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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Patrawke v. Liebes (9/7/2012) sp-6705

Patrawke v. Liebes (9/7/2012) sp-6705

        Notice: This opinion is subject to correction before publication in the PACIFIC  REPORTER . 

        Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

        303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

        corrections@appellate.courts.state.ak.us. 



                 THE SUPREME COURT OF THE STATE OF ALASKA 



ERICH PATRAWKE,                                ) 

                                               )       Supreme Court No. S-14474 

                        Appellant,             ) 

                                               )       Superior Court No. 3AN-04-10959 CI 

        v.                                     ) 

                                               )       O P I N I O N 

TANYA LIEBES,                                  ) 

                                               )       No. 6705 - September 7, 2012 

                        Appellee.              ) 

                                               ) 



                Appeal from the Superior Court of the State of Alaska, Third 

                Judicial District, Anchorage, Peter A. Michalski, Judge. 



                Appearances: Erich Patrawke, pro se, Anchorage, Appellant. 

                Steven Pradell, Steven Pradell & Associates, Anchorage, for 

                Appellee. 



                Before: Carpeneti, Chief Justice, Fabe and Winfree, Justices. 

                [Stowers, Justice, not participating.] 



                CARPENETI, Chief Justice. 



I.      INTRODUCTION 



                A father and a mother share joint legal and equal physical custody over 



their daughter.     The father sought to obtain a passport for the daughter, but federal law 



requires the consent of both parents if the child is under the age of 16.   After the mother 



refused consent, the father brought a motion in the superior court requesting that the 



mother be ordered to execute a notarized statement of consent for the passport.  The 


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superior court denied this motion and the father appealed.           Because the superior court 

abused its discretion in denying the father's motion, we reverse.1 



II.     FACTS AND PROCEEDINGS 



               Appellant   Erich   Patrawke   and   Appellee   Tanya   Liebes   are   the   natural 



parents of Kyndle, born in 2004. Patrawke and Liebes share joint legal and equal (50/50) 

physical custody of Kyndle.2        Patrawke and Liebes have disagreed on many aspects 



regarding Kyndle's upbringing, and the superior court has noted that the parties "cannot 



and will not cooperate in making important legal and other decisions concerning their 



daughter."    The result is that Patrawke and Liebes effectively inhabit separate parallel 



universes   with   Kyndle.     Under   this   arrangement,   each   parent   makes   all   decisions 



affecting Kyndle during his or her scheduled custodial time, without interference by the 



other parent. 



               In August 2011, after unsuccessfully attempting to obtain Liebes's consent, 



Patrawke filed a motion seeking an order requiring Liebes to execute a notarized written 

statement     of  consent   to  allow  him   to  execute   a  passport   on   behalf  of  Kyndle.3 



        1      We heard this case in May 2012 and issued an order reversing the superior 



court's decision at that time, indicating that a written opinion would follow.   This is that 

opinion. 



        2      Patrawke and Liebes were never married and have never lived together. 



        3      Under federal law, except as otherwise authorized by the President, it is 



"unlawful for any citizen of the United States to depart from or enter, or attempt to depart 

from or enter, the United States unless he bears a valid United States passport."  8 U.S.C. 

 1185(b) (2006).  Thus, Kyndle may not travel outside the United States without a valid 

passport.   Generally, "both parents . . . must execute the application on behalf of a minor 

under age 16 . . . ." 22 C.F.R.  51.28(a)(2) (2012).       Further, section 51.28(a)(3)(ii)(G) 

provides that "[a]n order of a court of competent jurisdiction providing for joint legal 

custody or requiring the permission of both parents or the court for important decisions 

                                                                                    (continued...) 



                                                -2-                                           6705
 


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 Patrawke cited two reasons in support of his motion:   (1) he wished to bring Kyndle to 



visit relatives outside of the United States, including relatives located in France and 



Germany; and (2) Kyndle's Japanese Immersion Program at Sand Lake Elementary 

School offered travel opportunities to Japan in elementary, middle, and high school.4 



                 On September 6, the superior court denied Patrawke's motion. The court's 



order stated: 



                         It   is   extremely   premature   to   have   angst   about   high 

                 school exchanges when a child is seven.  Travel to Europe to 

                 see distant relatives may be nice, but more important is how 

                parents treat each other here.  The court recommends that the 

                parties   work   on   their   attitudes   and   behavior   towards   one 

                 another right here.     A passport is not required for that. 



                 Patrawke filed a motion for reconsideration, contending that "the passport 



issue is timely now" because Kyndle's opportunities to participate in exchange programs 



with Japan begin in fifth or sixth grade.         Patrawke further noted that planning for these 



exchanges begins up to two years in advance.                Patrawke also stated that students are 



encouraged to travel to Japan with their parents on specific programs arranged for Sand 



Lake   students.      Moreover,   Patrawke   noted   that   he   wished   to   travel   abroad   to   visit 



        3        (...continued) 



will   be   interpreted    as  requiring    the   permission     of  both   parents    or  the   court,   as 

appropriate." Section 51.28(a)(3)(I), however, provides that a passport may be executed 

on   behalf   of   a   minor   under   age   16   by   only   one   parent   if   that   parent   provides   "[a] 

notarized written statement or affidavit from the non-applying parent or legal guardian, 

if applicable, consenting to the issuance of the passport. 



