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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

3rd Circuit Court – Conway Family Division

No. 2014-617

IN THE MATTER OF TAMMY ROKOWSKI AND SHANE ROKOWSKI

Argued: June 18, 2015

Opinion Issued: July 23, 2015

Melendy, Lee & Santuccio, P.A., of Conway (Danielle Richey Santuccio on 

the brief and orally), for the petitioner.

Donald M. Ekberg, of North Conway, by brief and orally, for the 

respondent.

DALIANIS, C.J. The respondent, Shane Rokowski, appeals the final 

decree in his divorce from the petitioner, Tammy Rokowski. On appeal, he 

argues that the Circuit Court (Albee, J.) erred by: (1) conducting its own 

internet research to ascertain the value of the marital home; (2) inequitably 

distributing the parties’ assets and debts; (3) awarding the petitioner 

permanent lifetime alimony of $750 monthly; and (4) requiring him to pay 

certain expenses while the divorce was pending. We affirm in part, vacate in 

part, and remand.

I. Background

The trial court found, or the record contains, the following facts. The 

parties married in 1990. When they married, the petitioner was 21 years old 

and a high school graduate. She was employed full-time by Cuisinart with 
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which she has a small 401(k) account. After the parties married, the petitioner 

worked outside the home until 1995, when their eldest son was born. The 

parties’ two sons are now both over 18.

Before 2006, the family lived in Norwich, Connecticut, in a two-family 

home owned by the respondent’s grandparents until 1997, when they conveyed 

the home to the respondent, reserving a life estate for themselves. The home 

has two residential units: the respondent’s grandparents lived in the upstairs 

unit, and the parties and their children lived in the downstairs unit.

The respondent works primarily as a self-employed plumber. He also 

has a seasonal snow plowing business. The petitioner was a bookkeeper for 

the plumbing and snow plowing businesses, although she did not receive 

taxable wages for her work. In 2004, the parties began a fireworks business for 

which the petitioner acted as a bookkeeper, worked at a store front, and “did 

tent sales.” The respondent is the sole proprietor of the plumbing, 

snowplowing, and fireworks businesses.

According to the respondent, his businesses were lucrative and produced 

substantial cash proceeds. Because the parties had minimal living expenses, 

they and their children were able to take vacations to New Hampshire and 

Jamaica. They also skied and owned snowmobiles. The parties’ bank 

accounts were maintained in the respondent’s name, and he paid cash for the 

family’s expenses.

In 2006, the petitioner and the children moved to a rented home in New 

Hampshire because the parties were planning to open a fireworks business 

here. The respondent remained in Connecticut, although he visited the family 

on the weekends. For a time while in New Hampshire, the petitioner worked 

part-time as a caregiver for a disabled child and as a telemarketer for a local 

inn. She ceased doing so in 2010.

Beginning in 2010, the parties began to argue and their relationship 

began to deteriorate. In September 2011, the petitioner filed a petition for a 

domestic violence final order of protection and a petition for divorce. By 

agreement of the parties, the order of protection remained a temporary order; it 

was dismissed as part of the final divorce decree.

Following a two-day final hearing held in 2013, the court granted the 

parties a divorce based upon irreconcilable differences. The respondent 

unsuccessfully moved to reconsider, and this appeal followed.

II. Analysis

A trial court has broad discretion in fashioning a final divorce decree and 

in managing the proceedings before it. In the Matter of Spenard & Spenard, 
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167 N.H. 1, 3 (2014). We will not overturn a trial court’s rulings absent an 

unsustainable exercise of discretion. Id. This means that we review the record 

only to determine whether it contains an objective basis to sustain the trial 

court’s discretionary judgment. Id.

A. Internet Research, Equitable Distribution, and Alimony Award

We first consider the respondent’s arguments regarding the court’s 

internet research, property distribution, and alimony award. The parties’ 

primary assets were the marital home in Connecticut and the respondent’s 

businesses. Neither party provided the trial court with formal appraisals of the 

home or the businesses.

The court valued the marital home at $150,000 as of the date of the 

2014 final divorce decree and awarded it to the respondent; however, the court

ordered him to pay the petitioner $75,000 and mandated that the debt be 

secured by a mortgage. The court also awarded the businesses to the 

respondent. The court stated that the $75,000 the petitioner was to receive 

included her equitable interests in those businesses.

