Kaeb v. Kaeb ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
STEPHANIE KATHLEEN KAEB, FOR PUBLICATION
March 12, 2015
Plaintiff-Appellee, 9:10 a.m.
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.
M. J. KELLY, P.J.
In this appeal arising out of a parenting time dispute, defendant, Darin Lee Kaeb, appeals
by right the trial court’s orders sanctioning him for filing a frivolous motion to modify the
conditions placed on him in a parenting time order; the trial court ordered him to pay the attorney
fees incurred by plaintiff, Stephanie Kathleen Kaeb, in defending the motion. Because we
conclude the trial court erred when it determined that Darin Kaeb’s motion was frivolous, we
reverse the trial court’s decision and vacate the orders compelling Darin Kaeb to pay Stephanie
Kaeb’s attorney fees.
I. BASIC FACTS
Darin and Stephanie Kaeb married in July 1997. Three children were born to them
during the marriage.
In December 2009, Stephanie Kaeb sued for divorce and, in July 2010, the trial court
entered a consent judgment of divorce. The consent judgment granted joint legal and physical
custody to the parties, but provided that the children would reside primarily with Stephanie Kaeb
during the school year. The judgment gave Darin Kaeb extensive parenting time during the
school year and equal parenting time during summers.
In March 2011, Stephanie Kaeb petitioned for a review of custody on the basis of a
change in circumstances. Although she discussed a variety of changes, her primary allegations
were that that Darin Kaeb had serious alcohol and gambling problems and might have mental
health issues, which impaired his ability to provide proper care and custody to the children.
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The trial court entered a stipulated order changing custody in September 2011. The order
gave Stephanie Kaeb sole legal and physical custody of the children and provided Darin Kaeb
with very limited supervised parenting time. The order further provided that Darin Kaeb “shall
complete his alcohol treatment and therapy, comply with all aftercare treatment
recommendations, and shall abstain from the use of alcohol.”
The trial court entered a new order in February 2012. The order provided Stephanie
Kaeb with sole legal and physical custody and gave Darin Kaeb limited supervised parenting
time. The order also required Darin Kaeb to “continue alcohol treatment and therapy” and stated
that he could petition for modification after “three months of compliance with the . . . schedule
and requirements.”
In July 2012, Darin Kaeb moved for a change in custody and unsupervised parenting
time. He stated that, since the court entered its earlier orders regarding custody, he had complied
with the court’s requirements and had completed various programs to treat his issues with anger
and alcohol, which amounted to a change in circumstances that warranted revisiting custody and
parenting time. The trial court did not hold an evidentiary hearing, but eventually entered an
interim order allowing Darin Kaeb to have unsupervised parenting time on specified days and
providing that he must “continue with AA and counseling . . . .”
In May 2013, the trial court held what it characterized as a “review hearing on matters of
parenting time.” Darin and Stephanie Kaeb both testified at the hearing and described the
circumstances surrounding their current parenting time schedule. Darin Kaeb also testified that
he was complying with the court’s orders to remain sober, attend AA, and continue with
counselling.
At the conclusion of the hearing, the trial court found that the evidence showed that Darin
Kaeb had been complying with the court’s requirements. But it recognized that it could not
“determine whether someone whose been alcohol dependent or alcohol abusive has been cured
of that problem.” Instead, the court stated, “maintaining sobriety is something that’s proven over
the course of time.” To that end, the trial court required Darin Kaeb “to continue counselling
with Dr. Ellens, and to attend AA regularly” as conditions on his exercise of parenting time,
which it expanded. Darin Kaeb’s lawyer thereafter expressed concern that it would be unfair to
require his client to show a change of circumstances every few months in order to permit further
expansion. For that reason, he asked the trial court if it could set a review at fixed intervals. The
trial court disagreed that automatic review would be a good use of judicial resources and stated
that any further “adjustments [to parenting time] will have to be [by] motion.”
In June 2013, the trial court entered an order consistent with its decision from the bench.
