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STATE OF MICHIGAN 

COURT OF APPEALS 

NATHAN M. BROWN, 

 Plaintiff-Appellant, 

UNPUBLISHED 

December 30, 2014 

v No. 317717 

Clinton Circuit Court 

Family Division 

LYNN ANN BROWN a/k/a LYNETTE BROWN, LC No. 09-021478-DM 

 Defendant-Appellee. 

Before: M.J. KELLY, P.J., and CAVANAGH and METER, JJ. 

PER CURIAM. 

 Plaintiff appeals as of right from an order finding his motion for specific parenting time 

frivolous. Defendant was awarded attorney fees as a sanction. We affirm. 

 The parties were before this Court in 2013 on plaintiff’s appeal of the trial court’s April 

11, 2012, order limiting him to four hours of supervised parenting time a week and indicating 

that defendant had shown proper cause to warrant further evidentiary hearings regarding whether 

to terminate plaintiff’s joint legal custody. Brown v Brown, unpublished opinion per curiam of 

the Court of Appeals, issued January 3, 2013 (Docket No. 309890). The trial court had based its 

decision, in part, on evidence adduced at hearings on plaintiff’s objections to a personal 

protection order (PPO) plaintiff had secured against him. The PPO had been issued in February 

2012 (and, evidently, it was later modified to accommodate the parenting time provisions of the 

April 11, 2012, order). We concluded with regard to the issue of supervised parenting time that 

the trial court committed clear legal error when it limited plaintiff’s parenting time. Id. at 7. The 

court should have determined, this Court explained, whether proper cause or changed 

circumstances existed to modify the parenting time afforded plaintiff in the judgment of divorce, 

which was the governing custody order. Id. Even if the court had found proper cause or 

changed circumstances, we continued, it should next have determined whether modification of 

parenting time would have altered an established custodial environment and, if so, whether such 

alteration would have been in the best interests of the children. Id. at 7-8. Again, the court failed 

to do so. Id. For these reasons, the Court vacated the April 11, 2012, order and remanded the 

matter for further proceedings. Id. at 8. 

 After we issued our opinion in Brown, plaintiff tried to schedule parenting time, but was 

told that the PPO was still in effect and that its no-contact provision barred his exercise of 
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parenting time. At a post-remand status conference held in March 2013, plaintiff raised the 

assertion that the modified PPO permitted him supervised parenting time. Defendant contested 

that idea, implying that, after this Court vacated the April 11 order, custody and parenting time 

returned to what it was before the April 11 order—namely, custody and parenting time were 

governed by the parties’ judgment of divorce, as restricted by the no-contact provisions of the 

original PPO pursuant to MCR 3.706(C)(3) (stating that a PPO takes precedence over a custody 

order). Maintaining that the modified PPO had not been affected by the Brown decision and that 

it entitled him to supervised parenting time, plaintiff continued to try to schedule visits with his 

children. Having no success, plaintiff filed the motion for specific parenting time that gave rise 

to the instant appeal. 

Two weeks after plaintiff filed his motion, the trial court issued its opinion and order after 

remand. With regard to the issue of parenting time, the trial court concluded: 

[I]in light of the fact that the parenting provisions of the Judgment of Divorce 

have been superseded by the PPO, further analysis of whether any modification 

would alter the custodial environment would be futile at this point. Rather, the 

appropriate remedy would be for the parties to be referred back to the Friend of 

the Court [FOC] for further proceedings regarding alteration of the custodial 

environment, so that once the PPO expires on December 31, 2013, or if Father is 

successful in his application for leave to appeal, then a recommendation can be 

made regarding the expansion of Father’s parenting time rights, and whether a 

requirement that Father have supervised parenting time would disrupt the 

custodial environment, and if such a restriction is in the best interests of the minor 

children. 

Accordingly, the court instructed the FOC to conduct an evidentiary hearing on whether 

the parties had a shared custodial environment with regard to parenting time and “whether a 

parenting time schedule that differs from the one set forth in the parties’ Judgment of Divorce 

should be implemented upon expiration or vacation of the PPO now in effect.” 

At the August 13, 2013, hearing on plaintiff’s motion for specific parenting time, the trial 

court concluded that the PPO’s modification had been tied to the grant of parenting time in the 

court’s April 11, 2012, order. When that order was vacated, eliminating the parenting time the 

PPO accommodated, it eliminated the modification. The trial court maintained that its 

statements in earlier post-remand proceedings made it clear that the parties were moving forward 

within the confines of the PPO and through discussions with the FOC referee regarding a 

parenting time schedule that would take effect after expiration of the PPO. The trial court denied 

plaintiff’s motion, stating that “very clearly where the provision for supervised parenting time 

was gutted by the Court of Appeals, at the insistence of Plaintiff, I do find . . . it rises to the level 

of either a frivolous or filing in bad faith.” Defendant submitted a bill of costs for $1,000, which 

the court granted, and plaintiff filed this appeal. 

 The issue presented to this Court is whether the trial court erred when it concluded that 

plaintiff’s motion was frivolous and when it therefore awarded defendant attorney fees as 

sanctions. We review “a trial court’s finding regarding whether an action is frivolous for clear 

legal error.” Jerico Const, Inc v Quadrants, Inc, 257 Mich App 22, 35; 666 NW2d 310, 318 
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(2003). “When a court incorrectly chooses, interprets, or applies the law, it commits legal error 

that the appellate court is bound to correct.” Fletcher v Fletcher, 447 Mich 871, 881; 526 NW2d 

889 (1994). 

 MCL 600.2591 provides, in part: 

 (1) Upon motion of any party, if a court finds that a civil action or defense 

to a civil action was frivolous, the court that conducts the civil action shall award 

to the prevailing party the costs and fees incurred by that party in connection with 

the civil action by assessing the costs and fees against the nonprevailing party and 

their attorney. 

