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).
[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,
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
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 ...