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Kaeb v. Kaeb

Court of Appeals of Michigan

March 12, 2015

STEPHANIE KATHLEEN KAEB, Plaintiff-Appellee,
v.
DARIN LEE KAEB, Defendant-Appellant

Page 320

Ottawa Circuit Court. LC No. 09-066151-DM.

For STEPHANIE KATHLEEN KAEB, Plaintiff-Appellee: DOUGLAS J ROOKS, HOLLAND, MI.

For DARIN LEE KAEB, Defendant-Appellant: JUDY E BREGMAN, GRAND HAVEN, MI.

Before: M. J. KELLY, P.J., and MURPHY and HOEKSTRA, JJ. MURPHY, J. (dissenting in part, concurring in part).

OPINION

Page 321

[309 Mich.App. 559] M. J. Kelly, P. J.

In this appeal arising out of a parenting-time dispute, defendant, Darin Lee Kaeb, appeals by right the trial court's orders sanctioning him for filing a frivolous motion to modify the conditions placed on him in a parenting-time order; the trial court ordered him to pay the attorney fees incurred by plaintiff, Stephanie Kathleen Kaeb, in defending the motion. Because we conclude the trial court erred when it determined that Darin's motion was frivolous,

Page 322

we reverse the trial court's decision and vacate the orders compelling Darin to pay Stephanie's attorney fees.

I. BASIC FACTS

Darin and Stephanie married in July 1997. Three children were born to them during the marriage.

In December 2009, Stephanie sued for divorce and, in July 2010, the trial court entered a consent judgment of divorce. The consent judgment granted joint legal and physical custody to the parties, but provided that the children would reside primarily with Stephanie during the school year. The judgment gave Darin extensive parenting time during the school year and equal parenting time during summers.

In March 2011, Stephanie petitioned for a custody review on the basis of a change in circumstances. Although she discussed a variety of changes, her primary allegations were that that Darin had serious alcohol and gambling problems and might have mental health issues, which impaired his ability to provide proper care and custody to the children.

[309 Mich.App. 560] The trial court entered a stipulated order changing custody in September 2011. The order gave Stephanie sole legal and physical custody of the children and provided Darin with very limited supervised parenting time. The order further provided that Darin " shall complete his alcohol treatment and therapy, comply with all aftercare treatment recommendations, and shall abstain from the use of alcohol."

The trial court entered a new order in February 2012. The order provided Stephanie with sole legal and physical custody and gave Darin limited supervised parenting time. The order also required Darin to " continue alcohol treatment and therapy" and stated that he could petition for modification after " three months of compliance with the . . . schedule and requirements . . . ."

In July 2012, Darin moved for a change in custody and unsupervised parenting time. He stated that, since the court entered its earlier orders regarding custody, he had complied with the court's requirements and had completed various programs to treat his issues with anger and alcohol, which amounted to a change in circumstances that warranted revisiting custody and parenting time. The trial court did not hold an evidentiary hearing, but eventually entered an interim order allowing Darin to have unsupervised parenting time on specified days and providing that he must " continue with [Alcoholics Anonymous (AA)] and counseling . . . ."

In May 2013, the trial court held what it characterized as a " review hearing on matters of parenting time." Darin and Stephanie both testified at the hearing and described the circumstances surrounding their current parenting-time schedule. Darin also testified [309 Mich.App. 561] that he was complying with the court's orders to remain sober, attend AA, and continue with counseling.

At the conclusion of the hearing, the trial court found that the evidence showed that Darin had been complying with the court's requirements. But it recognized that it could not " determine whether someone whose been alcohol dependent or alcohol abusive has been cured of that problem." Instead, the court stated, " maintaining sobriety is something that's proven over the course of time." To that end, the trial court required Darin " to continue counseling with Dr. Ellens, and to attend AA regularly" as conditions on his exercise of parenting time, which it expanded. Darin's lawyer thereafter expressed concern that it would be unfair to require his client to show a change of circumstances every few months in order to permit further expansion. For that

Page 323

reason, he asked the trial court if it could set a review at fixed intervals. The trial court disagreed that automatic review would be a good use of judicial resources and stated that any further " adjustments [to parenting time] will have to be [by] motion."