It provided that Darin Kaeb must “maintain sobriety, shall continue to counsel with Dr. Brent
Ellens, [and] shall continue to attend AA regularly.”
In August 2013, Darin Kaeb moved to amend the trial court’s order of June 2013; he
asked the trial court to remove the requirement that he continue to counsel with Ellens and
continue to attend AA meetings. In support of his motion, he attached a report by Dr. Michael
Makedonsky.
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Makedonsky reported that he interviewed Darin Kaeb and performed psychological
testing on him. He opined that Darin Kaeb was not suffering from any mental illness. He also
stated that Darin Kaeb said he had not gambled or had alcohol since September 2011 and was
“very motivated and very committed to staying alcohol free.” On the basis of his interview and
testing, Makedonsky stated that there was no clinical need for Darin Kaeb to continue with AA
meetings: “It is the professional opinion of this examiner that his past use of alcohol was caused
by marital conflicts and the divorce process at the time.” He further opined that Darin Kaeb was
“mentally and emotionally stable,” did not pose “any risk of violence,” and exhibited “adequate
parenting skills.”
Darin Kaeb also presented a letter from Ellens discharging him from counselling. In the
letter, Ellens informed him that he was free to continue counselling or return if he wished, but
that he believed Kaeb had “made sufficient progress in developing the ability to manage [his]
frustration and stress” that he could “proceed and manage [his] life without further counselling.”
Stephanie Kaeb argued in response that there were no grounds for amending the order
because Darin Kaeb failed to show that there was a sufficient change in the circumstances to
warrant review.
The trial court held a hearing on the motion in September 2013. At the hearing, Ellens
testified that he counselled Darin Kaeb during the period of his court ordered group counselling
and later during private sessions. He said he sent Kaeb a letter discharging him from counselling
in June 2013. Ellens admitted on cross-examination that he sent the letter at Darin Kaeb’s
request.
Makedonsky also testified concerning his evaluation of Darin Kaeb, which he conducted
over the course of a few days ending in July 2013. Makedonsky listed the various inventories
and tests that he performed and described the purpose for their use. The results showed that he
was cooperating with the testing. Makedonsky agreed that Darin Kaeb had abused alcohol in the
past, but stated that he did not believe that he was an alcoholic and did not believe that he needed
to attend AA meetings; there was, he explained, no “clinical reason for it . . . .”
After the close of proofs, the trial court noted the contentious history of the case and
described some of the problematic behaviors that led to the limitations on Darin Kaeb’s
parenting time. The court expressed concern that Darin Kaeb insisted on deciding for himself
whether he should attend AA meetings and counselling—as could be seen from his effort to
obtain a letter and report demonstrating that there was no clinical need for him to attend either,
which he sought just after the court entered its previous order continuing those conditions. The
court, however, disagreed that the letter and report constituted evidence of a change in
circumstances sufficient to justify the parenting time order: “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 it—ordering continued counselling and AA
attendance in the first place.” It determined that the motion was without “legal basis” and,
accordingly, frivolous. For that reason, it ordered Darin Kaeb to pay Stephanie Kaeb’s costs and
reasonable attorney fees as a sanction. Notwithstanding this determination, the court stated that
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it would “cancel those two requirements” of its own accord. It did so because Darin Kaeb was
plainly determined not to participate and would not benefit from them.
The trial court entered an order removing the requirement that Darin Kaeb attend AA and
counselling in November 2013. In that same month, the trial court ordered Darin Kaeb to pay
$2,227.50 in costs and attorney fees to Stephanie Kaeb. In December 2013, the trial court
amended the order to require Darin Kaeb to pay $2,090.00 in costs and attorney fees.
Darin Kaeb now appeals in this Court.
