Sullivan v. Sullivan

• Decision Date: 15 April 2009
• Docket Number: No. 24907.,24907.
• Citation: 2009 SD 27,764 N.W.2d 895
• Parties: William J. SULLIVAN, Plaintiff and Appellant, v. Stella M. SULLIVAN, Defendant and Appellee.
• Court: South Dakota Supreme Court

764 N.W.2d 895

2009 SD 27

William J. SULLIVAN, Plaintiff and Appellant, v. Stella M. SULLIVAN, Defendant and Appellee.

No. 24907.

Supreme Court of South Dakota.

Considered on Briefs February 17, 2009.

Decided April 15, 2009.

Steven M. Johnson and Ronald A. Parsons, Jr. of Johnson, Heidepriem, Abdallah and Johnson, LLP Sioux Falls, South Dakota and Kimberly J. Lanham of Janklow Law Firm, Prof. LLC, Sioux Falls, South Dakota, Attorneys for plaintiff and appellant.

Rhonda C. Lockwood, Lockwood Law Office, Sioux Falls, South Dakota, Attorneys for defendant and appellee.

SABERS, Retired Justice.

[¶ 1.] William Sullivan (Bill) appeals the circuit court's decision permitting his ex-wife, Stella Sullivan, to take their minor children to the Philippines for three weeks during the summer of 2008 to visit their grandmother and relatives. He also appeals the circuit court's decision declining his requests to modify the current visitation agreement. We conclude that the first issue and a portion of the second issue are moot, and therefore we do not reach the merits, except that we affirm the remainder of the second issue.

FACTS

[¶ 2.] Bill is the President of Sullivan, Inc., an import distributor of home décor items, located in Sioux Falls, South Dakota. He is responsible for research, product development, and pricing, and is required to travel extensively within the United States and overseas, particularly to Asia, for the business. On one of his trips to Asia, Bill met Stella, a flight attendant originally from Cebu, Philippines.¹ Bill and Stella were married in Cebu on June 15, 1996, and lived in Sioux Falls thereafter. Two children were born of the marriage, a daughter in 1997, and a son in 2000. Bill filed for divorce on February 6, 2007, citing irreconcilable differences.

[¶ 3.] Stella's mother, some of Stella's siblings, and extended family still live in Cebu. During the marriage, the Sullivan family traveled to Cebu in 1997, 1998, 1999, 2001, 2004, and 2005. Bill made an additional trip alone in 2005. After Bill filed for divorce, Stella and the children visited Cebu on two occasions in 2007.

[¶ 4.] On September 18, 2007, Bill and Stella entered into a stipulation regarding custody and visitation ("September stipulation"). It provided that legal custody of the children would be jointly shared, and that Stella would have primary physical custody. An agreement regarding visitation was set forth in the stipulation.² On December 4, 2007, Bill and Stella entered into a stipulation regarding property division, alimony, and child support ("December stipulation"). It included a paragraph pertaining to international travel:

The parties agree that neither of them shall take the minor children, or either of them, on any international trips outside of the United States without permission of the other, or order of the Court. As part of this Agreement, the law firm of Johnson, Heidepriem, Janklow, Abdallah & Johnson shall hold in safekeeping the passport of [the son], and the law firm of Boyce, Greenfield, Pashby & Welk shall hold in safekeeping the passport of [the daughter]. The passports for the minor children shall not be released to either of the parties unless and until the parties have agreed upon arrangements for international travel or until the Court has entered an order with respect to this matter.

[¶ 5.] In early 2008, Stella decided that she wanted to take the children to the Philippines to visit her family. After mediation between Bill and Stella proved unsuccessful, Stella filed a motion with the circuit court on March 13, 2008, requesting permission to travel with the children to the Philippines to visit the children's grandmother and extended family. She also requested custody of the children's passports, a determination of summer visitation, and attorney's fees related to the motion. After hiring new counsel, Stella filed another motion on April 22, 2008, requesting: (1) an order allowing Stella to take the minor children out of the country during her extended summer visitation; (2) a determination of a definite schedule for all summer calendars; (3) custody of the minor children's passports; (4) that all other aspects of the visitation regarding the minor children remain the same; and (5) such other relief deemed just and equitable by the court.