In June 2013, the trial court entered an order consistent with its decision from the bench. It provided that Darin must " maintain sobriety, shall continue to counsel with Dr. Brent Ellens, [and] shall continue to attend AA regularly."

In August 2013, Darin moved to amend the trial court's order of June 2013; he asked the trial court to remove the requirement that he continue to counsel with Ellens and continue to attend AA meetings. In support of his motion, he attached a report by Dr. Michael Makedonsky.

Makedonsky reported that he had interviewed Darin and performed psychological testing on him. He opined [309 Mich.App. 562] that Darin was not suffering from any mental illness. He also stated that Darin said he had not gambled or had alcohol since September 2011 and was " very motivated and very committed to staying alcohol free." On the basis of his interview and testing, Makedonsky stated that there was no clinical need for Darin to continue with AA meetings: " It is the professional opinion of this examiner that his past use of alcohol was caused by the marital conflicts and the divorce process at the time." He further opined that Darin was " mentally and emotionally stable," did not pose " any risk of violence," and exhibited " adequate parenting skills."

Darin also presented a letter from Ellens discharging him from counseling. In the letter, Ellens informed him that he was free to continue counseling or return if he wished, but that he believed Darin had " made sufficient progress in developing the ability to manage [his] frustration and stress" that he could " proceed and manage [his] life without further counseling."

Stephanie argued in response that there were no grounds for amending the order because Darin failed to show that there was a sufficient change in the circumstances to warrant review.

The trial court held a hearing on the motion in September 2013. At the hearing, Ellens testified that he counseled Darin during the period of his court-ordered group counseling and later during private sessions. He said he sent Darin a letter discharging him from counseling in June 2013. Ellens admitted on cross-examination that he sent the letter at Darin's request.

Makedonsky also testified concerning his evaluation of Darin, which he conducted over the course of a few days ending in July 2013. Makedonsky listed the various inventories and tests that he performed and described the purpose for their use. The results showed [309 Mich.App. 563] that Darin was cooperating with the testing. Makedonsky agreed that Darin had abused alcohol in the past, but stated that he did not believe that he was an alcoholic and did not believe that he needed to attend AA meetings; there was, he explained, no " clinical reason for it . . . ."

After the close of proofs, the trial court noted the contentious history of the case and described some of the problematic behaviors that led to the limitations on Darin's parenting time. The court expressed concern that Darin insisted on deciding for himself whether he should attend AA meetings and counseling--as could be seen from his effort to obtain a letter and report demonstrating that there was no clinical need for him to attend either, which he sought just after the court entered its previous order continuing those conditions.

Page 324

The court, however, disagreed that the letter and report constituted evidence of a change in circumstances sufficient to justify the parenting-time order: " There is no evidence here that there's been any change in circumstances since May 31, and certainly since June 20 when the current order was entered, and no argument that there's been any change in circumstances, only an argument that the Court was incorrect in ordering it -- ordering continued counseling and AA attendance in the first place." It determined that the motion was without " legal basis" and, accordingly, frivolous. For that reason, it ordered Darin to pay Stephanie's costs and reasonable attorney fees as a sanction. Notwithstanding this determination, the court stated that it would " cancel those two requirements" of its own accord. It did so because Darin was plainly determined not to participate and would not benefit from them.

In November 2013, the trial court entered an order removing the requirements that Darin attend AA and [309 Mich.App. 564] counseling. In that same month, the trial court ordered Darin to pay $2,227.50 in costs and attorney fees to Stephanie. In December 2013, the trial court amended the order to require Darin to pay $2,090.00 in costs and attorney fees.-4-

Darin now appeals in this Court.

