Samantha Freda v. Joshua Cunningham

VERMONT SUPREME COURT Case No. 25-AP-224
109 State Street
Montpelier VT 05609-0801
802-828-4774
www.vermontjudiciary.org

Note: In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-
appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

ENTRY ORDER

JANUARY TERM, 2026

Samantha Freda* v. Joshua Cunningham } APPEALED FROM:
} Superior Court, Windham Unit,
} Family Division
} CASE NO. 22-DM-01681
Trial Judge: Elizabeth D. Mann

In the above-entitled cause, the Clerk will enter:

In this parentage action, mother appeals from a trial court decision granting in part and
denying in part her motion to enforce a post-judgment order governing communication between
the parties regarding their minor child. We affirm.

The parties are parents of a daughter, born in November 2015. In April 2016, the family
division issued a stipulated final order awarding mother primary legal and physical parental
rights and responsibilities. As relevant here, the order also provided that while daughter was
with one parent, the other parent could speak with daughter by telephone “[a]t reasonable times.”

In December 2021, the court modified the final order—again, based on the parties’
agreement—to provide that physical rights and responsibilities were to be shared by mother and
father. The amended order included a new provision stating that “[p]arent-parent
communication shall be through mother’s father, via texts, until otherwise agreed.”

In August 2024, mother moved to modify the final order’s parent-child contact schedule.1
She also requested that the court amend the communication provision to require that all
nonemergency contact between the parties take place on the Talking Parents co-parenting app
unless otherwise agreed. Father opposed mother’s motion to modify the contact schedule but
agreed to her proposed change to the parent-parent communication provision.

1
Several post-judgment motions were filed in the years between the issuance of the
December 2021 order and the filing of mother’s August 2024 motion. We do not detail this
procedural background here because, for the reasons discussed below, it is not relevant to the
issues properly before us in this appeal.
In March 2025, the court held a contested hearing on the motion to modify parent-child
contact. Later that month, it issued an order denying mother’s motion for modification on
grounds that she had not demonstrated the requisite real, substantial, and unanticipated change in
circumstances. The court did, however, grant mother’s request to modify the order governing
communication between the parties. In the order, it found that the parties’ use of the Talking
Parents app had been productive and directed them to continue using the app “for all
communications regarding [daughter] and for calls to [daughter] when she is with the other
parent.” It further provided that in scenarios where the app was not available, the parties “may
communicate with one another via text message” provided the communication was time-
sensitive, though the court indicated that it expected that the need for communication outside the
app would be “rare.”

Mother, self-represented, moved to enforce this order in May 2025. In a supporting
affidavit, she alleged that father falsely claimed he was unable to access the Talking Parents app
and had been contacting her by other means for non-emergency matters. She attached
documents she described as the history of the parties’ communication in the app as well as
emails and texts she allegedly received from father in contravention of the March 2025 order.
She requested that the court direct father to comply with that order by using the app as directed.

Father filed a self-represented opposition in which he requested that mother’s
enforcement motion be quashed. He argued that mother’s exhibits demonstrated that he is now
able to access the Talking Parents app and had responded to her messages there. He also alleged
that mother did not routinely check the Talking Parents app.

The court issued an order giving mother until June 30, 2025, to respond to father’s filing.
Mother filed a response on June 17. She asserted that father failed to serve his opposition on her
and asked that his request to quash her motion be denied on that basis. She also attached
additional exhibits from the Talking Parents app, arguing that these demonstrated that she had
not been allowed to call daughter during father’s contact time since February 2025—which she
alleged was a separate violation of the court’s order—and that he continued to contact her
outside the app regarding non-emergency matters.

In June 2025, the court issued an order granting in part and denying in part mother’s
motion to enforce. It explained that the parties’ representations about their communications were
not “wholly consistent” with the documentation provided, which “suggest[ed] that while father
has at times been somewhat slow to respond,” mother “intentionally opens the communication
application only on specified dates that she selects,” which was “also problematic.” The court
also noted that while the parties “continue to struggle with their personal interactions,” there was
also “evidence here of an ability of the parents to work together for the benefit of [daughter].” It
ordered that, to the extent the app was able to send message notifications to the parties’ email
accounts or text programs, “they shall select that option and shall respond to any communication
sent via the application within 2-3 days or sooner for time sensitive issues.” In the event this was
not possible, the court directed both parties to check the app “daily” and respond to or otherwise
acknowledge any message from the other party within twenty-four hours. Lastly, the court
ordered the parties to communicate with one another to confirm a schedule for telephone contact
with daughter and, if they were unable to reach agreement, to each file a proposal with the court,
which would provide a final schedule. This appeal followed.

