### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-15-00380- CV

Michael Warr en, Appellan t

v. Kr ystal Charlene Ulatoski, Appellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 146 TH JUDICI AL DISTRICT NO. 231 ,743 -B , H ONO RAB LE JACK WELDO N JO NES, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Appellant Micha el Warre n appea ls from the trial court’s modification order g iving appellee Kry stal Charlene Ulatoski the rig ht to desig nate the primary residenc e of their daug hter,
B.W. Be cause the evidenc e is leg ally insufficient to show a materia l a nd substantial c hang e to the circ umstances of B.W. or either of her pare nts, we reve rse the trial court’s order and rende r judgme nt deny ing U latoski’s petition to m odify

. Appli cable Law and S tandard of Review Texas’ public policy is to ensure that a child has fre quent and continuing contac t with her parents, if her par ents have shown they can a ct in the child’s best intere st; to provide the child with a safe , stable, and nonviolent environment; and to encour ag e pare nts to share in the raising of their child afte r separ ation. Tex. Fam. Code § 153.001(a)

. A child’s best interest is the overa rching

conce rn in ma

tters conce rning conser

vatorship and possession. Id . § 153.002. As rele vant here , atrial court may modify a conser vatorship order only if the chang e would be in the child’s best interest and if the circ umstances of the pare nts or the child have materia lly and substantially chang ed since the order was rende red. Id. § 156.1 0 1 (a )( 1 ). The party seeking modification bear s the burden of establishing a materia l and substantial chang e in circ umstances from the date o f t h e prior order ,

an d i f she fails to meet that burden, the trial court must deny the petition. Zeifman v. Miche ls , 2 1 2 S. W. 3 d 5 8 2 , 5 8 9 ( T e x. A p p . — A u s ti n 2 0 0 6 , p e t. d e n ie d )

. Wh e th e r c ir c u ms ta n c e s h a v e ma te r ia ll y and substa n t i all y chang ed is a fac t-specif ic deter mination not g uided by rig id or definite rules. Id

. at 593. The following have been held to support modification: a pare nt’s rema rriag e, a pare nt’s poisoning the c hild’s mind aga inst the other parent, a chang e in hom e surr oundings, mistrea tment of the child by a pare nt or steppare nt, a pare nt’s behavior showing that he o r s h e h as b ec ome an improper person to exercise custody , or one pare nt’s interfe renc e with the other pare nt’s visitation.
P ie ts z a k v
. F le tc h e r , N o . 0 1

- 1 3

- 0 0 5 7 8

- CV , 2 0 1 4 WL 2 0 4 8 2 8 0 , a t * 3 ( T e x. A

p p . — H o u s to n [1 s t D is t. ] May 15, 2014, no pet.) (mem. op.). The “re cord must c ontain both historica l a nd curr ent evidenc e of” the parties’ circ umstances at the time the exis ting order was enter ed and at the time modification is soug ht; “[ w] i t h o u t b o th sets of data, the court has nothing to compar e and cannot deter mine whether a cha ng e has oc curr ed.” Zeifman , 212 S.W .3d at 594 n.1.
We will not disturb a tr i al court’s decision on a motion to modify unless the complaining party shows a clea r abuse of discretion, meaning the trial court acte d in an arbitra ry and

u n r e a s o n a b le ma n n e r o r w it

h o u t r e f e r e n c e to g

u id in g p r in c ip le s . I

d

. a t 5 8 7

. We a s k f

ir s t w h e th e r th e trial court had sufficie nt information on which to exercise its discretion and second whether it err ed in a p p ly in g it s d is c r e ti o n . I

d

. a t 5 8 8

. “ A n a

b u s e o f d is c r e ti o n d o e s n o t o c c u r a s lo n g a s s o me e v id e n c e of a substantive a

nd probative c hara cter

exis ts to support the trial court’s de cision.” Id. at 587.
2F actual and Proc edural Su m m ary The underly ing proce eding arose out of a petition to modify filed by Ulatoski. The trial court held a final hear ing in Marc h 2015, in which Warren and Ulatoski testified. Our summary is taken fr om the pleading s and Warre n and Ulatoski’s testimony

