¶1 Stephanie Dawn Lowry (Mother) appeals the trial court's order granting the
motion to modify custody filed by Bobby Shawn Lewis (Father). After review of
the relevant facts and law, we affirm the trial court's decision.
FACTS AND PROCEDURAL BACKGROUND
¶2 In November 2005, a decree of divorce and dissolution of marriage was
filed awarding Mother custody of the minor child, FIL, born in May 2000. Father
was awarded visitation "in accordance with the Court's Standard Visitation
Schedule." On July 11, 2008, Mother filed both a motion to modify child support
and visitation and an application for contempt citation. On December 9, 2008, a
journal entry of judgment was entered updating child support, among other
things.
¶3 On May 29, 2012, Father filed a motion to modify the divorce decree
seeking custody of FIL. Father requested this modification after Mother
relocated to Decatur, Texas, with FIL and FIL expressed a preference to live in
Oklahoma with Father. Although Mother filed an application for contempt and an
amended answer and counterclaim soon thereafter, neither the appellate record
nor the docket sheet reflects any response by Mother to Father's motion to
modify.
¶4 After a hearing on Father's motion to modify which included visiting with
FIL in chambers out of the presence of the parties and their attorneys, the
trial court awarded custody to Father. In an order filed July 31, 2012, the
trial court awarded primary custody to Father, reasonable visitation to Mother,
and recalculated child support.
¶5 Mother appeals the trial court's custody decision.
STANDARD OF REVIEW
¶6 We review a decision of the trial court on a motion to modify custody to
determine if the "court's decision is clearly against the weight of the evidence
so as to constitute an abuse of discretion." Williamson v. Williamson, 2005 OK 6, ¶ 5, 107 P.3d 589, 591. "An abuse of
discretion occurs when a decision is based on an erroneous conclusion of law or
where there is no rational basis in evidence for the ruling." In re BTW,
2008 OK 80, ¶ 20, 195 P.3d 896, 908.
ANALYSIS
¶7 Mother argues the trial court erred in granting Father's motion to modify
custody because the court based its decision "solely on the testimony of the
minor child," misapplied Oklahoma law regarding consideration of a child's
preference, and erred in finding Father met his "burden of proof required to
change custody."
¶8 Mother relies primarily on the case of Ynclan v. Woodward, 2010 OK 29, 237 P.3d 145, to support her
contention that "the trial court erred in ruling on [the] motion solely on the
testimony of the minor child." Mother cites the following language in
Ynclan:
The preference of the child is only one of many factors to be considered
when determining the child's best interest concerning custody. It should
never be the only basis for determining custody.
Id. at ¶ 13, 237 P.3d at 151 (footnotes omitted).
¶9 An important distinction in this case is that Ynclan involved an
initial custody decision, not a modification of custody from one parent to the
other. After Ynclan was issued on March 23, 2010, the Oklahoma Supreme
Court issued a second case on December 7, 2010, styled Foshee v. Foshee,
2010 OK 85, 247 P.3d 1162. Foshee
involved the termination of a joint custody order and award of sole custody
to mother. Id. at ¶ 1, 247 P.3d at 1163. As in Ynclan, the Supreme
Court in Foshee again held that "the preference of the child is just
that--a preference. We have never held that child preference is 'the' deciding
factor when determining custody or modifying custody." Id. at ¶ 13, 247
P.3d at 1166. The Supreme Court stated the following in Foshee in regard
to a child's preference in an initial or modification of joint custody case
versus a modification of custody from one parent to the other:
The father relies on several cases from our Court of Civil Appeals in
support of his argument. The Court of Civil Appeals opinions are not binding
on this Court, but even if they were, Hogue v. Hogue, 2008 OK CIV APP 63, 190 P.3d 1177 and Nelson v.
Nelson, 2004 OK CIV APP
6, 83 P.3d 911 both
involve the children's preference when modifying custody from one parent to
the other, not modifying or terminating joint custody which is altogether
different. In that context, we have not addressed the appropriate weight to
be given to a child's preference when the child's change of preference is
the only change which has occurred, nor do we do so
today.
Id. at n. 6, 247 P.3d
1162. We find the Ynclan and Foshee decisions are
distinguishable from the present case on the issue of child preference as the
present case involves modification of custody from one parent to the other.
¶10 Mother further asserts the trial court erred in applying the standards
set out in Nazworth v. Nazworth, 1996 OK CIV APP 134, 931 P.2d 86, and Nelson v.
