Attorney fees related to a request for modification of parenting time; MCR 3.215 (allowing family court referees to hear certain types of motions in domestic relations cases); Whether an objection to the referee’s recommendation was frivolous; Kostreva v Kostreva; Intent to harass; Arguable legal basis

Holding that the trial court erred in ruling that plaintiff-father’s second motion to modify parenting time and his objection to the referee’s recommendation denying it were frivolous, the court reversed the order awarding defendant-mother attorney fees. Defendant argued at the hearing on plaintiff’s objection to the referee’s recommendation that plaintiff’s motion and objection “were frivolous because they were intended to harass defendant, and plaintiff’s position was devoid of arguable legal merit. The trial court agreed that the objection was frivolous, but it did not specify the reasoning for this determination.” While the trial court found “that plaintiff was attempting to relitigate parenting time ‘literally, I mean five minutes after the judgment was entered,’ it did not conclude that he was doing so with an intent to harass, embarrass, or injure.” And the record did not indicate that his “motion or objection were filed for the improper purpose of harassment rather than a legitimate attempt to obtain the relief sought, i.e., a modification to his scheduled parenting time that would permit him to spend more time with his child.” The court determined that, “because the trial court did not articulate any findings of fact that would support a conclusion that plaintiff’s motion was filed with the improper purpose of harassment, to the extent that the award of attorney fees was made on this basis, it was an error.” In addition, plaintiff’s objection to the referee’s finding that he had not shown “a change of circumstances that would warrant a minor adjustment to his parenting time even though (1) he moved closer to the child, (2) his in-office work schedule changed, and (3) the child was no longer in daycare, was not so clearly devoid of legal merit that it rendered the objection frivolous. The mere fact that the trial court ultimately adopted the referee’s recommendation over plaintiff’s objection does not, in and of itself, render the objection frivolous.” The court also noted that, “contrary to the trial court’s observation at the hearing, the more modest request made by plaintiff in his second motion was not identical to his first motion for a modification.”