Robin E Silas v. Evelyn a McKenney ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
ROBIN E. SILAS, UNPUBLISHED
May 25, 2023
Plaintiff/Counterdefendant-Appellant,
v Nos. 359472; 362867
Macomb Circuit Court
EVELYN A. MCKENNEY, LC No. 2012-004854-DM
Defendant/Counterplaintiff-Appellee,
and
JODI DEBRECHT SWITALSKI,
Appellee.
Before: LETICA, P.J., and BORRELLO and RIORDAN, JJ.
PER CURIAM.
In Docket No. 359472, plaintiff Robin Silas appeals as of right the trial court’s
November 17, 2021 order requiring him to pay one-half of appellee Jodi Switalski’s lawyer-
guardian ad litem fees in this postjudgment custody dispute. In Docket No. 362867, plaintiff
appeals as of right the trial court’s August 16, 2022 order requiring him to pay $1,500 to Switalski
and $1,000 to defendant Evelyn A. McKenney as a sanction for filing a frivolous postjudgment
motion that sought, among other relief, to enforce plaintiff’s parenting time and to remove
Switalski as the children’s lawyer-guardian ad litem. For the reasons set forth in this opinion, we
affirm in Docket No. 359472, but reverse the portion of the trial court’s August 16, 2022 order
requiring plaintiff to pay Switalski’s and defendant’s attorney fees in Docket No. 362867.
I. BACKGROUND
The parties divorced in 2013. They have two minor children. Pursuant to a consent order,
plaintiff was granted sole legal and physical custody of the parties’ children. Plaintiff remarried
in 2013. Defendant subsequently accused the children’s stepmother of manipulating and
emotionally abusing the children, isolating them, falsely reporting that they have serious mental
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illnesses, and forcing them to receive alternative medical treatments. In 2018, the parties entered
into a consent order granting them joint legal and physical custody of the children.
In 2020, defendant moved to change custody and requested sole physical and legal custody
of the children. She alleged that the stepmother was harming the children by “diagnosing” them
with mental disorders that were not confirmed by any qualified practitioner. Pursuant to a
stipulated order entered on December 17, 2020, the trial court appointed Switalski as guardian ad
litem for the children. Although the order referred to Switalski as a “guardian ad litem” (GAL), it
also provided that Switalski would have the duties and powers of a lawyer-guardian ad litem
(LGAL) as defined in MCL 712A.17d. The order further provided that “[t]he GAL’s fees are
$300.00 per hour and shall be equally shared by the parties ($150.00/hour).” Additionally, any
objection to the GAL’s billing invoices were required to be brought to the GAL’s attention within
seven days of the billing date, “otherwise the billing shall be deemed agreed to.” Plaintiff
stipulated to the entry of this order.
After conducting an investigation, Switalski filed an ex parte emergency motion to award
defendant sole legal and physical custody of the children. Switalski alleged that the stepmother’s
“pathological” behavior had harmed the children. Switalski believed that the stepmother’s habit
of diagnosing the children with mental and emotional conditions indicated that she suffered from
a factitious disorder known as Munchausen syndrome by proxy.
Plaintiff opposed the petition, but in September 2021 the parties agreed to entry of a consent
order awarding them joint legal custody of the children, but awarding sole physical custody to
defendant. Plaintiff’s visitation would be supervised by Dr. Ross Beckley in a therapeutic setting.
Switalski subsequently moved for a show-cause order to require plaintiff to pay her fees. Although
plaintiff had not previously objected to any of Switalski’s billing invoices, he opposed Switalski’s
motion and argued that Switalski’s requested fees were excessive in part because she had
overstepped the bounds of her duties as a GAL. Following a hearing, the trial court determined
that Switalski had been appointed as an LGAL and ordered plaintiff to pay his one-half share of
Switalski’s fees. Plaintiff now appeals that order in Docket No. 359472.
In October 2021, Dr. Beckley temporarily discontinued the therapeutic sessions because
the sessions had become hostile. In June 2022, plaintiff moved to “enforce” the September 2021
consent custody order by reinstating his visitation sessions. He also requested new psychological
evaluations of the children by a neutral practitioner and requested Switalski’s removal as LGAL.
