                           STATE OF MICHIGAN

                            COURT OF APPEALS



STEPHANIE KATHLEEN KAEB,                                             FOR PUBLICATION
                                                                     March 12, 2015
               Plaintiff-Appellee,

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.



                                                  .

                                                             /s/ William B. Murphy




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