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STATE OF MICHIGAN 

COURT OF APPEALS 

STEPHANIE KATHLEEN KAEB, 

 Plaintiff-Appellee, 

FOR PUBLICATION 

March 12, 2015 

v No. 319574 

Ottawa Circuit Court 

DARIN LEE KAEB, LC No. 09-066151-DM 

 Defendant-Appellant. 

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

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

 I would affirm the trial court’s order awarding attorney fees to plaintiff associated with 

the costs incurred in responding to defendant’s motion to modify the 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 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. 

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: 

 [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 
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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 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 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 
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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, based on 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 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 

in finding defendant’s motion frivolous. See Kitchen v Kitchen, 465 Mich 654, 661; 641 NW2d 

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. 

 I respectfully dissent in part and concur in part. 

 

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/s/ William B. Murphy