In the Matter of Kseniya Ausiaikova and Brian Meckel

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0305, In the Matter of Kseniya Ausiaikova
and Brian Meckel, the court on May 3, 2024, issued the following
order:

The court has reviewed the written arguments and the record submitted on
appeal and has determined to resolve the case by way of this order. See Sup. Ct.
R. 20(2). The petitioner, Kseniya Ausiaikova (Mother), appeals an order of the
Circuit Court (Curran, J.), issued following a hearing, that, she contends,
precludes her from traveling internationally with the parties’ minor children. We
affirm.

The trial court is afforded wide discretion in determining matters of
parental rights and responsibilities; accordingly, when reviewing such decisions,
“our role is limited to determining whether it clearly appears that the trial court
engaged in an unsustainable exercise of discretion.” In the Matter of Kurowski &
Kurowski, 161 N.H. 578, 585 (2011); see also In the Matter of Ndyaija & Ndyaija,
173 N.H. 127, 140 (2020). “We consider only whether the record establishes an
objective basis sufficient to sustain the discretionary judgment made, and we will
not disturb the trial court’s determination if it could reasonably have been made.”
Kurowski, 161 N.H. at 585 (quotation omitted). “The trial court’s discretion
necessarily extends to matters such as assigning weight to evidence and
assessing the credibility and demeanor of witnesses.” Id. “Conflicts in the
testimony, questions about the credibility of witnesses, and the weight assigned
to testimony are matters for the trial court to resolve.” Id. “To the extent an
appealing party argues that the trial court committed error involving questions of
law, we review such issues de novo.” Kurowski, 161 N.H. at 585.

Mother and Brian Meckel (Father) are parents of two minor children. On
January 29, 2020, the trial court issued a final parenting plan that awarded the
parties joint decision-making responsibility. Mother asserts that this final
parenting plan is silent on her right to travel internationally with the children.
On May 27, 2022, Mother filed a petition to bring forward for clarification
seeking, in addition to other relief, clarification as to whether she is permitted to
renew the children’s passports and travel internationally with them over Father’s
objection. On December 6, 2022, the trial court held a final hearing on Mother’s
petition. On March 6, 2023, the trial court issued an order denying Mother’s
petition.
 At the hearing, the trial court received evidence based on offers of proof.
Mother, who is from Belarus and whose family owns and operates an Inn in
Crimea during the summer months, explained that she has always loved to travel
and traveled often with Father prior to having children and while the children
were young, including spending an extensive amount of time in Crimea. Mother
asserted that there was no basis for Father’s allegation that she may abscond
with the children to Crimea, because she has substantial ties to the United
States and has no intention of separating the children from their father.

Father countered that Mother had stated that she intends to one day
return to Crimea or Belarus to live, and that these areas are at present not safe
for travel due to the ongoing war in Ukraine. Father also presented evidence
reflecting that the United States has issued travel advisories identifying Belarus
and Crimea as “level 4,” indicating that they are not safe for travel. Additionally,
Father pointed to prior instances in which Mother had taken unilateral action
with regard to decisions relating to the children.

In denying Mother’s petition to bring forward for clarification, the trial
court expressed that it “disagrees that . . . [the] final orders issued in early 2020
now require clarification[.]” With regard to renewing the children’s passports and
international travel, the trial court concluded, “[g]iven the mistrust between the
parties (coupled with his cited fear that mother will depart for her native country)
the father’s opposition to securing or renewing passports is understandable[.]”
The trial court further expressed that it “does not deem the international travel
envisioned by mother – to Crimea, while war rages in the Ukraine – is
reasonable.”

Mother raises several arguments on appeal that are distilled into two
overarching claims of error. First, Mother asserts that the trial court mistakenly
found that she sought to travel to Ukraine/Belarus only, whereas Mother
actually sought to clarify her right to international travel generally, with a plan to
go to the Bahamas in the near term, and potentially Ukraine/Belarus when she
deems such travel appropriate. Second, Mother contends that the record is
devoid of evidence suggesting that there is a likelihood that she would abscond
with the children and not return, or that prohibiting all international travel is in
the children’s best interests.

With regard to the first argument, although mother’s counsel did refer to a
potential trip to the Bahamas at the final hearing, mother’s counsel also explicitly
informed the trial court that, “[o]ne of the issues the Court must determine is
whether to allow the children to travel to Belarus and Crimea for vacations.”
(Emphasis added). Though Mother argues on appeal that she sought permission
to travel to the Bahamas only, the record indicates that Mother made a direct
request for the trial court to evaluate vacations to Belarus and Crimea.