        4        In July 2009, after Patrawke and Liebes were unable to agree where Kyndle 



would attend school, the superior court awarded Patrawke "sole legal custody to make 

the decision which school Kyndle attends."              Kyndle was then enrolled in the Japanese 

Immersion Program at Sand Lake Elementary School. 



                                                    -3-                                              6705
 


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relatives, including trips to Canada, and that he was trying to plan a trip to France in 



summer 2012. 



               The superior court then denied Patrawke's motion for reconsideration.  The 



court's order stated: 



               The court understands the child to be seven years old and 

               eligible to travel on the student exchange when in fifth or 

               sixth grade.  The court assumes that the child is currently in 

               the second or third grade.    Thus, there is no immediate need 

               for the child to have a passport for school reasons.      That is 

               not to say the child is condemned to miss her school visit to 

               Japan when the time comes. 

                      In the meantime, visits to Canada may wait until the 

               child has   her passport.   But it should be remembered that 

               many children go through life perfectly satisfactorily without 

               going to Canada. 



               Patrawke appeals the superior court's denial of his motion for statement 



of consent for passport. 



III.    STANDARD OF REVIEW 



               "The trial court has broad discretion in determining child custody issues 

. . . ."5 Resolution of custody issues "will be reversed only if, after a review of the entire 



record, we are convinced that the trial court abused its discretion or that the controlling 

factual findings made by the trial court are clearly erroneous."6 



       5       Barrett v. Alguire , 35 P.3d 1, 5 (Alaska 2001). 



       6       Id. (quoting Jenkins v. Handel , 10 P.3d 586, 589 (Alaska 2000)) (internal 



quotation marks omitted). 



                                              -4-                                           6705 


----------------------- Page 5-----------------------

IV.     DISCUSSION 



        It Was Abuse Of Discretion To Deny Patrawke's Motion For Statement Of 

        Consent For Passport.7 



                Patrawke argues that the superior court abused its discretion when it denied 



his motion for statement of consent for passport.           Patrawke contends that the superior 



court's   denial   was   "inconsistent   with   the   [court's]   prior   orders   granting   [him]   and 



[Liebes]   joint   legal   and   physical   custody."   Moreover,   Patrawke   contends   that   the 



passport issue is "timely now," as Kyndle's Japanese exchange opportunities begin while 



she is in elementary school. 



        7       In her brief, Liebes also contends that Patrawke's motion is barred by res 



judicata.  "We apply our independent judgment to issues of res judicata . . . ."  McComas 

v. Kirn , 105 P.3d 1130, 1132 (Alaska 2005) (citing Fardig v. Fardig , 56 P.3d 9, 11 

(Alaska 2002)).       Generally, "[r]es judicata, or claim preclusion, bars relitigation of a 

claim when there is (1) a final judgment on the merits, (2) from a court of competent 

jurisdiction, (3) in a dispute between the same parties (or their privies) about the same 

cause of action."      McAlpine v. Pacarro , 262   P.3d 622, 625 (Alaska 2011) (quoting 

Angleton v. Cox , 238 P.3d 610, 614 (Alaska 2010)) (internal quotation marks omitted). 

Because Patrawke's motion is not a new action, but rather part of an ongoing custody 

case, there is no relevant final judgment and therefore res judicata does not apply.                Cf. 

id. at 625-26 (citing Bunn v. House , 934 P.2d 753, 757 n.12, 758 (Alaska 1997)) ("[R]es 

judicata does not apply to [child] custody modification motions" because "a custody 

modification motion is not a new action, but rather a request to reopen the final judgment 

in the same case."). 



                Liebes additionally purports to argue that Patrawke's motion is barred by 

the   doctrine   of   the   law   of   the   case. Her   brief,   however,   fails   to   provide   any   legal 

argument regarding how law of the case applies to the present case.                Accordingly, we 

find that Liebes waived this argument.  Adamson v. Univ. of Alaska , 819 P.2d 886, 889 

(Alaska 1991) ("[W]here a point is   given only a cursory statement in the argument 

portion of a brief, the point will not be considered on appeal." (citing State v. O'Neill 

Investigations, Inc. , 609 P.2d 520, 528 (Alaska 1980); Fairview Dev., Inc. v. City of 

Fairbanks , 475 P.2d 35, 36 (Alaska 1970), cert. denied, 402 U.S. 901 (1971))). 