Nelson, 2004 OK CIV APP 6,
83 P.3d 911.
¶11 In Nazworth v. Nazworth, 1996 OK CIV APP 134, 931 P.2d 86, a question on appeal was
whether the trial court erred in denying the father's motion to change custody
from the mother to the father. Id. at ¶ 1, 931 P.2d at 87. The Court of
Civil Appeals held that "where a change of custody is sought because a child has
asked for the change, the child's interests are best served by 'serious
consideration' of the preference and the reasons for it . . . and 'in depth
judicial assessment' of the current custodial arrangement." Id. at ¶ 6,
931 P.2d at 88 (citations omitted). The Nazworth Court went on to explain
that "[i]t may well turn out that the change of custody is not in the child's
best interests, but such a determination cannot be made fairly and reasonably
without hearing from the child." Id.
¶12 In Nelson v. Nelson, 2004 OK CIV APP 6, 83 P.3d 911, the issue on appeal
was "whether the trial court erred in changing custody of the parties' two sons,
ages 12 and 7, from Mother to Father." Id. at ¶ 1, 83 P.3d at 912. The
trial court found the older child's preference to live with father to be an
intelligent determination. Id. The trial court also considered the
preference of the younger son because of the "'strong bond' between the brothers
and concluded 'the boys should not be separated' in order to avoid jeopardizing
that bond." Id. On appeal, the mother argued "these reasons are not
sufficient to support the change of custody, particularly in light of the trial
court's ruling that Father 'failed to demonstrate a material, substantial and
permanent change in circumstance necessary to require a modification of the
current child custody arrangement." Id.
¶13 The Court of Civil Appeals in Nelson held as follows:
Under both case law and statutory law, a well-founded custody preference
by a child will support a change of custody without proof of any other
change of circumstance.1 Accordingly, we hold the trial court did not err
in changing custody in the instant case, even though Father "failed to
demonstrate a material, substantial and permanent change in circumstance,"
other than the preference of the children.
Id. at ¶ 4, 83 P.3d at 913. The Court in Nelson found it
unnecessary for the father to meet the burden of proof outlined in
Gibbons in order to change custody as long as the minor child's
preference was well-founded pursuant to the requirements set forth in
Nazworth and 43 O.S. Supp.
2002 § 113.2
¶14 As a general rule, "[a] parent seeking to change custody based on a
material change of circumstances must demonstrate 'that, since the making of the
order sought to be modified, there has been a permanent, substantial and
material change of conditions which directly affect the best interests of the
minor child.'" White v. White, 2007 OK 86, ¶ 8, 173 P.3d 78, 80 (quoting Gibbons
v. Gibbons, 1968 OK 77, ¶ 12,
442 P.2d 482, 485). "The parent
must also demonstrate that, as a result of such change in conditions, the minor
child would be substantially better off, with respect to [the child's] mental
and moral welfare, if the requested change in custody be ordered.'"
Id.
¶15 The trial court's order reflects that at the time of the hearing, FIL
"was just over twelve (12) years old" and "exceedingly intelligent, mature,
articulate, forthcoming and honest." The trial court found that FIL has "a deep
affection for both of her parents, as well as for her extended family," and she
expressed concern about the effect the custody decision would have on her
parents. The court stated that based on its in camera conversation with
FIL, "it is abundantly clear that [FIL] is safe and loved in the home of both
her father and her mother" and "it is readily apparent [FIL] will continue to
have a positive and happy relationship with both of her parents in the future."
As to FIL's preference to live with Father, the trial court stated:
[FIL] is steadfast in her desire to spend time with both of her parents,
but she also seems to be equally determined to live primarily with her
father. One reason that [FIL] seems to want to live primarily with her
father is the geographical fact that her father lives here in Bryan County
where [FIL] has a large extended family with whom she is very close
(including an older brother, grandmother, aunts and cousins). It is clear
that [FIL] has been considering her desire to live with her father for
almost two (2) years, and that her choice is something that she has
carefully weighed. The undersigned is convinced that [FIL's] choice to live
primarily with her father has not been the subject of any undue parental or
other adult influence.
. . . .
Clearly, no judge should acquiesce to
the request of a child to make a significant change in custody and/or
visitation without carefully weighing whether or not the child is both old
enough and mature enough to have the request taken seriously. Additionally,
no such preference should be considered unless the judge then determines
that the custodial change requested is one that has been carefully and
thoughtfully arrived at by the child making the request. For the foregoing
reasons, there is no doubt to the undersigned that all of the criteria have
been met so that [FIL's] preference should (and will) be given a great deal
of credence by this Court.
. . . .
The Court finds that all of the
above is in the best interest of the minor child.
¶16 The trial court accurately and cogently summarized FIL's testimony in its
order. Both parties with their respective counsel were present at the hearing on
Father's motion to modify, but other than FIL's conversation with the judge,
neither party offered evidence at the hearing, nor did they make a trial court
record. Before arriving at its decision, the trial court had at its disposal the
parties' submissions and arguments in the court file and the interview with
FIL.