. 1

B.W. was born in Octob er 2 0 0 3

. When Warren and Ulatoski divorce d in 2008, when B.W. was five, they all lived in Texas. The decr ee named Warren and Ulatoski joint manag ing

conser vators and g ave Warren the rig ht to deter mine B.W.’s primary residenc e with no g eog raphic restric tion. Warren testified that he and Ulatoski wer e both f rom California and that at the time of their divorce , both still had family and in t en d ed to return there

. Some time betwee n 2008 and November 2011, Ulatoski rema rried, and she and her husband, who is in the Army , had two children, who wer e six and four y ear s old at the time o f t he final hear ing. Warren also had two y oung er children, who wer e two and five at t he ti me of the hearing ; Warre n has custody of t hose children, and they have g rown up with B .W. After the d i v o rc e was rende red, Ulatoski and her family reloc ated to California beca use her husband was stationed at For t I rwin, California. Warren and B.W. moved to a near by 2

to w n in Ca li f

o r n ia s e v e r a l mo n th s la

te r . I n N o v e mb e r 2 0 1 1 , th e tr ia l c o u r t s ig n e d a n o r d e r mo d if

y in g the 2008 divorce decr ee. The order rec ites that Ulatoski filed a petition to modify on September 30, 2009, and that the court found “that the m ater ial alleg ati o n s i n t h e p etition to modify are true and

Be cause the evidenc e rela ted to the parties’ circ umstances are dispositi ve of the appea l, we 1 will focus our summary

on evidenc e re levant to that issue alone. Ulatoski testified that she and her family moved to California in 2010. Howeve r, Warren 2 testified t hat B.W. s t ar t ed kinderg arte n in California in the fall of 2009, and in her brief, Ulatoski asser ts without citation t o the re cord tha t she and he r husband moved to Califor nia in 2008. 3that the reque sted modification is in the best interest of the child.” The court modified the decr ee’ s 3 provisions “g overn[ing] the arr ang ements for the trave l of the chil d t o an d from [Ulatoski] for Christmas a

nd summer visitations,” se tting out spec ifics about B .W.’s tra vel betwee n her pare nts’ h o me s . T h e c o u

r t d is mi s s e d “ a ll o th e r r e q

u e s ts ” ma d e in th e p e ti ti o n . T h u s , Wa r r e n r e ta in e d th e r ig

h t to desig nate B .W.’s primary residenc e without g eog raphic restric tion.
I n 2011 or 2012, Ulatoski’s husband was stationed in For t Polk, L ouisiana, wher e the family still lived at the ti me of the final hear ing. Ulatoski testified t hat W arr en and B.W. moved 4 back to Killee n betwee n six and twelve months later. Warre n said that he moved B .W. to Kil leen beca use he wanted her to be closer to Ulatoski but that Ulatoski only did about three or four wee kend visits a y ear , primarily seeing B.W. for summer and holiday visits. I n Dec ember 2014, Warren and B.W. moved bac k to California, whe re the y lived with his father, a

unt, and two y oung er c hildren. On Aug ust 1, 2014, at the end of her summer visit with B.W., Ulatoski filed a petition
to modify , asking that she be appointed sole man aging conser vator and that Warren be appointed
possessory conser

vator or, in the alterna tive, that she be g iven the rig ht to desig nate B.W.’s primary residenc e. As g rounds for he r re quest, Ulatoski ref err ed to her

aff idavit, in which she stated:

On or about J uly 30, 2014, I discovere d that [W arr en] is being investiga ted reg arding alleg ations of sexual assault/sexual abuse ag ainst the twelve y ear old daug hter of his para mour/room mate, MI RANDA STARR. On J uly 8, 2014, the Texas Depa rtment o f Fa mily and Protective Service s [“CP S”] enter ed into a Child Safety Evaluati o n

Ulatoski’s 2009 petition does not appea r in the rec ord, and we there fore do not know what 3 g rounds Ulatoski alleg ed to support a modifica tion or all of the modifica tions that were soug ht. Ulatoski testified that her family moved to L ouisiana in 2012, with Warren an d B.W. 4 moving to Killeen within the y ear , but Warren testified that he and B.W. moved to Killeen in 2011. 4and P lan wit h Miranda r eq u i ring that all contac t with [W arr en] and the children in

their home be supervised by Miranda. My daug hter, [ B.W.], has been with me at my residenc e for summer vi sitation and is schedule d to be picked up by [W arr en] on Fr iday , Aug ust 1, 2014. I am in fea r for the safe ty of my daug hter should she be returne d to [W arr en’s] home due t o the alleg ations of sexual assault/sex ual abuse pending ag ainst him.

