Joel Markus Collins v. Marissa Ann Collins

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
JOEL MARKUS COLLINS, UNPUBLISHED
July 20, 2023
Plaintiff-Appellee,
v No. 363791
Jackson Circuit Court
MARISSA ANN COLLINS, LC No. 2017-002605-DM
Defendant-Appellant.
Before: M. J. KELLY, P.J., and SHAPIRO and REDFORD, JJ.
PER CURIAM.
Defendant appeals as of right the trial court’s order denying her motion to transfer the
school district of her minor child, AC. For the reasons stated in this opinion, we vacate the trial
court’s order and remand for further proceedings consistent with this opinion.
I. BACKGROUND
The parties share joint legal and physical custody of AC and have an informal parenting
time arrangement under which, during the school year, AC stays with plaintiff during the week
and stays with defendant during weekends. This arrangement resulted because defendant lives in
Brighton, Michigan, while plaintiff lives in Jackson, Michigan, and AC attends elementary school
in Jackson. AC had poor behavior and academic performance at school in Jackson, and defendant
moved to change AC’s school district to a school in Brighton. Defendant contended that, despite
multiple attempts to enroll AC in an individualized education program (IEP) in Jackson, the school
dragged its feet. By contrast, defendant asserted that the school in Brighton could have AC
enrolled in an IEP within 30 days.
At an evidentiary hearing, defendant sought to present reports on the schools’ academic
performances. However, while the trial court admitted a report on the Jackson school (the Jackson
report), it refused to admit a report on the Brighton school (the Brighton report) as unauthenticated
hearsay. Because AC had an established custodial environment with both parents that would not
be modified by changing schools, the trial court held defendant had to prove by a preponderance
of the evidence that changing schools was in AC’s best interests. The trial court then evaluated
the best-interest factors, MCL 722.23, and found the majority of the factors were either irrelevant
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or weighed equally between the parties. The only factor which weighed in any party’s favor was
factor (e), concerning “[t]he permanence, as a family unit, of the existing or proposed custodial
home or homes[,]” which the trial court held weighed in defendant’s favor. Of relevance to this
appeal, the trial court also found factor (h), concerning “[t]he home, school, and community record
of the child[,]” was neutral. The trial court held defendant failed to satisfy her burden of proof
because she failed to present any evidence besides her own testimony that the Brighton school was
better than the Jackson school. Defendant now appeals.
II. ANALYSIS
On appeal, defendant argues the trial court (1) erred by determining that defendant failed
to satisfy her burden of proof, (2) abused its discretion by excluding evidence regarding the
Brighton school, and (3) erred by finding that best-interest factor (h) did not favor either party.
We agree the trial court abused its discretion by excluding the Brighton report, and conclude this
error was not harmless. We also agree the trial court improperly evaluated factor (h) because it
failed to consider the Brighton report. We decline to address defendant’s first issue because these
errors necessarily impact whether the trial court erred in determining defendant failed to satisfy
her burden of proof.1
Beginning with the evidentiary issue, we hold the trial court abused its discretion when it
excluded the Brighton report. Generally, all relevant evidence is admissible, unless excluded by
“the Constitution of the United States, the Constitution of the State of Michigan, these rules, or
other rules adopted by the Supreme Court.” MRE 402. The hearsay exception relevant to this
appeal states:
The following are not excluded by the hearsay rule, even though the
declarant is available as a witness:
1
In child custody disputes: “[A]ll orders and judgments of the circuit court shall be affirmed on
appeal unless the trial judge made findings of fact against the great weight of evidence or
committed a palpable abuse of discretion or a clear legal error on a major issue.” MCL 722.28;
see also Pierron v Pierron, 486 Mich 81, 85; 782 NW2d 480 (2010). “[Q]uestions of law are
reviewed for ‘clear legal error.’ ” Fletcher v Fletcher, 447 Mich 871, 881; 526 NW2d 889 (1994).
“When a court incorrectly chooses, interprets, or applies the law, it commits legal error that the
appellate court is bound to correct.” Id.“We review the circuit court’s decision to exclude evidence for an abuse of discretion.”
Elher v Misra, 499 Mich 11, 21; 878 NW2d 790 (2016) (citation omitted). “An abuse of discretion
occurs when the trial court chooses an outcome falling outside the range of principled outcomes.”
Id. (quotation marks and citation omitted). Questions of law surrounding evidentiary rulings, as
well as interpretations of statutes and court rules, are reviewed de novo. Id. “The admission or
exclusion of evidence because of an erroneous interpretation of law is necessarily an abuse of
discretion.” Id. (citation omitted). “An error is harmless if it did not affect the outcome of the
proceeding.” In re Portus, 325 Mich App 374, 396; 926 NW2d 33 (2018).
