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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. K ELLY , P.J., and M URPHY and H OEKSTRA , JJ.

M URPHY

, 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 modif y the conditions placed on him relative to his exercise of parenting time. Accordingly, I res pectfully 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 corre ctly states that, under MCL 722.27(1)(c), “a party requesting a change to an existing condi tion 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 c ondition in its current form no longer serves the child’s best interests.” Additionally, I agree with the majority’s recitati on of the factual history of this case, its reliance on MCR 2.114(D)(2) a nd (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 heari ng and concerned multiple motions, defendant’s continued attendance at AA meetin gs and counseling with Dr. Ellens were two of the primary subjects of testimony in connect ion 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, hi s parenting time should be expanded. Although not to the full extent requested by defenda nt, the trial court indeed expanded his parenting time, conditioned on regular attendance at counseling sessions and at AA meetings. About three months lat er, at the conclusion of the h earing on defendant’s motion to modify the conditions, the tria l court ruled, in part, as follo ws:

[A]fter a hearing held on May 31 of this year, an order was en tered based on the Court’s ruling on June 20, that said that Mr. Kaeb was r equired to continue-2- his counseling with Doctor Ellens, and he was required to conti nue his attendance

at AA.

It appears that within days of t hat order being entered, Mr. K aeb requested and obtained from Doctor Ellens, a letter stating that he appar ently doesn’t need any further counseling, and in fact hasn’t had any since the en try 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 co unseling – or
doesn’t need to attend AA. And th ere’s a lot of testimony here about the
differences between an alcohol abuser and an alcoholic. And fra nkly, the differences between the two appear[] to the Court to be irrelev ant as it pertains to the safety of the children. Some one who’s abusing alcohol and d rives them – with them in their car is just as much at risk of – of injuring or k illing the children as an alcoholic who drinks and gets i n a car and drives the childr en. So frankly, the proper diagnosis of Mr. Kaeb’s c ondition 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 th e fact that he’s never presented any proof of attendance at AA, in spite of being orde red 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 sufficie nt to justify a

modification . . . . There is no evidence here that there’s bee n any change in circumstances since May 31, and certainly since June 20 when th e current order was entered, and no argument tha t there’s been any change in ci rcumstances, only an argument that the Court was i ncorrect in orde ring . . . cont inued counseling and AA attendance in the first place. So the . . . motion appears t o be without legal basis, and therefore, frivolous . I’m going to order that Mr. Ka eb pay all of plaintiff’s attorney’s fees in responding to this motion and at tending this hearing.

It is clear from the record that following the evidentiary hea ring on May 31, 2013, defendant almost immediately defied the court’s ruling regardin g required attendance at counseling and AA meetings and instead sought support for his v iew that he was not in need of counseling or help through AA, e ven though defendant’s parentin g time had just been expanded because of prior and expected continued attendance at counselin g and AA meetings. If defendant was not in need of counseling and AA at that point, h e certainly was not in need of counseling and AA shortly beforeh and on May 31st when the heari ng 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 evide nce 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 t hat nothing had changed since May 31, 2013, and that defendant was e ssentially seeki ng reconsider ation of the decision to continue parenting time conditions. I conclude that there was no change of circumstances, MCL-3- 722.27(1)(c), only a change in defendant’s litigation strategy once he obtained expanded parenting time predicated on continued counseling and AA attend ance. 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 unavailabl e 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 n ot truly “well grounded in fact,” nor “warranted by ex isting law,” MCR 2.114(D)(2); the refore, 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 dis pense 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 de fendant’s reticence about complying with the conditions. It is my position that we shoul d affirm the trial court’s award of attorney fees to plaintiff. Fin ally, 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