeliness for abuse of discretion.

However, when:

• The trial court makes no mention of timeliness; and
• Provides no analysis under Rule 24(a)(2);

the appellate court is left without a decision to review. Rather than substituting its own judgment in the first instance, the Court adheres to its practice of remanding when the basis for the trial court’s decision is opaque.

C. Error in Relying on “Only Two Parties to This Divorce”

The trial court’s recurring statement—“there are only two parties to this divorce”—is the focal point of the error. The Supreme Court held that:

• It is legally incorrect to treat the divorce as immune from intervention merely because only spouse A and spouse B are the statutory parties to the divorce itself.
• Under Barrup and Ihinger, nonparties may become parties if they satisfy Rule 24(a)(2) (or Rule 24(b), in permissive cases).
• Thus, it was not enough for the trial court to note that the divorce had two original parties; it had to determine whether brother:
  • Claimed an interest in property or a transaction at issue; and
  • Would, as a practical matter, have his ability to protect that interest impaired absent intervention; and
  • Lacked adequate representation by existing parties; and
  • Applied in a timely manner.

By failing to address any of these factors, the trial court effectively ignored the operative legal framework.

D. Application to Brother’s Claimed Interests (at a High Level)

The Supreme Court did not decide whether brother’s intervention motion actually met all Rule 24(a)(2) criteria. Nonetheless, the opinion makes clear that:

• Brother “claimed an interest relating to properties which, he argued, were at issue in wife's enforcement motion.”
• The trial court should have considered whether:
  • These properties were genuinely at issue; and
  • Disposition of wife’s enforcement motion, especially possible liens or forced sales, might practically impair his ability to protect his property interests.
• It also needed to consider whether brother’s interests were:
  • Already adequately represented (for example, by husband); or
  • Distinct and potentially unprotected without his own participation.

The Court declined to undertake this fact‑specific analysis itself on an undeveloped record and remanded that task to the trial court.

E. Refusal to Decide Timeliness or Substantive Compliance on Appeal

The Court acknowledged that it sometimes resolves timeliness de novo if the record is sufficient (as in Quiros). But here, not only timeliness but all the substantive Rule 24(a)(2) factors were unaddressed below. The Court therefore:

• Refused to speculate about why the trial court denied the motion, consistent with Cote and Mohr;
• Declined to reach the substantive and timeliness questions for the first time on appeal, consistent with Talandar;
• Ordered a remand with instructions that the trial court undertake the required Rule 24(a)(2) analysis and explain its reasoning.

VI. Key Legal Principles and Future Impact

A. Principles Clarified or Reinforced

1. Civil procedure rules apply fully in divorce enforcement.
   Through V.R.F.P. 4.0(a)(2), the usual standards for joinder and intervention apply in family division, including post‑judgment enforcement of divorce decrees.
2. Third parties can intervene in divorce cases when Rule 24 is satisfied.
   Consistent with Barrup and Ihinger, the Court confirms that nonparties (e.g., parents, children, siblings, or trust beneficiaries) may become parties to a divorce or its enforcement proceedings via Rule 24, when they have relevant property or transactional interests.
3. The mere fact that a divorce formally has “two parties” is not a legally sufficient ground to deny intervention.
   Trial courts cannot insulate divorce proceedings from third‑party participation by invoking the bilateral nature of the divorce action itself.
4. Trial courts must engage in the Rule 24(a)(2) analysis and explain their decisions.
   Orders denying intervention should reflect consideration of:
   • The applicant’s interest;
   • Whether that interest is implicated by the subject matter of the action;
   • Whether the applicant’s ability to protect the interest will likely be impaired absent intervention; and
   • Whether existing parties adequately represent that interest;
   • Plus, separately, the timeliness of the application.
5. Appellate review is impossible where the trial court’s reasoning is opaque.
   The Supreme Court will reverse and remand, rather than guess at the basis of a trial court’s decision, where there is no discernible analysis.

B. Practical Implications for Family Division Judges

• When a nonparty with a colorable property interest moves to intervene in a divorce enforcement matter, judges must:
  • Address timeliness, applying the factors from 171234 Canada (ability to intervene earlier, progress of the case, harm to plaintiff, alternative means of joinder).
  • Apply the substantive Rule 24(a)(2) factors on the record.
  • Provide at least a brief explanation sufficient for appellate review.
• Purely conclusory orders (e.g., “only two parties to this divorce”) are vulnerable to reversal because they provide no basis for reviewing the trial court’s exercise of discretion or substantive judgment.

C. Implications for Practitioners and Third‑Party Property Owners

• Third‑party owners or claimants (e.g., siblings, parents, LLCs, or trusts) whose property may be:
  • Subject to liens,
  • Included in enforcement orders, or
  • Ordered sold to satisfy a spouse’s obligations
  should seriously consider moving to intervene under Rule 24(a)(2) as soon as they become aware of the risk.
• In drafting motions to intervene, counsel should:
  • Clearly articulate the specific interest in the property or transaction;
  • Explain how the requested relief could impair or impede that interest;
  • Address why existing parties (typically the spouse whose debts are at issue) do not adequately represent that interest; and
  • Provide reasons why the motion is timely under the four‑factor test.
• Where the parties have used a global settlement involving bankruptcy, divorce, and third‑party property transfers, counsel should anticipate the potential need for intervention by those third parties when enforcement issues arise.