II. SANCTIONS FOR A FRIVOLOUS MOTION
A. STANDARDS OF REVIEW
On appeal, Darin Kaeb argues the trial court erred when it determined that his motion to
remove the requirement that he attend AA and counselling was frivolous. He maintains that the
trial court improperly determined that the change of circumstances threshold applied to his
motion and, even if it did, erred when it determined that there was no evidence to support the
motion. This Court reviews de novo whether the trial court properly interpreted and applied the
relevant statutes and court rules to the facts. Brecht v Hendry, 297 Mich. App. 732, 736; 825
NW2d 110 (2012). This Court, however, reviews for clear error the trial court’s factual findings
underlying its application of a court rule. Johnson Family Ltd Partnership v White Pine
Wireless, LLC, 281 Mich. App. 364, 387; 761 NW2d 353 (2008). To the extent that a trial court
has discretion to impose a particular sanction, this Court reviews the trial court’s decision for an
abuse of discretion. Smith v Khouri, 481 Mich. 519, 526; 751 NW2d 472 (2008).
B. THE LAW
In this case, the trial court found that Darin Kaeb’s motion to remove the requirements
that he attend AA and counselling was frivolous because he made the motion without a legal
basis for doing so—specifically, because he failed to show any change in circumstances to
support the motion. The trial court did not cite the authority on which it relied, but it is evident
that the trial court’s determination did not involve a claim or defense in a civil action. See MCR
2.114(F); MCL 600.2591(1) (providing for sanctions related to the prosecution or defense of a
civil action); MCR 2.625(A)(2). Accordingly, it appears that the trial court ordered sanctions
under MCR 2.114(E).
1. MCR 2.114(E)
Whenever an attorney or party signs a motion, that person’s signature constitutes
“certification” that he or she has “read the document” and, “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 that the motion was not made for “any improper purpose, such as to
harass or to cause unnecessary delay or needless increase in the cost of litigation.” MCR
2.114(D)(1) to (3). If a party brings a motion that has been signed in violation of MCR
2.114(D), the trial court must “impose upon the person who signed it, a represented party, or
both, an appropriate sanction . . . .” MCR 2.114(E). The trial court may not assess punitive
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damages, but may order the person who signed it or a represented party to pay “the other party or
parties the amount of reasonable expenses incurred because of the filing . . . .” MCR 2.114(E).
Because MCR 2.114(E) only requires the trial court to impose an appropriate sanction, which
may include an order to pay reasonable attorney fees, the trial court has the discretion to tailor its
sanction to the circumstances. See FMB-First Michigan Bank v Bailey, 232 Mich. App. 711, 726-
727; 591 NW2d 676 (1998).
On appeal, Stephanie Kaeb argues that the record evidence showed that Darin Kaeb
brought the motion at issue for an improper purpose. The evidence that he filed “repetitive and
baseless” motions leading up to the motion to modify the parenting time order, she maintains, is
evidence from which the trial court “could conclude” that Darin Kaeb filed the motion to harass
or cause unnecessary delay or needlessly increase the costs of litigation in violation of MCR
2.114(D)(3). The trial court did not, however, find that Darin Kaeb’s motion was frivolous
because he brought it for an improper purpose. Rather, it found that his motion was frivolous
because there was “no evidence here that there’s been any change in circumstances” since the
entry of the last orders and, therefore, the motion was “without a legal basis”. This finding
implicates MCR 2.114(D)(2) rather than MCR 2.114(D)(3). Therefore, we shall limit our review
accordingly.1
In order to assess whether Darin Kaeb’s motion was “well grounded in fact” and
“warranted by existing law” under MCR 2.114(D)(2), we must first address whether and how
MCL 722.27(1) applies to the motion involved here.
2. PROPER CAUSE AND CHANGE OF CIRCUMSTANCES
Once a “custody dispute” comes before the trial court, it may take various actions “for the
best interests of the child.” MCL 722.27(1). The trial court may award custody to “1 or more of
the parties involved,” “provide for payment of support for the child,” and may provide for
“reasonable parenting time of the child by the parties involved . . . by general or specific terms
and conditions.” MCL 722.27(1)(a) and (b). A trial court may also modify or amend “its
previous judgments or orders” but only for “proper cause shown or because of change of
circumstances.” MCL 722.27(1)(c). The trial court may not modify or amend a previous
judgment or order or issue a new order “so as to change the established custodial environment of
a child unless there is presented clear and convincing evidence that it is in the best interest of the
child.” Id.
