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### STATE OF MICHIGAN

COURT OF APPEALS

JEREMY MICHAEL FISCHER,

Plaintiff-Appellant, UNPUBLISHED June 16, 2016

v No. 330162 Alpena Circuit Court Family Division TIFFANY YVONNE ROBERTS, LC No. 10-003301-DC

Defendant-Appellee.

Before: S AWYER , P.J., and H OEKSTRA and W ILDER , JJ.

P ER C URIAM

. Plaintiff appeals as of right a circuit court order which gran ted defendant’s motion to modify custody and parenting time. Because the trial court fai led to consider the best interest factors set forth in MCL 722.23 before granting defendant’s mot ion, we reverse and remand for further proceedings.

I. FACTS & PROCEDURAL HISTORY

The parties never married, but they have two minor children, T F and CF. TF, who is currently 12-years-old, has multiple physical and cognitive cha llenges, and he attends a specialized school for children w ith developmental disabilities . CF is currently nine years old.

The parties’ relationship ended in 2009, and in 2010 plaintiff filed suit, seeking primary physical custody of both children. The matter was initially re solved in February of 2011 with a court order awarding joint legal custody to the parties and pri mary physical custody to defendant with parenting time for plainti ff. Later, in September of 2013 , in the course of resolving a child support motion, the court ordered that the parties would have j oint legal and joint physical custody of the children with equal parenting time. Thereafter, the parties had the children for alternating weeks. At that t ime, both parties lived in Alpena County, Michigan.

In September of 2014, defendant filed a motion to change the c hildren’s domicile, stating that she wanted to move to the Ann Arbor area with the children so that they would be closer to the University of Michigan Hospital for TF’s benefit. The tria l court denied this motion in October of 2014. Defendant nonetheless moved to the Ann Arbor area and she filed a second motion to change the childre n’s domicile in early 2015, again s eeking to move the children to the Ann Arbor area. The trial court denied this motion in March of 2015, at which time the court-2- also changed the parenting time schedule such that plaintiff ha d the children for school periods, defendant had the children fo r non-school periods, and the nonc ustodial parent had the children for parenting time consistent w ith the Friend of the Court’s pa renting time schedule.

In June of 2015, defendant filed a motion to change custody ba sed on a change of circumstances. Primarily, defe ndant cited TF’s medical conditi ons and his recent increase in hospitalizations, arguing that it would be in his best interest s to be closer to the University of Michigan where he principally receives care. The trial court h eld a hearing on defendant’s motion over the course of two days. From these proceedings, it appears undisputed that TF is best cared for at the University of Michigan Hospital where he has regular appointments and where he also has been hospitalized on numerous occasions. Def endant lives within minutes of this facility, whereas plaintiff lives over 200 miles away and, in emergency situations, TF has often been transported, by means of helicopter, plane or ambula nce, from the medical facility near plaintiff to the University of Michigan Hospital. Further , defendant testified that, in recent months, TF had increased hospitalizations due to increased and unexplained seizures. Plaintiff conceded in his testimony that TF’s medical conditions cannot b e fully addressed at the medical facility near Alpena.

Based on this evidence, at th e conclusion of the hearing, the court granted defendant’s motion to modify custody, explaining:

[I]t’s clearly in the best interest of [TF] to be near his medi cal provider. His emergency transports, in my opi nion, lengthen the hospital stay s as they’ve been getting longer as he’s develope d these other conditions and had to stay in the hospital longer. His physical condition appears to be worsenin g. He’s experiencing more hospitaliza tions. . . . [I]t’s clearly in hi s . . . best interest to—at this point anyway, to be near his primary provider.

In ordering that CF be relocated as well, the court explained a s follows: “[CF] probably feels, even with [TF], isolated because of [TF’s] condition. [CF] pro bably doesn’t understand the global problems that [TF] has. [ CF] reads to him. [CF] plays with him. If [CF] were apart from him, I think that would be long- term injurious for [CF]. . . .”