To determine the value of the marital home and to choose a valuation 

date, the court relied upon “information supplied by [the respondent] from an 

on-line service, up-dated information the court was able to obtain by using a 

similar on-line service,” and “tax records.” The “on-line service” upon which 

the trial court relied was “Zillow,” see Yahoo!-Zillow Real Estate Network, 

http://www.zillow.com (last visited July 16, 2014), a website that “offers free 

residential real-estate estimates along with other tools for real-estate buyers 

and sellers.” Edwards, Selected Online Sources for Valuing Estate Assets, 86

Mich. B.J. 52, 52 (2007). Zillow provides an estimated value for a home called 

a “Zestimate.” Id. “[T]he Zestimate is not calculated using individual home 

appraisals by Zillow employees, but is calculated from public and user 

submitted data.” Bellin & Ferguson, Trial by Google: Judicial Notice in the 

Information Age, 108 Nw. U. L. Rev. 1137, 1179 (2013-2014) (quotation 

omitted). “Realtors, homeowners, and others submit data to the website and to 

local government agencies, and Zillow collects the data and runs it through a 

secret algorithm to estimate the value of properties.” Id. “Zillow does not itself 

obtain the data [upon which it relies to estimate property values] or test it for 

accuracy.” Id.

The trial court relied upon its internet research to evaluate the 

respondent’s comparable sales data, which consisted of the tax records for 

homes on the same street as the marital home. For instance, the tax record for 

one home demonstrated that, although it was assessed at $160,000, it sold in 

2011 for $76,862. The trial court observed that “[a]ccording to [the] Zillow web

site, . . . this same property sold [in 2013] for $116,472[,] [s]uggesting the 

property may have been a short-sale to avoid foreclosure.” Similarly, the tax 
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record for another home showed that it was assessed at $146,000 and sold in 

2011 for $82,000. The trial court noted that Zillow estimated the property’s 

value to be $103,222 and indicated that the property was again for sale. The 

tax record for a third potential comparable sale demonstrated that the home 

was assessed at $126,000, although it sold in 2012 for $40,000. The court 

stated that Zillow estimated the property’s resale value as $112,649.

The trial court also relied upon its internet research to choose a 

valuation date, finding that the area where the home is located “is experiencing 

a recovery with sales or projected sales prices reflecting other than foreclosure 

or short-sale pricing,” and, thus, choosing to value the home as of 2014 (when 

the decree was issued) instead of 2011 (when the petition was filed).

The respondent argues that the trial court erred when it relied upon its 

own internet research to ascertain the home’s value and to choose a valuation 

date. We agree.

It is axiomatic that a trial court “cannot go outside of the [evidentiary] 

record except as to matters judicially noticed.” Morse v. Allen, 45 N.H. 571, 

572 (1864); see In re Schrag, 464 B.R. 909, 914 (Bankr. D. Or. 2011) (“It is a 

basic principle of jurisprudence . . . that the court may not introduce its own 

evidence into a proceeding.”). Doing so is “inconsistent with the established 

role of the trial court in adversary litigation.” Klemow v. Time Incorporated, 

352 A.2d 12, 14 n.3 (Pa. 1975).

Under New Hampshire Rule of Evidence 201, the circumstances under 

which a judge may judicially notice a fact are limited. See N.H. R. Ev. 201. 

Although the rules of evidence do not apply to divorce cases, the trial court, in 

such a case, “may utilize the New Hampshire Rules of Evidence to enhance the 

predictable, orderly, fair, and reliable presentation of evidence.” Fam. Div. R.

2.2; see N.H. R. Ev. 1101(d)(3). Moreover, even when the rules of evidence do 

not apply, “some degree of trustworthiness” is required “for evidence to be 

admissible.” State v. Ploof, 162 N.H. 609, 620 (2011). Accordingly, we find 

Rule 201 instructive.

Under Rule 201, “[a] judicially noticed fact must be one not subject to 

reasonable dispute in that it is either (1) generally known within the territorial 

jurisdiction of the trial court or (2) capable of accurate and ready determination 

by resort to sources whose accuracy cannot reasonably be questioned.” N.H. 

