Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Mark Rindner, Judge. Superior Court No. 3AN-05-04155 CI.
Paula Frackman, Appellant, Pro se, Anchorage.
Rick Enzor, Appellee, Pro se, Anchorage.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.
This appeal arises from a father's motion to modify the custody arrangement of the parties' two children. The superior court awarded primary physical and sole legal custody to the father after hearing testimony from a custody investigator and both parties. The mother appeals. She argues that the court abused its discretion because it modified the custody order based on evidence that existed when the court denied another motion to modify custody five years earlier. But because there was new evidence of substance abuse and untreated mental health issues, the court did not err by concluding there was a material change in circumstances and, after conducting an evidentiary hearing, did not abuse its discretion by awarding primary physical and sole legal custody to the father.
II. FACTS AND PROCEEDINGS
Rick Enzor and Paula Frackman were married in 1996 and have two children: Stewart, born in 1999, and Gabriel, born in 2004. Paula has a long history of mental illness and substance abuse issues, and has been on and off medication for much of her life. In 2004 she was referred to Dr. Eileen Ha, who diagnosed her with bipolar disorder " with most recent depression, polysubstance dependence of cocaine and alcohol, with history of anorexia as well as Cluster B  personality traits." She attended a program for cocaine dependence around this same time. In 2005 Paula unilaterally stopped taking her medication and discontinued therapy; she explained, " It's the happiest I've been!"
In 2004 Rick was charged with assault after Paula reported that he broke her vehicle's side mirror while she was leaving after the two fought. Paula reported that it was an " ongoing situation," and that she was also applying for a domestic violence restraining order. The charges were eventually dismissed, and Rick took both an anger management class and a parenting class.
The couple divorced in 2005. At the time, each parent had concerns about the other parent. Rick was concerned with Paula's substance abuse, and Paula was worried about Rick's anger management issues and prior alleged domestic violence. Nevertheless, the parties agreed to share both physical
and legal custody, and the court awarded shared physical and legal custody of the children.
In 2006 the parties both moved to modify the custody order, but the superior court denied their motions. The court found that " there has not been a substantial change of circumstances warranting a hearing. Mr. Enzor essentially rehashes arguments about Ms. Frackman's . . . alcohol use he initially made when this case was first litigated." And the court saw no evidence of alcohol use or ...