Background
Patrick McElroy and Mandi Theberge share a son, B.M., born in June 2020. In June 2022, the Vermont Superior Court, Caledonia Unit, Family Division issued a final parentage order awarding mother sole legal and physical parental rights and responsibilities, while granting father alternating-weekend contact and three “separate weeks” of contact during B.M.’s summer school vacations. The order reflected the court’s stated intent to foster a closer relationship between father and B.M., noting that father was not found unfit or unable to provide care.
In September 2024, father moved to modify parental rights and contact. After two continuances, a hearing was held in July 2025. The family division denied the modification motion, concluding father had not demonstrated the threshold “real, substantial, and unanticipated change of circumstances” required under 15 V.S.A. § 668(a). However, the court did clarify the summer-vacation contact provision, interpreting “separate weeks” to mean three weeks in addition to father’s regular alternating-weekend visits, not merely that the weeks be nonconsecutive within his existing schedule.
Mother moved for reconsideration, arguing “separate” meant only that the visits be nonconsecutive. She also sought to hold father in contempt over FaceTime contact during his visits. After further proceedings culminating in a February 2026 order denying both motions, mother—now self-represented—appealed, challenging the court’s clarification and its reliance on a visitation-disparity graph father had presented at the July 2025 hearing.
The Court’s Holding
The Vermont Supreme Court affirmed. As a threshold matter, it rejected father’s contention that the appeal was untimely. Because mother’s timely motion to reconsider tolled the appeal period under V.R.A.P. 4(b)(5), and the September 2025 denial of reconsideration was not a final order (it expressly invited either party to request a further hearing), the appeal period ran from the February 2026 final order from which mother timely appealed. The court also declined to dismiss the appeal for informality in the notice of appeal, extending the self-represented litigant some procedural leeway under V.R.A.P. 3(d).
On the merits, the court held that the family division’s interpretation of the summer-visit schedule was a permissible clarification rather than a modification, and therefore did not require the two-part changed-circumstances and best-interests analysis under § 668(a). Applying Patnode v. Urette, 2014 VT 46, the court explained that a clarification does not alter the terms of an original order but helps the parties meet those terms. Here, a genuine ambiguity existed in the phrase “separate weeks,” and the trial court resolved it by reference to the original order’s express intent to increase father’s contact time and foster his relationship with B.M.—not by changing what the order required.
Mother’s challenge to the court’s consideration of father’s visitation-disparity graph was rejected as unpreserved: her attorney had affirmatively stated at the July 2025 hearing that she had no objection to the graph being considered as a demonstrative exhibit, foreclosing appellate review under V.R.E. 103(a)(1) and Vermont’s general preservation rule.
Key Takeaways
- A family court may clarify an ambiguous parent-child-contact term without triggering the statutory changed-circumstances threshold, so long as the clarification carries forward the original order’s intent rather than altering its substantive terms.
- A denial of reconsideration is not a final, appealable order if it expressly leaves the door open for a party to request a further hearing; finality attaches only when the court conclusively resolves the matter.
- Failure to object to the admission of evidence at the trial level—even by counsel’s affirmative non-objection—forfeits the issue on appeal under V.R.E. 103(a)(1).
- Self-represented appellants receive some procedural leeway on technical defects in a notice of appeal, but remain bound by ordinary rules of procedure.
Why It Matters
This decision reinforces the distinction Vermont courts draw between clarification and modification of parent-child-contact orders—a distinction with significant practical consequences. Parents and practitioners must understand that ambiguous order language can be resolved by the trial court on a clarification motion without satisfying the high bar of demonstrating a substantial change in circumstances, which can otherwise be difficult to meet. Courts will look to the original order’s stated intent as the interpretive anchor.
The case also serves as a reminder of basic appellate preservation principles in family-law proceedings: strategic or inadvertent concessions at the trial level—such as agreeing to the admissibility of an exhibit—will bind a party on appeal. Given the frequency of self-represented litigants in Vermont family courts, the court’s handling of both the notice-of-appeal informality and the leeway afforded to pro se parties offers useful guidance on the limits of that leniency.