dissenting.
I would defer to Judge Sawyer’s decision. See McFadden v. McFadden, 206 Or 253, 257, 292 P2d 795 (1956). Therefore, I respectfully dissent.
Judge Sawyer initially awarded custody of the children to mother. He specifically ordered in the dissolution decree that she
“* * * shall not permit unrelated males to stay in the home overnight when the children are in the home * * *.”
That proviso was directed at her boyfriend, Laurence, although he was not actually named.
The record satisfies me that Judge Sawyer would not have awarded custody of the children to mother but for her assurances that Laurence would not stay overnight in the *511childrens’ home when they were there. That conclusion is supported by the judge’s statements at the modification hearing:
“* * * [W]hen I heard the trial one of the reasons I put it in the decree, I didn’t think that Mr. Laurence was a proper person to be around those children so you don’t need to convince me he is not a proper person, I was convinced of that at the trial.
<<* * * * *
“* * * [I]t is not like I have never heard the case before, I spent a long time listening and it wasn’t an easy decision that I made because I think it appeared that Mr. Laurence, I didn’t approve of him * * *.
U* * * * *
“* * * I told her that at the time of the child custody hearing, make a choice, make a choice between him and her kids * * *.
a* * * * *
«* * * This is a case where Mrs. Poulson has chosen to violate what the court ordered, whether she has or has not is the whole issue. I got on the other issue a little bit because it reassures me that Mr. Laurence is the kind of person I thought he was at the time of the trial, is the kind of person that shouldn’t be around these children.
* * * *
“* * * I don’t doubt my decision for a second, I think my decision is correct and these children are much better off with the father than the mother. This is based on the fact that she has demonstrated her willingness to directly violate a Court order. I found that she has had the live-in boyfriend, or former live-in boyfriend staying overnight. He was a bad influence on the children, this came out in the evidence * * *. In the prior trial in this situation, he was involved in drugs, he carries a gun, that he in essence is not the kind of person that these children should be subjected to. * * *” (Emphasis supplied.)
At the modification hearing, father’s counsel stated:
“* * * Your Honor, as you are aware you heard this matter at trial June 2, 1983, and a decree was entered on June 14, 1983, with the custody being awarded to Mrs. Poulson of the two minor children, and it is specifically stated in the decree that she was not to permit any unrelated male to stay in the home overnight, she wouldn’t cohabit with any unrelated *512males when the children were in the home, and I’m sure you remember the situation, but I specifically remembered the statement being made that she was asked specifically, ‘Let me know if Plin Laurence is going to stay in the home with the children and overnight, if so I will give the custody to the father.’ Right now she said, ‘No, that wouldn’t happen.’ ” (Emphasis supplied.)
Mother’s counsel did not challenge that statement.
Judge Sawyer found:
“The Court finds that the respondent is in direct violation of the Court’s decree in that she has allowed an unrelated male to spend the night while the children were in the home.
“There was sufficient evidence offered at the divorce trial for the Court to find that the respondent’s relationship with [Laurence] was detrimental to the children. The Court felt, at that time, respondent should be awarded the children because of their age and the fact that she had been the primary parent. The Court hoped that, by its decree limiting the visitation of [Laurence] it could eliminate the adverse effect; but the mother has made it clear that the relationship with [Laurence] is more important than her children * * *.
“The Court also finds the father to be a fit and proper person to care for the children. * *
Here, the evidence of a changed circumstance consists of mother’s willful violation of a provision in the parties’ dissolution decree specifically included for the protection of the children. She did not appeal from that provision and she is bound by it. It was at the very heart of Judge Sawyer’s initial custody award to her. She clearly understood the provision. Unfortunately, she put her needs ahead of those of her children. Her willful violation was relevant to her capacity to care properly for them. The evidence of changed circumstances was sufficient.1
Judge Sawyer apparently did not even consider holding mother in contempt, because he felt that Laurence was such a bad influence on the children that he was unwilling to leave them at risk. From this ivory tower, I am not willing to second-guess Judge Sawyer on that question.