Wasilk v. Wasilk

#30644-a-MES
2024 S.D. 79

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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NICHOLAS E. WASILK, Plaintiff and Appellant,

v.

HEATHER L. WASILK, Defendant and Appellee.

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APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
CODINGTON COUNTY, SOUTH DAKOTA

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THE HONORABLE ROBERT L. SPEARS
Judge

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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.

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CONSIDERED ON BRIEFS
AUGUST 27, 2024
OPINION FILED 12/11/24
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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

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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

1. Though Heather and Nicholas have demonstrated the capacity to reach
agreement concerning the custody of their children, they have also frequently
litigated these issues.
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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.

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[¶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

2. The State Department issues travel advisories on a scale of Level One
(exercise normal precaution) to Level Four (do not travel) and, in Mexico, it
does so on a state-by-state basis. At the hearing, Nicholas’s counsel claimed
that the resort was located in the Mexican State of Durango, which is subject
to a Level Three (reconsider travel) travel advisory, and the circuit court’s
decision was based on a Level Three advisory. In her appellate brief,
Heather asserts she discovered after the hearing that the resort is actually
located in the State of Nayarit, which is currently subject to a Level Two
(exercise increased caution) travel advisory. The error is of no consequence
on appeal because, given the court’s decision, it would not have affected the
result.
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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

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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

3. The anticipated time for Heather’s vacation passed shortly after Nicholas
filed his notice of appeal, and it does not appear that Heather and the
children traveled to Mexico. The parties have not addressed the topic of
mootness, and we conclude it is unnecessary to do so on our own. The record
does not support the inference that the trip would never occur if it did not
happen in March 2024; the trip might well be rescheduled for another time.
Additionally, the children are still without passports. Under the
circumstances, we have no indication that the dispute between parties has
ceased to be a live and justiciable controversy. Compare Sullivan v. Sullivan,
2009 S.D. 27, ¶ 13, 764 N.W.2d 895, 900 (determining father’s appellate
challenge to a decision allowing mother to travel to the Philippines with their
children was moot because the travel had already occurred).
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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 that “our brightest beacon remains the best interests of the

child” in all judicial decisions concerning a child’s care. Zepeda v. Zepeda, 2001 S.D.

101, ¶ 13, 632 N.W.2d 48, 53; see also Weber v. Weber, 529 N.W.2d 190, 191 (S.D.

1995) (reviewing a visitation modification and stating that “[t]he primary focus is

the best interest of the children”). Factual findings related to the best interest of

the children are reviewed for clear error. Moulton v. Moulton, 2017 S.D. 73, ¶ 6,

904 N.W.2d 68, 71. Under this standard, we “will accept the circuit court’s factual

findings unless after a complete review of the record, the Court is left ‘with a

definite and firm conviction that a mistake has been made.’” Id. (quoting Aguilar v.

Aguilar, 2016 S.D. 20, ¶ 9, 877 N.W.2d 333, 336).

[¶19.] But, how a circuit court effectuates a child’s best interest into

appropriate relief is a matter of broad judicial discretion. See Osgood v. Osgood,

2004 S.D. 22, ¶ 9, 676 N.W.2d 145, 148 (applying abuse of discretion standard in the

context of a visitation order). “An abuse of discretion ‘is a fundamental error of

judgment, a choice outside the range of permissible choices, a decision, which, on

full consideration, is arbitrary or unreasonable.’” Flint v. Flint, 2022 S.D. 27, ¶ 28,

974 N.W.2d 698, 703 (quoting Evens v. Evens, 2020 S.D. 62, ¶ 21, 951 N.W.2d 268,

277).

[¶20.] Here, the circuit court’s factual findings concerning the best interests

of the children were not clearly erroneous, and the court did not abuse its discretion

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by ordering Nicholas to participate in the passport application process. The court

considered the evidence presented by the parties and made detailed findings about

the risks to tourists in the area, concerns associated with the child’s medical

conditions, and the consequences of allowing the travel or not.