In accordance with a referee’s recommendation, the trial court denied plaintiff’s motion and
ordered plaintiff to pay Switalski’s and defendant’s attorney fees as a sanction for filing a frivolous
motion. Plaintiff challenges the trial court’s imposition of sanctions in Docket No. 362867.
II. DOCKET NO. 359472
Plaintiff argues that Switalski was never duly appointed as an officer of the court because
the appointment order did not clearly specify whether she was appointed as a GAL or an LGAL,
and accordingly, all of her requested fees are unreasonable, thereby relieving him of liability for
any of her fees. Although plaintiff challenged the reasonableness of some of Switalski’s fees in
the trial court, he never argued that any ambiguity regarding Switalski’s status as a GAL or an
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LGAL invalidated all of her requested fees or his obligation to pay any of her fees. Therefore, this
issue is unpreserved.
To the extent that this issue involves the interpretation of a stipulated order, such an order
is treated as a contract between the parties, subject to principles of contract interpretation. Andrusz
v Andrusz, 320 Mich App 445, 453; 903 NW2d 636 (2017). Issues involving the interpretation of
a contract are reviewed de novo as a question of law. Innovation Ventures v Liquid Mfg, 499 Mich
491, 507; 885 NW2d 861 (2016). To the extent that this issue also involves the application of
statutes and court rules, such issues are reviewed de novo as questions of law. Safdar v Aziz, 501
Mich 213, 217; 912 NW2d 511 (2018). “Review of an unpreserved error is limited to determining
whether a plain error occurred that affected substantial rights.” Rivette v Rose-Molina, 278 Mich
App 327, 328; 750 NW2d 603 (2008). “To avoid forfeiture under the plain-error rule, three
requirements must be met: (1) an error must have occurred; (2) the error was plain, i.e., clear or
obvious, and (3) the plain error affected substantial rights.” Id. at 328-329 (quotation marks and
citation omitted).
Plaintiff’s obligation to pay Switalski’s fees is expressly addressed in the December 17,
2020 stipulated order. Further, regarding the nature of Switalski’s appointment, the order cites
MCL 722.27(1)(d)(3)1 as authority for Switalski’s appointment, but it also states that “[t]he GAL’s
powers and duties are those defined by MCL 712A.17d,” which specifies the powers and duties of
an LGAL. To the extent that the order is internally inconsistent, however, plaintiff stipulated to
its entry, thereby consenting to Switalski’s appointment and to his obligation to pay one-half of
Switalski’s fees, at the agreed rate of $300 an hour.
“A consent judgment is in the nature of a contract, and is to be construed and applied as
such.” Laffin v Laffin, 280 Mich App 513, 517; 760 NW2d 738 (2008). “If no reasonable person
could dispute the meaning of ordinary and plain contract language, the Court must accept and
enforce contractual language as written, unless the contract is contrary to law or public policy.”
Id. “In general, consent judgments are final and binding upon the court and the parties, and cannot
be modified absent fraud, mistake, or unconscionable advantage.” Id. To the extent that the
stipulated order was ambiguous regarding the nature of Switalski’s appointment, it was not
ambiguous as to the payment of her fees. The order clearly provides that her fee would be $300
an hour, and that her fees would be equally shared by the parties. Although we agree that there
are differences between a GAL and an LGAL, and that each serves distinct roles, there is also
substantial overlap in their roles. See Farris v McKaig, 324 Mich App 349, 358; 920 NW2d 377(2018). In any event, the distinction is immaterial to plaintiff’s agreement to pay Switalski’s fees
at the stipulated rate pursuant to an order that also specified that Switalski would have all the
powers and duties of an LGAL. Furthermore, in addition to specifying that Switalski’s fees would
be equally shared by the parties, and specifying that Switalski would have the powers and duties
of an LGAL, the stipulated order further provided:
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MCL 722.27(1)(d) authorizes a court to use a guardian ad litem in a child custody dispute.
However, that subsection is not further divided, so it is apparent that the citation to “MCL
722.27(1)(d)(3)” is erroneous.
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Any objection to the GAL's billing must be brought to her attention, in
writing, within seven (7) days of the billing date, otherwise the billing shall be
deemed agreed to.