II. SANCTIONS FOR A FRIVOLOUS MOTION

A. STANDARDS OF REVIEW

On appeal, Darin argues the trial court erred when it determined that his motion to remove the requirement that he attend AA and counseling was frivolous. He maintains that the trial court improperly determined that the change-of-circumstances threshold applied to his motion and, even if that standard did apply, the court erred when it determined that there was no evidence to support the motion. This Court reviews de novo whether the trial court properly interpreted and applied the relevant statutes and court rules to the facts. Brecht v Hendry, 297 Mich.App. 732, 736; 825 N.W.2d 110 (2012). This Court, however, reviews for clear error the trial court's factual findings underlying its application of a court rule. Johnson Family Ltd Partnership v White Pine Wireless, LLC, 281 Mich.App. 364, 387; 761 N.W.2d 353 (2008). To the extent that a trial court has discretion to impose a particular sanction, this Court reviews the trial court's decision for an abuse of discretion. Smith v Khouri, 481 Mich. 519, 526; 751 N.W.2d 472 (2008).

B. THE LAW

In this case, the trial court found that Darin's motion to remove the requirements that he attend AA and counseling was frivolous because he made the [309 Mich.App. 565] motion without a legal basis for doing so--specifically, because he failed to show any change in circumstances to support the motion. The trial court did not cite the authority on which it relied, but it is evident that the trial court's determination did not involve a claim or defense in a civil action. See MCR 2.114(F); MCL 600.2591(1) (providing for sanctions related to the prosecution or defense of a civil action); MCR 2.625(A)(2). Accordingly, it appears that the trial court ordered sanctions under MCR 2.114(E).

1. MCR 2.114(E)

Whenever an attorney or party signs a motion, that person's signature constitutes " certification" that he or she has " read the document" and, " to the best of his or her knowledge, information, and belief formed after reasonable inquiry, the document is well grounded in fact and is

Page 325

warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law," and that the motion was not made for " any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation." MCR 2.114(D). If a party brings a motion that has been signed in violation of MCR 2.114(D), the trial court must " impose upon the person who signed it, a represented party, or both, an appropriate sanction . . . ." MCR 2.114(E). The trial court may not assess punitive damages, but may order the person who signed it or a represented party to pay " the other party or parties the amount of the reasonable expenses incurred because of the filing . . . ." MCR 2.114(E). Because MCR 2.114(E) only requires the trial court to impose an appropriate sanction, which may include an order to pay reasonable attorney fees, the trial court has the discretion to tailor its sanction to the circumstances. [309 Mich.App. 566] See FMB-First Michigan Bank v Bailey, 232 Mich.App. 711, 726-727; 591 N.W.2d 676 (1998).

On appeal, Stephanie argues that the record evidence showed that Darin brought the motion at issue for an improper purpose. The evidence that he filed " repetitive and baseless" motions leading up to the motion to modify the parenting-time order, she maintains, is evidence from which the trial court " could conclude" that Darin filed the motion to harass or cause unnecessary delay or needlessly increase the costs of litigation in violation of MCR 2.114(D)(3). The trial court did not, however, find that Darin's motion was frivolous because he brought it for an improper purpose. Rather, it found that his motion was frivolous because there was " no evidence here that there's been any change in circumstances" since the entry of the last orders and, therefore, the motion was " without legal basis . . . ." This finding implicates MCR 2.114(D)(2) rather than MCR 2.114(D)(3). Therefore, we shall limit our review accordingly.[1]

In order to assess whether Darin's motion was " well grounded in fact" and " warranted by existing law" under MCR 2.114(D)(2), we must first address whether and how MCL 722.27(1) applies to the motion involved here.

2. PROPER CAUSE AND CHANGE OF CIRCUMSTANCES

Once a " custody dispute" comes before the trial court, it may take various actions " for the best interests of the child . . . ." MCL 722.27(1). The trial court may award custody to " 1 or more of the parties involved," [309 Mich.App. 567] " provide for payment of support for the child," and may provide for " reasonable parenting time of the child by the parties involved . . . by general or specific terms and conditions." MCL 722.27(1)(a) and (b). A trial court may also modify or amend " its previous judgments or orders" but only for " proper cause shown or because of change of circumstances . . . ." MCL 722.27(1)(c). The trial court may not modify or amend a previous judgment or order or issue a new order " so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child." Id.