Ultimately, the court ordered a change in primary custody in f avor of defendant and gave plaintiff parenting time during the summer months, all spring s chool breaks, and most of the Christmas break. The court noted that it would order a resumpt ion of split custody if plaintiff relocates to Washtenaw County with in a reasonable time. Plaint iff now appeals as of right.

II. ANALYSIS

On appeal, plaintiff argues that the trial court erred because it did not make any ruling regarding the children’s established custodial environment, it failed to make specific findings as to the statutory best-interest factors, and it allowed defendan t to introduce impermissible hearsay evidence under MRE 803(6) (the business records exception).

A. STANDARDS OF REVIEW-3- All custody orders must be affirmed on appeal unless the trial court’s findings were against the great weight of the evidence, the court committed a palpable abuse of discretion, or the court made a clear legal error on a major issue. MCL 722.2 8; Pierron v Pierron , 486 Mich 81, 85; 782 NW2d 480 (2010). “Under this standard, a reviewing court should not substitute its judgment on questions of fact unless the factual determination clearly preponderates in the opposite direction.” Pierron , 486 Mich at 85 (internal quotation marks and citation omitted). The trial court’s discretionary rulings, such as custody determ inations, are reviewed for palpable abuse of discretion, which occurs “when the result is so palpab ly and grossly violative of fact and logic that it evidences a perversity of will, a defiance of judgment, or the exercise of passion or bias.” Sulaica v Rometty , 308 Mich App 568, 577; 866 NW2d 838 (2014).

A trial court’s decision to adm it or exclude evidence is revie wed for an abuse of discretion. In re Brown/Kindle/Muhammad Minors , 305 Mich App 623, 629; 853 NW2d 459 (2014). In this context, “[a]n a buse of discretion occurs when the trial court chooses an outcome falling outside the range of principled outcomes.” Id. (citation and quotation marks omitted).

B. ESTABLISHED CUSTODIAL ENVIRONMENT

On appeal, plaintiff first argues that the trial court erred b ecause it did not make any ruling regarding the children’s established custodial environme nt. Pursuant to MCL 722.27, “a trial court is required to deter mine whether there is an establ ished custodial environment with one or both parents before making any custody determination.” Kessler v Kessler , 295 Mich App 54, 61; 811 NW2d 39 (2011). 1 In particular, in relevan t part, MCL 722.27 states:

The court shall not modify or amend its previous judgments or o rders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and c onvincing evidence that it is in the best interest of the child. The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environ ment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relations hip shall also be considered. . . . [MCL 722.27(1)(c).]

1 To change or modify a custody order, before deciding whether t here is an established custodial environment, the court must also make a finding of proper cause or a change in circumstances. See Pierron v Pierron , 282 Mich App 222, 243-244; 765 NW2d 345 (2009). For purposes of this appeal, plaintiff indicates that it may be assumed that pr oper cause and/or a change in circumstance were shown in this case. In any event, having rev iewed the lower court record, in light of TF’s increasing medical needs as set forth at the hear ing, we see nothing erroneous in the trial court’s finding of a proper cause or a change in circumst ance. See generally Vodvarka v Grasmeyer, 259 Mich App 499, 512; 675 NW2d 847 (2003).-4- Whether the children had an established custodial environment w ith one, or both parents, is a question of fact for the trial court. Kessler , 295 Mich App at 62. Failure to address this threshold issue constitute s clear legal error. Id.

In this case, contrary to plain tiff’s arguments, the trial cou rt addressed this threshold issue and determined that an established custodial environment existe d with both parents. In its October 22, 2014 order, the trial court found that an establish ed custodial environment existed with both parties. In its Mar ch 13, 2015 order, the court agai n stated that an established custodial environment existed in the homes of both parents such that clea r and convincing evidence was required for any change. In ruling on the current motion, the court recounted what it had stated in March 2015 and then explained, “ And that’s the - - the legal standard here

. When there’s an established custodial en vironment in both homes , it has to be by clear and convincing evidence that that changes.” Clearly, the trial court determined that a n established custodial environment existed with both parents and th e trial court also correctly re cognized that it could not modify custody unless it found clear and convincing evidence that modi fication was in the children’s best interests. Cf. Dailey v Kloenhamer , 291 Mich App 660, 667; 811 NW2d 501 (2011). Plaintiff’s assertion that the t rial court failed to consider t he existence of an es tablished custodial environment is without merit, a nd he is not entitled to relief on this basis.

