2011 VT 113


 
Rutanhira
v. Rutanhira (2010-377)
 
2011
VT 113
 
[Filed
30-Sep-2011]
 
 
NOTICE: 
This opinion is subject to motions for reargument under V.R.A.P. 40 as well as
formal revision before publication in the Vermont Reports.  Readers are requested
to notify the Reporter of Decisions, Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801 of any errors in order that
corrections may be made before this opinion goes to press.
 
 

2011 VT 113 

 

No. 2010-377

 

Sara
  Rutanhira


Supreme
  Court


 


 


 


On
  Appeal from


    
  v.


Superior
  Court, Chittenden Unit,


 


Family
  Division


 


 


Tinotenda
  Rutanhira


March
  Term, 2011


 


 


 


 


Matthew I. Katz, J.


 

Cynthia
L. Broadfoot of Broadfoot & Associates, Burlington, for Plaintiff-Appellee.
 
Tinotenda
Rutanhira, Pro Se, South Burlington, Defendant-Appellant.
 
 
PRESENT: 
Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.
 
 
¶
1.     
SKOGLUND, J.  Father appeals a family division order awarding mother primary legal rights
and responsibilities for the parties’ daughter based on the court’s conclusion
that father exercised poor judgment in desiring to take his daughter to his
birth country, Zimbabwe.  On appeal, father contends that the trial court
abused its discretion by considering evidence outside of the proceeding. 
He additionally challenges the court’s finding that he planned to leave
daughter in Zimbabwe while he traveled to South Africa and claims the court
erred when it considered testimony regarding his desire to travel to Zimbabwe
because of an earlier stipulated agreement between the parties.  We agree
that the trial court erred in relying on evidence gathered outside the
proceeding, which father did not have an opportunity to contest, and we reverse
and remand for the family court to rehear this matter.
¶
2.     
The facts
underlying this case are largely uncontested.  The parties were married on
April 7, 2004, and their daughter was born on March 11, 2005.  In August
2009 they separated.  Mother filed for a divorce in October 2009. 
Under a temporary order, the parties shared physical rights and
responsibilities for daughter on a roughly equal basis.  The parties
ultimately agreed to continue sharing physical custody, but could not agree on
sharing legal rights.  After a two-hour contested hearing where both
parties were represented by lawyers, the family court awarded sole legal rights
and responsibilities to mother.  
¶
3.     
The court found
that the parties were “very cooperative” in determining daily arrangements for
daughter, and the court highlighted the fact that “there is really little to
choose from as between these two parents.”  The parties agreed on where to
send daughter to school, her travel around the country, the choice of doctors,
dentists, and religion.  The court noted only two specific conflicts
between the parties.  The first involved a disagreement in 2009 about
whether daughter should be inoculated with the H1N1 flu vaccine; father
eventually supported mother’s decision not to inoculate.  The second was
the real issue of contention: foreign travel.  
¶
4.     
Father immigrated
to the United States from Zimbabwe in 2000 with the rest of his family. 
He is now a U.S. citizen, and the court noted that he has no intention of
moving back to Zimbabwe.  In 2009, he expressed a desire to bring daughter
to visit Zimbabwe, along with other members of his immediate family, to see his
remaining family there.  The trip, planned for the summer of 2010,
coincided with the World Cup in South Africa.  Mother objected.  She
viewed the trip to Zimbabwe as far too dangerous for daughter.  Though
father wanted daughter to know her heritage, he ultimately acquiesced to
mother’s wishes.  Nevertheless, this was the issue upon which the family
court based its award of legal custody to mother.
¶
5.     
The court reasoned
that “[t]aking the child to an unstable place . . .
would not be a wise idea” and, while the issue of determining whether Zimbabwe
was “stable” was not before the court, the court decided to assess father’s
determination of how safe it was to visit Zimbabwe as a means of evaluating his
ability to make decisions regarding daughter’s future.  During the hearing
the court asked father what sources he used to stay current on events in
Zimbabwe.  Father said he talked regularly with his family there, and he
mentioned three websites he used to keep abreast of events in the country.
 After the close of the hearing, and without notice to the parties, the
court visited the Internet sources, all newspaper websites.  Though the
court did not rely on the sites for the truth of what they said about
Zimbabwe—and thus was unconcerned about the information as hearsay—the court
read the information therein “as a measure of father’s judgment in dealing with
a significant issue involving legal rights and responsibilities.”  The
court found that the sites contained articles about disease, famine, and
political violence in Zimbabwe, and it concluded that the sources father used
to arrive at the decision that it was safe to plan a trip indicated that
father’s decision-making was “questionable” and “skewed.”  On this basis,
the court granted mother sole legal custody, lamenting that it was “forced to
make a choice” and “decide the case on the evidence which has been presented
and reasonable inferences to be drawn therefrom.”  Father timely appealed.
¶
6.     
Father argues that
the court erred in basing its ruling on Internet sites that were never
introduced as evidence.  He contests the court’s reliance on information
gleaned through research that the court conducted after the close of evidence
to which he never had any opportunity to respond.  He also claims the
trial court lacked an evidentiary basis for finding that he planned to leave
daughter with family in Zimbabwe while he attended the soccer matches and erred
in relying on this finding.  Finally, he claims the court should not have
considered his plans to travel with daughter to Africa because he and mother
had stipulated that his travel plans would not be raised for consideration
before the court.
¶
7.     
We address
father’s last argument first because if the court improperly considered the
issue of father’s travel plans, it lacked a basis for awarding legal custody to
mother.  Father’s claim relies on the stipulation the parties entered into
regarding his plans to travel to Zimbabwe.  The relevant passage of the
agreement reads:
  3.  The parties
stipulate and agree that [father’s] travel to Africa from June 4-22 shall not
be raised by [mother] for consideration by the Court in any proceeding
associated with legal or physical parental rights and responsibilities or
contact schedules in the event these issues are the subject of contested
proceedings.  
 
