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Where a plaintiff has filed an appeals challenging an awarding the defendant counsel fees for time spent opposing the plaintiff’s objection to the referee’s recommendation that his request for a modification of parenting time be denied, the fee order should be reversed because the trial court did not articulate any findings of fact that would support a conclusion that the plaintiff’s motion was filed with the improper purpose of harassment.
“Plaintiff argues that the trial court erred in holding that his second motion to modify parenting time and his objection to the referee’s recommendation denying this motion were frivolous. …
“At the hearing on plaintiff’s objection to the referee’s recommendation, defendant argued that plaintiff’s motion to modify parenting time and objection to the referee’s recommendation 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. …
“… Indeed, the record does not indicate that plaintiff’s 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. Accordingly, 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. …
“Again, although the trial court found that plaintiff’s objection was frivolous, the record does not clearly indicate why it made that determination. Some of the court’s statements indicate that it found that plaintiff’s objection lacked at least an arguable legal basis for relief: ‘We’ve been here twice, okay. I already told you once that the, that the change has to be based on the child’s needs. This is not a motion that’s based on the child’s needs, okay.’ …
“… 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. …
“We reverse the trial court’s order awarding attorney fees.”