The Legislature limited a trial court's ability to modify or amend its orders in a custody case in order to erect a barrier to the removal of children from established custodial environments and to minimize

Page 326

disruptive changes to custody arrangements. See Vodvarka v Grasmeyer, 259 Mich.App. 499, 509; 675 N.W.2d 847 (2003). Because the limitations were intended to serve as obstacles to revisiting judgments and orders, the Court in Vodvarka, in the context of an order affecting custody, determined that proper cause must be something more than " any appropriate ground for legal action" ; it must be understood to mean " one or more appropriate grounds that have or could have a significant effect on the child's life to the extent that a reevaluation of the child's custodial situation should be undertaken." Id. at 511 (quotation marks omitted). Consistent with the obligation to avoid changes that might disrupt the child's custodial environment, the Court in Vodvarka further held that a change in circumstances cannot refer to a child's normal life changes; rather, a change in circumstances means that, " since the entry of the last custody order, the conditions surrounding custody of the child, which [309 Mich.App. 568] have or could have a significant effect on the child's well-being, have materially changed." Id. at 513.

Since the decision in Vodvarka, this Court has recognized that the definitions applied by that Court to " proper cause" and " change of circumstances" should not be applied to orders amending or modifying parenting time. Shade v Wright, 291 Mich.App. 17, 28; 805 N.W.2d 1 (2010). Vodvarka should not be so extended, the Court in Shade explained, because a change in parenting time did not implicate the same concerns as a change in custody:

The Vodvarka definitions of " proper cause" and " change of circumstances" are inapplicable to this case, in part, because the rationale for imposing more stringent constructions on the terms " proper cause" and " change of circumstances" with respect to custody determinations is far less applicable with respect to parenting time determinations. With respect to child custody disputes, " [t]he goal of MCL 722.27 is to minimize unwarranted and disruptive changes of custody orders, except under the most compelling circumstances." Corporan v Henton, 282 Mich.App. 599, 603, 766 N.W.2d 903 (2009). " Providing a stable environment for children that is free of unwarranted custody changes . . . is a paramount purpose of the Child Custody Act . . . ." Vodvarka, 259 Mich.App. at 511. Therefore, in the context of a child custody dispute, the purpose of the proper cause or change of circumstances requirement is " to 'erect a barrier against removal of a child from an established custodial environment and to minimize unwarranted and disruptive changes of custody orders.'" Id. at 509, quoting Heid v AAASulewski (After Remand), 209 Mich.App. 587, 593-594, 532 N.W.2d 205 (1995).
Such concerns do not exist, however, when a modification of parenting time does not alter the established custodial environment because determinations regarding child custody and parenting time serve different purposes. Whereas the primary concern in child custody determinations [309 Mich.App. 569] is the stability of the child's environment and avoidance of unwarranted and disruptive custody changes, the focus of parenting time is to foster a strong relationship between the child and the child's parents. See MCL 722.27a. [ Shade, 291 Mich.App. at 28-29 (alteration in original).]

The Court in Shade declined to precisely define what proper cause or change of circumstances would be sufficient to warrant a change in parenting time, but nevertheless determined that the types of normal life-changes experienced by the child

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in its case were sufficient to warrant modification of the parenting-time arrangements, even though those changes would be insufficient to establish grounds for a change in custody under the definitions applied in Vodvarka. Id . at 31.

The Legislature authorized trial courts in custody disputes to provide for reasonable parenting time " for the best interests of the child . . . ." MCL 722.27(1); see also MCL 722.27a(1) (" Parenting time shall be granted in accordance with the best interests of the child." ). The court may provide for parenting time through " general or specific terms" and may subject the parenting time to " conditions" when it is in the child's best interests. MCL 722.27(1)(b); see also MCL 722.27a(8) (stating that a parenting-time order may contain any reasonable terms or conditions that facilitate the orderly and meaningful exercise of parenting time). Consequently, the trial court had the authority to order Darin to attend AA meetings and participate in counseling as conditions on his exercise of parenting time, if the court determined that those restrictions were in the children's best interests.