2
Although mother raises numerous arguments on appeal, only a portion are appropriately
before this Court.2 First, because this is an appeal of the court’s June 2025 order, we have
jurisdiction to review only those issues appropriately raised in connection with that order. See
Adamson v. Dodge, 2006 VT 89, ¶ 4, 180 Vt. 612 (mem.) (rejecting self-represented appellant’s
argument that challenge to unappealed order denying motion to modify parental rights and
responsibilities could be considered in connection with appeal of subsequent post-judgment
motion). Mother’s challenges to earlier rulings or orders of the trial court—including her
contentions that the court erred in disallowing certain discovery prior to the March 2025 hearing
and erred in admitting or excluding certain evidence at that hearing—are beyond the scope of our
review in this appeal. Second, several of mother’s arguments rest on factual assertions that are
not part of the record, such as her allegation that father has continued to withhold phone contact
with daughter while this appeal has been pending. We do not consider these arguments because
our review is confined to the record adduced below and, on appeal, we cannot consider facts not
in the record. See Hoover v. Hoover, 171 Vt. 256, 258 (2000). With this understanding of our
scope of review, we take up mother’s remaining arguments.

Mother contends that the June 2025 order should be reversed because father failed to
serve his opposition on her, and the court therefore erred in considering the arguments he raised
in that filing. This argument fails because mother has not demonstrated prejudice. See V.R.C.P.
61 (providing that error is not grounds for reversal if it “does not affect the substantial rights of
the parties”). As mother points out, the purpose of the service requirement is to ensure notice
and an opportunity to respond. Here, the court issued an order alerting mother to father’s filing
and providing her a period of time to respond; mother filed a response within that period. See,
e.g., Sumner v. Sumner, 2004 VT 45, ¶ 14, 176 Vt. 452 (concluding that family division’s error
in granting wife’s motions without assuring husband had proper notice was harmless because
husband was able to present his arguments to court at meaningful time). We note, moreover, that
the record does not support mother’s assertion that the court simply accepted the unsworn factual
representations included in father’s filing. Rather, the June 2025 order expressly indicated
that—following review of the exhibits mother herself submitted—it did not find either party’s
characterization of their communications entirely accurate. The court’s observation that mother
only periodically checked the Talking Parents app is supported by the exhibits. For example, in
an April 23, 2025 message, mother concluded by stating: “I plan to reopen the app by 5/7 to
check in about any necessary business” and noted, “I will not get any messages in this app until

2
We note that, in her brief, mother cited a purported decision of this Court, “C.M. v.
P.M., 2015 VT 92, ¶ 21.” The citation provided by mother corresponds to an entirely different
opinion than that named and does not support the proposition for which it was cited. We were
unable to identify any existing opinion of this Court that mother may have been intending to
reference through this citation. We remind mother that, by presenting a document to this Court,
she is certifying that “to the best of [her] knowledge, information, and belief, formed after an
inquiry reasonable under the circumstances,” the claims, defenses, and other legal contentions
contained in that filing “are warranted by existing law or by a nonfrivolous argument for the
extension, modification, or reversal of existing law or the establishment of new law.” V.R.C.P.
11(b)(2); see V.R.A.P. 25(d)(2) (“By presenting a document to the Court—whether by signing,
filing, submitting, or later advocating it—an attorney or self-represented party is making the
certification provided by V.R.C.P. 11(b) as to that paper.”). Although self-represented litigants
like mother “receive some leeway from the courts,” they are nonetheless bound by the ordinary
rules of procedure, “includ[ing] the obligations of Rule 11 and sanctions for noncompliance.”
Zorn v. Smith, 2011 VT 10, ¶ 22, 189 Vt. 219. Mother is warned that future conduct of this
nature may result in sanctions. See V.R.A.P. 25(d)(3).
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then. You can use my cell for emergency messages.” Given the absence of prejudice, any defect
in the service of father’s opposition does not establish grounds for reversal of the court’s June
2025 order.