The Legislature limited a trial court’s ability to modify or amend its orders in a custody
case in order to erect a barrier to the removal of children from established custodial
environments and to minimize disruptive changes to custody arrangements. See Vodvarka v
Grasmeyer, 259 Mich. App. 499, 509; 675 NW2d 847 (2003). Because the limitations were
intended to serve as obstacles to revisiting judgments and orders, in the context of an order
affecting custody, the Court in Vodvarka determined that proper cause must be something more
1
We express no opinion as to whether the proffered evidence would be sufficient to support such
a finding.
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than “any appropriate ground for legal action”; it must be understood to mean “one or more
appropriate grounds that have or could have a significant effect on the child’s life to the extent
that a reevaluation of the child’s custodial situation should be undertaken.” Id. at 511 (quotation
marks omitted). Consistent with the obligation to avoid changes that might disrupt the child’s
custodial environment, the Court in Vodvarka similarly held that a change in circumstances
cannot refer to a child’s normal life changes; rather, a change in circumstance means that, “since
the entry of the last custody order, the conditions surrounding custody of the child, which have or
could have a significant effect on the child’s well-being, have materially changed.” Id. at 513.
Since the decision in Vodvarka, this Court has recognized that the definitions applied by
that court to “proper cause” and “change of circumstances” should not be applied to orders
amending or modifying parenting time. Shade v Wright, 291 Mich. App. 17, 28; 805 NW2d 1
(2010). Vodvarka should not be so extended, the Court in Shade explained, because a change in
parenting time did not implicate the same concerns as a change in custody:
The Vodvarka definitions of “proper cause” and “change of
circumstances” are inapplicable to this case, in part, because the rationale for
imposing more stringent constructions on the terms “proper cause” and “change
of circumstances” with respect to custody determinations is far less applicable
with respect to parenting time determinations. With respect to child custody
disputes, “[t]he goal of MCL 722.27 is to minimize unwarranted and disruptive
changes of custody orders, except under the most compelling circumstances.”
Corporan v Henton, 282 Mich. App. 599, 603, 766 NW2d 903 (2009). “Providing
a stable environment for children that is free of unwarranted custody changes . . .
is a paramount purpose of the Child Custody Act . . . .” Vodvarka, 259 Mich. App.
at 511. Therefore, in the context of a child custody dispute, the purpose of the
proper cause or change of circumstances requirement is “to ‘erect a barrier against
removal of a child from an established custodial environment and to minimize
unwarranted and disruptive changes of custody orders.’ ” Id. at 509, quoting Heid
v AAASulewski (After Remand), 209 Mich. App. 587, 593-594, 532 NW2d 205
(1995).
Such concerns do not exist, however, when a modification of parenting
time does not alter the established custodial environment because determinations
regarding child custody and parenting time serve different purposes. Whereas the
primary concern in child custody determinations is the stability of the child’s
environment and avoidance of unwarranted and disruptive custody changes, the
focus of parenting time is to foster a strong relationship between the child and the
child’s parents. See MCL 722.27a. [Shade, 291 Mich. App. at 28-29.]
The Court in Shade declined to precisely define what proper cause or change of
circumstances would be sufficient to warrant a change in parenting time, but nevertheless
determined that the types of normal life-changes experienced by the child in its case were
sufficient to warrant modification of the parenting time, even though those changes would be
insufficient to establish grounds for a change in custody under the definitions applied in
Vodvarka. Id. at 31.
