Reza Seyed Alaghehband v. Fariba Abolbaghaei

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-02-00445-CV

Reza Seyed Alaghehband, Appellant

v.

Fariba Abolbaghaei, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT

NO. FM104439, HONORABLE F. SCOTT MCCOWN, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Appellant Reza Seyed Alaghehband appeals from a divorce decree naming appellee

Fariba Abolbaghaei sole managing conservator for their daughter and ordering him to pay $800 a

month in spousal support for three years. Appellant contends that the evidence is legally and

factually insufficient to support the spousal maintenance award and that the trial court abused its

discretion in appointing appellee sole managing conservator of the child. We will affirm.

Statement of Facts

Appellee was born in and earned an engineering degree in Iran. She married appellant

in January 1991, and they moved to the United States in September 1991. K.S.A., who is autistic,

was born in April 1993. Appellee testified that appellant was very controlling, would not allow her

to watch most television programs or have American friends, and required her to use credit cards for

all her expenses and justify her purchases. Appellant disapproved of her desire to take English

classes, so she learned it "through like TV." Appellee has never used her degree in the United States

and has not applied for any engineering jobs in this country. She believed that her degree would not

be recognized here because companies had rejected the degrees of friends who attended the same

university. Appellee stayed home with K.S.A. until about two and one-half years before trial, when

she started to work. Appellant was very angry the first time appellee went to work, and when she

returned home, K.S.A. was upset and appellant "said that he beat my child." When appellee first

started to work outside the home, appellant "said I am not allowed to do that. He just cut my--the

credit cards without me knowing that I was like using the credit card. It was like declined." At

appellant's demand, appellee changed jobs, but was injured in a car accident and had to quit. After

she recovered, "[Appellant] was absolutely against me working and he was very controlling even

more with money to stop me working." At the time of trial she was earning $10 an hour and

working from twenty-five to forty hours a week at a part-time job in retail sales. She sought spousal

maintenance so she could get a degree in marketing.

Appellee decided she wanted a divorce but waited two years to file because, "I didn't

know anything. I've been here for ten years. I didn't know how the Americans are like, what the

culture is like, where I am." Shortly after she filed for divorce, she planned to travel back to Iran

with appellant and K.S.A. until appellant told her, "[I]f you go to Iran he is going to say that I have

had an affair with somebody and they are going to kill me for that." Appellant also told her he was

going to take all the money from their account, "make sure that I am going to become homeless

through this divorce," and "he's going to have custody of the child and he's going to take it to Iran

and never come back." Appellee moved out of the parties' home because, "He was emotionally

really abusing me. I was--he always told me I'm nobody, I am--very, very, very bad words each

time I was coming from work. I can't even say those words. He used a lot of bad words that

nobody--I'm not a good mother, so I was not able to handle those anymore."

Appellee testified that when K.S.A. first began exhibiting unusual behavior, appellee

sought to have her tested and given therapy, but appellant did not support those efforts. Appellee

testified that she enrolled K.S.A. in therapy, only 70% of which is covered by insurance, and

attended meetings at K.S.A.'s school; appellant only attended a few meetings. Appellee testified that

she had volunteered with and educated herself about autistic children. Appellee and appellant agreed

that appellant should help with K.S.A.'s school work because he was educated in the United States;

appellee was to help K.S.A. with her social and speech problems. Because most of appellee's work

hours are in the evening, for the year before trial, appellant primarily helped K.S.A. with homework,

made her dinner, and prepared her for bed. Appellee said when she tried to be more involved

appellant often interfered. Appellee testified that she took K.S.A. to school most mornings.

Since she filed for divorce, appellant refused to let appellee see K.S.A. outside of his

presence or to let K.S.A. speak with appellee's family outside of his presence and blocked her

visitation attempts over Christmas. Appellee testified that in K.S.A.'s presence appellant used bad

language and once shut her leg in a door hard enough to bruise it. According to appellee, appellant

keeps K.S.A. out as late as 12:00 or 1:00 a.m. several times a week, even though she has to get up

for school at 7:30 a.m. Appellee said her father had an Iranian company worth "millions of dollars,"

but disputed appellant's assertions that she had any financial interest in the company.

Appellant received two undergraduate engineering degrees and a masters degree from

universities in California and Washington. Appellant testified that he owed about $600,000 to his

father, mostly for school loans. In April 2001, appellant's father said he needed to have the money

repaid due to health problems, so appellant wired a large sum of money and wrote his father forty-five checks each in the amount of $10,000. Appellant only had $200,000 in the account on which

he wrote the $450,000 in checks and he testified that he planned to take out loans for the excess; he

denied having other funds hidden anywhere. Appellant said he did not know appellee had filed or

was going to file for divorce when he began sending his father money. Appellant testified that before

appellee started working, he and appellee both cared for K.S.A., but since she started working he has

been K.S.A.'s primary care giver. Appellant asked that appellee only be allowed to see K.S.A. at

school or in his home and that she be required to undergo a psychological evaluation and therapy.

Appellant earns about $8,200 a month; his statutory net resources are about $5,680.

