John C. Novacek, 204 LaBree Avenue North, P.O. Box 494, Thief River Falls, MN 56701 (for Respondent)

Considered and decided by Amundson, Presiding Judge, Harten, Judge, and Toussaint, Chief Judge.

Appellant argues that the district court abused its discretion in modifying custody by awarding physical custody to respondent. We affirm.

FACTS

On September 17, 1991, the parties divorced pursuant to a stipulation. Appellant Darla Swanson was awarded physical custody of the parties' two children, subject to respondent James Swanson's right to reasonable visitation.

In October 1995, shortly after remarrying a woman who had two children, respondent moved for a change of physical custody. A hearing was held and the district court granted respondent's motion. The district court found that: (1) even though one of the children has asthma, appellant and her "in-resident significant other," Scott Bergdahl, smoke in the home and in cars and other areas when the child is present; (2) a "prior in-resident significant other," Paul Anderson, attempted suicide while residing with appellant and the children; (3) one of the children was required to join Alateen because of Anderson's alcohol problems and continued in Alateen because of appellant's relationship with Bergdahl; (4) Bergdahl has an "alcohol problem" and has been convicted of prior assaults, one of which was on appellant; (5) Bergdahl is attending AA and "has been basically alcohol-free for the last five months," except for two "slips," one of which resulted in an assault on appellant on February 23, 1996; (6) "Mr. Bergdahl becomes assaultive when he consumes alcoholic beverages;" (7) "Darla Swanson has caused difficulties for the respondent in his visitation. She has stated visitation will be when she says so irrespective of what the dissolution decree provides;" (8) appellant has placed restrictions on the children's telephone use that appear to be "set up solely and only to restrict Mr. Swanson's contact with the children;" (9) "the respondent exhibits a solid family structure for the children, free of alcohol and smoking. The structure is geared to the interests of the children rather than putting the children in second place;" and (10) the guardian ad litem recommends that the best interests of the children are served by their physical custody being placed with respondent. The district court concluded that:

The children's present environment endangers their physical and emotional health and impairs their emotional development by reason of the continued smoking by their mother and her boyfriends and requiring the children to participate in programs for alcohol because of their mother's boyfriends' drinking habits; the attempted suicide of one boyfriend and the drinking and assaultive nature of the current boyfriend; and the restricted contact the boys have with their father, both personal and on the phone.

The district court awarded the parties joint legal custody and awarded physical custody to respondent, subject to appellant's rights to reasonable visitation.

The district court denied appellant's motion for amended findings or a new trial except to make the following changes: (1) deleting one child's name from a finding regarding attendance at Alateen meetings, and (2) changing another finding from "Mr. Bergdahl becomes assaultive when he consumes alcoholic beverages" to "Mr. Bergdahl exhibits a propensity to be assaultive when he consumes alcoholic beverages." This appeal followed.

D E C I S I O N

A district court may not modify a prior custody order unless it finds

upon the basis of facts that have arisen since the prior order or that were unknown to the court at the time of the prior order, that a change has occurred in the circumstances of the child or the parties and that the modification is necessary to serve the best interests of the child. In applying these standards the court shall retain the custody arrangement established by the prior order unless:

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(iii) the child's present environment endangers the child's physical or emotional health or impairs the child's emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child.

Minn. Stat. § 518.18(d) (1994).

Appellate review of custody modification is limited to whether the district court "abused its discretion by making findings unsupported by the evidence or by improperly applying the law." Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).

Appellant does not challenge any of the district court's findings. She just argues that those findings do not support a change of custody. Appellant notes that her smoking around the child with asthma does not constitute a change in circumstances because she has smoked around him since he was born. However, it does not constitute a change of circumstances within the meaning of the statute. The impact on the children due to respondent's live-in relationships and her efforts to restrict respondent's contact with the children do constitute a change in circumstances that would support a change of custody. The district court's findings and analysis are thorough and persuasive. We conclude that the district court did not abuse its discretion by awarding physical custody to respondent.

Affirmed.