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The Legislature authorized trial courts in custody disputes to provide for reasonable
parenting time “for the best interests of the child.” MCL 722.27(1); see also MCL 722.27a(1)
(“Parenting time shall be granted in accordance with the best interests of the child.”). The court
may provide for parenting time through “general or specific terms” and may subject the
parenting time to “conditions” when it is in the child’s best interests. MCL 722.27(1)(b); see
also MCL 722.27a(8) (stating that a parenting time order may contain any reasonable terms or
conditions). Consequently, the trial court had the authority to order Darin Kaeb to attend AA
meetings and participate in counselling as conditions on his exercise of parenting time, if the
court determined that those restrictions were in the children’s best interests.
After complying with the trial court’s requirements for some time, Darin Kaeb filed a
motion asking the trial court to remove the conditions that it had imposed on his parenting time.
See MCL 722.27(1)(b).2 As such, before the trial court could grant his request, he had to
demonstrate that there was “proper cause” or a “change of circumstances” that warranted the
requested relief. MCL 722.27(1)(c). But, as the Court in Shade aptly noted, what constitutes
proper cause or a change of circumstances under MCL 722.27(1)(c) will vary depending on the
nature of the requested amendment or modification. If the request involves a change that alters
an established custodial environment, then the more stringent framework from Vodvarka will
apply. Shade, 291 Mich. App. at 27. If, however, the request involves a change to the duration or
frequency of parenting time, the less stringent standard discussed in Shade will apply. See id. at
29-31 (discussing the need for flexibility in parenting time schedules because the child’s needs
will change with age and with the level of the child’s involvement in activities). Here, the
requested modification did not involve either a change in custody or a change in the duration or
frequency of parenting time—it involved a request to remove a condition on the exercise of
parenting time. Consequently, neither Shade nor Vodvarka is directly on point.
Because the imposition, revocation, or modification of a condition on the exercise of
parenting time will generally not affect an established custodial environment or alter the
frequency or duration of parenting time,3 we are persuaded that a lesser, more flexible,
understanding of “proper cause” or “change in circumstances” should apply to a request to
modify or amend a condition on parenting time. As in Shade, it is evident that even normal
changes to the lives of the parties affected by a parenting time order may so alter the
circumstances attending the initial imposition of a condition that a trial court would be justified
in revisiting the propriety of the condition. Shade, 291 Mich. App. at 29-31. A condition that was
in the child’s best interests when the child was in elementary school might not be in the child’s
best interests after he or she reaches high school. Even ordinary changes in the parties’ behavior,
2
Because the trial court imposed the requirements at issue as a term or condition of Darin
Kaeb’s parenting time, we need not determine whether MCL 722.27(1)(c) applies to every order
involving custody, child support, or parenting time even if the requested change would not alter
custody, child support, parenting time, or a condition on parenting time.
3
We do not, however, foreclose the possibility that the imposition, revocation, or modification of
a condition on parenting time might be so significant that it amounts to a change in custody or
parenting time.
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status, or living conditions might justify a trial court in finding that a previously imposed
condition is no longer in the child’s best interests. Similarly, we conclude that “proper cause”
should be construed according to its ordinary understanding when applied to a request to change
a condition on parenting time; that is, a party establishes proper cause to revisit the condition if
he or she demonstrates that there is an appropriate ground for taking legal action. See Vodvarka,
259 Mich. App. at 510-511 (recognizing that “proper cause” ordinarily means any appropriate
ground for taking legal action, but declining to give the phrase its ordinary meaning when
applied to the context of a request to alter an established custodial environment because that
would not serve the purpose of erecting a barrier to unwarranted changes to custody). Consistent
with a trial court’s authority to adopt, revise, or revoke a condition whenever it is in the best
interests of the child to do so, see MCL 722.27(1); MCL 722.27a(1) and (8), we hold that 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. MCL 722.27(1)(c).
C. APPLYING THE LAW
In this case, Darin Kaeb moved to amend the parenting time order at issue by removing
the conditions on his exercise of parenting time. Specifically, he argued that the requirements
that he attend AA meetings and continue to counsel with Ellens were no longer necessary. He
supported his motion with a letter from Ellens and a report by Makedonsky. In his letter, Ellens
opined that Darin Kaeb had demonstrated sufficient progress in his ability to handle his
frustration and stress that he no longer needed to attend regular counselling sessions.
