In Re: Tony Balevski, V. Aleksandra Danilov

• Court: Court of Appeals of Washington
• Decided: January 16, 2024
• Docket: 84464-4
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

TONY BALEVSKI, No. 84464-4-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION ALEKSANDRA DANILOV,

Appellant.

CHUNG, J. — The parenting plan for the shared child of Tony Balevski and

Aleksandra Danilov assigns sole decision-making for “Health care (not

emergency)” to the mother except for “major medical decisions like non-

emergency surgery or any uninsured care.” The father, Balevksi, requested

arbitration to include the COVID-19 vaccine as a joint decision. The arbitrator and

trial court both determined that the COVID-19 vaccine and vaccines in general

were “major medical decisions” and subject to joint decision-making. Danilov

appeals. We conclude that the trial court did not err in determining that, based on

the specific facts and the language of the parenting plan in this case,

vaccinations are a major medical decision requiring joint decision-making by the

parents. Additionally, the trial court did not abuse its discretion in determining that

vaccination for COVID-19 and influenza was in the best interests of the child and

ordering the child to receive the vaccines. Therefore, we affirm. No. 84464-4-I/2

FACTS

Aleksandra Danilov and Tony Balevski married on January 1, 2011, and

separated on April 1, 2011. Their son, P.D., was born July 14, 2011. Balevski

petitioned for dissolution soon after. The court entered a final parenting plan on

November 26, 2012. Danilov and P.D. relocated to Colville, WA in 2018. As a

result of the relocation, with the help of a mediator, the parties entered into a

stipulated CR 2A agreement regarding modifying the parenting plan in August

2019, and a modified final parenting plan was entered in July 2020, which

included monthly visitation with Balevski.

The Agreed Modified Final Parenting Plan provides Danilov with sole

authority to make major decisions over “Health care (not emergency),” except

“[t]he parties will have joint decision making on major medical decisions like non-

emergency surgery or any uninsured care.” For parental disagreements, the

Agreed Modified Final Parenting Plan requires arbitration per RCW 7.04A with

the option to “go to court if you disagree with the arbitrator’s decision.”

The COVID-19 pandemic exacerbated the challenges of a long-distance

relationship between Balevski and his son, with illness and quarantine resulting

in missed visits. At the end of 2020, Balevski requested arbitration to address

several issues related to navigating the COVID-19 pandemic, including a request

that whether P.D. would receive the COVID-19 vaccine would be a joint decision.

The arbitrator decided against joint decision-making for the COVID-19 vaccine.

“It is not an emergency; it is a vaccine like all other vaccines. The mother may

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make this decision, but will advise the father in advance when it will occur as

soon as she knows about the appointment.” Balevski requested clarification of

the arbitrator’s decision, which he received in January 2021. The arbitrator stated

that “[i]f and when the child becomes eligible for a vaccination . . . the mother will

advise the father . . . what her decision is regarding the vaccine for their child.”

In late fall 2021, the U.S. Food and Drug Administration authorized the

emergency use of the COVID-19 vaccine for P.D.’s age group. Balevski wanted

the child vaccinated and raised the issue with Danilov in January 2022. Danilov

disagreed, arguing that P.D. already had contracted COVID-19 and had

developed “the antibodies and full natural immunity.” Balevski submitted the

issue to arbitration again on January 28, 2022. On March 31, 2022, the arbitrator

announced,

[a]fter reviewing the submissions herein and the declarations of the parties’ experts, I reverse myself sua sponte and find that the COVID-19 vaccination is a joint decision under the Parenting Plan. The reasoning is that I find the father’s expert’s information regarding the consequences for children of [P.D.’s] age to be both compelling and reasonable.

