Child custody; Modification; Proper cause or change of circumstances; MCL 722.27(1)(c); Vodvarka v Grasmeyer; Award of attorney fees as sanctions for a frivolous motion; MCL 600.2591; Kitchen v Kitchen

The court held that defendant-father failed to establish proper cause or a change of circumstances to revisit legal custody, but that the trial court abused its discretion by awarding plaintiff-mother attorney fees as a sanction. Defendant sought joint legal custody years after a default judgment of divorce awarded custody to plaintiff, citing remarriage, employment, travel opportunities, and disagreements over educational services. The trial court denied the motion and found it frivolous. On appeal, the court applied Vodvarka, reiterating that a “change must be ‘something more than the normal life changes’” and must have a significant effect on the child’s well-being. The court agreed with the trial court that defendant’s asserted changes were insufficient, noting that the record showed the parties could cooperate when necessary and there was “no evidence that plaintiff excluded defendant from participating in important matters affecting” the child. However, the court reversed the fee award, emphasizing that “not ‘every error in legal analysis constitutes a frivolous position.’” The court explained that frivolousness must be assessed at the time the motion was filed and that defendant’s factual assertions were not fabricated and his arguments were not devoid of arguable legal merit, even though they ultimately failed under Vodvarka. Affirmed in part, reversed in part, and remanded.