D. Implications for Spouses and Enforcement Strategy

• Spouses cannot assume they can reach into third‑party property (even where related individuals or family trusts are involved) without giving those third parties a chance to be heard when they assert a legally cognizable interest.
• Enforcement motions that seek liens or forced sales of property owned or claimed by nonparties will likely trigger intervention motions and require the court to adjudicate the scope and validity of those third‑party interests.
• Strategic use of global settlements (like the bankruptcy‑divorce‑property agreement here) increases the likelihood of complex multi‑party disputes at the enforcement stage.

E. Effect on Vermont Civil Procedure and Appellate Practice

• This entry order, while not precedential (per the three‑justice panel rule), is consistent with a line of Vermont cases emphasizing:
  • Adherence to Rule 24 in diverse civil contexts;
  • The necessity of reason‑giving by trial courts; and
  • The Supreme Court’s unwillingness to speculate about unstated reasoning.
• It reinforces for trial courts across subject‑matter divisions that cryptic orders may be reversed and remanded even where the underlying result might ultimately prove correct on a fully explained record.

VII. Complex Concepts Simplified

A. Joinder vs. Intervention

• Joinder (Rule 19):
  • Concerns people who should be parties because the case cannot fairly or completely be resolved without them.
  • Historically initiated by existing parties or by the court itself.
• Intervention (Rule 24):
  • Allows a nonparty to step into an ongoing lawsuit to protect its own interests.
  • Initiated by the nonparty through a motion.

In substance, Rules 19(a)(2) and 24(a)(2) use similar criteria (interest, impairment, risk of inconsistent obligations). The main practical difference lies in who initiates the request and the procedural mechanisms used.

B. Intervention as of Right vs. Permissive Intervention

• Intervention as of Right (Rule 24(a)):
  • The court must allow intervention if the criteria (interest, impairment, inadequate representation, timeliness) are met.
  • The focus is on whether the intervenor’s rights would be practically affected without participation.
• Permissive Intervention (Rule 24(b)):
  • The court may allow intervention if the intervenor’s claims or defenses share common questions of law or fact with the main action.
  • The court may deny intervention even if the basic criteria are met, for example, to avoid undue delay or complication.

In Kendall, brother sought intervention as of right under Rule 24(a)(2).

C. Timeliness of Intervention

Timeliness is not a fixed number of days; it is a flexible concept based on:

• How long the case has been pending;
• When the intervenor knew or should have known that its interests were at stake;
• Potential prejudice to the existing parties; and
• Whether other avenues to join the dispute were available.

A motion can be untimely even though the case is technically still open, especially if it comes very late and would disrupt proceedings or prejudice others.

D. “Adequate Representation”

An intervenor must show that its interest is not adequately represented by existing parties. This generally means:

• The existing party’s interests are meaningfully different or potentially adverse; or
• The existing party may lack incentive or capacity to fully protect the intervenor’s rights.

In Kendall, brother’s potential argument is that husband—whose obligation to wife might be satisfied by liquidating properties that brother claims a right to acquire—does not fully or adequately represent brother’s interest in those specific properties.

E. “Double or Inconsistent Obligations”

Rule 19(a)(2)(ii) refers to the risk that, if a person is not joined, the existing parties may later face:

• Two different courts or parties imposing conflicting obligations; or
• Multiple lawsuits concerning the same underlying rights and obligations.

Here, brother argued that failure to include him could:

• Leave husband exposed to inconsistent obligations to:
  • Pay wife by liquidating properties; and
  • Fulfill his promise to convey or preserve those properties for brother under the settlement.

F. Entry Orders and Precedential Value

The opinion itself notes that “Decisions of a three‑justice panel are not to be considered as precedent before any tribunal.” That means:

• This decision is not formally binding on lower Vermont courts in the same way as a full, published opinion by the full Court.
• Nonetheless, it reflects the Supreme Court’s application of existing rules and precedents and will likely be treated as persuasive guidance, especially given its consistency with earlier binding precedents (such as Barrup, Ihinger, and Mohr).

VIII. Conclusion

Michelle Kendall v. James Kendall (Jere S. Kendall) reinforces that family division proceedings, including post‑judgment enforcement of divorce decrees, are not hermetically sealed two‑party disputes. Where enforcement measures reach into property held or claimed by nonparties, those individuals or entities may have a right to intervene under Rule 24(a)(2).

The Supreme Court’s reversal here does not decide whether brother ultimately should be allowed to intervene. Instead, it insists that the trial court:

• Recognize that Rule 24 applies in divorce enforcement;
• Evaluate timeliness and the Rule 24(a)(2) criteria; and
• Explain its reasoning in a way that permits meaningful appellate review.

This entry order, read together with Barrup, Ihinger, Mohr, Quiros, and related cases, provides a clear message to Vermont’s trial courts and practitioners:

• Nonparties with a substantial interest in property or transactions at stake in divorce proceedings cannot be summarily excluded solely because they are not among the original divorcing spouses.
• Careful adherence to Rule 24(a)(2), coupled with reasoned written decisions, is essential to protect due process, ensure orderly enforcement of judgments, and provide a record suitable for appellate review.

In this way, Kendall serves as a practical and doctrinal reminder that the mechanics of civil procedure—particularly intervention and joinder—remain vital in the family law context, especially where complex property arrangements and third‑party rights intersect with divorce decrees and their enforcement.