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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Frackman v. Enzor (6/20/2014) sp-6918

Frackman v. Enzor (6/20/2014) sp-6918

         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  



PAULA FRACKMAN,                                        )  

                                                       )        Supreme Court No. S-15124  

                  Appellant,                           )  

                                                       )        Superior Court No. 3AN-05-04155 CI  

         v.                                            )  

                                                       )        O P I N I O N  

RICK ENZOR,                                            )  

                                                       )        No. 6918 - June 20, 2014  

                  Appellee.                            )  

_______________________________ )  

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


                  Judicial District, Anchorage, Mark Rindner, Judge.  

                  Appearances:             Paula     Frackman,         pro    se,    Anchorage,

                  Appellant.  Rick Enzor, pro se, Anchorage, Appellee.

                  Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and


                  Bolger, Justices.

                   STOWERS, Justice.


                  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  


----------------------- Page 2-----------------------

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.  


           A.         Facts  

                      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[2]  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  

           1          Pseudonyms have been used for the children to protect their privacy.  

           2          Cluster  B  personality  traits  include  borderline  personality  disorder  and  

narcissistic personality disorder.  

                                                                    -2-                                                                  6918  

----------------------- Page 3-----------------------

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 its impact on  

the children, noting that the older child, Stewart, was doing well in school.  

            B.         Proceedings  


                       In early March 2011 Rick petitioned for a domestic violence protective  


order against Paula on behalf of the children.  The petition was based on allegations that  


Paula "shoved" Stewart and Gabriel to the ground, was drinking while she had custody  

of  the  children,  and  was  feeding  Gabriel  foods  to  which  he  was  allergic.3                                                          On  

            3          Gabriel's possible food allergies are a contentious point between Paula and                    

Rick.  A blood test done by one doctor was negative for food allergies, while a patch test                               

done in 2010 by an allergy specialist, Dr. Teresa Neeno, was positive for trace allergies                

to many different types of food.  Another patch test done a year later, in 2011, was   

negative for many of the same foods.  At trial, Rick testified that based on Gabriel's  

behavior, he believed Gabriel still had allergies to corn.  Paula has questioned Gabriel's  


allergies since the concern arose in 2008.  

                       Rick and his second wife, Shirley, moved Gabriel to a "clean diet" per Dr.  


Neeno's recommendations and asked Paula to do the same.  Paula did not cooperate and  


continued to feed Gabriel foods that were on the list of those to avoid.  The parties kept  


a food journal for Gabriel, but the court found that Paula falsified the journal to cover up  


the foods she was feeding him.  

                                                                        -3-                                                                 6918

----------------------- Page 4-----------------------


March 31, 2011, Rick filed a motion to modify custody based on many of the same  


allegations as in his petition.  In addition, he alleged that Paula was not taking medication  


for her mental health issues, which, coupled with her alcoholism, put the children at risk.  


On April 11, 2011, the superior court ordered a limited custody investigation to interview  

the children about the alleged domestic violence.  


                    On April 20, 2011, the superior court reviewed the report of the interview  


with the children and heard testimony regarding the petition for a protective order.  The  


court  found  that there was new  evidence that Paula's alcohol use might lead  her  to  


physically  abuse  the  children.                 As  a  result,  the  parties  agreed  to  a  full  custody  


investigation and a new interim custody order.   The court ordered that while the full  


custody investigation was pending, shared physical and legal custody would continue,  

and Paula was ordered to begin twice-weekly urine ethylglucuronide (EtG) testing for  



                    Despite the new interim custody order, Paula did not take any EtG tests the  

first week that she had custody of the children.  Gabriel missed the opening night (and  

only evening performance) of the kindergarten play where he had the lead role, and  


Stewart missed two of his baseball practices.  It is unknown whether Paula was using  

alcohol  without  the  EtG  tests;  however,  the  implication  from  the  record  is  that  her  

alcohol  use  caused  the  children's  absences  at  their  extracurricular  activities.    The  


superior court discontinued Paula's physical custody and required that she show four  

weeks of negative EtG tests before she could resume shared custody.  In the meantime,  

the court allowed her to have supervised visitation with the children at dinnertime and  

during  extracurricular  activities.    Paula  promptly  violated  the  supervision  condition  

twice - once by using her boyfriend as a supervisor, and another time by having no  


supervisor at all.  Once Paula had taken four weeks of EtG tests, the court allowed shared  

physical custody to continue.  