¶17 The evidence clearly shows FIL expressed a preference to live with Father
for well-articulated and appropriate reasons. She was 12 years-old at the time
of the hearing, and the rebuttable presumption therefore arises pursuant to 43 O.S.2011 § 113 that she "is of
sufficient age to form an intelligent preference." Although this is not binding
on the trial court, the court expressly found FIL to be "old enough and mature
enough to have the request taken seriously." The court gave FIL's preference and
the reasons for it serious consideration and did an in-depth judicial assessment
of the current custodial arrangement. Based on the evidence before us, we find
no abuse of discretion in awarding custody of FIL to Father.
¶18 Mother further argues that the trial court erred in finding Father "met
the burden of proof required to change custody." As stated above, "[a] parent
seeking to change custody based on a material change of circumstances must
demonstrate 'that, since the making of the order sought to be modified, there
has been a permanent, substantial and material change of conditions which
directly affect the best interests of the minor child.'" White v. White,
2007 OK 86, ¶ 8, 173 P.3d 78, 80 (quoting Gibbons
v. Gibbons, 1968 OK 77, ¶ 12,
442 P.2d 482, 485). "The parent
must also demonstrate 'that, as a result of such change in conditions, the minor
child would be substantially better off, with respect to [the child's] mental
and moral welfare, if the requested change in custody be ordered.'"
Id.
¶19 Mother cites Buffalo v. Buffalo, 2009 OK CIV APP 44, 211 P.3d 923, for the proposition
that in addition to FIL's preference, Father must meet the requirements of
Gibbons. In Buffalo, the mother was awarded custody of the child
in the divorce decree. Id. at ¶ 2, 211 P.3d at 924. The father later
filed a motion to modify asking for sole custody of his son based on a
substantial, material and permanent change of condition. Id. The trial
court's order indicated "the modification was singularly premised on [the 10
year-old child's] preference." Id. at ¶ 16, 211 P.3d at 926.
¶20 The Court of Civil Appeals found that: "It is the explanation, the
supporting reasons and all the factors that led to the preference that allow the
court to examine the child's preference in terms of the requirements outlined in
Gibbons." Buffalo, 2009 OK CIV APP 44 at ¶ 18, 211 P.3d at 927.
"[T]he child's preference does not allow the court to bypass the obstacles
articulated in Gibbons, but the child's preference and the reasons
underlying it can be considered and evaluated to determine if the Gibbons
requirements have been met." Id. at ¶ 18, 211 P.3d at 927. Applying
this analysis, the Court held:
It does not appear from the record below that [the minor child's]
expressed preference was sufficiently articulated to form an "intelligent
preference." His stated preference to live with his father was equivocal, as
he had also indicated he had no desire to change the status quo with his
mother, and any substantive evidence regarding the conflict with [minor
child's] sister was lacking to such a degree that determining whether this
circumstance was material, permanent and substantial was not possible with
the record provided. In this case, the child's stated preference, such as it
was, did not provide a sufficient basis upon which to modify custody and the
trial court erred in doing so based on the evidence
available.
Id. at ¶ 23, 211 P.3d at 928.
¶21 We find Buffalo to be distinguishable from the present case
because the child in Buffalo was 10 years-old when he expressed his
preference which, according to the trial court, was not an "intelligent
preference," but an "equivocal" one. Id. In contrast to Buffalo,
FIL was 12 years-old and had formed, over a significant period of time, a
thoughtful, intelligent and well-reasoned preference as delineated by Oklahoma
law. She definitively stated she preferred to live with Father, wanted to live
closer to extended family, and had been considering this decision for almost two
years.
¶22 Although Buffalo is factually distinguishable, we agree with the
appellate court's position that "[i]t is the explanation, the supporting reasons
and all the factors that led to the preference that allow the court to examine
the child's preference in terms of the requirements outlined in Gibbons."
Id. at ¶ 18, 211 P.3d at 927. Here, we have considered FIL's explanation,
supporting reasons, and factors that led to her preference in order to determine
if the Gibbons requirements have been met. After doing so, we conclude
FIL's preference is well-founded and supports a modification without any further
proof of a change in circumstance. "A well-founded custody preference by a child
can support modification of custody without proof of any other change of
circumstance." Id. at ¶ 17, 211 P.3d at 927 (citing Hogue v.
Hogue, 2008 OK CIV APP 63, ¶
7, 190 P.3d 1177, 1180;
Nelson v. Nelson, 2004 OK CIV
APP 6, ¶ 4, 83 P.3d 911,
913; Nazworth v. Nazworth, 1996
OK CIV APP 134, ¶ 2, 931 P.2d
86, 88). The trial court's decision granting Father's motion to modify
custody is affirmed.
CONCLUSION
¶23 The trial court properly exercised its discretion in granting Father's
motion to modify custody and we affirm.
BARNES, V.C.J., and FISCHER, P.J., concur.