                                                  -5-                                            6705
 


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                 Liebes argues that the superior court did not abuse its discretion.               Liebes 



points out that we have "never held that a court must order a parent to sign a passport 



form,"   and   that   "none   of   the   [best   interests]   factors   in   AS   25.24.150(c)   specifically 



address a child's passport . . . ." Liebes then contends that in a joint custody arrangement 



either "parent can use their joint decision-making authority to veto any proposals upon 



which both parties do not agree."           Finally, Liebes argues that the passport issue is not 



timely because "[y]ears will go by before a trip to Japan is required." 



                 The    Alaska     Legislature     has   provided     little  guidance     regarding    the 



applicable legal test that a superior court must apply where there exists a dispute between 



parents who share joint legal custody of a child.              But generally a superior court must 

"award custody on the basis of the best interests of the child."8             Although Patrawke has 



not sought an "award" or "determination" of custody as used in the Alaska Statutes, and 



                                                                                                  9 

therefore the explicit statutory best interests factors contained in AS 25.24.150(c)  do not 



apply,   we   conclude   that   the   superior   court   was   nonetheless   required   to   account   for 

Kyndle's best interests in this situation.10 



        8        AS 25.20.060. 



        9        AS 25.24.150(c) details various factors a court must take into account in 



"awarding" or "determining" custody under AS 25.20.060 or in making a modification 

under AS 25.20.110. 



        10       Other jurisdictions have also concluded that the proper test in considering 



a passport for a minor child is whether or not the passport is in the best interests of the 

child.   See  Van Osdell v. Van Osdell, No. CA2007-10-123, 2008 WL 4839667, at 16 

(Ohio App. Nov. 10, 2008); Muscarella v. Muscarella , Nos. 2010-T-0091, 2010-T-0098, 

2011 WL 861153, at 18 (Ohio App. March 11, 2011) (applying Van Osdell test).  But 

the courts' analyses in these cases was based on an Ohio statute that allows a court to 

modify the "terms" of a shared parenting plan if the court finds the modifications are in 

the best interests of the child.       See OHIO  REV . CODE  ANN .  3109.04(E)(2)(b) (West 

                                                                                           (continued...) 



                                                    -6-                                              6705
 


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                 We conclude that the superior court abused its discretion in denying Kyndle 



a passport.   In its initial order, the superior court incorrectly noted that school activities 



requiring a passport would not occur until high school.                 Although the superior court's 



later   order   on   reconsideration   correctly   identified   that   Kyndle's   travel   opportunities 



begin as early as fifth grade, the court maintained that "there is no immediate need for 



the child to have a passport for school reasons."             In so concluding, however, the court 



failed     to  consider     Patrawke's      assertion     that   planning     for   Kyndle's     exchange 



opportunities begins up to two years in advance and that Sand Lake encourages students 



to travel on other tour programs. Moreover, Patrawke asserted that he has been planning 



a   trip  to  France    for  summer      2012   and   has   plans   to  visit   relatives  living   abroad. 



Accordingly, this issue is timely. 



                 Moreover, the superior court's recommendation "that the parties work on 



their attitudes and behavior toward one another," noting that "a passport is not required 



for that," is misguided.       Patrawke and Liebes have continually demonstrated extreme 

inability to cooperate in raising Kyndle,11 yet the superior court has maintained its joint 



legal custody order - inevitably leading to additional conflicts between Patrawke and 



Liebes.    While the superior court may have good reasons for maintaining the current 



joint custodial arrangement, the merits of which are not at issue in this appeal, the court 



         10      (...continued) 



2012).    The Alaska Statutes do not contain a comparable provision.                   See also Nagle v. 

Nagle ,   871    A.2d    832,   837   (Pa.   Super.   Ct.   2005)   (concluding     that   proper   test  for 

reviewing   a   trial   court's   decision   to   order   two   parents   to   obtain   passports   for   their 

children was whether the passports were in the best interests of the children). 



         11      Indeed, an earlier judge assigned to this case said this about his own order 



concerning the parents:  "The parties share legal custody.   This is a terrible idea.  There 

is no reason why these two parties should share legal custody. The problem is that if one 

or the other [is] awarded [custody], it could get worse." 



                                                     -7-                                              6705
 


----------------------- Page 8-----------------------

may not deny a party's motion solely on the basis that Patrawke and Liebes have been 



unable to cooperate.      To do so risks harming Kyndle's best interests on account of her 



parents' inability to cooperate, and restricts Patrawke's ability to have full visits with 



Kyndle and to maximize summer vacation opportunities. 



                Finally,   and   most   importantly,   Liebes   has   failed   to   offer   a   compelling 



reason why it would not be in Kyndle's   best interests to obtain a passport.                Rather, 



Patrawke has demonstrated that Kyndle has significant opportunities to travel abroad, 



including important school exchange opportunities - to deny her a passport, without 



any contrary reason given by Liebes, assuredly would harm her best interests. 



V.      CONCLUSION 



                Because the issuance of a passport is in Kyndle's best interests, and because 



Liebes has failed to offer a compelling reason why a passport should not be executed on 



behalf of Kyndle, we REVERSE the superior court. 



                                                 -8-                                           6705
 

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