1. New Trial — Motion — Timeliness
Motion for new trial filed one day late was properly denied. V.R.C.P. 59(b).
2. Judgment — Opening, Setting Aside or Vacating — Review
Motion for relief from judgment was not subject to appellate review where it did not clearly and affirmatively appear from the record that trial court's discretion in deciding the motion was withheld or otherwise abused. V.R.C.P. 60.
Per Curiam.
This is an appeal from an order in a contested divorce case denying the plaintiff's motion for a new trial, V.R.C.P. 59, and her motion for relief from the final judgment on the basis of newly discovered evidence, fraud on the part of the defendant, and the negligence of her previous counsel, V.R.C.P. 60(b)(2), (3) and (6).
The plaintiff's motion for a new trial was filed eleven days after final judgment was entered, which is one day beyond the period specified in V.R.C.P. 59(b). The trial court properly denied the motion.
A motion for relief from judgment under V.R.C.P. 60 is addressed to the discretion of the trial court, and is not subject to appellate review unless it clearly and affirmatively appears from the record that such discretion was withheld or otherwise abused. Kotz v. Kotz, 134 Vt. 36, 40, 349 A.2d 882, 885 (1975). The record before us demonstrates no abuse of discretion.
Affirmed.