The arbitrator addressed whether vaccines fall within the category of “major

medical decisions” and reasoned that the mother has sole decision-making on

health care (non-emergency), but the father retains joint decision-making for

“things that are out of the ordinary or uninsured.” The arbitrator reasoned, “[i]n

this instance, and based on the wording of the Parenting Plan, I find that

vaccines are a joint decision. After reading more science regarding vaccinations

and receiving the father’s expert opinion, it is clear to me that the COVID-19

3 No. 84464-4-I/4

vaccine should be considered a major medical decision.” The arbitrator ordered

P.D. to receive the COVID-19 vaccination and boosters. The arbitrator also

considered Balevski’s request to have P.D. vaccinated for influenza:

[a]fter reading both the CDC website on the issue of vaccines, and having the general knowledge that the flu has been a pandemic in the past (such as H1N1 and the Spanish flu) and the importance of this issue to both parents, I find that all future vaccines will be joint decision.

The arbitrator found it reasonable that the father requested P.D. receive a flu

vaccination.

Danilov asked the arbitrator to reconsider the decision because “this

decision amounts to a forced mandate and becomes a unilateral decision by the

[father].” She argued that her expert, P.D.’s physician, provided information

specific to the child and found her decision not to vaccinate to be sound. The

arbitrator declined to reconsider the decision on vaccinations.

In June 2022, Danilov filed two motions with the King County Superior

Court, a motion to review/vacate the arbitration decision and a motion to stay the

arbitrator’s decision pending appeal/trial de novo. A commissioner stayed the

arbitrator’s decision pending a hearing before a judge. On August 2, 2022, the

trial court heard arguments from the parties, and on August 9 issued an order

granting the motion to stay vaccination in order to conduct a hearing on whether

the child should be vaccinated. At that time, the court also issued an

interpretation of the Agreed Modified Final Parenting Plan provision on medical

decision-making: “This Court interprets COVID vaccine and vaccinations in

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general to be a major medical decision requiring joint decision making pursuant

to . . . the parties’ Agreed Modified Final Parenting Plan.” The court identified the

issue for the upcoming hearing as “whether the child is to be vaccinated.”

In briefing to the trial court for the hearing on vaccination, Danilov

requested that the court determine she has sole decision-making power over

vaccinations and “find there is no judicial authority to mandate the minor child

receive the COVID vaccine and/or the influenza vaccine.” During that hearing,

the court declined to revisit the issue of who had decision-making power

regarding the COVID vaccine. Rather, the court “want[ed] to focus on the pros

and cons to this young man, young boy, for the vaccine.” The court stated it had

reviewed “the considerable materials” provided by the parties and listened to

their arguments.

In its decision issued on August 29, 2022, the court found the Centers for

Disease Control and Prevention (CDC) evidence presented by Balevski was

more persuasive as to what is in the child’s best interests. The court also noted

that Danilov did not refute the CDC evidence or the testimony from Balevski’s

experts; “[w]hat she does instead is raise an almost impossible bar of what

evidence would be required to satisfy her concerns about the vaccine.” The court

found her contentions that the COVID-19 vaccine is dangerous, generally or

specifically to her son, to be speculative and contradicted by expert evidence.

The court noted that the evidence in support of the influenza vaccine similarly

supported determining that the benefits outweigh the detriments. The court

5 No. 84464-4-I/6

concluded that “the arbitrator’s decision regarding vaccination for the child was

absent either legal or factual error. Her reasoning was thorough and clear and

this Court adopts it,” and ordered that P.D. receive vaccines for both COVID-19

and influenza.

Danilov filed an appeal of the trial court’s August 9 and August 29

decisions with this court and obtained an order to stay the trial court’s orders

pending that appeal.

DISCUSSION

RCW 26.09.184(4) requires parenting plans to include a process for

resolving disputes other than a court action. However, “[t]he ultimate

responsibility for overseeing the performance of the parenting plan remains with

the court.” In re Smith-Bartlett, 95 Wn. App. 633, 640, 976 P.2d 173 (1999).

Thus, the terms of Danilov and Balevski’s Agreed Modified Final Parenting Plan

and RCW 26.09.184(4)(e) both provide the parties the right of review from the

dispute resolution process to the superior court. The trial court reviews the

arbitrator’s decision de novo. Smith-Bartlett, 95 Wn. App. at 641 (citing former

RCW 26.09.184(3)(e)).