                                                             -4-                                                        6918

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

                    After completing roughly six months of EtG testing, Paula unilaterally  


stopped taking the EtG tests.  At this point, she had produced one positive sample, three  

dilute samples, and had missed many tests.4  The custody investigator alerted the superior  


court  to  Paula's  unilateral  cessation  of  the  EtG  tests,  and  the  court  immediately  


terminated shared physical custody and granted Rick primary physical custody.  The  


court ordered that Paula could move to resume shared physical custody if she provided  

the court with three consecutive, negative EtG test results.  

                    Paula  waited  three  weeks,  then  took  three  EtG  tests  back-to-back  on  


January  24, 25, and 26, 2012.  The superior court found that taking three EtG tests  


back-to-back did not satisfy its order, and denied Paula's motion to return to shared  


physical custody.  The court ordered that Paula could have supervised visitation with the  


children.  At this time the custody investigator also informed the court that the boys had  

reported episodes of abuse by Paula - multiple times when Paula had pushed Gabriel  


outside without a coat as punishment, and an incident where she threw a glass of water  

in Gabriel's face.  

                    In March 2012 Stewart was invited to play with an elite baseball team and  


needed a passport to travel to Puerto Rico.  Rick attempted to get him one, but Paula  


would not cooperate.  After a slew of highly-charged emails, Rick moved for, and was  


granted, interim sole legal custody in order to obtain the passport. When the court asked  


Paula what her motivation was for refusing to cooperate, she stated, "[I was] just being  

feisty I guess."  



                    Rick states that she missed nine EtG tests, while Paula omits reference to  


any missed tests.  Stewart told the custody investigator that Paula began drinking again  

sometime around Thanksgiving 2011.  

                                                                -5-                                                             6918  

----------------------- Page 6-----------------------

          C.        The Psychological Evaluation And The Custody Investigator's Report  


                    In  December  2011  the  superior  court  ordered  Paula  to  undergo  a  

psychological evaluation.  Paula met with psychologist Dr. Richard Lazur three times  


during the pendency of the custody investigation.  Dr. Lazur diagnosed Paula as having  

bipolar disorder with "recurrent major depressive episodes with hypomanic episodes,  

mild to moderate"; "[p]ersonality disorder . . . with narcissistic and borderline features";  

a caffeine disorder, overindulgence; and alcohol abuse.  He found that "she presents the  


characteristics of denial and minimization frequently found in those who abuse or are  


dependent on alcohol."  Dr. Lazur concluded that "[i]t is unlikely that  . . . she is going  

to do what [the court] tell[s] her." 

                     In her custody report, the custody investigator strongly recommended that  


Rick be granted primary physical and sole legal custody.  She had "serious concerns  


regarding  the  children's  emotional  and  physical  safety  in  the  care  of  their  mother."  


These concerns were mainly based on Paula's unwillingness to engage in treatment for  


her mental problems, her insistence upon using alcohol, and her unwillingness to follow  

court orders.  The custody investigator also noted that "[p]rior to the change to primary  

custody  with  Rick,  the  boys  had  been  having  behavioral  and  academic  problems  at  


school."  After the change,  "[t]his [was] no longer the case for either boy."  The custody  


investigator recommended that visitation be professionally supervised because Paula's  


"conditions are too complex, and the relationship with her sons too strained" to have  

supervision by a layperson.  


                    The superior court held an evidentiary hearing on February 26, 2013.  Paula  

did not rebut any part of the custody investigator's or Dr. Lazur's reports, but simply  


made vague statements that she would work on things in the future.  She testified that she  

began seeing a therapist a month prior to trial, but failed to give the therapist either  

                                                             -6-                                                        6918

----------------------- Page 7-----------------------


Dr. Lazur's or the custody investigator's reports. She also reiterated her belief that being  

off medication made her the "happiest [she has] been in years."  


                    The superior court found that Paula had longstanding issues with substance  


abuse and untreated bipolar disorder, that her actions did  not  show  a willingness to  


engage, and that her failure to take EtG tests was significant.  The court adopted the  

custody investigator's recommendations and awarded primary physical and sole legal  


custody to Rick with professionally supervised visitation for Paula on Sundays.  The  


court allowed Rick "[to] authorize [Stewart] to attend baseball training, tournaments, and  


related activities" on Sundays despite a conflict in visitation because the court found it  

to be in Stewart's best interest to continue to pursue baseball.  Paula appeals.  