Reading
the plain language of this agreement, we conclude that it is meant only to
cover father’s travels to Zimbabwe and South Africa in June of 2010, not his
plans to bring daughter to visit her relatives.  See Kim v. Kim,
173 Vt. 525, 526, 790 A.2d 381, 382-83 (2001) (mem.) (interpreting meaning of divorce stipulation like a contract,
looking to plain meaning and context to determine intent).  The trial
court did not err in considering testimony about father’s plans to travel with
daughter.[1]
¶
8.     
The thornier issue
is the court’s gathering of information obtained outside of the courtroom and
relying on the same without either party having an opportunity to challenge the
evidence or formulate an argument to rebut any conclusions drawn from it. 
We review a family court’s award of custody with significant deference and will
not overturn its determination so long as it “reflects reasoned judgment in
light of the record evidence.”  Hazlett v. Toomin,
2011 VT 73, ¶ 11, ___ Vt. ___, ___ A.3d ___ (mem.) (quotation
omitted).  Here, we conclude that the trial court impermissibly relied on
evidence drawn from outside the court proceeding, and we view such reliance as
an abuse of discretion.  See Thompson v. Pafundi, 2010 VT 80, ¶ 16,
___ Vt. ___, 8 A.3d 476 (mem.) (reviewing
factual support for court’s legal conclusion for abuse of discretion).
¶
9.     
The court’s
decision to award legal custody to mother was based entirely on father’s
conclusion that it was safe for daughter to travel with him to Zimbabwe in the
summer of 2010.  Though father never consummated this plan, the trial
court reasoned that the content of the websites father had mentioned, at the
time father was considering the trip, should have reasonably given him pause
concerning the safety of the country where he planned to take his
daughter.  There are two flaws in the trial court’s reliance on these
sites in formulating its conclusion.
¶
10.   Our principle concern is that
the sites the family court relied upon were not necessarily sources that father
used in determining the wisdom of his trip to Zimbabwe.  In the context of
the hearing, father mentioned the specific sites in response to the court’s
general question about whether father “kept up on what’s happening in Zimbabwe
recently.”  Father concluded by stating that there was extensive
information available all over the Internet.  Based on this general
information, the court examined articles on the sites dating from the previous
summer when father had formulated his travel plans and drew its
conclusion.  In its decision, the court referred to a “sampling” of
information the court had viewed on the Internet.  Thus, the court focused
on a source that father mentioned as part of his general pool of information,
and not necessarily a source he relied upon in 2009 when making his decision.
 Nor can we determine whether the “sampling” of information the court
obtained from these sites was exhaustive or selective.  It is impossible
for us to review the record given the dynamic nature of information on the
Internet and the necessarily time-bound query that produced such articles,
especially when there is no specificity from the court as to the scope of
information viewed.  Reliability and permanence of information are
constant concerns with Internet-based resources.  See NYC Med. &
Neurodiagnostic, P.C. v. Republic W. Ins. Co., 798 N.Y.S.2d 309, 313 (App.
Div. 2004) (reversing trial court due to reliance on Internet search, in part,
because “there was no showing that the Web sites consulted were of undisputed
reliability”); see also D. Tennant & L. Seal, Judicial Ethics & the
Internet: May Judges Search the Internet in Evaluating & Deciding a Case?,
16 Prof. Law. 2, 14-16 (2005) (noting accuracy and permanency are two major
concerns with court reliance on Internet searches).  
¶ 11.   The second point of error is
related, but more general: a court cannot undertake an Internet search after
the submission of a case on an issue material to that case and rely on
information or evidence not properly introduced.  In doing so, a court
denies parties the opportunity to address the information and confront
potentially harmful evidence.  There are instances where information
obtained through such a search is acceptable under the rules of judicial
notice.[2] 
Cf. United States v. Bari, 599 F.3d 176, 180 (2d Cir. 2010) (per curium)
(upholding trial court’s use of Internet search to confirm “common sense
supposition” under relaxed evidentiary standard); Magnoni v. Smith &