I. Parenting Plan and Health Care Decision-Making

Danilov assigns error to the trial court’s entry of the August 9 order staying

the arbitrator’s decision and interpreting the health care decision-making

provision of the Agreed Modified Final Parenting Plan to include the COVID-19

vaccine, and vaccines in general, as major medical decisions subject to joint

6 No. 84464-4-I/7

decision-making. She argues the trial court abused its discretion by exceeding its

authority and overlooking procedural standards because the court provided its

interpretation of the medical decision-making provision, rather than simply ruling

on the requested stay. She also alleges the trial court abused its discretion by

failing to consider the reasons the original parenting plan had granted her sole

decision-making over health care.

A. Trial Court Procedure

Danilov contends her motion sought only to stay the arbitrator’s decision

pending review and complains that she did not have the opportunity to submit

briefing relevant to interpretation of the decision-making provision including intent

and history of the parties. According to Danilov, the trial court interpreted the

provision in “complete reliance on the Agreed Modified Final Parenting Plan

decision making provision without any consideration of legal standards and in

complete disregard for procedural standards as well as the child’s best interest.”

She also complains that “the trial court with no motion, declarations, nor any

relevant briefing on the specific topic” interpreted the medical decision-making

power.

Danilov misconstrues the record. She filed a motion to stay the order to

vaccinate “pending appeal/trial de novo in regard to vaccination of the minor

child.” She simultaneously filed a motion for the court to review and vacate the

arbitration award, which asked the trial court “to determine if vaccines are joint

decision and fall under non-emergency surgery or uninsured medical costs” and

7 No. 84464-4-I/8

if vaccination should be mandated for P.D. Thus, she asked the court to interpret

the parenting plan’s provisions on medical decision-making.

In support of the two motions, Danilov appended 28 exhibits that included

documents pertaining to the original final parenting plan entered in 2012, the

2020 CR 2A agreement and resulting Agreed Modified Final Parenting Plan, all

of the briefing from both parties and arbitrator decisions pertaining to the

vaccination issue, and declarations discussing her concerns about the arbitrator’s

decisions. Given that she submitted a motion and supporting evidence for review

of the arbitrator’s interpretation of the provision, it is unclear what additional

information she would have provided to the trial court that was relevant to the

court’s de novo review of the arbitrator’s interpretation of the Agreed Modified

Final Parenting Plan provision.

Additionally, the trial court’s de novo review of the arbitrator’s decision did

not entitle Danilov to a trial de novo with new evidence. A trial de novo is

conducted as though no arbitration had occurred. Smith-Bartlett, 95 Wn. App. at

641. However, for arbitration on a parenting plan, the trial court does not conduct

a trial de novo; rather, the court reviews the arbitrator’s decision. Id. The briefing

and extensive record Danilov submitted with her two motions provided the court

with the materials needed to conduct its de novo review of the arbitrator’s

decisions and interpretation of the parenting plan. The court also allowed the

parties to submit additional briefing and materials before it heard argument on

that issue on August 24. Danilov identifies no way in which she was prejudiced

8 No. 84464-4-I/9

by the court’s management of the motions. The trial court’s decision to rule first

on the motion to stay and the issue of whether vaccination was subject to joint

decision-making based on the record provided, followed by a hearing on whether

to vaccinate P.D., was not an abuse of discretion.

B. Parenting Plan Decision-Making Provisions

Danilov contends the trial court erred by “applying an incorrect legal

standard when interpreting” the medical decision-making provision of the Agreed

Modified Final Parenting Plan. According to Danilov, interpretation of major

medical decisions to include vaccinations would require a modification of the

parenting plan. We disagree.

