Kaeb v. Kaeb, Docket No. 319574.

• Decision Date: 12 March 2015
• Docket Number: Docket No. 319574.
• Citation: 873 N.W.2d 319,309 Mich.App. 556
• Parties: KAEB v. KAEB.
• Court: Court of Appeal of Michigan — District of US

309 Mich.App. 556

873 N.W.2d 319

KAEB

v.KAEB.

Docket No. 319574.

Court of Appeals of Michigan.

Submitted March 4, 2015, at Grand Rapids.

Decided March 12, 2015, at 9:10 a.m.

Scholten Fant, Holland (by Douglas J. Rooks ) for Stephanie Kaeb.

Bregman & Welch, Grand Haven (by Judy E. Bregman ) for Darin Kaeb.

Before: M.J. KELLY, P.J., and MURPHY and HOEKSTRA, JJ.

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.

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 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 [who's] 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 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 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.

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 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.

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...