C. BEST-INTEREST FACTORS

Plaintiff also argues that the trial court’s decision to chang e custody was erroneous because it did not make any findings on the record on even one of the best-interest factors for either TF or CF.

The Child Custody Act, MCL 722.21 et seq ., governs child custody disputes, and “makes clear that the best interests of the child control the resoluti on of a custody dispute between parents.” Harvey v Harvey , 470 Mich 186, 191-192; 680 NW2d 835 (2004). Relevant to the present case, “[i]n determining whether a change of custody is in the best interests of a child, the best-interest factors set fort h in MCL 722.23 are the appropria te measurement.” Riemer v Johnson , 311 Mich App 632, 641; 876 NW2d 279 (2015). “Generally, the trial court must consider and explicitly state its findings and conclusions rega rding each factor[.]” Id. “These findings and conclusions need not include consideration of ever y piece of evidence entered and argument raised by the parties.” Rittershaus v Rittershaus , 273 Mich App 462, 475; 730 NW2d 262 (2007) (citation omitted). However, the record must be suf ficient to enable this Court’s review of whether the evidence clearly preponderances against t he trial court’s findings. Id.

The proper remedy for failure to set forth reviewable findings of fact regarding the best interests factors is a remand for a new child custody hearing a t which the trial court must evaluate the relevant factors and place its findings regarding the best interests factors on the record. Id. ; Parent v Parent , 282 Mich App 152, 157; 762 NW2d 553 (2009). On remand, the trial court may “make a determination of whether the current re cord is sufficient to make the proper evidentiary findings.” Rittershaus , 273 Mich App at 475. If, in the opinion of the trial court, the current record is insufficient to make such findings , then it shall conduct a new evidentiary hearing. Id. The new evidentiary hearing may involve the presentation of new and “up-to-date” evidence. Parent , 282 Mich App at 157.-5- In this case, when explaining its decision to grant defendant’ s motion, the trial court relied entirely on TF’s need to be closer to the University of Michigan Hospital. The court was understandably concerned TF’s medical condition and the apparen t increase in the frequency of the child’s need to be taken to the U of M Hospital. However, the trial court did not expressly mention any of the specific f actors under MCL 722.23 and failed to make sufficient findings to facilitate our review. Accordingly, we reverse and remand for a new custody hearing. See Rittershaus , 273 Mich App at 475.

C. EVIDENTIARY ISSUE

Finally, plaintiff argues that the trial court erred when it a dmitted a letter written by one of TF’s doctors that spoke to the desirability of TF moving clo ser to the U of M Hospital. We agree with plaintiff that this letter, which appears to have be en prepared in anticipation of the current litigation rather than in the course of regularly condu cted business activ ity, did not fall under the business records exception of MRE 803(6). See Beach v State Farm Mut Auto Ins Co
, 216 Mich App 612, 620-621; 550 NW2d 580 (1996); Price v Long Realty, Inc , 199 Mich App 461, 467-468; 502 NW2d 337 (1993). T he letter was therefore he arsay and the trial court abused its discretion by admitting this document into evidence. See M RE 801; MRE 802; Augustine v Allstate Ins Co , 292 Mich App 408, 431; 807 NW2d 77 (2011). On the current re cord, any error in this regard appears harmless in light of the parties’ testim ony and the properly admitted exhibit that listed all of TF’s conditions. Cf. Price, 199 Mich App at 468. However, because this case is being remanded for a new custody hearing, we note that this document should not be considered on remand under MRE 803(6).

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

/s/ David H. Sawyer /s/ Joel P. Hoekstra /s/ Kurtis T. Wilder