Switalski presented evidence that she submitted invoices in April, June, and September 2021, and
plaintiff did not timely object to these invoices. To the extent that plaintiff believed that Switalski
was improperly charging for LGAL services, it was incumbent upon him to timely object to those
invoices and identify any services he believed were unauthorized. Plaintiff having stipulated to
bringing forth any objection to Switalski’s billings within a timely manner as prescribed by the
contract, is bound by the contract. Because plaintiff stipulated to the agreement and failed to bring
his objections within a timely manner as outlined in the stipulated contract, we affirm the trial
court’s November 17, 2021 order requiring plaintiff to pay his one-half share of Switalski’s fees.
III. DOCKET NO. 362867
In Docket No. 362867, plaintiff argues that the trial court abused its discretion by awarding
Switalski and defendant attorney fees as a sanction for having to respond to plaintiff’s
postjudgment motion to enforce the September 2021 consent order.
This Court reviews a trial court’s decision whether to award or deny sanctions for a
frivolous filing for an abuse of discretion. Sprenger v Bickle, 307 Mich App 411, 422-423; 861
NW2d 52 (2014). A trial court abuses its discretion when its decision is outside the range of
principled outcomes. Hardrick v Auto Club Ins Ass’n, 294 Mich App 651, 659-660; 819 NW2d
28 (2011). “However, the court’s underlying factual findings, including a finding of frivolousness,
are reviewed for clear error.” Sprenger, 307 Mich App at 423. A finding is clearly erroneous
when the reviewing court is left with a definite and firm conviction that a mistake was made.
American Alternative Ins Co, Inc v York, 252 Mich App 76, 80; 650 NW2d 729 (2002), aff’d 470
Mich 28 (2004).
Preliminarily, plaintiff’s reliance on MCR 3.206(D)(2)(a) in support of his argument that
it was improper to award defendant and Switalski their attorney fees without determining their
inability to pay them, or determining his ability to pay, is misplaced. Neither the referee nor the
trial court relied on MCR 3.206(D) as authority for the award of attorney fees. Rather, attorney
fees were awarded as a sanction under MCR 1.109 and MCL 600.2591, because the trial court
agreed with Switalski that plaintiff’s postjudgment motion was frivolous.
MCR 1.109 provides, in pertinent part:
(5) Effect of Signature. The signature of a person filing a document,
whether or not represented by an attorney, constitutes a certification by the signer
that:
(a) he or she has read the document;
(b) to the best of his or her knowledge, information, and belief formed after
reasonable inquiry, the document is well grounded in fact and is warranted by
existing law or a good-faith argument for the extension, modification, or reversal
of existing law; and
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(c) the document is not interposed for any improper purpose, such as to
harass or to cause unnecessary delay or needless increase in the cost of litigation.
(6) Sanctions for Violation. If a document is signed in violation of this rule,
the court, on the motion of a party or on its own initiative, shall impose upon the
person who signed it, a represented party, or both, an appropriate sanction, which
may include an order to pay to the other party or parties the amount of the
reasonable expenses incurred because of the filing of the document, including
reasonable attorney fees. The court may not assess punitive damages.
(7) Sanctions for Frivolous Claims and Defenses. In addition to sanctions
under this rule, a party pleading a frivolous claim or defense is subject to costs as
provided in MCR 2.625(A)(2). The court may not assess punitive damages.
MCL 600.2591 provides, in pertinent 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.
(2) The amount of costs and fees awarded under this section shall include
all reasonable costs actually incurred by the prevailing party and any costs allowed
by law or by court rule, including court costs and reasonable attorney fees.
(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.
(b) “Prevailing party” means a party who wins on the entire record.