                    We review the superior court's conclusion that there has been a material  

change in circumstances de novo.5  



                    "The trial court has broad discretion in child custody decisions."                                We will  


reverse the superior court's decision when "the record shows an abuse of discretion or  


if controlling factual findings are clearly erroneous."   An abuse of discretion exists  

where   the   superior   court   "considered   improper   factors   in   making   its   custody  

determination,           failed      to    consider         statutorily       mandated          factors,       or    assigned  

          5         Nelson v. Nelson , 263 P.3d 49, 52 (Alaska 2011);                           see Barrett v. Alguire,  

35 P.3d 1, 5-6 (Alaska 2001).  

          6          Veselsky v. Veselsky, 113 P.3d 629, 632 (Alaska 2005) (citing Jenkins v.  

Handel , 10 P.3d 586, 589 (Alaska 2000)).  

          7         J.F.E. v. J.A.S., 930 P.2d 409, 411 (Alaska 1996) (citing Farrell v. Farrell ,  


819 P.2d 896, 898 (Alaska 1991)); see also Hamilton v. Hamilton , 42 P.3d 1107, 1111  


(Alaska 2002).  

                                                               -7-                                                         6918

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


disproportionate weight to particular factors while ignoring others."   "A factual finding  


is clearly erroneous when a review of the record leaves the court with a definite and firm  

conviction that the superior court has made a mistake."9  



                   Paula argues that the superior court abused its discretion when it awarded  

primary physical and sole legal custody to Rick, and that it erred by finding a substantial  


change in circumstances from its denial of the 2006 motions to modify custody.  She also  

contends that the court did not make adequate findings to support supervised visitation,  


and that the court abused its discretion when it allowed "baseball to come before [her]  

visitation rights."10  

          A.	      The Superior Court Did Not Err By Concluding That There Had Been  

                   A Substantial Change In Circumstances.  


                   A court may modify a custody order only if there is a substantial change in  


                                                                                                         The change in  

circumstances and the modification is in the best interest of the child.  

          8        Siekawitch  v.  Siekawitch,   956  P.2d  447,  449  (Alaska  1998)  (quoting  

Borchgrevink v. Borchgrevink                 , 941 P.2d 132, 134 (Alaska 1997)) (internal quotation  

marks omitted).  

          9        Fardig  v.  Fardig ,  56  P.3d  9,  11  (Alaska  2002)  (quoting  Siekawitch,  

956 P.2d at 449) (internal quotation marks omitted).  



                   Paula also appears to argue that the custody investigator had a conflict of  

interest because she was the custody investigator during the divorce of Rick's second  

wife, Shirley.  But Paula forfeited this argument by not making it to the superior court.  

See Hymes v. DeRamus , 222 P.3d 874, 889 (Alaska 2010) (holding that a party cannot  


bring an argument for the first time on appeal).  Paula further argues that the superior  


court did not fully consider the evidence, but the court carefully reviewed the evidence  


before it and weighed all of the relevant factors.  



                   Hamilton , 42  P.3d  at  1115  (citing  Cooper  v.  State,  638  P.2d  174,  179  

(Alaska       1981));       Barrett      v.   Alguire ,      35     P.3d     1,    5   (Alaska       2001)       (quoting  

                                                             -8-	                                                     6918

----------------------- Page 9-----------------------

circumstances is measured "relative to the facts and circumstances that existed at the time                


of the prior custody order that the party seeks to modify."                                 And the parent moving for  

a modification bears the burden of proving this change.13  


                    Paula  argues  that  the  court  wrongfully  allowed  "re-litigation  of  past  


allegations," and that "each and every statement or accusation made by [Rick] to re-open  


this case has been addressed."  She points to the court's dismissal of Rick's 2006 motion  


to modify custody where the court stated, "Mr. Enzor essentially rehashes arguments  

about  Ms.  Frackman's  .  .  .  alcohol  use  he  initially  made  when  this  case  was  first  

litigated."  Paula's arguments are unavailing because there was ample new evidence  

following the 2005 custody order.  Because the evidence of alcohol abuse and untreated  


mental health issues created a substantial change in circumstances affecting the children,  

the court did not err in considering whether custody should be modified. 