After complying with the trial court's requirements for some time, Darin moved for the trial court to remove the conditions that it had imposed on his parenting [309 Mich.App. 570] time. See MCL 722.27(1)(b).[2] Before the trial court could grant Darin's request, he had to demonstrate that there was proper cause or a change of circumstances that warranted the requested relief. MCL 722.27(1)(c). But, as the Court in Shade aptly noted, what constitutes proper cause or a change of circumstances under MCL 722.27(1)(c) will vary depending on the nature of the requested amendment or modification. If the request involves a change that alters an established custodial environment, then the more stringent framework from Vodvarka will apply. Shade, 291 Mich.App. at 27. If, however, the request involves a change to the duration or frequency of parenting time, the less stringent standard discussed in Shade will apply. See id. at 29-31 (discussing the need for flexibility in parenting-time schedules because the child's needs will change with age and with the level of the child's involvement in activities). Here, the requested modification did not involve either a change in custody or a change in the duration or frequency of parenting time--it involved a request to remove a condition on the exercise of parenting time. Consequently, neither Shade nor Vodvarka is directly on point.

Because the imposition, revocation, or modification of a condition on the exercise of parenting time will generally not affect an established custodial environment or alter the frequency or duration of parenting time,[3] we are persuaded that a lesser, more flexible, understanding [309 Mich.App. 571] of " proper cause" or " change in circumstances" should apply to a request to modify or amend a condition on parenting time. As in Shade, it is evident that even normal changes to the lives of the parties affected by a parenting-time order may so

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alter the circumstances attending the initial imposition of a condition that a trial court would be justified in revisiting the propriety of the condition. Shade, 291 Mich.App. at 29-31. A condition that was in the child's best interests when the child was in elementary school might not be in the child's best interests after he or she reaches high school. Even ordinary changes in the parties' behavior, status, or living conditions might justify a trial court in finding that a previously imposed condition is no longer in the child's best interests. We conclude that " proper cause" should be construed according to its ordinary understanding when applied to a request to change a condition on parenting time; that is, a party establishes proper cause to revisit the condition if he or she demonstrates that there is an appropriate ground for taking legal action. See Vodvarka, 259 Mich.App. at 510-511 (recognizing that " proper cause" ordinarily means any appropriate ground for taking legal action, but declining to give the phrase its ordinary meaning when applied in the context of a request to alter an established custodial environment because that would not serve the purpose of erecting a barrier to unwarranted changes to custody). We hold, consistently with a trial court's authority to adopt, revise, or revoke a condition whenever it is in the best interests of the child to do so, see MCL 722.27(1); MCL 722.27a(1) and (8), that a party requesting a change to an existing condition on the exercise of parenting time must demonstrate proper cause or a change in circumstances that would justify a trial [309 Mich.App. 572] court's determination that the condition in its current form no longer serves the child's best interests. MCL 722.27(1)(c).

C. APPLYING THE LAW

In this case, Darin moved to amend the parenting-time order at issue by removing the conditions on his exercise of parenting time. Specifically, he argued that the requirements that he attend AA meetings and continue counseling with Ellens were no longer necessary. He supported his motion with a letter from Ellens and a report by Makedonsky. In his letter, Ellens opined that Darin had demonstrated sufficient progress in his ability to handle his frustration and stress that he no longer needed to attend regular counseling sessions. Makedonsky similarly reported that he subjected Darin to various tests and determined that there was no clinical reason justifying Darin's continued participation in AA meetings. Both Ellens and Makedonsky testified consistently with these submissions at the hearing on the motion to modify the parenting-time order. Nevertheless, the trial court found that Darin's motion to remove the conditions was frivolous because he did not attempt to show that there had been a change in circumstances since the inclusion of the conditions in the last order, which the court believed was required under MCL 722.27(1)(c).

On this record, we conclude the trial court clearly erred when it found that Darin's motion was submitted in violation of MCR 2.114(D)(2). Even assuming that Ellens's letter and Makedonsky's report did not establish a change in circumstances since the trial court had last considered whether it was in the children's best interests to include the conditions on the parenting-time order, those documents were sufficient to establish [309 Mich.App. 573] " proper cause" for the trial court to reconsider whether the conditions remained in the children's best interests. MCL 722.27(1)(c); MCL 722.27a(1). Ellens offered his opinion that the counseling sessions were no longer necessary to address the concerns that initially brought Darin to him. Likewise,