“The frivolous claims provisions impose an affirmative duty on each attorney to conduct a
reasonable inquiry into the factual and legal viability of a pleading before it is signed.” Attorney
General v Harkins, 257 Mich App 564, 576; 669 NW2d 296 (2003), overruled on other grounds
by Garg v Macomb Co Community Mental Health Servs, 472 Mich 263, 283-285; 696 NW2d 646(2005). “The reasonableness of the inquiry is determined by an objective standard.” Id. “The
focus is on the efforts taken to investigate a claim before filing suit, and a determination of
reasonable inquiry depends on the facts and circumstances of the case.” Id. “That the alleged facts
are later discovered to be untrue does not invalidate a prior reasonable inquiry.” Id.-5-
A review of the record in this matter leads us to conclude that plaintiff’s motion to enforce
the September 2021 consent order was not frivolous. The consent order stated, in pertinent part:
The Plaintiff shall continue receiving therapeutic parenting time with the
minor children, as directed by Dr. Beckley, and Dr. Beckley shall continue to be
the facilitator of the parenting time. Any changes/modifications to the Plaintiff’s
parenting time shall be as recommended by Dr. Beckley, or as agreed upon by the
parties. Either party may object to any recommendation(s) made by Beckley, and
the parties shall retain the right to file a Motion seeking relief from the Court, in
regard to the modification(s)/recommendation(s).
Plaintiff’s motion addressed a stalemate situation that arose when a recommended “cooling
off” period that began in October 2021 extended for several months with no resolution in sight.
Plaintiff’s request for new psychological evaluations by a neutral provider was not objectively
unreasonable given the lack of progress over the preceding six to eight months. His request to
remove Switalski as LGAL also was not inherently unreasonable considering that Dr. Beckley had
indicated that he could manage the therapeutic process without the assistance of an LGAL.
Additionally, the referee did not make specific findings in support of the recommendation to
impose sanctions, other than referencing Switalski’s statement that it took her 3.65 hours to read
plaintiff’s motion, a seemingly bloated amount of time to simply read a motion.
Switalski argues that plaintiff’s motion was frivolous because he knew that he could not
meet the standard for proving that modification of the custody arrangement was in the children’s
best interests. A party seeking to modify a custody or a parenting-time order “must first establish
proper cause or a change of circumstances before the court may proceed to an analysis of whether
the requested modification is in the child’s best interests.” Stoudemire v Thomas, ___ Mich App
___, ___; ___ NW2d ___ (2022) (Docket No. 360441); slip op at 4, quoting Lieberman v Orr, 319
Mich App 68, 81; 900 NW2d 130 (2017). “When resolving important decisions that affect the
welfare of the child, the court must first consider whether the proposed change would modify the
established custodial environment.” Stoudemire, ___ Mich App at ___; slip op at 4, quoting
Pierron v Pierron, 486 Mich 81, 86; 782 NW2d 480 (2010). It should be obvious that Switalski’s
argument before the trial court and this Court is devoid of merit because plaintiff’s motion was not
attempting to change custody or the children’s established custodial environment. Rather, plaintiff
was attempting to move forward from the stalemate that had been ongoing since October 2021,
and which had prevented him from exercising parenting time with the children consistent with the
September 2021 consent order. Consequently, plaintiff was not required to demonstrate proper
cause or a change of circumstances.
As to the issue of removal of Switalski, we note plaintiff’s legitimate concerns over the
expenses and time that the LGAL has caused in these proceedings. Plaintiff has legitimate
concerns regarding Switalski’s introduction of her husband, a former Macomb County judge,
during a zoom hearing for no apparent reason. Additionally, we note that Switalski made a number
of accusations in the beginning of this matter, mostly against the stepmother of the children, which
lead to a CPS investigation. However, despite the fact that Switalski’s accusations led to the
removal of the children from plaintiff’s sole custody, the CPS investigation found no evidence of
the alleged medical and emotional abuse. And, as previously stated, the therapist working with
the parties opined they could do so without the aid of Switalski. Hence, following our review of
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the record in this matter, this Court is left with a definite and firm conviction that the trial court
clearly erred by finding that plaintiff’s motion was frivolous, and accordingly, erred by awarding
Switalski and defendant attorney fees as a sanction for having to respond to plaintiff’s motion.
Sprenger, 307 Mich App at 423. Therefore, we reverse the portion of the August 16, 2022 order
awarding defendant and Switalski attorney fees.
Affirmed in Docket No. 359472, and reversed in part in Docket No. 362867. No part
having prevailed in full, no costs are awarded. MCR 7.219(A).
/s/ Anica Letica
/s/ Stephen L. Borrello
/s/ Michael J. Riordan
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