* * * 

 (3) As used in this section: 

 (a) “Frivolous” means that at least 1 of the following conditions is met: 

 (i) The party’s primary purpose in initiating the action or asserting the 

defense was to harass, embarrass, or injure the prevailing party. 

 (ii) The party had no reasonable basis to believe that the facts underlying 

that party’s legal position were in fact true. 

 (iii) The party’s legal position was devoid of arguable legal merit. 

 Despite the acrimonious nature of the parties’ post-judgment proceedings, there is no 

evidence to indicate that plaintiff’s primary purpose in filing his motion for specific parenting 

time was other than to see his children. Furthermore, the procedural facts on which plaintiff 

based his motion were true. 

 Plaintiff argues that his motion has legal merit for two reasons: First, because it was 

reasonable to believe that he was entitled to supervised parenting time, and second, because 

MCL 722.27a(7) provides that “[p]arenting time shall be granted in specific terms if requested 

by either party at any time.” Plaintiff argues that it was not unreasonable for him to believe that 

he had parenting time based on the modified PPO and the fact that nothing in the post-remand 

proceedings clearly indicated that he did not. 

 The essence of plaintiff’s argument regarding the PPO is that, when this Court vacated 

the April 11 parenting time order, the judgment of divorce once again became the governing 

order. According to plaintiff, the judgment of divorce was restricted by the modified PPO, 

which was not affected by the Court’s opinion, and the modified PPO allowed plaintiff 

supervised parenting time twice a week for two hours. Therefore, plaintiff argues, under the 

terms of the modified PPO, plaintiff was entitled to supervised parenting time. 

 Essentially, plaintiff is arguing for the parenting-time restrictions imposed by the very 

order this Court vacated, because he understands the alternative to be no parenting time until 

expiration of the PPO. Weighing against plaintiff’s position is that, under the court rules, a PPO 
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can restrict the exercise of parenting time, MCR 3.706(C)(3), or it can accommodate the exercise 

of parenting time, MCR 3.706(C)(2), but it is not an independent source of parenting time.1

 The 

original PPO restricted parenting time, and after the vacation of the April 11 order, it appears that 

there was no proper source for weekly parenting time as argued for by plaintiff. Importantly, the 

PPO is not part of the record, and plaintiff does not quote directly from its text in support of his 

position. For this reason, it cannot even be determined whether plaintiff’s interpretation of the 

PPO is reasonable, or belied by the text of the document.2 We find no basis for appellate relief.3

 Plaintiff’s argument regarding MCL 722.27a(7) is also without merit. This statute 

applies in circumstances where a party granted unspecified parenting time wants a more definite 

statement of his or her parenting time rights. See Pickering v Pickering, 268 Mich App 1, 4-7; 

706 NW2d 835 (2005) (indicating that the court was required to grant a specific term of 

parenting time at the request of a father already granted “reasonable and liberal” parenting time). 

If plaintiff is not entitled to parenting time, the statute is inapplicable. If it were otherwise, a 

party could circumvent a PPO prohibiting contact with his or her children simply by requesting 

specific parenting time under MCL 722.27a. 

 Finally, plaintiff states that the trial court wrote a note on the original PPO adding that 

plaintiff was barred from contact with his children. Plaintiff argues that, by so doing, the trial 

court essentially added the children as party petitioners to the PPO. Plaintiff argues that the 

April 11 amendment of the PPO to comport with the order in the domestic case was required 

because the handwritten phrase “and his children” violated that provision in the PPO statute that 

prohibits issuance of a PPO if “[t]he petitioner is the unemancipated minor child of the 

respondent.” MCL 600.2950(27)(b). 

 Plaintiff’s position on this issue is without merit. Not only does plaintiff cite no authority 

to support his proposition that the children were effectively added as petitioners by the trial 

 

1

 An award of parenting time is governed by MCL 722.27a, which requires, among other things 

that the court grant parenting time “in accordance with the best interests of the child” and 

provides a number of factors the court may consider when determining the “frequency, duration, 

and type of parenting time to be granted[.]” MCL 722.27a(1) and (6). Plaintiff’s attorney noted 

at the status conference that the best-interests factors are not part of the elements of a PPO 

proceeding. 

2

 Indeed, we have no basis on which to discredit the trial court’s finding that any parenting time 

mentioned in the modified PPO was tied to the April 11 order that was subsequently vacated. 

3

 Plaintiff refers to a statement by his attorney at the end of the April 13, 2013, hearing that an 

anticipated order regarding the parties’ mandated use of “Our Family Wizard” would “have to be 

in the PPO file, because the amended order allows supervised parenting time and no other 

control.” This was an isolated statement made in the winding-up moments of a hearing in 

response to the court’s question regarding whether the “Our Family Wizard” order should be 

made part of the PPO file. Under the circumstances, the fact that no one objected to this 

statement does not support plaintiff’s position. 
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court’s handwritten notation, but MCL 600.2950 clearly envisions that one party may enjoin 

another from contacting his or her minor children in certain situations. See MCL 600.2950(1)(d) 

(stating that a respondent may be enjoined from “[r]emoving minor children from the individual 

having legal custody of the children, except as otherwise authorized by a custody or parenting 

time order issued by a court of competent jurisdiction”). In addition, MCR 3.706 recognizes that 

a court can enjoin a parent from contacting his or her children, even when a parenting time order 

is in place, “if the situation is such that the safety of petitioner and minor children would be 

compromised” if accommodations were made for parenting time. MCR 3.706(C)(2). 

 Affirmed. 

/s/ Michael J. Kelly 

/s/ Mark J. Cavanagh 

/s/ Patrick M. Meter