Appellant states that his and K.S.A.'s expenses total $8,323, including at least $3,500 in payments

to his father. Appellee earns about $1,200 a month, her statutory net resources are about $1,040, and

her monthly expenses total $4,670.

Sherrie Bevis, K.S.A.'s special education teacher, testified that K.S.A. is autistic and

speech impaired. Bevis said changes in routines could be disruptive and it would "make the most

sense" to schedule shared custody arrangements "so that it was taking place over a period like during

the summer when there's not school when it wouldn't be as disruptive to her education."

After hearing testimony, the trial court named appellee sole managing conservator,

named appellant possessory conservator, and granted appellant substantial visitation. The trial court

awarded appellant the parties' home and another property in Austin, together worth about $160,000;

two bank accounts worth approximately $2500; all interest in his employee retirement plan, worth

about $52,000; several individual retirement accounts ("IRAs") held in his name worth between

$60,000 and $64,000, less about $26,000 awarded to appellee; two cars; and a checking account

worth about $136,000, less about $65,000 awarded to appellee. Appellee was awarded two bank

accounts in her name worth about $8,600; two IRAs in her name worth about $6,000; a checking

account in her name worth almost $12,000; one car; and approximately $91,000 awarded to her from

appellant's assets. In total, appellant was awarded about $253,000 in real estate and financial assets

and appellee received about $118,000. Both parties were ordered to pay their own attorney's fees;

appellant had incurred about $30,500 as of trial and appellee had incurred about $16,000.

Standard of Review

We review a trial court's determination of conservatorship under an abuse of

discretion standard. Doyle v. Doyle , 955 S.W.2d 478, 479 (Tex. App.--Austin 1997, no pet.).

Likewise, we review a trial court's award of spousal maintenance under the same abuse of discretion

standard. Lopez v. Lopez , 55 S.W.3d 194, 198 (Tex. App.--Corpus Christi 2001, no pet.); Alexander

v. Alexander , 982 S.W.2d 116, 119 (Tex. App.--Houston [1st Dist.] 1998, no pet.); In re Marriage

of Hale , 975 S.W.2d 694, 697 (Tex. App.--Texarkana 1998, no pet.). A trial court abuses its

discretion if it acts in an arbitrary and unreasonable manner or without reference to any guiding

principles. Doyle , 955 S.W.2d at 479 . A review of the legal and factual sufficiency of the evidence

is subsumed into the review for an abuse of discretion. Hale , 975 S.W.2d at 697 ; see Doyle , 955

S.W.2d at 479 (in child support context, "Under an abuse of discretion standard, legal and factual

insufficiency are not independent grounds of error, but are relevant factors in assessing whether the

trial court abused its discretion."). The trial court is the sole judge of the credibility of the witnesses

and may believe or disbelieve any evidence. Burtch v. Burtch , 972 S.W.2d 882, 888 (Tex.

App.--Austin 1998, no pet.).

Conservatorship of the Child

In his third issue on appeal, appellant contends that the trial court abused its discretion

in naming appellee sole managing conservator.

The family code provides that a trial court should appoint both parents joint managing

conservators of a child unless the court finds that such an arrangement would significantly impair

the child's physical health or emotional development. Tex. Fam. Code Ann. § 153.131 (West 2002).

Factors in deciding whether the child's best interest will be served by the parents' appointment as

joint managing conservators include: the child's physical, psychological, or emotional needs; the

parents' ability to put the child's welfare first and reach shared decision in the child's best interest;

whether each parent can accept and encourage a positive relationship between the child and the other

parent; and the parents' participation in raising the child before the divorce proceeding began. Id .

§ 153.134(a) (West 2002).

Appellee testified that she cared for K.S.A. when K.S.A. was younger, even living

in Iran with her parents for an extended period of time while appellant returned to the United States.

There was evidence that appellant was excessively controlling and verbally abusive to appellee in

front of K.S.A., had threatened to take her to Iran permanently, and had interfered with appellee's

attempts at visitation. Appellee testified that appellant was keeping K.S.A. up as late as midnight

or 1:00 a.m. on school nights. Appellant wanted appellee to have only supervised visitation and

asked that she be required to undergo a psychological examination. Bevis testified that joint custody

during the school year could disrupt K.S.A.'s need for routine. Although Bevis indicated that a

change in primary caretaker could be difficult for K.S.A., we cannot hold that, on this record, the

trial court abused its discretion in finding that a joint managing conservatorship would not be in

K.S.A.'s best interest. See Doyle , 955 S.W.2d at 479 . We overrule appellant's third issue on appeal.

Spousal Maintenance

The court found appellee was eligible for maintenance and ordered appellant to pay

$800 a month in spousal support for three years. Appellant contends that the evidence is legally and

factually insufficient to support the trial court's determinations that (1) appellee qualified for spousal

maintenance, and (2) $800 was necessary to provide for appellee's minimum reasonable needs.