A court “shall not modify” a prior parenting plan unless a substantial

change in circumstances has occurred and modification is in the best interests of

the child. RCW 26.09.260(1). “Modifications are any increases or reductions to

the rights originally granted to a party.” In re Marriage of Coy, 160 Wn. App. 797,

804, 248 P.3d 1101 (2011). In contrast, a clarification is a definition of the rights

which have already been granted. In re Marriage of Holmes, 128 Wn. App. 727,

734-35, 117 P.3d 370 (2005). Here, the parties sought to clarify or interpret the

extent of Danilov’s sole and the parties’ joint medical decision-making power

under the Agreed Modified Final Parenting Plan. These were not modifications to

the plan subject to the requirements of RCW 26.09.260.

On appeal, we review the trial court’s interpretation of the parenting plan

de novo. Smith-Bartlett, 95 Wn. App. at 636. The Agreed Modified Final

9 No. 84464-4-I/10

Parenting Plan assigns Danilov sole decision-making for “Health care (not

emergency)” except “[t]he parties will have joint decision making on major

medical decisions like non-emergency surgery or any uninsured care.” Danilov

argues for an interpretation of vaccines as routine healthcare decisions because

“[v]accinations are done by a primary care physician at a well-child check or

other non-emergency office visit.” Danilov also argues, “The trial court did not

consider the totality of causation for the mother having sole decision making over

the healthcare of the child or the history of the parties’ participation in health-

related concerns.” She claims that “Balevski’s intent for the decision-making

caveat was solely focused on monetary forethought. Balevski did not want to pay

for any costs for Danilov’s choices regarding the medical expense of [P.D.].”

In all proceedings under ch. 26.09 RCW, “the best interests of the child

shall be the standard by which the court determines and allocates the parties’

parental responsibilities.” RCW 26.09.002. The best interests of the child are

more readily achieved when judicial officers have “discretion to tailor

individualized resolutions.” RCW 26.09.003. To this end, “[j]udicial officers should

have the discretion and flexibility to assess each case based on the merits of the

individual cases before them.” RCW 26.09.003; see In re Marriage of Chandola,

180 Wn.2d 632, 658, 327 P.3d 644 (2014) (“Trial courts have broad discretion to

create parenting plans tailored to the needs of the individuals involved in a

particular dissolution.”).

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Following this individualized approach, we interpret the healthcare

decision-making power of the parenting plan at issue based on the unique

circumstances of the case. The parenting plan states that “[t]he parties will have

joint decision making on major medical decisions like non-emergency surgery or

any uninsured care.” The dictionary definition of the word “major” includes

“greater in . . . importance, or interest,” as well as “involving grave risk.”

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY at 1363 (2002). Thus, decisions

that have greater importance or interest to the parties are “major medical

decisions” under the language of the Agreed Modified Final Parenting Plan. The

provision regarding joint decision-making provides two examples of major

medical decisions—non-emergency surgery and uninsured care—but is not

limited to those categories. Danilov argues that the reason for including limited

joint-decision making power was financial, so she “could not obligate Mr.

Balevski to a procedure that would cost him out of pocket costs he had no say in

incurring,” and the provision was not intended for “routine medical appointments

covered by insurance.” But the Agreed Modified Final Parenting Plan does not

mention financial reasons. Instead, it states that sole decision-making “is

reasonable because of the distance between the parents’ homes makes it hard

to make timely decisions together.” The language is not as limited as Danilov

suggests.

Through the history of this litigation before the arbitrator, the trial court,

and now this court, the parents have demonstrated that the decision to vaccinate

11 No. 84464-4-I/12

their child is anything but a routine healthcare decision. The issue of whether

P.D. should receive a COVID-19 vaccine originally arose in December 2020,

around the time of the first emergency use authorization of a COVID-19 vaccine

for adults. 1 P.D. was not yet eligible for a vaccine. At the time of this court’s

consideration of this case, the parties have been litigating whether P.D. should

receive the COVID-19 vaccine for three years. They have submitted medical

evidence and impassioned arguments in support of their positions, and each

parent’s concern for their son’s safety is evident.

In light of the record and facts before us, we agree with the arbitrator and

the trial court that for this family, under the language of their specific Agreed

Modified Parenting Plan, a decision to vaccinate their child, P.D.—particularly for

COVID-19 and influenza—is a major medical decision subject to joint decision-

making.