[¶21.] Regarding the risks associated with tourism to Mexico, the circuit

court understood Nicholas’s concerns based upon the State Department’s travel

advisory and experience related by his non-party witness. However, the court,

acting in its fact-finding role, was ultimately persuaded by Heather’s testimony that

addressed these concerns, including Heather’s explanation that the children would

remain at the resort at all times during the trip with the only exception being a ten-

minute shuttle between the resort and the airport. The court also noted the

absence of any specific examples of security concerns or reported instances of

tourists being kidnapped, robbed, assaulted, or threatened while vacationing at

resorts in the area.

[¶22.] The circuit court also carefully considered any risk posed by the travel

for the child who has a severe peanut allergy and asthma. The court made several

findings in this regard and accepted Heather’s testimony that the child’s asthma is

“well controlled by medication” and that the peanut allergy was “under control[.]”

The court determined “Heather [has] the appropriate medication and knows how to

treat it” which the court found presented vastly different circumstances from those

related by the non-party witness who sought emergency medical care for her

husband while on vacation in Puerto Vallarta.

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[¶23.] In addition to the health and safety concerns, the circuit court also

considered the impact of its decision upon the children. The court found that the

vacation would “enable [the children] to experience a luxury resort and share that

experience with all their siblings.” The court determined that authorizing the

international travel would prevent possible jealousy and resentment among the

children.

[¶24.] Nicholas claims that the circuit court “appear[ed] to prioritize the

children’s shared experiences and familial dynamics[,]” while ignoring the State

Department’s travel advisory, “the documented incidents of violent killings[,]” and

the risks associated with the child’s severe peanut allergy. As a result, he argues

that the court “misinterpret[ed] [the] evidence” which he characterizes as an abuse

of discretion. He urges “this Court [to] place extra emphasis on the general safety of

the children.”

[¶25.] But this argument misunderstands our role as a reviewing court. 4 We

review the circuit court’s decision under the deferential standards set out above; we

do not reweigh the evidence. See Hubbard v. City of Pierre, 2010 S.D. 55, ¶ 27, 784

N.W.2d 499, 511 (“It is not our role on appeal to retry [the] case or substitute our

judgment as to credibility and weight of the evidence.”). And, in any event,

4. Nicholas acknowledges that the best interests of the children is a factual
finding, but he seems to refer to the circuit court’s assessment of the risk
associated with Heather’s proposed trip as a matter of discretion. Notably,
he does not argue that the court abused its discretion when it effectuated its
best interest finding by ordering him to cooperate in the passport application
process. The argument he offers in this regard is a legal one—the court
lacked authority to order his cooperation under South Dakota law because
federal regulations require both parents’ consent to a passport application for
a child under 16 years old. See infra ¶¶ 26–31.
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Nicholas’s claim that the circuit court ignored his safety concerns is not supported

by the record. The court expressly considered each argument he presented—the

court simply reached a different conclusion than Nicholas would have preferred.

The circuit court’s authority and 22 C.F.R. § 51.28

[¶26.] Nicholas next advances what appears to be a preemption argument—

that the circuit court’s order is “invalid as a matter of law” because it acted without

legal authority. In support, he cites 22 C.F.R. § 51.28 (2024), the federal regulation

governing passport applications for minors and asks us to “recognize[] the legal

framework established by federal law and preclude[] the trial court from

overstepping its bounds[.]” In our view, however, Nicholas’s argument is

unsustainable.

[¶27.] While passports typically require consent from both parents, the

provisions of 22 C.F.R. § 51.28(c)(2) (2024) contemplate a role for state courts in

certain cases by stating: “An order from a court of competent jurisdiction providing

for joint legal custody . . . will be interpreted as requiring the permission of both

parents or the court, as appropriate.” (Emphasis added.) Further, “[t]he

Department [of State] will consider a court of competent jurisdiction to be a U.S.

state . . . court located in the minor’s home state or place of habitual residence.” 22

C.F.R. § 51.28(c)(4) (2024).

[¶28.] Here, the circuit court was unquestionably a court of competent

jurisdiction, and the parties’ modified agreement, which Nicholas sought,

anticipates the potential that one parent will object to the other’s request to travel

outside of the country with the children. In that event, the agreement provides that

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“the parties will obtain an immediate hearing before the [circuit court] to make a

determination whether or not the trip will take place.”

[¶29.] Under the circumstances, it appears that the parties’ custody

agreement fits within the text of 22 C.F.R. § 51.28(c)(2) (2024) which would either

require the consent of both parties “or the court” for a minor’s passport application.