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 Accordingly, the trial court did not err in addressing travel to Belarus and
Crimea, and we disagree with Mother’s assertion on appeal that the evidence
before the trial court pertaining to Father’s safety concerns regarding travel to
those regions is “irrelevant as [Mother] was hopeful to travel with the children to
the Bahamas – not Crimea/Belarus.” The transcript reflects that Father
submitted records demonstrating that the United States Department of State has
advised against travel to Crimea and Belarus. Mother has not provided the court
with copies of these exhibits on appeal. Thus, we conclude that this evidence
supports the trial court’s conclusion that travel to Crimea is not reasonable at
this time. See Silverstein v. Town of Alexandria, 150 N.H. 679, 681 (2004) (“In
the absence of a sufficient record of the proceedings below, we assume the
evidence supports the trial court’s findings . . . .”).

Mother next claims that the trial court misapplied our decision in In the
Matter of Rix and Jather, 161 N.H. 544 (2011), because there was insufficient
evidence presented to show a likelihood that she would travel internationally with
the children without father’s awareness, or that she would leave the country with
the children and not return. Rix is factually analogous to the extent that it
involved a father who sought to renew the child’s passport to enable a trip to
India to visit family, and a mother who expressed concern that the father would
not return. Id. at 546-47. The Rix trial court was not persuaded by the mother’s
claim that the father and the child may not return from India, and it found it
persuasive that the father held a high-paying job in Portsmouth and owned two
businesses in the United States, that the mother and the father had traveled to
India with the child together three times in the past, and that the father had
invited the mother on the trip to India. Id. at 547-48. We affirmed, finding the
trial court did not unsustainably exercise its discretion in allowing the travel to
India. Id. at 549.

Here, it is not apparent that the trial court misapplied Rix; rather it
reached a different conclusion than the Rix trial court when resolving a dispute
with similar facts. As stated, “we will not disturb the trial court’s determination if
it could reasonably have been made.” Kurowski, 161 N.H. at 585. And here, the
trial court, with its knowledge of the parties and their parenting history,
including instances of Mother’s past unilateral decision-making as to the
children, was in the best position to assess the parties’ positions and determine
whether international travel to Belarus and Crimea during a period of military
conflict is in the best interest of the children. Cf. Nicolazzi v. Nicolazzi, 131 N.H.
694, 697, (1989) (“The trial court was in the best position to make this decision,
as it was intimately familiar with the parties’ circumstances.”).1

1 To the extent Mother asserts that the trial court erred because it did not expressly state
that it applied the best interest of the child standard, this court assumes the trial court
applied the correct standard. See Rix, 161 N.H. at 548 (“While the trial court did not
expressly articulate the standard it employed in making its rulings, we assume that the
trial court applied the proper standard.”).

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 Finally, we note that the trial court’s order denied Mother’s request to
clarify the final parenting plan. Mother did not, however, provide this court with
copies of the currently operative parenting plan or her petition to bring forward
for clarification. “It is the burden of the appealing party . . . to provide this court
with a record sufficient to decide her issues on appeal[.]” Bean v. Red Oak Prop.
Mgmt., Inc., 151 N.H. 248, 250 (2004). Without these necessary portions of the
record, we are unable to consider the extent to which the parties’ parenting plan
restricts international travel or determine the scope of the relief that Mother
specifically requested through her petition to bring forward, i.e. whether she
sought to clarify travel to the Bahamas or to Belarus/Crimea.

As indicated above, during the hearing Mother asked the trial court to
determine whether vacations to Belarus and Crimea were permissible. The trial
court decided this issue. However, at the hearing, Mother also mentioned other
travel such as to the Bahamas, and Father referenced the use of a travel bond to
provide security regarding Mother’s return with the children should they travel
internationally. With regard to the travel bond or “alternate measures,” the trial
court concluded that the issue was not properly before it because it had not been
formally requested by either party. As to other travel, the trial court did not
specifically address this issue, thus holding that the final parenting plan did not
require clarification as to this topic. Accordingly, on the record before us, we find
that the trial court did not unsustainably exercise its discretion in denying
Mother’s petition to bring forward for clarification.

Affirmed.

MacDonald, C.J., and Bassett, Hantz Marconi, Donovan, and Countway,
JJ., concurred.

Timothy A. Gudas,
Clerk

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