Ulatosk i t es t i fi ed at the final hear ing that she filed her petition beca use B.W. “did not want to g o back to her dad” and beca use she lear

ned about the investiga tion. Ulatoski also testified that about
two wee ks afte r she filed her petition, the trial court held a hear ing in w hich a police detec tive and CPS case worke r testified that they wer e g oing to close their respe ctive investiga tions soon and that Warren’ s former g irlfriend “had made these ty pe allegations befor e.” The cour t ruled at that time that B.W. could re turn to Warren’ s car e on Aug ust 23, 2014.

Despite the ruling that B.W. could return to his car e, Warren asked Ulatoski to keep
B.W. until ear ly September so t h at he could sort out other leg al issues, and then he told her in

ear ly September “that there was still stuff g oing on” and that Ulatoski should enroll B.W. in school in L ouisiana. Warren explained t h at he was told not to leave Texas until the CPS and police investiga tions conclude d , wh ich occur red in late September 2014, and that he then was unable to leave the state until he finished classes require d by CPS , which did not conclude until late November
2 0 1 4

. A s a r e s u lt o f th o s e r e s tr ic ti o n s , Wa r r e n s a id , h e to ld U la

to s k i to k e e p B

. W. in L o u is ia n a “ s in c e she’s ha d her a ll this time,” and that he would pick B .W. up at Christ mas.

Ulatoski testified that Warren did not visit or pick up B.W. until Dec ember 19, 2014, when he picked her up for what he told Ulatoski would be a visit for “a couple of day s.” Howeve r, Warren did not return B.W. within a few day s, and so Ulatoski drove from L ouisi an a t o Ki l l een,
5arr iving on Dec ember 23 to find an empty house. Ulatoski testified that when she rea ched B.W. by

phone on Christmas Eve, B.W. wa s u p s et beca use she had been looking forwa rd to spending Christmas with Ulatoski and her family

. I t was not unt i l ea rl y J an uary that Ulatoski lear ned that
B.W. and Warren had moved back to California, and Ulatoski testified that Warren had not informed her of his plans to move, i n violation of t he decre e and the November 2011 modificati o n, and did not provide his new a ddress until the end of January or beg inning of

Fe bruar y 2015. Warren testified that B.W. had li ved wi t h h i m al l her life except for the six -month period she lived in L ouis i an a. Warren testified that there had been no materia l and substantial chang es in the parties’ rela tionship or circ umstances since the divorce was rende red, explaining that his move back to California did not am o u n t to such a chang e beca use he and Ulatoski wer e both from California, had family there , had plann ed to return to California, and had in fac t lived there since the divorce

. Warren testified that B.W. started kinderg arte n in California and attended school there for three y ear s, then moved to Killeen in 2011, wher e she attended school until J une 2014. She attended school in L ouisiana in the fall of 2014, and returne d to school in California in J anuar y 2015.
B.W. was eleve n and one-ha lf at the time of the hear ing. The trial court spoke to her
at the hear ing, and she told the court that she had not had trouble rea djusting to school in California, explaining that she had g one to th e s ame school in second g rade , that she “knew pretty much

ever y body there ,” that she still had friends there , and that she had made new friends. B.W. said she
g ot along well with both of her pare nts, that she l o v ed h er fo ur half-sibling s, that her stepfathe r

was nice and trea ted her well, althoug h she did not talk to him very much, and that she missed her