Here, of course, the circuit court did not directly authorize the passport applications

for the parties’ children, but, instead, ordered Nicholas to cooperate in the

application process. We do not see that distinction as consequential to the question

of authority Nicholas raises here which is premised upon an incorrect view that

federal regulations contemplate no state court role for passport applications

involving minors.

[¶30.] Indeed, Nicholas’s argument that he cannot be “forced” to consent is

simply an extension of his broader assertion that his consent is an indispensable

requirement to a passport application for the children under federal law. He cites

as support the Georgia Court of Appeals decision in Ansell v. Ansell, 759 S.E.2d 916

(Ga. Ct. App. 2014). However, we do not view Ansell as persuasive here, most

notably because the court’s reference to federal authority focused its discussion on

22 C.F.R. § 51.28(a)(3)(ii)(E) [now § 51.28(a)(3)(ii)(D)] and not § 51.28(c)(2), which

we cite above.

[¶31.] But beyond this, we perceive the state-versus-federal allocation of

authority topic differently than Nicholas, and perhaps the Ansell court. Read as a

whole, 28 C.F.R. § 51.28 (2024) does not purport to supplant state court authority; it

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seeks to recognize it where, as here, a custody order makes clear that a circuit court

may act to authorize a minor’s passport application.

Fundamental Rights

[¶32.] Finally, Nicholas asserts that the circuit court’s order infringes on his

fundamental right as a parent, as recognized by the United States Supreme Court

in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000). In

Troxel, the Supreme Court held that a Washington visitation statute as applied was

unconstitutional because it failed to accord proper weight to the decision of a fit

parent regarding visitation rights for grandparents. 530 U.S. at 67–73, 120 S. Ct.

at 2061–64. In doing so, the Court recognized a “fundamental right of parents to

make decisions concerning the care, custody, and control of their children” and “a

presumption that fit parents act in the best interests of their children.” Id. at 66,

68. This presumption, codified in SDCL 25-5-29, establishes primacy for a parent’s

rights over non-parent third parties.

[¶33.] Here, however, Nicholas asserts this fundamental right against

Heather, the mother of the children, who, like him, appears to be capable of acting

in the children’s best interests. Accordingly, Troxel’s presumption in favor of a fit

parent’s determination simply does not apply, as courts across the country have

universally recognized. See e.g., Vaughn v. Vaughn, 56 So. 3d 1283, 1288 (Miss. Ct.

App. 2011) (noting that “numerous courts . . . have found Troxel does not apply to

custody disputes between natural parents”); Enrique M. v. Angelina V., 94 Cal.

Rptr. 3d 883, 889 (Cal. Ct. App. 4th 2009) (holding that “Troxel . . . does not compel

courts to apply a substantive due process analysis in resolving custody or custody

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related disputes between parents”); In re R.A., 891 A.2d 564, 576 (N.H. 2005) (noting

that “strict scrutiny need not be applied [when] balancing the rights of two fit

parents, both of whom have the same constitutional right to custody of their

children”); In re Parentage of L.B., 122 P.3d 161, 178 (Wash. 2005) (“No case has

ever applied a strict scrutiny analysis in cases weighing the competing interest of

two parents. Rather, in Washington, courts attempt to discern the best interests of

the child.”); Marriage of Arnold v. Arnold, 679 N.W.2d 296, 299 (Wis. 2004)

(distinguishing Troxel and rejecting a parent’s substantive due process argument

raised against the other parent); McDermott v. Dougherty, 869 A.2d 751, 771, 808

(Md. 2005) (explaining that “[t]he best interests of the child standard is,

axiomatically, of a different nature than a parent’s fundamental constitutional

right[,]” and that “the most important application of the [best interests] standard[]

is in disputes between fit natural parents [who share] equal constitutional rights to

parent”); accord Margaret F. Brinig, Does Parental Autonomy Require Equal

Custody at Divorce?, 65 La. L. Rev. 1345, 1358 (2005) (asserting that “as a matter of

constitutional law, the best interests of the child, protected by the state, should

prevail over the constitutional interests of either of the competing parents”).

[¶34.] We affirm.

[¶35.] JENSEN, Chief Justice, and KERN, DEVANEY, and MYREN,

Justices, concur.

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