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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
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
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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
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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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