6mother and half-sibling s. When the court asked what B.W. wante d, she said, “I just wish that my mom could just l ive closer beca use she’ s not around fa

mily . Most of the family

is in California.” At the conc lusion of the hear ing, the trial court sa id:
[T] his is not an easy case beca use this is a situat i o n in which it’s clea r that both pare nts are g ood pare nts. I see nothing to indicate that both of y ou are not more than capa ble and willing to do what is in the best interest of y our child and have done so in the past, but und er the circ umstances my ruling is this. I ’m g oing to g rant the modification as reque sted, but I ’m g oing to order that [B.W.] rema in in Mr. Warren’ s home and continue in school in California, beca use I hear nothing to indicate that that would be a dang erous situation that would in any way endang er he r hea lth and well-be ing, a

nd I want her

to finish the school y ear

there

.
The court signe d an order naming Warren and Ulatoski joint manag ing conser vators, g iving Ulatoski the rig ht to desig nate B.W.’s primary re s i d en ce without reg ard to g eog raphic location and
g iving Warren visitation under the standard possession order

. The court issued finding s of fac t and conclusions of law deter

mining: (1) there had been a materia l and substantial chang e in B.W.’s, Warren’ s, and Ulatoski’s circ umstances; (2) the materia l alleg ations in Ulat o s k i ’s petition wer e true; and ( 3) Ulatoski’s re quested modifica tion was in B.W.’s best intere st.

Discussion W arren arg ues that the evidenc e is leg ally and fac tually insufficient to sh o w (1 ) a materia l and substantial chang e in the circ umstances of B.W. or eit h er p ar ent or (2) that it is in B.W.’s best interest for Ulatoski to have the rig ht to deter mine B.W.’s primary residenc e. See Tex.
Fam. Code § 156.101(a) (1). He arg ues that beca

use he and B.W. have returne d to California, “ther e has been no materia l and substantial chang e in circ umstances in that reg ard” since the 2011

7m o d i fi ca t ion order

. He also asser ts that Ulatoski’s move to L ouisiana “wa s anticipated by t h e
p a r ti e s a n d th u s c a n n o t c o n s ti tu

te a ma te r ia l a n d s u b s ta n ti a l c h a n g e , ” th a t h e r mo v e w a s n o t s u

b s ta n ti a l, and that the r ecor d is unclear about whethe r B .W.’s half-siblings we re bor n afte r the 2011 orde r. First, we clar ify that our inquiry is whether Ulatoski established by a preponde ranc e of the evidenc e that circ umstances have materia lly and substantially chang ed since the trial court’s last order rela

ted to B.W.’s conser

vatorship, signe d in November 2011. Ulatoski asser ts th at we should be looking to the parties’ circ umstances in 2008, when t h e d i v o rc e d ecr ee was signe d, beca use the November 2011 modific at i o n order primarily dealt with trave l arr ang ements for B.W.’s visitation with Ulatoski. Howeve r, the 2011 order modified the decr ee’ s provisions rela ted
to B.W. and was in res p o n s e t o Ul atoski’s previous motion to modify

. Thus, we compar e the parties’ circ umstances in 2011 to their circ umstances at the time of the Marc h 20 1 4 hear ing. See Agraz v. Carnley , 143 S.W .3d 547, 554 (Tex. App.—Dallas 2004, no pet.) (to prove materia l chang e, petitioner m ust “demonstra te what conditions exis ted at the t ime of t he entry of t h e p ri o r o rder ”); Considine v. Con sidine , 726 S.W .2d 253, 254-55 (Tex. App.—Austin 1987, no writ) (by signing prior modification order , trial court “nec essar ily conclude d” that circ umstances had materia lly and

s u b s t antially chang ed and that modification was in child’s best interest); see also In re T.W .E. , 2 1 7 S. W. 3 d 5 5 7 , 5 5 9 ( T e x. A p p . — Sa n A n to n io 2 0 0 6 , n o p e t. ) ( q u o ti n g B a te

s v
. Te s a r , 8 1 S. W. 3 d 4 1 1 , 421 (Tex. App.—El Paso 2002, no pet.)) (once conser vatorship order is signe d, res judicata applies to establish what was in c hild’s best interest at time).

