Michigan Court of Appeals Reverses Attorney Fees Award Under MCR 2.114

On March 12th, 2015, the Michigan Court of Appeals reversed an award of attorney fees in a family court case involving disputes over parenting time. The trial court erred in finding that a father's motion to amend the terms of the court's parenting time order was frivolous under MCR 2.114.

In Kaeb v Kaeb, Docket No. 319574, the Michigan Court of Appeals addressed the issue of whether the trial court erred in ordering a father to pay the mother's attorney fees for having to defend what the trial court determined was a frivolous motion to amend its parenting time order.

The Court first recited the facts of the case.

In July 2012, Darin Kaeb 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 Kaeb to have unsupervised parenting time on specified days and providing that he must “continue with 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 Kaeb both testified at the hearing and described the circumstances surrounding their current parenting time schedule. Darin Kaeb also testified that he was complying with the court’s orders to remain sober, attend AA, and continue with counselling.

At the conclusion of the hearing, the trial court found that the evidence showed that Darin Kaeb 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 Kaeb “to continue counselling with Dr. Ellens, and to attend AA regularly” as conditions on his exercise of parenting time, which it expanded. Darin Kaeb’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 Kaeb must “maintain sobriety, shall continue to counsel with Dr. Brent Ellens, [and] shall continue to attend AA regularly.”

In August 2013, Darin Kaeb 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 interviewed Darin Kaeb and performed psychological testing on him. He opined that Darin Kaeb was not suffering from any mental illness. He also stated that Darin Kaeb 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 Kaeb to continue with AA meetings: “It is the professional opinion of this examiner that his past use of alcohol was caused by marital conflicts and the divorce process at the time.” He further opined that Darin Kaeb was “mentally and emotionally stable,” did not pose “any risk of violence,” and exhibited “adequate parenting skills.”

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

Stephanie Kaeb argued in response that there were no grounds for amending the order because Darin Kaeb 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 counselled Darin Kaeb during the period of his court ordered group counselling and later during private sessions. He said he sent Kaeb a letter discharging him from counselling in June 2013. Ellens admitted on cross-examination that he sent the letter at Darin Kaeb’s request.

Makedonsky also testified concerning his evaluation of Darin Kaeb, 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 he was cooperating with the testing. Makedonsky agreed that Darin Kaeb 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 Kaeb’s parenting time. The court expressed concern that Darin Kaeb insisted on deciding for himself whether he should attend AA meetings and counselling—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 counselling 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 Kaeb to pay Stephanie Kaeb’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 Kaeb was plainly determined not to participate and would not benefit from them.

The trial court entered an order removing the requirement that Darin Kaeb attend AA and counselling in November 2013. In that same month, the trial court ordered Darin Kaeb to pay $2,227.50 in costs and attorney fees to Stephanie Kaeb. In December 2013, the trial court amended the order to require Darin Kaeb to pay $2,090.00 in costs and attorney fees.

Darin Kaeb now appeals in this Court.

The Court then addressed whether it was error for the trial court to order the father to pay attorney fees to the mother on the basis that the father's motion to modify parenting time was frivolous.

In this case, Darin Kaeb 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 to counsel 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 Kaeb had demonstrated sufficient progress in his ability to handle his frustration and stress that he no longer needed to attend regular counselling sessions. Makedonsky similarly reported that he subjected Darin Kaeb to various tests and determined that there was no clinical reason to justify Darin Kaeb’s continued participation in AA meetings. Both Ellens and Makedonsky testified consistent with these submissions at the hearing on the motion to modify the parenting time order. Nevertheless, the trial court found that Darin Kaeb’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, as required under MCL 722.27(1)(c).

On this record, we conclude the trial court clearly erred when it found that Darin Kaeb’s motion was submitted in violation of MCR 2.114(D)(2). Even assuming that Ellens’ letter and Makedonsky’s report did not establish a change in circumstances since the trial court 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 “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 counselling sessions were no longer necessary to address the concerns that initially brought Darin Kaeb to him. Likewise, Makedonsky offered his expert opinion that there was no clinical reason to require Darin Kaeb 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 NW2d 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 Kaeb 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 Kaeb’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 Kaeb’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 Kaeb’s costs and reasonable attorney fees associated with the motion under MCR 2.114(E).