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LOWRY v. LEWIS2014 OK CIV APP 9317 P.3d 230Case Number: 110995Decided: 12/20/2013Mandate Issued: 01/14/2014DIVISION IITHE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION IICite as: 2014 OK CIV APP 9, 317 P.3d 230
STEPHANIE DAWN LOWRY, Petitioner/Appellant,v.BOBBY SHAWN 
LEWIS, Respondent/Appellee.

APPEAL FROM THE DISTRICT COURT OF BRYAN COUNTY, OKLAHOMA
HONORABLE MARK R. CAMPBELL, TRIAL JUDGE

AFFIRMED

Jeremy S. Elliott, Durant, Oklahoma, for Petitioner/AppellantChris D. 
Jones, JONES LAW, PC, Durant, Oklahoma, for Respondent/Appellee


JANE P. WISEMAN, JUDGE:
¶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.

¶24 AFFIRMED.

BARNES, V.C.J., and FISCHER, P.J., concur.

FOOTNOTES

1 See 
also Hogue v. Hogue, 2008 
OK CIV APP 63, ¶ 9, 190 P.3d 
1177, 1180 (holding the "court did not abuse its discretion in modifying 
custody, even though the court did not find Father had shown a material change 
other than [the 15 year old child's] preference to support the modification of 
custody"); Eimen v. Eimen, 2006 OK CIV APP 23, ¶ 14, 131 P.3d 148, 152 (holding the 
teenage "children's preference to live in Father's home was sufficient evidence 
to support a change in physical custody" in a modification of a split physical 
custody arrangement "even though the party seeking the change failed to 
demonstrate a change in circumstances").

2 
Although the Legislature amended section 113 in 2011, the following quoted 
provisions also relied on in Nelson remain substantially the same as in 
the 2002 version. Pursuant to 43 
O.S.2011 § 113(C), "[t]here shall be a rebuttable presumption that a child 
who is twelve (12) years of age or older is of a sufficient age to form an 
intelligent preference." Section 113(D) provides that "[i]f the child is of a 
sufficient age to form an intelligent preference, the court shall consider the 
expression of preference or other testimony of the child in determining custody 
or limits to or periods of visitation." We also note the remaining part of this 
provision states that a "court shall not be bound by the child's choice or 
wishes and shall take all factors into consideration in awarding 
custody."


Citationizer© Summary of Documents Citing This DocumentCite
Name
Level
None Found.Citationizer: Table of AuthorityCite
Name
Level
Oklahoma Court of Civil Appeals Cases CiteNameLevel 2004 OK CIV APP 6, 83 P.3d 911, NELSON v. NELSONDiscussed at Length 2006 OK CIV APP 23, 131 P.3d 148, EIMEN v. EIMENDiscussed 2008 OK CIV APP 63, 190 P.3d 1177, HOGUE v. HOGUEDiscussed at Length 2009 OK CIV APP 44, 211 P.3d 923, BUFFALO v. BUFFALODiscussed at Length 1996 OK CIV APP 134, 931 P.2d 86, 68 OBJ        73, Nazworth v. Nazworth,Discussed at LengthOklahoma Supreme Court Cases CiteNameLevel 1968 OK 77, 442 P.2d 482, GIBBONS v. GIBBONSDiscussed at Length 2005 OK 6, 107 P.3d 589, WILLIAMSON v. WILLIAMSONDiscussed 2007 OK 86, 173 P.3d 78, WHITE v. WHITEDiscussed at Length 2008 OK 80, 195 P.3d 896, IN THE MATTER OF BTWDiscussed 2010 OK 29, 237 P.3d 145, YNCLAN v. WOODWARDDiscussed 2010 OK 85, 247 P.3d 1162, FOSHEE v. FOSHEEDiscussed at LengthTitle 43. Marriage CiteNameLevel 43 O.S. 113, Preference of Child Considered in Custody or Visitation ActionsDiscussed at Length