I n Ulatoski’s petition to modify , the only fac t asser ted as a chang e in circ umstances

was that Warren wa s being investiga ted due to alleg ations of sexual assault leveled by his exg irlfriend. Two wee ks afte r the petition was filed, the trial court held a hear ing and lear ned that the
8police and the Depa rtment believed the alleg ation s to be g roundless, that the investiga tions wer e g oing to be closed soon, and that Warren’ s ex-girlf riend had made simil ar and basele ss alleg ations in the past. Thus, the only chang e Ulatoski alleg ed was disproved, and at no point did she amend her petition to alleg e other chang es. See Agraz , 143 S.W .3d at 554 (evide nce did not support defa ult 5 order modify ing conser

vatorship beca

use mother’s testimony did not prove alleg ations in petition).
Fur ther, Ulatoski provided littl e evidenc e about the parties’ circ umstances in 2011, and it was her burden to do so. See Zeifman , 212 S.W .3d at 589 (in m o d ification proce eding , “a threshold inquiry

of the trial c ourt is whether the moving pa

rty has met the burde n . . . of showing a material and subst antial cha ng e; otherw ise the trial cour t must deny the m otion to modify ”); see also In re M.K.T. , No. 13-14-00032-CV, 2015 WL 5634318, at * 5 -6 (Tex

. App.—Corpus Christi Se p t. 2 4 , 2 0 1 5 , n o p e t. ) ( me m. o p . ) ( “ r e c o r d mu s t c o n ta in h is to r ic a l e v id e n c e o f r e le v a n t c ir c u ms ta n c e s for c omparison in order to de termine whether a cha ng e has oc curr ed”) . I ndeed, the only fac ts that

can be g leane d from the rec ord about the parties’ circ umstances in 2011 are that: the parties had all moved to California; B.W. was g oing to school in California; Ul atoski had rema rried, and her husband was active- duty milit ary ; Ulatoski and her husband had had two children; and Warren had had one c hild with his g irlfriend. 6

I n addition , Ulatoski never actua lly testified about how the parties’ circ umstances had 5 chang ed in a materia l and substantial way , al t h o u g h her attorney questioned Warren about his moves, challeng ing his asser tion that the circ umstances had not materia lly chang ed. See Anderson v. Carranza , No. 14-10-00600- CV, 2011 WL 1631792, at *5-6 (Tex. A pp.—Houston [14t h Dist.] Apr. 28, 2011, no pet.) (mem. op.) (petition did not alleg e specific chang es; petitioner testified that she had been rema

rried for three y ear s, she had had two children, she owned house, and her health had signific antly improved; court of appea ls h el d that testimony “does not constitute evidenc e of materia l and substantial chang es dictating a cha ng e in conse rvatorship” ). We base this on the childre n’s ag es as testified to by Ulatoski and Warre n. 6 9Setting aside the fac t that Ulatos k i o n l y alleg ed the investiga tions by CPS and the

police as the materia l and s u b s t anti al chang e supporting modification, and even assuming the evidenc e prese nted was sufficie nt to car ry Ulatoski’s burden of showing the parties’ circ umstances in 2011, see Zeifman , 212 S.W .3d at 589, this rec ord does no t s upport a conclusion that the circ umstances of B.W. or her pare nts have materia lly and substan t i al l y chang ed since the 2011 modification order

was sig ned. At the time of the final hear ing, B.W. and Warren had moved back to California afte r

sever al y ear s in Killeen, B.W. was attending the same school she had attended befor e moving back
to Texas, Warren’ s y oung er child had been born, and Ulatoski and her husband had been stationed in L ouisiana. Since Ulatoski’s husband was active- duty milit ary and thus subject to reloc ation, her

move from California was contemplated by the parties at the time of the 2011 order

. See Hoffman 7

v. Hoffman , No. 03-03-00062- CV, 2003 WL 22669032, at *6-7 (Tex. App.—Austin Nov. 13, 2003,

n o p e t. ) ( me m. o p . ) ( “ [B ]e c a u s e [m o th e r ’ s ] mo v e to Pe nn s y lv a n ia w a s c o n

te mp la te d a t th e ti me o f th e orig inal ag ree ment, its eventua lity was not a chang ed circ umstance but an anticipated circ umstance and addre ssed in the orig inal ag ree ment. As a result, the move itself cannot be evidenc e of a materia l or substantial cha