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(8) Public Records and Reports. Records, reports, statements, or data
compilations, in any form, of public offices or agencies, setting forth (A) the
activities of the office or agency, or (B) matters observed pursuant to duty imposed
by law as to which matters there was a duty to report, excluding, however, in
criminal cases matters observed by police officers and other law enforcement
personnel, and subject to the limitations of MCL 257.624. [MRE 803(8).]
MRE 803(8) is limited to “reports of objective data observed and reported by [public] officials.”
Bradbury v Ford Motor Co, 419 Mich 550, 554; 358 NW2d 550 (1984). There is an “inherent
trustworthiness of documents prepared by a public official in carrying out his duties which justifies
the public records exception[.]” Solomon v Shuell, 435 Mich 104, 132; 457 NW2d 669 (1990).
However, this inherent trustworthiness is inapplicable if the record was prepared in anticipation of
litigation. Id.The report defendant attempted to admit was prepared by a public official, and there is no
indication it was prepared in anticipation of litigation. Defendant sought to admit the Brighton
report to compare it to the Jackson report, which was admitted through the testimony of the Jackson
school’s principal. The Brighton report is located on the State of Michigan’s official public portal
for education data, which is designed to help citizens, educators, and policymakers make informed
decisions regarding the success of Michigan’s students. See Center for Educational Performance
and Information, MI School Data https://www.michigan.gov/cepi/mischooldata (last accessed
July 11, 2023). The reporting agency is responsible for collecting, securely managing, and
reporting education data in Michigan, which is then published as the State of Michigan’s official
source for pre-K, K-12, postsecondary, and workforce data, and is presented in graphs, charts,
trend lines, and downloadable spreadsheets. See id.This data is compiled, reported, and published by the State of Michigan to provide the
public with a report of statistical information to consider when evaluating potential schools. This
is precisely the type of objective public report this Court can assume to be accurate and reliable.
There are no subjective opinions, analyses, or personal summaries published with the data, nor
was the data prepared to use in any type of litigation. Additionally, Michigan public schools are
required by the state to submit annual reports on the basis of their annual performances in up to
eight areas as prescribed by 2018 PA 601.2 The information reported is the exact type of objective
data that MRE 803(8) anticipated to be admissible. Therefore, the trial court abused its discretion
by failing to admit the Brighton report under MRE 803(8).
The trial court also determined the Brighton report was not properly authenticated.
However, MRE 902(5) states that official publications, such as “[b]ooks, pamphlets, or other
publications purporting to be issued by public authority[,]” are self-authenticating. As defendant
pointed out, the Brighton report is published by the State of Michigan, which is a public authority,
and has several insignias and a legend indicating this public authority. Therefore, the trial court
2
2018 PA 601 requires the Michigan Department of Education to annually grade and rank schools
based on performance indicators prescribed within the law. See MCL 380.1280g.
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also abused its discretion by failing to recognize the self-authenticating nature of the Brighton
report under MRE 902(5).
We cannot conclude the trial court’s failure to admit the Brighton report was harmless
error, because it is possible this decision affected the outcome of the proceeding. In re Portus, 325
Mich App 374, 396; 926 NW2d 33 (2018). The trial court asserted, as a major reason for denying
defendant’s motion, that defendant failed to provide any evidence, other than her own testimony,
indicating the Brighton school was superior to the Jackson school. Had the trial court considered
the Brighton report, it would have had more evidence of the alleged disparities between the schools
than it did solely from defendant’s testimony. With this information, it is possible the trial court
could have determined factor (h) was not actually neutral, and, if the trial court were able to
determine factors (e) and (h) weighed in favor of defendant, while the others were all neutral or
inapplicable, it is possible the trial court would have granted defendant’s motion.
In sum, the trial court improperly excluded the Brighton report from evidence. Because
this report could have impacted the trial court’s evaluation of best-interest factor (h), and, by
extension, its decision regarding defendant’s motion, this error was not harmless. On remand, the
trial court shall reevaluate factor (h) in light of the Brighton report and hold an evidentiary hearing
to consider up-to-date information in its determination of whether defendant has proven by a
preponderance of the evidence that the change in schools is in AC’s best interests. See Pierron v
Pierron, 282 Mich App 222, 262, 265; 765 NW2d 345 (2009).
Vacated and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Michael J. Kelly
/s/ Douglas B. Shapiro
/s/ James Robert Redford
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