Nathan M Brown v. Lynn Ann Brown ( 2014 )

STATE OF MICHIGAN
COURT OF APPEALS
NATHAN M. BROWN, UNPUBLISHED
December 30, 2014
Plaintiff-Appellant,
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 Brown v Brown, unpublished opinion per curiam of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.
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(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
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