Laquercia, LLP, 701 F. Supp. 2d 497, 501 (S.D.N.Y. 2010) (taking judicial
notice of Internet search to determine brand name of wheelchair as part of
court’s assessment of witness credibility in bench trial).  However, the
information the trial court relied upon to make its own assessment of the
situation in Zimbabwe was not “capable of accurate and ready determination by
resort to sources whose accuracy cannot reasonably be questioned.”  V.R.E. 201(b).  The articles examined by the court, as
far as we know, spanned several years and are from sources whose record for
accuracy is unknown.
¶ 12.   We have held that when a trial
court relies on information taken from outside of the proceeding, especially
where it involves the central issue before the court, it commits error. 
See Siebert v. Siebert, 124 Vt. 187, 191, 200 A.2d 258, 261 (1964)
(reversing trial court when the court relied on its own personal knowledge of
parties “as a basis for [its] findings, rather than evidence introduced at the
hearing”).  Even in the context of judicial notice, our Rules of Evidence
demand that the parties receive “an opportunity to be heard as to the propriety
of taking judicial notice and the tenor of the matter noticed.”  V.R.E.
201(e); see State v. Gokey, 2010 VT 89, ¶ 19, ___ Vt. ___, 14 A.3d
243 (noting that absence of adversarial hearing to contest court’s ex parte
investigation violated Rule 201).  
¶ 13.   Other appellate courts have
reached a similar conclusion when reviewing a trial court’s reliance on
Internet searches undertaken after the close of the hearing.  The Supreme
Court of Delaware reversed a family court’s property settlement when the court
relied on an Internet search to reject one party’s evidence.  Tribbitt
v. Tribbitt, 963 A.2d 1128 (Del. 2008).  The court in Tribbitt
held that the trial judge could not properly reject the husband’s unrefuted
expert evidence on the wife’s earning capacity based on the judge’s
outside-the-record computer search of potential jobs for the wife.  Id.
at 1130-31.  It went on to recognize that such post-hearing searches
violate the rules governing judicial notice because they do not afford the
parties an opportunity to be heard on the evidence at issue.  Id. at
1131; see also NYC Med. & Neurodiagnostic, P.C., 798 N.Y.S.2d at 313
(“In conducting its own independent factual research, the court improperly went
outside the record in order to arrive at its conclusions, and deprived the
parties an opportunity to respond to its factual findings.”); cf. Ney v. Ney,
2007 PA Super. 38, ¶¶ 11-15, 917 A.2d 863 (concluding that, in absence of other
evidence in the record, trial court erred in relying on its independent
Internet search, even where search conducted during hearing and party
questioned on search results).  
¶ 14.   Here, the trial court took a
portion of father’s testimony and conducted its own investigation, using this
further investigation to determine the outcome of the case.  Neither party could reasonably expect such additional fact-finding,
and neither had an opportunity to test any of the evidence acquired
through this examination.  It was error for the court to rely on this
evidence.[3]
¶
15.   We appreciate the difficulty
facing the trial court—the challenge of choosing between two equally capable
and caring parents.  That said, such a dilemma
does not give a court license to look outside the submitted evidence and base
its ruling on select information that neither party had an opportunity to
contest.  We remand the cause for adjudication on the issue of legal
rights and responsibilities.
Reversed
and remanded.

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate Justice

 





[1] 
While the trial court did not rule directly on this issue, it heard argument
from both parties on the meaning of the stipulation and relied upon testimony
that father argued was inadmissible under the stipulation.  We treat this
reliance as an implicit ruling on the stipulation’s proscriptive scope.


[2] 
Neither party, nor the court, claims that the Internet sites’ content was
admitted under judicial notice.  See V.R.E. 201(b) (listing type of facts
that can be noticed as: those “generally known within the territorial
jurisdiction of the trial court” and those “capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be
questioned.”)


[3] 
Given this result, we need not address father’s challenge of the sufficiency of
the evidence the court used to support its finding that
he planned to leave his daughter in Zimbabwe.



