Jakab v. Jakab

• Decision Date: 23 June 1995
• Docket Number: No. 94-348,94-348
• Citation: 664 A.2d 261,163 Vt. 575
• Parties: Paula JAKAB v. Danny JAKAB.
• Court: Vermont Supreme Court

Page 261

664 A.2d 261

163 Vt. 575

Paula JAKAB v. Danny JAKAB.

No. 94-348.

Supreme Court of Vermont.

June 23, 1995.

Jean Anne Kiewel of Kiewel & Harris, P.C., Brattleboro, for plaintiff-appellee.

Richard H. Coutant of Salmon & Nostrand, Bellows Falls, for defendant-appellant.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

DOOLEY, Justice.

Defendant Danny Jakab appeals the Windham Family Court's decision in the divorce action brought by plaintiff Paula Jakab. Defendant raises three arguments on appeal: (1) that the trial court erred by taking judicial notice of testimony given by one of the parties' children at a prior proceeding; (2) that the trial court violated defendant's religious freedom under the United States and Vermont Constitutions because it improperly based its visitation order on evidence relating to his religious beliefs; and (3) that the trial court improperly awarded the marital residence to plaintiff based on a request made after the evidence was closed. Although we reject defendant's arguments, we strike part of the visitation order because it violates 15 V.S.A. § 664(1). In all other respects, we affirm.

The parties were married in 1976 and separated in 1991. They have five children, the oldest of whom is plaintiff's by a previous marriage. The trial court found that the marriage was marred by defendant's extreme outbursts of rage and cruelty, which were often targeted directly at the couple's children or plaintiff. In 1992, the trial court issued a temporary order that gave plaintiff full parental rights over the minor children, and strictly limited defendant's visitation with his children. In 1993, the Commissioner of Social and Rehabilitation Services (SRS) took custody of the children due to plaintiff's prolonged illness and reports of child abuse against defendant; the family court conducted a Child in Need of Care and Supervision (CHINS) merits hearing in April of 1993. By the final divorce hearing in December of 1993, all of the children except one had been returned to plaintiff's custody. ¹

I.

Defendant first argues that the trial court erred by taking judicial notice of testimony given by one of the children at the CHINS merits hearing in April of 1993. The testimony given by the child concerned defendant's abusive methods of disciplining the children, and the trial court used much of this testimony to corroborate its findings on this point. Defendant argues that the determination of parental rights and responsibilities, the visitation order and the property distribution all rest on these findings, and must be reversed because of the alleged error.

Prior to the adoption of the Vermont Rules of Evidence we held that "[i]t is improper for a court to take judicial notice of the files, records and judgment in a case other than that on trial." In re Estate of Leno, 139 Vt. 554, 557, 433 A.2d 260, 262 (1981). Leno was based, in part, on the concern that "matters might be considered that a party has no opportunity to meet and explain." Condosta v. Condosta, 139 Vt. 545, 547, 431 A.2d 494, 495 (1981). Thus, Condosta suggested that judicial notice might be appropriate if the opposing party had an opportunity to respond. See id. at 547, 431 A.2d at 495-96. An opportunity to be heard on matters proposed for judicial notice is now built into V.R.E. 201(e). The broad statement of Leno goes too far in light of this procedural safeguard of the rule.

The use of judicial notice here, however, is of a different kind than that addressed in Leno or Condosta. The court took judicial notice not only of the fact of the prior testimony, but also its content to use as evidence in the proceeding before it. Rule 201 permits judicial notice of adjudicative facts if "not subject to reasonable dispute" because "generally known within the territorial jurisdiction of the trial court" or "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." V.R.E. 201(b). The content of the testimony in the CHINS proceeding does not fit within the limits of the rule. See In re Zemple, 489 N.W.2d 818, 820 (Minn.Ct.App.1992) (testimony in prior related proceeding "not properly the subject of judicial notice" because "not beyond dispute" and thus did not meet requirements of Minnesota Evidence Rule 201(b)). It is improper to judicially notice the content of testimony in another proceeding. See id.; United States v. Sixty (60) Acres in Etowah County, Ala., 736 F.Supp. 1579, 1581 (N.D.Ala.1990), rev'd on other grounds, 930 F.2d 857 (11th Cir.1991); Sutherland v. Sutherland, 831 S.W.2d 283, 285 (Tenn.Ct.App.1991); May v. May, 829 S.W.2d 373, 376 (Tex.Ct.App.1992).

