Plaintiff filed for divorce in August 2007 and a Judgment of Divorce (JOD) granting the parties joint legal and joint physical custody of their two minor children was entered in December 2007.
Things were amicable between the parties for a while, but at some point plaintiff became concerned that the children were being exposed to domestic violence and alcohol abuse in the defendant’s home she shared with her new husband.
Plaintiff subsequently filed a Motion Regarding Custody and Parenting Time. On December 12, 2013, the trial court issued an order granting defendant’s motion to appoint a therapist for evaluation, review and recommendation as to any parenting time and custodial issues.
On April 4, 2014, plaintiff filed a Motion for an Order to Show Cause for Contempt for defendant’s failure to follow the December 2013 order and requested $2400 in attorney fees.
In a subsequent order, the court awarded plaintiff full legal and physical custody of the children. Defendant was advised that she could petition the court for a custody hearing and additional parenting time upon demonstrating that she had fully addressed the issues identified in the therapist’s report.
In October 2014, defendant filed her first Motion to Restore Joint Legal Custody, Modify Parenting Time and No Contact Provision, and Purge Contempt arguing she had fully complied with the issues identified by the therapist.
At a March 2015 hearing the court inquired into defendant’s progress. Based on admissions made by defendant, the court found she was not in full compliance because she was not in counseling at that time.
Thereafter, defendant continued to file motions to modify custody & parenting time arguing her and her husband’s compliance with the therapist’s recommendations. Each time plaintiff responded with assertions that defendant and her husband were not in compliance. Plaintiff likewise continued to file motions requesting evidentiary hearings regarding his unresolved complaints for litigation costs and contempt sanctions due to defendant’s non-compliance and unresolved contempt.
Plaintiff asserts that the filing of defendant’s motions to purge her contempt were frivolous because defendant was not in full compliance with the recommendations made by the therapist. However, defendant testified that she was engaged in parenting time alone with the children, was attending Al-Anon and was going to begin individual counseling with a new counselor.
Taking these actions into account, it was not unreasonable for defendant to believe that she and her husband had substantially addressed the court’s order and the therapist’s recommendations at the time she filed the motions. Defendant ultimately not being in full compliance did not make the filing of the motions or the signing of them by defense counsel frivolous. Thus, the trial court did not err when it held that plaintiff failed to show that defendant’s filings were frivolous.
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