[1] This appeal challenges the propriety of the trial court's order modifying a decree of divorce changing the custody of three minor children.
[2] The parties to this action were divorced on February 1, 1971, and custody of the three children was placed in their father (appellant). In July of 1971 appellee filed a motion to modify asking custody of the children be changed to her. The trial judge overruled the motion and filed its findings of fact and conclusions of law, which, in effect found appellee's condition had changed but concluded her evidence was insufficient to warrant a modification.1
[3] Thereafter in August of 1972 appellee filed another motion to modify which contained essentially the same allegations as her motion filed in July of 1971. Before this motion was heard, appellant filed a "cross-motion" to modify seeking to terminate appellee's visitation rights. In October of 1972 both parties withdrew their motions and custody remained with appellant. Then on June 1, 1973, appellee again filed a motion to modify seeking a custody change. The matter was heard, with appellant not personally appearing but represented by his attorney. At the close of appellee's evidence, appellant demurred, which demurrer was overruled and appellant has elected to stand on his demurrer. We will therefore review appellee's evidence in a light most favorable to her together with all reasonable inferences drawn therefrom which we must do in reviewing a demurrer.
[4] To support her motion, appellee offered testimony that she has remarried and now has a home in which she can keep the children, which she was unable to do for some reason at the time the original decree of divorce was entered. Her evidence was she was not employed and therefore could be with her children in her home during the day. The rest of her evidence consisted of testimony given by her minister that *Page 1148 both she and her husband attended church regularly. This concluded appellee's evidence. Her evidence in no way shed any light on the conditions under which the children are now living while in the custody of their father. We will therefore assume the conditions under which the children now live are satisfactory because of the prior custody orders favorable to appellant.
[5] In 1968 the Supreme Court of Oklahoma handed down Gibbons v. Gibbons, Okla., 442 P.2d 482 (1968) which is factually very close to the case now before us. In Gibbons the father was awarded custody of a young boy and subsequently the mother filed a motion to modify the decree changing custody of the boy (then about 10 years of age) to her. The mother's motion was based upon achange in her situation since the making of the last custody order. In granting the custody change to the mother, the trial court based its order upon that portion of 30 O.S. 1961 § 11[30-11], which says that "if the child be of tender years, it should be given to the mother."2 The Oklahoma Supreme Court reversed and specifically distinguished the rules of "awarding" custody at the time the original divorce decree is entered from the rules in "changing" custody subsequent to the original decree. The court held § 11 does not apply in attempted custody modifications. The court cited Ness v. Ness, Okla., 357 P.2d 973 (1960), and said:
"`There exists no rigid formula by which to measure the nature of proof necessary to establish a change in circumstances sufficient to justify a revision of the custody arrangements. The paramount consideration in determining the question is the welfare of the child, and the trial court must be guided by what appears to be for the child's [best] interest. * * *'"
[6] The court went on, and quoted from Stanfield v. Stanfield, Okla.,350 P.2d 261 (1960) and said:
"`Where divorce decree awards custody of minor children to one parent and subsequently other parent applies for modification of such decree to change custody of the children on ground of change of conditions, applicant must show that the change in conditions or circumstances affects the welfare of the children and that a change in custody would result in greater benefit to the children.'
. . . . . .
"`In the present case there has been a showing that defendant is now in a position to provide a home for these children in a good environment. However, there has been no showing that such home and environment is better than that provided by plaintiff and that a change would be of greater benefit to the children and their welfare. * * *'
"These basic rules are specifically applicable to the modification of orders concerning the custody of minor children of the parties to a divorce action, as contained in the final decree of divorce or in orders made subsequent to the final decree of divorce, so as to change the custody of a minor child of the parties to a divorce action from one parent to the other, as distinguished from `awarding' custody at the time of rendering the final decree of divorce." (emphasis ours)
[7] In Gibbons the mother's evidence was exactly the same as appellee's evidence in the present case. That is, her situation had improved since the divorce; she had remarried, *Page 1149 had a home and could be with the child during the day. In Gibbons the evidence of the mother failed to show the young boy would be as well off insofar as his temporal, mental and moral welfare are concerned with the mother as with the father, even with the mother's improved situation. This, held the court, "means that the mother failed to sustain the burden of proof of making it appear that the change in her condition would result in the boy's being substantially better off, in those respects, if his custody were changed from the father to her." In the present case there is noevidence showing there would be an improvement in the children's temporal, mental and moral welfare, if custody were changed from appellant to appellee, even with appellee's changed situation. In other words, the record is totally void of any evidence which shows a change of custody to appellee would be an improvement over that which is presently provided and has been provided for the children by appellant since the original decree of divorce. This means, as in Gibbons, appellee failed to sustain the burden of proof of making it appear that the change in her condition would result in the children being substantially better off if custody was changed to her.
[8] We therefore find the trial court erred in overruling appellant's demurrer to appellee's evidence, and the case is reversed and remanded to the trial court with directions to sustain appellant's demurrer and enter judgment accordingly. Appellant has been required to defend against three such motions since the February 1971 decree of divorce. Appellant is further awarded attorney fees in the amount of $500 for this appeal.
[9] Reversed and remanded.
"The Court enters the following findings:
1. There has been a change in condition of the Plaintiff which makes her better able to care for children at this time.
2. Defendant presently offering such care as necessary and such is adequate to meet the children's needs.
3. No change of conditions shown which affects the original placement nor any evidence that indicated a modification would benefit the minor children.
4. Plaintiff's remarriage in recent weeks considered but no evidence that such would benefit the children. Evidence to the contrary that such marriage could be detrimental to the children.
"From the evidence presented the Court enters the following conclusion of law:
1. The statutory preference of the custody of children of tender years to the female does not apply to a Motion to Modify.
2. That the children's present custody is adequate and that not sufficient evidence was presented that would establish that a modification was to the best interest of such children.
3. Visitation rights should be more clearly defined.
"The Court therefore denies the Motion to Modify and directs the parties to incorporate written conditions defining future visitation rights. The Court further Orders that each party shall be responsible for their own attorney's fees.
s/ J. David Rambo JUDGE"
1. By what appears to be for the best interests of the child in respect to its temporal and its mental and moral welfare; and if the child be of sufficient age to form an intelligent preference, the court or judge may consider that preference in determining the question.
2. As between parents adversely claiming the custody or guardianship, neither parent is entitled to it as of right, but, other things being equal, if the child be of tender years, it should be given to the mother; if it be of an age to require education and preparation for labor or business, then to the father." 30 O.S. 1971 § 11[30-11].