Mother also contends that the order “reflects a broader pattern of leniency toward
[father]” that pervaded the post-judgment proceedings in this case. Initially, we stress that “the
existence of adverse rulings, no matter how erroneous or numerous, or that the judge expressed a
comment or opinion, uttered in the course of judicial duty, based upon evidence in the case,”
standing alone, do not show bias. Gallipo v. City of Rutland, 163 Vt. 83, 96 (1994). In any
event, to the extent mother seeks to raise a claim of bias on the part of the trial court, it is not
preserved for our review because she did not seek disqualification of the judge below. See
DeLeonardis v. Page, 2010 VT 52, ¶ 31, 188 Vt. 94 (explaining that claim of judicial bias not
preserved for appeal where party did not seek disqualification of judge below).

This leaves mother’s challenges to the reasoning and conclusions of the June 2025 order.
Mother argues that the court abused its discretion in failing to meaningfully enforce the app-
based communication requirement, asserting that the order is vague and contradictory and
minimizes the impact of father’s failure to follow the March 2025 order. She also contends that
the court should have considered the history of father’s conduct during the case and done more to
hold him accountable. Finally, mother asserts that the trial court failed to address her contention
that father was not allowing her to have phone calls with daughter during his visits.

When one party seeks to enforce a final order regarding parental rights and
responsibilities or parent-child contact, the family court has discretion to fashion an appropriate
order. Cf. Simendinger v. Simendinger, 2015 VT 118, ¶¶ 7-8, 200 Vt. 378 (reviewing grant of
motion to enforce final divorce order for abuse of discretion); see, e.g., Stevens v. Russo, No.
2010-275, 2011 WL 4983982, at *2 (Vt. March 4, 2011) (unpub. mem.), https://www.vermont
judiciary.org/sites/default/files/documents/eo10-275.pdf (reviewing denial of motion to enforce
existing parent-child-contact order for abuse of discretion). We will not disturb the court’s order
unless that discretion “was exercised upon unfounded considerations or to an extent clearly
unreasonable upon the facts presented.” Cleverly v. Cleverly, 151 Vt. 351, 355-56 (1989)
(quotation omitted). Mother has not demonstrated an abuse of discretion here.

The court’s order demonstrates that it reviewed the parties’ arguments, as well as
mother’s exhibits, and concluded that the parties had the ability to work together through the
Talking Parents app for daughter’s benefit. It enforced the March 2025 order by directing the
parties to establish a system that would ensure each received timely notification of any messages
sent through this platform—thus reducing the need for either party to contact the other outside of
the app. And while mother argues that the order is vague and contradictory, she fails to explain
why this is so. We therefore decline to address this argument as inadequately briefed. See
V.R.A.P. 28(a)(4) (requiring that appellant’s brief include “the issues presented, how they were
preserved, and appellant’s contentions and the reasons for them—with citations to the
authorities, statutes, and parts of the record on which the appellant relies”); Pcolar v. Casella
Waste Syst. Inc., 2012 VT 58, ¶ 19, 192 Vt. 343 (explaining that self-represented litigants must
satisfy minimum briefing standards of Rule 28(a)(4) and declining to address inadequately
briefed argument). Similarly, mother does not explain how the court failed to address her
request to enforce telephone calls with daughter during father’s contact time. Although mother
raised this issue for the first time in her response to father’s opposition, the court nonetheless
addressed the issue by directing the parties to consult and attempt to agree on a schedule for
phone contact. It further provided that, if they were unable to agree, the parties could file their

4
proposals with the court and it would issue an order. We decline to address this argument, too,
as inadequately briefed. See Pcolar, 2012 VT, ¶ 19.

Mother’s disagreement with the court’s reasoning and conclusion do not demonstrate an
abuse of discretion. See Meyncke v. Meyncke, 2009 VT 84, ¶ 15, 186 Vt. 571 (explaining that
arguments amounting to nothing more than disagreement with trial court’s reasoning and
conclusion do not make out case for abuse of discretion). We have considered all arguments
discernable in mother’s brief and conclude that she has not identified any basis to disturb the
order on appeal.

Affirmed.

BY THE COURT:

Paul L. Reiber, Chief Justice

Harold E. Eaton, Jr., Associate Justice

Nancy J. Waples, Associate Justice

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