[¶ 6.] In response, Bill filed a motion on May 2, 2008, requesting: (1) that he have visitation May 15-18, 2008, consistent with the September stipulation addressing alternate weekend and holiday visitation; (2) his six weeks of summer visitation be May 25, 2008 through June 8, 2008, June 22, 2008 through July 6, 2008, and July 20, 2008 through August 3, 2008; (3) an additional day of visitation every other week during the school year to compensate for the visitation he is unable to exercise due to his work-related travel;³ (4) permission for Bill's mother to pick up and return the children when Bill is unable during his weekly Thursday visitation; (5) granting Bill visitation every President's Day holiday in exchange for Stella having visitation every Easter holiday; (6) clarification of the regular weekly visitation schedule; (7) that neither parent prevent the other parent from establishing contact with the children by telephone; (8) that visitation with the children on their respective birthdays is alternated annually, and that when it is a parent's birthday, the children spend the day with the parent who is celebrating the birthday; and (9) attorney's fees. Four days later on May 6, 2008, Bill filed a motion resisting Stella's request to take the children to the Philippines. He expressed his concerns of terrorist threats and gang kidnapping for ransom occurring in the Philippines, as evidenced by travel warnings issued by the United States Department of State, the Overseas Security Advisory Council, and government departments in other countries. Bill also expressed concern that because the Philippines is not a signatory on the Hague Convention on Child Abduction, Stella could take the children to the Philippines, decide not to return, and he would have no recourse.

[¶ 7.] The court conducted a hearing regarding the motions on May 12, 2008. After listening to testimony from Stella and Bill, and oral argument by their respective counsel, the court granted Stella permission to travel with the children to the Philippines for three weeks during the summer of 2008. With respect to Bill's six weeks of summer visitation with the children, counsel for both sides went back and forth indicating their client's preference for the dates. Ultimately, the court agreed with Stella's proposal that Bill could exercise visitation during the two weeks available in May, four weeks in June, and one more week in July, before the children left for the Philippines, and told Stella's counsel to "fill in the blanks on the dates" unless something different could be negotiated. The court directed Bill and Stella to provide each other with travel itineraries and contact numbers while traveling. Lastly, voicing his distaste for micromanagement, the court denied Bill's requests for alternating birthday visitation, additional visits during the school year, and having grandparents do substitute visits when Bill is traveling. The court entered an order to this effect on May 23, 2008.

[¶ 8.] On June 5, 2008, Bill filed his notice of appeal to this Court. The following day, he moved to stay the order permitting Stella to travel with the children to the Philippines to the circuit court. The motion was denied by the circuit court, and subsequently appealed to this Court and similarly denied. Pursuant to court order, Stella and the children left for the Philippines on July 10, 2008, and returned safely to Sioux Falls.

ANALYSIS

[¶ 9.] 1. Whether the question regarding the circuit court's grant of international travel with the children is moot.

[¶ 10.] Stella contends this Court should not consider the issue of whether the circuit court abused its discretion in granting Stella's request to travel with the children because it is moot as the requested travel has occurred and the children have since returned to Sioux Falls. Bill responds that the facts of this case fall within an exception to the moot doctrine, and therefore, this Court should reach the merits of this issue.

[¶ 11.] This Court will only decide "actual controversies affecting people's rights." In re Woodruff, 1997 SD 95, ¶ 10, 567 N.W.2d 226, 228 (citing Rapid City Journal v. Circuit Ct., 283 N.W.2d 563, 565 (S.D.1979)). "`Accordingly, an appeal will be dismissed as moot where, before the appellate decision, there has been a change of circumstances or the occurrence of an event by which the actual controversy ceases and it becomes impossible for the appellate court to grant effectual relief.'" Id. (quoting Rapid City Journal, 283 N.W.2d at 565). See also Boesch v. City of Brookings, 534 N.W.2d 848, 849 (S.D.1995); Aetna Life Ins. Co. v. Satterlee, 475 N.W.2d 569, 572 (S.D.1991); Investigation of the Highway Constr. Indus. v. Bartholow, 373 N.W.2d 419, 420-21 (S.D. 1985); Stanley County Sch. Dist. No. 57-1 v. Stanley County Educ. Ass'n, 310 N.W.2d 162, 163 (S.D.1981) (quoting Dodds v. Bickle, 77 S.D. 54, 58, 85 N.W.2d 284, 286 (1957); City of Plankinton v. Kieffer, 69 S.D. 597, 13 N.W.2d 298, 301 (1944)). Since this appeal was filed, Stella and the children traveled to the Philippines for three weeks in July 2008, and returned to Sioux Falls. Therefore, a judgment rendered on the underlying issue "will have no practical legal effect upon the existing controversy." Investigation of the Highway Constr. Indus., 373 N.W.2d at 421 (citations omitted).

[¶ 12.] There are exceptions to the mootness rule, however, which allow a full determination of the case. One exception is the "capable of repetition, yet evading review" exception.⁴ Two conditions must be met for this exception to apply: "`(1) the challenged action was in its...