JANE P. WISEMAN, Judge.
¶ 1 Stephanie Dawn Lowry (Mother) appeals the trial court's order granting the motion to modify custody tiled by Bobby Shawn Lewis (Father). Alter review of the relevant facts and law, we affirm the trial court's decision.
¶ 2 In November 2005, a decree of divorce and dissolution of marriage was tiled 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 alter 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.
¶ 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.
¶ 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:
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' deckling factor when determining custody or modifying custody." Id. at ¶ 13, 247
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:
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
¶ 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:
¶ 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
¶ 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 it the Gibbons requirements have been met." Id. at ¶ 18, 211 P.3d at 927. Applying this analysis, the Court held:
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,
¶ 23 The trial court properly exercised its discretion in granting Father's motion to modify custody and we affirm.
¶ 24
BARNES, V.C.J., and FISCHER, P.J., concur.