A trial court may order spousal maintenance if (1) the marriage lasted at least ten years,

(2) the spouse seeking maintenance lacks sufficient property, including any distributed in the divorce,

to provide for her minimum reasonable needs, and (3) the spouse seeking maintenance clearly lacks

earning ability in the labor market adequate to provide support for her minimum reasonable needs or

is unable to obtain employment outside of the home because she is the custodian of a child who

requires substantial care and supervision due to physical or mental disability. Tex. Fam. Code Ann.

§ 8.051 (2) (West Supp. 2003). A trial court should presume that maintenance is not justified unless

the spouse seeking it has diligently sought suitable employment or has been developing necessary

skills to become self-supporting while the divorce suit was pending. Id . § 8.053(a) (West Supp.

2003). Once a trial court determines that a spouse should be awarded maintenance, it determines the

amount and duration of maintenance by considering all relevant factors including: the spouses'

education, employment skills, and financial resources, including property and liabilities apportioned

in the divorce; how long it would take for the spouse seeking maintenance to acquire sufficient

training or education; the requesting spouse's age, employment history, earning ability, physical and

emotional condition, and efforts to pursue available employment counseling; the duration of the

marriage; acts of either spouse resulting in depreciation of the community estate; a spouse's

contribution to the education, training, or increased earning of the other; the contribution of a spouse

as homemaker; and any marital misconduct of the spouse seeking maintenance. Id . § 8.052 (West

Supp. 2003). Section 8.052 is a "non-exhaustive list of factors the court may consider" in

determining spousal maintenance. Limbaugh v. Limbaugh , 71 S.W.3d 1, 12-13 (Tex. App.--Waco

2002, no pet.) (discussing § 8.052's predecessor). We will not disturb a trial court's award of spousal

maintenance if some substantive evidence supports the decision. Lopez , 55 S.W.3d at 198 ; Hale , 975

S.W.2d at 697 .

There is sufficient evidence to support the finding that appellee is eligible for spousal

maintenance. It is undisputed that the parties were married for more than ten years. The evidence

supports a finding that appellee lacks the ability to support her minimum reasonable needs in this

country: appellee's engineering degree is not accepted in the United States, she has only recently

learned to speak English, her work schedule must allow her to care for K.S.A., and she currently

supports herself at low paying retail jobs that afford her a flexible schedule. Finally, there is evidence

to support a finding that appellee's assets, including those awarded in the divorce decree, were

insufficient to provide for her minimum reasonable needs. Appellee's monthly expenses were about

$3,500 more than her monthly net income. She has incurred at least $16,000 in attorney's fees. Many

of appellee's assets are not liquid or short-term assets. (1) Without assistance, it appears from the record

that appellee would exhaust her liquid assets in less than two years. Appellant has not shown that the

trial court clearly abused its discretion in finding appellee eligible for spousal maintenance. We

overrule appellant's first issue on appeal.

Appellant also attacks the sufficiency of the evidence supporting the trial court's

determination of the amount of spousal maintenance that he should pay. Appellant received almost

twice as many financial assets as appellee, and he earns about $100,000 a year. Appellee is not fluent

in English, having largely learned on her own because appellant interfered with her efforts to attend

English classes. Appellee stayed home for about eight years and, when she sought employment,

appellant interfered with those efforts. Appellee wants to earn a marketing degree in the United

States rather than staying in retail, where she earns minimum wage. Appellee testified that appellant

was financially controlling, interfered with her efforts to support herself, and threatened her life if she

traveled to Iran. He also threatened to take K.S.A. away, empty the parties' bank accounts, and leave

appellee homeless and destitute. Appellant claimed he is obligated to pay his father $3,500 a month,

but the evidence did not clearly establish that the repayment plan was so structured. Appellant

testified that he sent his father a large sum of cash in about April 2001 and $450,000 in checks when

he only had $200,000 in his checking account. Appellant testified, "[W]hat we agreed was that I wire

him whatever cash I have and the remainder I pay it over--you know, over--you know, in 45 checks,

each one for $10,000." Although appellant testified that he did not know appellee was filing for

divorce when he sent his father large sums of cash, the trial court was not bound to believe his

testimony. Burtch , 972 S.W.2d at 888 .

The trial court was the sole judge of the witnesses' credibility and demeanor, and we

will not second-guess those determinations. Id . The determination of spousal maintenance is not

made by way of a simple mathematical equation or a check-list of the factors enumerated in section

8.052, but "a fact-specific determination that should be made by the trial court on a case-by-case

basis." Amos v. Amos , 79 S.W.3d 747, 749 (Tex. App.--Corpus Christi 2002, no pet.) (citing Hale ,

975 S.W.2d at 698 ); see Limbaugh , 71 S.W.3d at 12-13 . Appellant has not shown that the trial

court's award of $800 in spousal maintenance for three years was a clear abuse of discretion. We

overrule appellant's second issue on appeal.

Having overruled appellant's issues, we affirm the trial court's judgment.

__________________________________________

Mack Kidd, Justice

Before Justices Kidd, B. A. Smith and Yeakel

Affirmed

Filed: May 1, 2003

1. Several of the assets awarded to appellee are retirement accounts, and the tax consequences

and long-term financial consequences of early withdrawals render the liquidity of such assets

problematic.