Wasilk v. Wasilk

1

2024 S.D. 79

NICHOLAS E. WASILK, Plaintiff and Appellant, v. HEATHER L. WASILK, Defendant and Appellee.

No. 30644-a-MES

Supreme Court of South Dakota

December 11, 2024

CONSIDERED ON BRIEFS AUGUST 27, 2024

APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT CODINGTON COUNTY, SOUTH DAKOTA THE HONORABLE ROBERT L. SPEARS Judge

THOMAS L. SANNES of Delaney, Nielsen & Sannes, P.C. Webster South Dakota Attorneys for plaintiff and appellant

AMANDA M. THOLE of Austin, Strait, Benson Thole & Koehn, LLP Watertown, South Dakota Attorneys for defendant and appellee.

SALTER, JUSTICE

[¶1.] Nicholas and Heather Wasilk are former spouses who share joint legal custody of their three minor children. Heather sought to take the children on vacation to Mexico and requested Nicholas's consent on the applications for their passports. Nicholas refused, and Heather filed a motion seeking an order directing Nicholas's participation in the passport application process. The circuit court granted Heather's motion. Nicholas now appeals, arguing the circuit court lacked the authority to resolve Heather's motion, failed to properly weigh the best interests of the children, and impermissibly infringed on his fundamental right as a parent in the care of his children. We affirm.

Factual and Procedural Background

[¶2.] Nicholas and Heather were married in 2015 and have three children together, ranging in age from six to ten years old. Heather also has two older, teenage children from a previous marriage. Since their divorce, Heather has resided in Watertown, and Nicholas lives in Waubay.

[¶3.] Nicholas commenced a divorce action in 2019. During the pendency of the divorce proceedings, the parties stipulated to a custody arrangement under which Heather had primary physical custody of the children subject to Nicholas's visitation rights. The circuit court adopted this stipulation in an interim order.

[¶4.] The circuit court's September 2020 judgment and divorce decree incorporated the parties' agreement regarding marital property, but the decree did not address child custody. In March 2021, the parties executed a "Custody Settlement Agreement" in which they agreed to share joint legal custody with Heather having primary physical custody subject to Nicholas's parenting time.^[1]

[¶5.] In March 2023, however, Nicholas sought to modify the custody agreement with respect to travel. He alleged that in two previous instances he received either "last minute" notice or no notice at all before Heather took the children out of the state for vacation trips. Nicholas requested an order stating that the children cannot leave the state unless the other parent receives two weeks' advance notice and grants permission. Of particular significance to this appeal Nicholas also proposed "[t]hat neither parent shall remove the parties' children from the Continental United States."

[¶6.] The parties ultimately agreed to modify the existing custody order in light of Nicholas's motion. In a December 2023 order, the circuit court adopted the stipulation which contained the following provision relating to foreign travel:

That if a party wishes to transport the children outside of the Continental United States, Alaska or Hawaii, they will give 45 days written notice to the other parent. . . . If the other parent objects within 30 days, the parties will obtain an immediate hearing before the Court to make a determination as to whether or not the trip will take place.

(Emphasis added.)

[¶7.] In approximately October 2023, while Nicholas's motion to modify the custody order was pending, Heather began planning a spring break vacation to an all-inclusive resort in Nuevo Vallarta, Mexico, for all five of her children. She intended the March 2024 trip to be a Christmas present as well as a high school graduation gift for her oldest child. Heather notified Nicholas of her plans and asked him to execute the passport applications for their children in October 2023. After Nicholas refused, Heather filed a motion "for an order directing [Nicholas] to sign the passport application for the minor children to obtain a U.S. passport[.]" Nicholas submitted an objection, citing, among other things, his general safety concerns associated with the children traveling outside of the United States to Mexico.

[¶8.] The circuit court conducted a January 2024 hearing at which both Heather and Nicholas provided testimony. Nicholas explained that one of their children had a severe peanut allergy and asthma. Nicholas was concerned about the availability of adequate healthcare and the lack of "comprehensive food vetting" at the resort.