ng e in t his case . There fore , [father] must rely on other e vidence of a ma terial or substantial chang e that could war rant modify ing conser

vatorship to pre v en t t h e children from

Ulatoski arg ues that Warren’ s moves “we re not contemplated at the time of the prior order 7 conce rning the pare nt child rela tionship. Thi s o rd er wa s en tere d in 2008. A subsequent order in 2011 did not aff

ect conser vators h i p an d the order conce rned long distance trave l and the medical [i dentifica tion] car d for the child. Her curr ent husband is active duty milit ary . This marria g e took place afte r the divorce decre e in 2008.” However , the 2011 orde r wa s signe d afte r the pa rties had moved to California, and by addre ssing long- distance trave l, it clea rly did contemplate the fac t that Ulatoski and Warre n would not alway s live near eac h other. 10moving to Pennsy lvania.”) ; s ee also Considine , 726 S.W .2d at 255-56 (mother’ s rema rriag e and

move to Canada constituted chang e under family code but “wa s not shown to be so m at er i al and substantial tha t the rete ntion of [father] as manag ing conser vator would be injurious to the welfa re of t he children and the ap p o i n t m en t of [ mother] as t he manag ing conservator would be a positive improvement for the boy s”). B. W

. an d W arr en moved back to Killeen, but Ulatoski did not seek modification based on that move, which Warren testified he made in an eff ort to enhanc e Ulatoski’s

acc ess to B.W., and at the time of the final hear ing, B.W. had returne d to California and the school she had previously attended. Warren testified, and Ulatoski did not dispute, that afte r he moved to Killeen to allow Ulatoski eas i er acc ess to B.W., Ulatoski still larg ely confine d her visitations to holiday s and summers, opting to exercise wee kend visitation only rar ely

. Thus, the evidenc e shows that Ulatoski’s time with B.W. will not be signific antly and neg atively aff ecte d by B.W.’s living in California. See Bates , 81 S.W .3d at 430 (in considering whether move is materia l and substantial

8
As explained by

our sister cour

t: 8 Moving a child from one location to another g ener ally results in some chang e of the circ umstances of the child or pare nts. The issue is whether such chang e is ma terial and substantial. Some moves, depending on distance and o t h er factors, may not materia lly alter or interfe re w ith the relationship of the c onserva tors with the child. Dec iding whether the move cause s a s u b s t antial and materia l chang e require s intensive examination of the fac ts of each case. Fa ctors to be considered in such a deter mination include the distance involved, the quality of the rela tionship betwee n the noncustodi al parent and the c hild, the nature and quality of t he child’s contac ts with the noncustodial pare nt, whether the reloc ation would deprive the noncustodial pare nt of reg ular and mea ningf ul acc ess to the child, the impact of the move on the quality and quantity

of the c hild’s contact with the noncustodial pare nt, the m otive for the move, the motive for op p o s ing the move, the fea sibili ty of prese rving the rela tionship betwee n the noncustodial pare nt and the child throug h suitable visitation arr ang ements, and the proxi mity , availability , and saf ety of trave l arra

ng ements. In re P.M .G. , 405 S.W .3d 406, 412 (Tex. App.—Texarkana 2013, no pet.). 11chang e, relevant factors include distance, nature and quali t y o f child’s contac ts with noncustodial

pare nt, and proxi mity , availability , and safe ty of trave l arr ang ements). Fur ther, Warren testified that
B.W. was doing well in sc hool a nd making friends; that B.W. had g rown up with a nd was close to his y oung er children; that he and B.W. had a strong bond; and that living in California allowed B.W.
to see her extended family

. B.W. said that she had easily rea djusted to school in California, still had friends there , and had made new friends. We hold that this rec ord does not support a conclusion that B.W.’s moves awa

y from and back to California wer e materia l and substantial chang es that would permit a modification to the 2011 order

. See In re H.N.T. , 367 S.W .3d 901, 905 (Tex. App.—Dallas 2012, no pet.) (at time of divorce , mother lived in Houston and fathe r lived in Gra y son County ; soon afte r, mother rema

rried and moved b ac k t o Gr ay son County with child, wher e they lived for ten
y ear s; when mother decide d to return to Houston, fathe r objected and soug ht g eog raphic restric tion,

asser ting move was materia l and substantial chang e; appellate court reve rsed modification and held evidenc e did not show materia l and subst antial chang e b ec au s e “conditions at bot h points in time establish that Mother re sided in Houston”). 9