Makedonsky similarly reported that he subjected Darin Kaeb to various tests and determined that
there was no clinical reason to justify Darin Kaeb’s continued participation in AA meetings.
Both Ellens and Makedonsky testified consistent with these submissions at the hearing on the
motion to modify the parenting time order. Nevertheless, the trial court found that Darin Kaeb’s
motion to remove the conditions was frivolous because he did not attempt to show that there had
been a change in circumstances since the inclusion of the conditions in the last order, as required
under MCL 722.27(1)(c).
On this record, we conclude the trial court clearly erred when it found that Darin Kaeb’s
motion was submitted in violation of MCR 2.114(D)(2). Even assuming that Ellens’ letter and
Makedonsky’s report did not establish a change in circumstances since the trial court last
considered whether it was in the children’s best interests to include the conditions on the
parenting time order, those documents were sufficient to establish “proper cause” for the trial
court to reconsider whether the conditions remained in the children’s best interests. MCL
722.27(1)(c); MCL 722.27a(1). Ellens offered his opinion that the counselling sessions were no
longer necessary to address the concerns that initially brought Darin Kaeb to him. Likewise,
Makedonsky offered his expert opinion that there was no clinical reason to require Darin Kaeb to
attend AA meetings. Although the trial court was free to reject the opinions and conclude that it
was in the children’s best interests to continue to impose those conditions, that alone did not
warrant finding that the motion was frivolous. See Kitchen v Kitchen, 465 Mich. 654, 663; 641
NW2d 245 (2002) (“[M]erely because [a] court concludes that a legal position asserted by a
party should be rejected does not mean that the party was acting frivolously in advocating its
position.”). A reasonable trial court would be justified in revisiting whether the conditions
remained in the children’s best interests on the basis of these expert opinions. Indeed, although it
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stated that it was not doing so for the reasons proffered by Darin Kaeb in his motion, after the
close of proofs, the trial court found on the whole record that it was appropriate to remove the
conditions at issue. Consequently, it cannot be said that Darin Kaeb’s motion was not “well
grounded in fact” and “warranted by existing law.” MCR 2.114(D)(2).
The trial court clearly erred when it found that Darin Kaeb’s motion was frivolous under
MCR 2.114(D)(2). Johnson Family Ltd Partnership, 281 Mich. App. at 387. Therefore, it erred
when it ordered him to pay Stephanie Kaeb’s costs and reasonable attorney fees associated with
the motion under MCR 2.114(E).
III. REMAND TO DIFFERENT JUDGE
Darin Kaeb also argues on appeal that this Court should assign this case to a different
judge on remand because it is evident from the record that the judge harbored animosity against
him and would likely be unable to put aside its view of him. We have carefully reviewed the
record and have found no evidence that the trial court harbors a bias against Darin Kaeb or that it
would be unable to put aside previously expressed views or findings. See Bayati v Bayati, 264
Mich. App. 595, 602-603; 691 NW2d 812 (2004). Accordingly, we decline to assign this case to a
different judge on remand.
IV. CONCLUSION
The trial court clearly erred when it found that Darin Kaeb filed his motion to remove the
conditions on his ability to exercise parenting time in violation of MCR 2.114(D)(2). The record
shows that he properly supported his motion with documentary evidence and that the evidence
established a proper cause for revisiting the conditions. See MCL 722.27(1)(c). Consequently,
the trial court erred when it ordered Darin Kaeb to pay the costs and attorney fees that Stephanie
Kaeb incurred to defend the motion as a sanction under MCR 2.114(E). For this reason, we
reverse the trial court’s decision to order sanctions, vacate the orders requiring Darin Kaeb to pay
costs and fees to Stephanie Kaeb, and remand for further proceedings.
Reversed, vacated, and remanded for further proceedings consistent with this opinion.
We do not retain jurisdiction.
/s/ Michael J. Kelly
/s/ Joel P. Hoekstra
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