R. Ev. 201(a). Here, we conclude that Zillow’s “Zestimate” is not “capable of 

accurate and ready determination by resort to sources whose accuracy cannot 

reasonably be questioned.” Id.; see Bellin & Ferguson, supra at 1179 

(explaining that “Zillow’s Zestimate of [a] house’s value fails to attain the 

requisite status as a fact ‘that can be accurately and readily determined from 

sources whose accuracy cannot reasonably be questioned’”).
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Appellate courts in other jurisdictions have found reversible error when a

trial court relies upon internet information from outside of the evidentiary 

record that fails to meet the standard for judicial notice. See Rutanhira v. 

Rutanhira, 35 A.3d 143, 147-48 (Vt. 2011) (holding that trial court committed 

reversible error when it conducted an internet search after the close of evidence 

and the information upon which it relied was unacceptable under the rules of 

judicial notice); Tribbitt v. Tribbitt, 963 A.2d 1128, 1130-31 (Del. 2008) 

(concluding that trial court could not reject unrefuted expert testimony about 

wife’s earning capacity based, in part, upon trial court’s outside-of-the-record 

computer search of potential jobs available to wife). We reach the same 

conclusion here and hold that, because the trial court relied, in part, upon 

Zillow’s “Zestimates” to ascertain the home’s value and choose a valuation 

date, the court erred. Because the marital home was one of the parties’ most 

significant assets, we vacate the trial court’s distribution of the marital 

property.

Because we have vacated the court’s distribution of marital property, we 

decline to address the respondent’s arguments that the trial court improperly: 

(1) referred to, and allegedly considered when distributing the property, his

drinking, hiding income, domestic violence, and alienation of the parties’ 

children; (2) divided the parties’ debts unequally; and (3) awarded the petitioner 

any interest in his businesses.

For the same reason, we also decline to address the respondent’s 

arguments about the alimony award. Because the trial court based its alimony 

award in part upon “the asset distribution,” and because we have vacated that 

distribution, we also vacate the alimony award.

B. Payment of Expenses Incurred During Divorce

We next consider the respondent’s arguments regarding expenses he was 

required to pay, which were incurred while the divorce was pending. In its 

final decree, the court reiterated orders that it had previously issued making 

the respondent responsible for paying certain expenses, including 50% of the 

medical bills incurred before the divorce petition was filed and 100% of the 

guardian ad litem’s fees. On appeal, the respondent argues that the petitioner 

should be responsible for all unpaid medical bills incurred before the divorce 

was filed and that the court miscalculated certain amounts it ordered him to 

pay.

We are unable to address the respondent’s arguments substantively 

because he has failed to provide a sufficient record for our review, as was his 

burden as the appealing party. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 

248, 250 (2004). The respondent has not provided the record of the earlier 

proceedings upon which the trial court relied when, in the final decree, it 

ordered him to pay the challenged expenses. Nor has he provided copies of the 
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trial court’s prior orders regarding those expenses. Moreover, although the 

respondent has provided the transcripts of the final divorce hearing and some 

of the exhibits from that hearing, he has not provided all of those exhibits, 

including the parties’ financial affidavits. Absent a complete record, we must 

assume that the evidence presented supported the trial court’s findings, and 

our review is limited to legal errors apparent on the face of the record. See Rix 

v. Kinderworks Corp., 136 N.H. 548, 553 (1992). The respondent has not 

demonstrated that the trial court committed legal error when it ordered him to 

pay the challenged expenses. Accordingly, we affirm this portion of the final 

divorce decree.

The respondent has raised certain constitutional arguments that he has 

failed to demonstrate were preserved for our review. See Bean, 151 N.H. at 

250. He argues, for instance, that the property distribution in this case 

violates Part I, Article 14 of the New Hampshire Constitution. He also argues 

that the delay between 2013, when the final divorce hearing occurred, and 

2014, when the trial court issued its decision, violated Part I, Article 14. 

Further, he contends that RSA 458:16-a, II (2004) violates the separation of 

powers doctrine. See N.H. CONST. pt. I, art. 37. Because the respondent has 

failed to demonstrate that he raised these constitutional claims in the trial 

court, we decline to consider them on appeal. Further, any issues that the 

respondent raised in his notice of appeal, but did not brief, are deemed waived. 

See In re Estate of King, 149 N.H. 226, 230 (2003).

Affirmed in part; vacated in 

part; and remanded.

HICKS, CONBOY, LYNN, and BASSETT, JJ., concurred.