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Makedonsky offered his expert opinion that there was no clinical reason to require Darin to attend AA meetings. Although the trial court was free to reject the opinions and conclude that it was in the children's best interests to continue to impose those conditions, that alone did not warrant finding that the motion was frivolous. See Kitchen v Kitchen, 465 Mich. 654, 663; 641 N.W.2d 245 (2002) (" [M]erely because [a] Court concludes that a legal position asserted by a party should be rejected does not mean that the party was acting frivolously in advocating its position." ). A reasonable trial court would be justified in revisiting whether the conditions remained in the children's best interests on the basis of these expert opinions. Indeed, although it stated that it was not doing so for the reasons proffered by Darin in his motion, after the close of proofs, the trial court found on the whole record that it was appropriate to remove the conditions at issue. Consequently, it cannot be said that Darin's motion was not " well grounded in fact" and " warranted by existing law." MCR 2.114(D)(2).

The trial court clearly erred when it found that Darin's motion was frivolous under MCR 2.114(D)(2). Johnson Family Ltd Partnership, 281 Mich.App. at 387. Therefore, it erred when it ordered him to pay Stephanie's costs and reasonable attorney fees associated with the motion under MCR 2.114(E).

III. REMAND TO DIFFERENT JUDGE

Darin also argues on appeal that this Court should assign this case to a different judge on remand because [309 Mich.App. 574] it is evident from the record that the trial court harbored animosity against him and would likely be unable to put aside its view of him. We have carefully reviewed the record and have found no evidence that the trial court harbors a bias against Darin or that it would be unable to put aside previously expressed views or findings. See Bayati v Bayati, 264 Mich.App. 595, 602-603; 691 N.W.2d 812 (2004). Accordingly, we decline to assign this case to a different judge on remand.

IV. CONCLUSION

The trial court clearly erred when it found that Darin filed his motion to remove the conditions on his ability to exercise parenting time in violation of MCR 2.114(D)(2). The record shows that he properly supported his motion with documentary evidence and that the evidence established a proper cause for revisiting the conditions. See MCL 722.27(1)(c). Consequently, the trial court erred when it ordered Darin to pay the costs and attorney fees that Stephanie incurred to defend the motion as a sanction under MCR 2.114(E).

We reverse the trial court's decision to order sanctions, vacate the orders requiring Darin to pay costs and fees to Stephanie, and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.

CONCUR

William B. Murphy (In Part)

DISSENT

MURPHY, J. ( dissenting in part and concurring in part ).

I would affirm the trial court's order awarding attorney fees to plaintiff, Stephanie Kaeb, associated with the costs incurred in responding to the motion brought by defendant, Darin Kaeb, to modify the [309 Mich.App. 575] conditions placed on him relative to his exercise of parenting time. Accordingly, I respectfully disagree with the majority's holding on this issue. I do agree with the majority that, assuming the issue need be reached, there is no valid

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basis to remand the case to another trial judge.

I shall begin by making the assumption that the majority correctly states that, under MCL 722.27(1)(c), " a party requesting a change to an existing condition on the exercise of parenting time must demonstrate proper cause or a change in circumstances that would justify a trial court's determination that the condition in its current form no longer serves the child's best interests." Additionally, I agree with the majority's recitation of the factual history of this case, its reliance on MCR 2.114(D)(2) and (E), its discussion of the principles applicable to an analysis under MCR 2.114, and the majority's enunciation of the standards of review.

At the hearing on May 31, 2013, which was an evidentiary hearing and concerned multiple motions, defendant's continued attendance at AA meetings and counseling with Dr. Brent Ellens were two of the primary subjects of testimony in connection with whether defendant should be granted additional parenting time. Defendant argued that he had been faithfully going to counseling with Dr. Ellens and to AA meetings; therefore, his parenting time should be expanded. Although not to the full extent requested by defendant, the trial court indeed expanded his parenting time, conditioned on regular attendance at counseling sessions and at AA meetings. About three months later, at the conclusion of the hearing on defendant's motion to modify the conditions, the trial court ruled, in part, as follows:

[309 Mich.App. 576] [A]fter a hearing held on May 31 of this year, an order was entered, based on the Court's ruling on June 20, that said that Mr. Kaeb was required to continue his counseling with Doctor Ellens, and he was required to continue his attendance at AA.
It appears that within days of that order being entered, Mr. Kaeb requested and obtained from Doctor Ellens, a letter stating that he apparently doesn't need any further counseling, and, in fact, hasn't had any since the entry of that order. The -- the referral to Doctor [Makedonsky] was apparently for the purpose of establishing, at Mr. Kaeb's request, that he doesn't need AA counseling -- or doesn't need to attend AA. And there's a lot of testimony here about the differences between an alcohol abuser and an alcoholic. And frankly, the differences between the two appear[] to the Court to be irrelevant as it pertains to the safety of the children. Someone who's abusing alcohol and drives them -- with them in their car is just as much at risk of -- of injuring or killing the children as an alcoholic who drinks and gets in a car and drives the children. So frankly, the proper diagnosis of Mr. Kaeb's condition isn't all that helpful to the Court.
What's helpful to the Court is an analysis of his behavior and how we're going to prevent that kind of behavior in the future. Mr. Kaeb is insistent on deciding for himself all of these issues, as is evidenced by the fact that he's never presented any proof of attendance at AA, in spite of being ordered to attend, and he requested and obtained a discharge letter from his counselor just days after being ordered to continue counseling.
The Court, in considering a motion to modify a parenting time order, which is what this request is, is required to determine whether there's been a material change in circumstances or other proper cause sufficient to justify a modification . . . . There is no evidence here that there's been any change in circumstances since May 31, and certainly since June 20 when the current order was

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entered, and no argument that there's been any change in circumstances, only an argument that the Court was incorrect in ordering . . . continued counseling and AA [309 Mich.App. 577] attendance in the first place. So the . . . motion appears to be without legal basis, and therefore, frivolous. I'm going to order that Mr. Kaeb pay all of plaintiff's attorney's fees in responding to this motion and attending this hearing.

It is clear from the record that following the evidentiary hearing on May 31, 2013, defendant almost immediately defied the court's ruling regarding required attendance at counseling and AA meetings and instead sought support for his view that he was not in need of counseling or help through AA, even though defendant's parenting time had just been expanded because of prior and expected continued attendance at counseling and AA meetings. If defendant was not in need of counseling and AA at that point, he certainly was not in need of counseling and AA shortly beforehand on May 31st when the hearing was conducted. There was no miraculous change of circumstances, and defendant failed to present the evidence at the May 31st hearing upon which he later relied, even though this evidence clearly could have been procured and submitted on May 31st. When the trial court spoke of defendant's motion being frivolous and absent a legal basis, the court was recognizing that nothing had changed since May 31, 2013, and that defendant was essentially seeking reconsideration of the decision to continue parenting-time conditions. I conclude that there was no change of circumstances, MCL 722.27(1)(c), only a change in defendant's litigation strategy once he obtained expanded parenting time predicated on continued counseling and AA attendance. This was not a situation in which the conditions no longer served the children's best interests--as if there were sudden developments after May 31, 2013--because of previously unavailable evidence showing that defendant's alcoholism or alcohol abuse had come under control to the extent that counseling and AA were no longer necessary. Under these circumstances, I am [309 Mich.App. 578] also of the view that there was no " proper cause" to revisit the parenting-time conditions. MCL 722.27(1)(c) (emphasis added).

Accordingly, defendant's motion to modify the conditions was not truly " well grounded in fact," nor " warranted by existing law," MCR 2.114(D)(2); therefore, the imposition of attorney-fee sanctions under MCR 2.114(E) was appropriate. The trial court did not clearly err by finding defendant's motion frivolous. See Kitchen v Kitchen, 465 Mich. 654, 661; 641 N.W.2d 245 (2002). I also note that the trial court's decision to dispense with the conditions in no way negated or undermined its determination that defendant's motion was frivolous; rather, the court simply decided on its own to take a different approach given defendant's reticence about complying with the conditions. It is my position that we should affirm the trial court's award of attorney fees to plaintiff. Finally, I agree with the majority regarding defendant's request to have the case assigned to a different trial judge; reassignment is not warranted.

I respectfully dissent in part and concur in part.


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