                     Rick, the custody investigator, and Dr. Lazur all raised concerns about  


Paula's  ongoing  substance  abuse,  and  both  children  were  struggling  in  school.  

Furthermore,           there   were   allegations              of   physical        abuse       by   Paula        against   the  

children  -  multiple  incidents  where  Paula  put  Gabriel  outside  in  the  snow  as  

punishment, and an incident where she threw a glass of water in Gabriel's face.  The  


updated mental health evaluation confirmed Paula's bipolar disorder diagnosis, which  


both the custody investigator and Dr. Lazur believed would be harmful to the children  


if left untreated. Thus, the superior court did not err by concluding that there had been  


AS 25.20.110(a)).  

          12        Barrett ,  35  P.3d  at  5-6  (quoting Jenkins  v.  Handel ,  10  P.3d  586,  589  

(Alaska 2000)) (internal quotation marks omitted).  

          13        Id. (citing Harrington v. Jordan , 984 P.2d 1, 3 (Alaska 1999)).  

                                                                -9-                                                         6918

----------------------- Page 10-----------------------

a substantial change in circumstances from the court's initial shared custody order in  


         B.	       The Superior Court Did Not Abuse Its Discretion When It Awarded  

                   Primary Physical And Sole Legal Custody To Rick.  

                   Once there has been a substantial change in circumstances affecting the  

children,  the  superior  court  must  make  a  custody  determination  that  is  in  the  best  


interests of the children.  There are nine potentially relevant factors that the court must  


consider when determining the best interests of the children.                            These factors include  


                   the needs of the child; each parent's ability and desire to meet  


                   those needs; the child's preference, if he or she is old enough  

                   to have one; the love and affection between the child and  

                   each  parent;  the  stability  and  continuity  of  the  child's  


                   environment; the willingness of each parent to facilitate the  

                   child's  relationship  with  the  other  parent;  any  domestic  

                   violence  or  child  abuse;  any  substance  abuse  that  directly  

                   affects  the  child;  and  other  factors  that  the  court  deems  



                   Paula argues that "[t]he [s]uperior [c]ourt made a mistake when it decided  


to   award   temporary   and   subsequent   sole   legal   and   physical   custody   of   [the]  

children . . . Rick."  Because the court carefully weighed the evidence in light of the  

statutory factors, the court did not abuse its discretion by modifying custody.  

                   Here,  the  superior  court  did  not  abuse  its  discretion  by  considering  


improper factors, assigning disproportionate weight to factors, or failing to consider the  



statutorily mandated factors.               The court addressed each factor in depth, finding three  

         14        AS 25.24.150(c); Park v. Park , 986 P.2d 205, 206 (Alaska 1999).  

         15        Barrett , 35 P.3d at 5 (citing AS 25.24.150(c)).  

          16       See Siekawitch v. Siekawitch, 956 P.2d 447, 449 (Alaska 1998).  

                                                          -10-                                                        6918  

----------------------- Page 11-----------------------



factors particularly important.                    The court noted that both parents have the desire to meet  


the needs of the children, but that Paula is less capable due to her mental health issues.  


The court found persuasive Paula's unwillingness to cooperate in obtaining a passport  

for Stewart and keeping an accurate food journal for Gabriel.  The court also considered  


the stability factor and noted that the children had been doing poorly in school when the  


parents shared physical custody, but after Rick assumed primary physical custody they  


"blossom[ed]."  The court found it desirable to maintain this stability.  And, paramount  


to its decision, the court found that Paula has a history of untreated substance abuse and  

bipolar  disorder.    The  court  credited  Dr.  Lazur's  statements  that  untreated  bipolar  

disorder can have a negative impact on children.  It further found that Paula's alcohol  

abuse  created  a  "substantial  risk  for  the  children."    The  court's  findings  are  amply  

supported in the record.  


                     Further,  the  superior  court  clearly  indicated  the  factors  it  considered  


important in exercising its discretion.  The court carefully considered how each parent's  


behavior  and  likely  future  behavior  would  affect  the  children.                                        And  the  court's  


consideration of substance abuse and mental health in greater detail was warranted as  


these issues went to the heart  of  the  case.  The court did not abuse its discretion in  

awarding primary physical and sole legal custody to Rick.18  

           17        The superior court found "that there is no domestic violence in this case that       

would  trigger  the  rebuttable  presumption  in  AS  25.26.150(g)"  because  Paula's  

allegations against Rick occurred before the superior court's custody order in 2005, the  


criminal charges were dismissed, and there was no evidence that Rick continued to use  


corporal punishment against the children.  