Nor do any of the other chang es pointed to by Ulatos k i am o unt to materia l and substantial chang es. B.W. was eleve n at the time of the hear ing, five at the time of t h e divorce ,

See also In re P.M.B. , 2 S.W .3d 618, 622-23 (Tex. A pp.—Houston [14t h Dist.] 1999, no 9 pet.) (following wer e not materia l and substan t i al chang es dictating chang e in conser vatorship: fathe r moved sever al times a nd chang ed jobs, a

nd mother re turned from milit ary service overse as, rema rried, had another child); Belford v. Belford , 682 S.W .2d 675, 6 7 6

- 7 7 ( T e x. A p p . — A ustin 1984, no writ) (fa

ther did not meet burden of showing chang e in circ umstances despite evidenc e showing : both pare nts had rema

rried; mother had moved to Missouri; mother had allowed child to rema in in Texas afte r Christmas visit, living with g randpa rents and attending school in Gar land; g randpa rents in Texas could finance child’s musical educ ation). 12and eig ht when the ear lier order was s igne d, but the mere fac t that B.W. is older cannot

s u pport modification. See Zeifman , 212 S.W .3d at 593 (“I ncre ase in ag e alone is no t a ch an ged circ umstance to justify modification unless chang ed needs are shown.”); see also W iese v. AlBakry , No. 03-14-00799- CV, 2016 WL 3136874, at *4 (Tex. App.—Austin J une 1, 2016, no pet. h.) (mem. op.) (incre ase in child’s ag e is ty pically anticipated by trial court in draf ting orig inal custody order s);
In re C.R.G. , No. 05-10-01472- CV, 2012 WL 3133785, at *3-4 (Tex. App.—Dallas Aug

. 2, 2012,

no pet.) (mem. op.) (mother did not car ry burden of proving materia l and substantial chang e wher e evidence was only that child was fiftee n y ear s older and had expressed desire to deny fath er ’s visitation; appellate court noted that trial court did not make finding s as to child’s needs or explain chang ed circ umstances and stated only that fathe r’s possession had become unworka ble). Warren’ s
y oung est child was born since 2011, but the three older half-sibling s wer e all born befor e. Ulatoski

re m ar ri ed b ef

o re the 2011 order was signe d. There is no evidenc e that B.W. has needs that are
not being o r cannot be met in California as opposed to L ouisiana. Ulatoski asser ts that B.W. has moved too much, but her soug ht modification would also require a move. Stabilit y is an important consideration in conser

vatorship and custody

deter minations, Child v. Leverton , 210 S.W .3d 694, 698 (Tex. App.—Eastland 2006, no pet.), and in this case , B.W. had lived with Warren since 2008, when the parties divorce d; had stay ed with him until the time of the hear ing, other than about six month s t h at s h e spent in L ouisiana; and had returne d to California, wher e she had beg un school
y ear s befor e, alre ady had friends, and had extended family and the two half-sibling s with whom she had g rown up, see I

n re H.N.T. , 367 S.W .3d at 905.

13We hold that Ulatoski did not car ry her burden of est a

b li s h in g ma

te r ia l a n d substantial

c h a n g e s in th e p a

r ti e s ’ c ir c u ms ta n c e s b e tw e e n N o v e mb e r 2 0 1 1 a n d M a r c h 2 0 1 4 a

n d th a t th e e v id e n c e was lega lly insufficient to support the t rial court’s modification order . We sustain Warren’ s third issue, and due to our

resolution, need not a ddress Warr en’s r emaining issues.

Conclusion The trial court abused its discretion in g ranting Ulatos k i ’s p etition to modify

. We there fore reve rse the trial court’s order and rende r judgme nt de ny ing Ulatoski’s petition to modify the par ent-c hild relationship.

__________________________________________ David Pury ear , J ustice
Be fore J ustices Pury ear , Pemberton, and F ield
Reverse d and Rende red Filed: Aug ust 11, 2016

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