[¶9.] Heather is a registered nurse and testified that she is well-equipped to treat the child's conditions. She related that the child's most recent allergic reaction to peanut exposure was over three years ago and resulted in an emergency room visit. Although the emergency room medication was not effective, Heather explained that she arrived with the appropriate medication, administered it, and neutralized the allergic reaction. Heather also testified that the child has not had an asthma attack requiring medical attention for nine years. She stated that she always travels with two EpiPens, oral steroids, a steroid inhaler, and an Albuterol inhaler in the event that the child would experience any symptoms.

[¶10.] Nicholas called a non-party witness who recounted an experience unrelated to this case involving her husband's medical emergency in Puerto Vallarta in 2015. The witness explained the challenges related to obtaining appropriate care for her husband and testified that after leaving their resort, she needed an armed guard to escort her to and from the hospital.

[¶11.] Nicholas also expressed concerns regarding a travel advisory issued by the United States Department of State for travel within Mexico.^[2] However, Heather explained that neither she nor the children would be leaving the resort and that the resort provides a shuttle service. She stated that she previously stayed at a similar resort in nearby Puerto Vallarta and noted that she never felt unsafe.

[¶12.] Heather also testified that their three children had already found out about her plans for a vacation to Mexico and were excited to go. She underscored how much the children love traveling.

[¶13.] On January 30, 2024, the circuit court issued a written decision granting Heather's motion and ordering "Nicholas to fully cooperate with the passport application process regarding his three children." The court provided detailed findings of fact about the risks to tourists in the area and acknowledged Nicholas's concerns regarding the travel advisories but found the advisories to be "cautionary[.]" Specifically, the court found that the "advisories have been in effect for nearly eight years and are routinely renewed each year." Further, the court noted that no specific examples had been provided of tourist kidnappings or violence towards tourists visiting resorts in the area.

[¶14.] The circuit court also made specific findings regarding the risks associated with the peanut allergy and asthma conditions of one of the children. The court determined that the child's asthma is "well controlled by medication[,]" noting the nine-year interval since the child's last asthma attack. And based upon her education and professional training as a nurse, the court further found "Heather is qualified to treat the medical needs of her children when required." The court found Heather's plan to notify the resort restaurants of the peanut allergy beforehand would mitigate possible risks, but, in the event of an allergic reaction, the court found "Heather [would] have the appropriate medication and knows how to treat it."

[¶15.] The circuit court found that the trip was in the best interest of the children because it "enable[d] them to experience a luxury resort and share that experience with all their siblings." Further, the court found that allowing all the children to go on the trip "may prevent jealousy . . . between siblings[.]" The court also sought to prevent possible "resentment and alienation regarding the parents if the three younger children are not allowed to go."

[¶16.] After an unsuccessful motion for reconsideration, Nicholas has appealed, challenging the circuit court's order on three grounds. First, he asserts the court's decision was not in the best interests of the children. Next, he argues the court lacks the authority to fashion relief involving passport applications for minors. And lastly, Nicholas claims the court's order violates his fundamental right as a parent in the care of his children.^[3]

Analysis and Decision

Best Interests of the Children

[¶17.] In family law proceedings, we often associate a judicial determination of a child's best interest with establishing or modifying the parents' custody or visitation rights. But a circuit court's authority to "give . . . direction for the custody, care, and education of the children," see SDCL 25-4-45 is broader and easily encompasses an individual determination regarding travel even though it does not, strictly speaking, implicate either custody or visitation. See Gantner v. Gantner, 246 P.2d 923, 929-30 (Cal. 1952) (holding that trial court must assess parent's request to take the parties' child on a vacation to Australia using best interests of the children standard); Sparks v. Sparks, 269 S.E.2d 847, 849 (W.Va. 1980) (holding that "absent a showing that the health or welfare of the children would be substantially impaired . . . the custodial parent is entitled to [travel out of the country with their minor children].").

[¶18.] Permeating our more-typical custody and visitation decisions is the unremitting principle...