                     Paula contends that the superior court violated her Fourteenth Amendment  

rights when it ordered a psychological evaluation of her and not of Rick as well.  This  

argument is waived because Paula did not raise it in the superior court.  Paula never  

objected to the evaluation or argued that Rick should undergo one as well.  

                                                                 -11-                                                            6918

----------------------- Page 12-----------------------

             C.          The Court Made Sufficient Findings To Support Supervised Visitation.  


                         Unsupervised  visitation  by  parents  is  "the  norm."                                                  If  a  court  orders  

supervised  visitation,  its  decision  "must  be  supported  by  findings  that  specify  how  


unsupervised  visitation will adversely affect the child's physical, emotional, mental,  

                                                               20   Paula argues that the superior court did not make  


religious, and social well-being."  

specific findings to support its imposition of supervised visitation.  


                         Paula's argument is unpersuasive because the superior court made ample  

findings regarding professionally supervised visitation.  The court's reasons for imposing  



supervised visitation are clear from the record.                                            The court repeatedly noted the danger  

to the children due to Paula's untreated bipolar disorder and alcohol abuse.  And the  


court noted Paula's repeated inability to follow orders and engage in treatment.  The  

court imposed professionally supervised visitation because Paula's untreated mental  


health problems were "too complex and her relationship with her boys too strained" to  

have anything other than professionally supervised visitation.  Because it is clear from  


the record why the court imposed supervised visitation, and because the court's findings  


on professionally supervised visitation encompass the need for supervision, the court's  

failure to make express findings in these unique circumstances does not require reversal  

or remand for further factual findings in support of the supervision order.  

             19          Fardig v. Fardig , 56 P.3d 9, 14 (Alaska 2002) (quoting J.F.E. v. J.A.S. , 930  

P.2d 409, 413-14 (Alaska 1996)).  

             20          J.F.E ., 930 P.2d at 413-14.  

             21          R.M.  v. S.G., 13 P.3d 747, 753 (Alaska 2000) ("[T]he superior court in this         

case provided ample specific findings about the need to protect the children from further   

emotional damage.").  

                                                                             -12-                                                                        6918

----------------------- Page 13-----------------------


          D.	       The Court Did Not Abuse Its Discretion By Accommodating Stewart's  

                    Baseball Schedule.  


                    In its order, the superior court noted that "it appears that the parties' older  


son is a gifted athlete and may have a chance to play baseball professionally, or at least  


obtain a college scholarship."  In light of Stewart's opportunities, the court allowed Rick  

"[to] authorize [Stewart] to attend baseball training, tournaments, and related activities"  


on Sundays even though Paula's visitation was also ordered for Sundays.  The court  


provided that Paula would be able to "reasonably make up any missed visits" on other  

days of the week.  


                    Paula contends that "allowing baseball to come before [her] visitation rights  

[was] ludicrous."  But the superior court properly concluded in this case that Stewart's  


best  interests  -  here,  developing  his  baseball  skills  and  eventually  his  potential  to  


become an accomplished athlete - took precedence over Paula's right to have visitation  


on Sundays.  Paula will not miss a single visit so long as she is regularly exercising her  


visitation  rights.            Given  Stewart's  stated  "goal  .  .  .  to  be  a  college  and  then  MLB  

pitcher"  and  the  court's  finding  that  this  goal  is  a  realistic  possibility  -  a  finding  

supported by the record - it was not an abuse of discretion for the court to conclude that  


it was in Stewart's best interests to allow him to pursue baseball on Sundays, even if a  

conflict arose with Paula's visitation.23  

V.	       CONCLUSION  

                    We AFFIRM the decision of the superior court in all respects.  

          22        See Barancik v. Meade, 106 S.W.3d 582, 590 (Mo. App. 2003) (remanding  

because "[t]he trial court did not allow for . . . rescheduled or compensatory visitation  


time on days when child does not have games or practices when there is a conflict").  

          23        See Helen S.K. v. Samuel M.K ., 288 P.3d 463, 469, 476 (Alaska 2012)  

(affirming superior court order that took into account child's preference and fear that  


visitation would interfere with his extracurricular activities).  

                                                             -13-	                                                         6918  

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