Our rules present a clear, albeit limited, method of introducing testimony from a past proceeding into the proceeding before the court. The testimony of witnesses must normally "be taken orally in open court." V.R.C.P. 43(a); V.R.F.P. 4(g)(1) (governing divorce proceedings). We allow former testimony of a witness to be admitted, however, when the witness is unavailable and the testimony meets the requirement of a hearsay exception, as follows:

(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

V.R.E. 804(b)(1). There is no indication here that the child witness was unavailable to allow admission of her former testimony under the hearsay exception. In any event, the fact that the former testimony "would be easily admissible under the hearsay exception ... does not render [it] subject to judicial notice under V.R.E. 201." Lueders v. Lueders, 152 Vt. 171, 173, 566 A.2d 404, 405-06 (1989).

The fact that it was improper to take judicial notice of the former testimony does not end our inquiry, however. The consideration of the former testimony is error only if "a substantial right of the party is affected." V.R.E. 103(a). Thus, we will not reverse if the error is harmless. See State v. Veach, 157 Vt. 473, 475, 599 A.2d 1374, 1375 (1991). Put another way, the rule requires that the appealing party demonstrate "prejudice" from the erroneous ruling. See Keus v. Brooks Drug, Inc., 163 Vt. 1, ----, 652 A.2d 475, 480 (1994).

We recognize, as defendant stresses, that the trial court's findings were explicitly based upon "judicially noticed material" along with the evidence, that a few of the many findings came from the CHINS testimony, and that defendant denied the allegations of physical abuse. We conclude, however, that the evidence supporting the allegations of physical abuse of the children by excessive discipline was overwhelming so that the use of the CHINS testimony was harmless. Both plaintiff and her daughter from an earlier marriage testified at length, and in detail, to defendant's acts of abuse. An evaluation of the family was done by a psychiatrist who is the medical director of the Brattleboro Retreat. After the evaluation, the psychiatrist reported the case to SRS because he concluded that the children were at risk of physical abuse from defendant and that it would be dangerous to allow the children to reside with defendant. His opinion was based in part on a meeting with the children where:

They spoke of explicit events where they felt as though they'd been physically abused. [One child] ... spoke of having a coffee can thrown at her back. [Another] ... said a rock was thrown at her. They spoke of being hit with the hand, the strap, the belt, and a paddle. They were being spanked in the face.

It was also based on the fact that defendant admitted to him the conduct which the children characterized as physical abuse.

A social worker for SRS also testified about the family situation. She had a lengthy conversation with defendant about appropriate discipline, stating that SRS policy permitted spanking if done "with an open hand on clothed buttocks." She noted that in response to this policy defendant expressed frustration. Defendant questioned how children could be adequately controlled, and stated that children need more discipline. SRS continued to maintain an open case on the family to protect the children.

In light of all the evidence, the trial court found that "[d]efendant incredibly minimizes his over-discipline of the children." The court concluded that defendant was physically abusive to the children and to plaintiff. We can say with sufficient certainty that the conclusion would have been the same even if the CHINS testimony had not been considered. Consideration of this testimony was harmless.

II.

Defendant next argues that the trial court violated his free exercise of religion as protected by the United States and Vermont Constitutions by restricting his visitation rights. The visitation order to which defendant objects provides visitation with his two sons for only seven hours every other week and then only if supervised by a person approved by the guardian ad litem and the attorney for the children. It encourages, but does not require, that the youngest daughter join in this visitation. Visitation for the other daughter, who is seventeen years of age and in SRS custody, is to be determined by her legal guardian and custodian. The order provides that defendant "may obtain expanded visitation with one or all of the children upon a demonstration before this Court that he has remediated his beliefs and attitudes that led to child abuse in the past." It further provides that "the children shall not be compelled to attend religious services against their will." Defendant argues that the restrictions were imposed in response to religiously motivated actions and beliefs.

We note at the...