II. Order to Vaccinate

The trial court ordered P.D. receive both the COVID-19 and influenza

vaccines. Danilov argues the trial court abused its discretion “by basing its

decision on unsupportable findings relative to the best interest of [P.D.].” We

review a trial court’s decisions relating to a parenting plan for an abuse of

discretion. In re Custody of Halls, 126 Wn. App. 599, 606, 109 P.3d 15 (2005). “A

trial court abuses its discretion if its decision is manifestly unreasonable or based

1 https://www.fda.gov/news-events/press-announcements/fda-takes-key-action-fight-

against-covid-19-issuing-emergency-use-authorization-first-covid-19.

12 No. 84464-4-I/13

on untenable ground or untenable reasons.” Id. A decision is manifestly

unreasonable if the decision is outside the range of acceptable choices based on

the facts and applicable legal standards. Id.

In arriving at its decision that P.D. should be vaccinated for COVID-19, the

trial court reviewed the medical evidence and found Balevski’s expert evidence

more persuasive. In particular, the trial found persuasive and relevant Balevski’s

compilation of data from the CDC and the CDC’s conclusion based on that data

that the benefits of COVID vaccination outweigh the risks. Balevski also

submitted information from Dr. Goldman, who led the COVID-19 research

steering committee at Swedish Medical Center and has “significant experience

with COVID and other infectious diseases.” The court noted Dr. Goldman’s

testimony that children can suffer serious complications from COVID-19, and

there have been over 100 deaths of children between the ages of 5 and 11 years

old. According to Dr. Goldman, the COVID-19 vaccines have been subjected to

“the most intensive safety monitoring in [U.S.] history.” The trial court also

pointed to Dr. Goldman’s statement that evidence supports the CDC’s

recommendation to vaccinate children even after a natural COVID-19 infection.

As the trial court noted, Danilov “does not refute this evidence or Dr.

Goldman’s testimony.” Indeed, her medical expert, P.D.’s primary care physician,

acknowledged that “[v]accination after infection reduces risk of reinfection” and “it

is a reasonable choice to vaccinate against COVID 19 in children.” The doctor

then stated that despite this, “my personal recommendation in [P.D.’s] case,

13 No. 84464-4-I/14

given his natural immunity and low level of concern for serious complications

from reinfection at present is that COVID 19 vaccination is not needed.”

The court found Danilov’s concerns about the dangers of the vaccine to be

speculative and contradicted by the medical evidence. Danilov continues with a

similar approach on appeal. She argues that “[e]vidence showed [P.D] has

natural immunity, immunity which has lasted more time than any research has

discussed. As such, this information is relevant to [P.D.], the child of this action.

Any deviation from the best interests of [P.D.] is based on societal ideation

surrounding COVID and the associated vaccines.”

While Danilov disagrees with its decision, she has not shown that the trial

court abused its discretion. The court considered the evidence available and

found the CDC and COVID-19 expert more persuasive than P.D.’s physician.

The court’s conclusion reflects that vaccination is in the best interest of most

children and any danger to P.D. is speculative. The resulting decision was not an

abuse of the trial court’s discretion.

III. Attorney Fees and Costs

Pursuant to RAP 18.1(a), Danilov requests attorney fees and costs, for

both superior court and on appeal. The trial court declined to award fees to either

party. Danilov did not assign error to the trial court’s denial of fees; therefore, that

decision is not before us on review and we will not revisit the issue.

As for fees on appeal, Danilov makes her request under RCW 26.09.140,

which allows a court, including a court of appeals, to order a party to pay attorney

14 No. 84464-4-I/15

fees and costs in dissolution-related proceedings after considering the financial

resources of both parties. On appeal, we consider both need and whether the

requesting party substantially prevailed. State ex rel. M.M.G. v. Graham, 159

Wn.2d 623, 638, 152 P.3d 1005 (2007), as amended (Feb. 21, 2007). Because

Danilov does not prevail in this appeal, we deny her request for fees.

Affirmed.

WE CONCUR: