Hani Hafiz Ibrahim Qutiefan v. Lubna Aziz Safi

Opinion issued August 5, 2021

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-18-00425-CV

———————————

HANI HAFIZ IBRAHIM QUTIEFAN, Appellant

V.

LUBNA ABDELZIZ SAFI A/K/A LUBNA AZIZ SAFI, Appellee

On Appeal from the 505th District Court

Fort Bend County, Texas

Trial Court Case No. 13-DCV-206211

MEMORANDUM OPINION

Appellant, Hani Hafiz Ibrahim Qutiefan, appeals the trial court’s entry of a

final divorce decree after a bench trial and the denial of his motion for new trial. In

five issues, Qutiefan argues that the trial court erred in (1) denying his requests for

appointment of counsel at trial; (2) denying his motions for continuances to hire trial

counsel; (3) denying his right to present testimonial and documentary evidence;

(4) appointing appellee, Lubna Abdelziz Safi a/k/a Lubna Aziz Safi, as sole

managing conservator and Qutiefan as possessory conservator of their minor

children; and (5) dividing the marital estate.1 We affirm.

Background

Qutiefan and Safi were married in a religious ceremony in Palestine in

September 1994. In December 1997, they moved to Houston and were married in a

legal ceremony. They also bought a house in Houston. During their marriage, the

parties had five children. The parties’ four youngest children are permanently

disabled. In August 2011, the parties separated. Safi and all five children moved out

1

Without leave of Court, Qutiefan filed an amended brief on the date this appeal was

set for submission. See TEX. R. APP. P. 38.7 (“A brief may be amended or

supplemented whenever justice requires, on whatever reasonable terms the court

may prescribe.”). Generally, “a party must seek leave of court to file an amended or

supplemental brief, and the appellate court has some discretion in deciding whether

to allow the filing.” Palma v. Harris Cty. Appraisal Review Bd., No. 01-17-00705-

CV, 2018 WL 3355052, at *1 (Tex. App.—Houston [1st Dist.] July 10, 2018, pet.

denied) (mem. op.) (quoting Standard Fruit & Vegetable Co. v. Johnson, 985

S.W.2d 62, 65 (Tex. 1998)). Because Qutiefan did not seek leave to file an amended

brief, we construe his amended brief to be a reply brief. See id. (construing amended

brief as reply brief where party did not seek leave to file amended brief). A reply

brief may address any matter raised in the appellee’s brief, but a reply brief may not

raise new issues for the first time. TEX. R. APP. P. 38.3; see Fallon v. MD Anderson

Physicians Network, 586 S.W.3d 58, 73 (Tex. App.—Houston [1st Dist.] 2019, pet.

denied) (refusing to consider new issue raised for first time in reply brief). To the

extent Qutiefan’s amended brief raises new issues not included in his original brief,

we decline to consider those new issues.

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of the parties’ house, where Qutiefan continued living through the end of trial in

August 2017. Their oldest child turned eighteen years of age prior to trial and was

not part of the divorce proceedings.

In May 2013, Safi filed an original petition for divorce from Qutiefan on the

grounds of insupportability and cruel treatment. She alleged that Qutiefan had a

history of committing family violence in the preceding two years, and she supported

her petition with a family violence protective order issued against Qutiefan in

October 2011. Safi requested that, based upon Qutiefan’s history and pattern of

committing family violence, the court appoint her as sole managing conservator of

the parties’ four youngest children and that Qutiefan’s access to the children be

limited to one hour on one Saturday each month with seven days’ notice from

Qutiefan. She requested $1,500 per month in child and medical support for the

children to continue indefinitely based on the children’s disabilities, retroactive child

and medical support, and spousal support.

Safi also asked the court to order the sale of the parties’ home and to award

her 60% of the proceeds of the sale and Qutiefan 40% of the proceeds. She requested

that the court award Qutiefan a homeowner’s association (“HOA”) judgment against

her, and she asked that the court award each party their own vehicles, bank accounts,

and debt. She also requested an award under a dowry contract between her and

Qutiefan. Finally, Safi requested a permanent injunction and, pending trial,

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temporary orders requiring Qutiefan to pay child support, health insurance and

uninsured medical expenses for the children, and all bills and expenses related to the

parties’ house.

Qutiefan filed an answer. He also filed a counterpetition, which was signed

by an attorney Qutiefan hired and which largely mirrored Safi’s petition. Qutiefan’s

counterpetition relied on the same grounds for divorce—insupportability and cruel

treatment—as Safi’s petition, and similarly asked the court to appoint Qutiefan as

sole managing conservator and to deny or limit Safi’s access to the children. Like

Safi’s petition, Qutiefan’s counterpetition requested indefinite child and medical

support for the children. Qutiefan also requested a similar division of property, but

he added a claim for reimbursement of the community property used to benefit Safi’s

separate estate. The counterpetition asked for a temporary injunction, which

included a lengthy list of prohibited actions, and a temporary order appointing him

sole managing conservator of the children through trial and requiring Safi to pay

child support and health insurance premiums for the children.

Prior to trial, Qutiefan filed more than forty motions and an interlocutory

appeal, which this Court dismissed for want of jurisdiction. See generally Qutiefan

v. Safi, No. 01-17-00925-CV, 2018 WL 1189667 (Tex. App.—Houston [1st Dist.]

Mar. 8, 2018, no pet.) (per curiam) (mem. op.). He filed six motions to invoke his

Sixth Amendment constitutional right to appointment of counsel, which the trial

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court denied. He also filed three motions to continue the trial, none of which were

based on a need to obtain counsel. The trial court denied his motions but continued

the trial date several times for other reasons. Qutiefan also filed a motion for

preparation of a social study and for psychological evaluations of the parties and

their children, both of which the trial court granted but later set aside when Qutiefan

had not scheduled or paid for either the study or any psychological evaluations.

On Safi’s motion, the trial court entered an enforcement order, finding that

Qutiefan had violated temporary orders by failing to pay more than $14,000 in

temporary child support for thirty-five months pending trial. The court held Qutiefan

in criminal and civil contempt, but the court suspended commitment, placed

Qutiefan on community supervision, and ordered him to pay monthly arrearages in

addition to current child support. The order also required Qutiefan to pay Safi’s

attorney’s fees for bringing the enforcement action.

While this case was pending, the Office of Attorney General filed an original

petition in a suit affecting the parent-child relationship (“SAPCR”) seeking

retroactive and ongoing child and medical support for the parties’ children. The

Attorney General’s SAPCR was consolidated into the divorce proceedings

underlying this appeal.

After nearly two years of continuances, the bench trial commenced on July

13, 2017. Trial occurred for seven days over a five-week period on July 13, July 18,

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August 15, August 16, August 17, August 21, and August 22, 2017. Qutiefan

appeared pro se, Safi appeared with counsel, and the Attorney General appeared

through counsel.

Safi testified for the first four days of trial. Qutiefan cross-examined her for

three days and re-cross-examined her on a fourth day. Safi testified that Qutiefan

physically and verbally abused her while they were married, including by cursing at

and hitting her in front of the children. Afterwards, Qutiefan would take her phone

away and hide it. At least once, one of their daughters tried to intervene in the abuse

and Qutiefan pushed her away. Safi testified that Qutiefan would threaten her with

imprisonment and death, and he would leave her voicemail messages telling her she

was “sick, mentally sick” and not normal. She testified about and introduced two

protective orders against Qutiefan: the one that issued in 2011 and was effective for

two years, as discussed above, and a second one that issued in 2013 and was also

effective for two years. Safi had reported Qutiefan for violating the protective orders,

but the cases against him were eventually dismissed. She also testified that she had

a protective order issued against Qutiefan in 2008, and that she had sought a fourth

protective order against Qutiefan, which was denied. Safi characterized her marriage

as “miserable” and stated that she did not feel safe around Qutiefan.

She also testified about the children’s disabilities. The parties’ second and

fifth children have Usher’s syndrome, which Safi described as an incurable genetic

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disease that affects the children’s abilities to see and hear such that they require

cochlear implants and walk with canes. The youngest child also suffers from

seizures. The parties’ third and fourth children have autism. Safi introduced

documents showing the children’s diagnoses, and she testified that the children

would be disabled for the rest of their lives. The children receive social security

benefits and Medicaid based on their disabilities. All five children lived with Safi

continuously from the parties’ separation through trial, and Safi testified that she had

provided exclusive care for the children since the separation. She testified that

Qutiefan did not provide for her or the children while the parties were married or

since their separation.

Safi also testified that Qutiefan does not know how to take care of the children

and that his house is in very bad condition. Safi testified that Qutiefan had last seen

the children in September 2016 because he did not request visitation and that

Qutiefan often would not show up at the designated meeting place to pick up the

children. When the children had visited Qutiefan the few times since the separation,

Safi testified that they returned upset and told her that Qutiefan slept a lot and kept

no food in the house, that the air conditioning did not work, and that the house was

dirty. Safi conceded, however, that she believed the children would be safe when

visiting Qutiefan. Safi testified that the children’s conditions had improved since the

separation.

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Safi testified that she does not work and that her only source of income is the

four youngest children’s social security benefits and food stamps. She introduced a

financial information sheet showing her lack of income. She said that she has a

bachelor’s degree in social work from a university in Jerusalem. She testified that

Qutiefan worked as an accountant out of the parties’ home. Qutiefan’s financial

information sheet stated that he earned $600–900 per month but had more than

$2,000 in monthly expenses as well as significant debt. His tax returns showed his

income at approximately $13,000 per year. However, Safi testified that she believed

Qutiefan earned more than his financial information sheet and tax returns reflected

because he was often paid in cash and his monthly expenses were more than double

his reported income. Prior to their separation, Safi saw Qutiefan receive cash from

clients.

The parties bought a house while they were married, and Qutiefan lived there

from the time the parties separated through trial. The deed and mortgage on the house

were solely in Safi’s name, but Qutiefan paid the mortgage. Safi introduced an

inventory and appraisement showing approximately $16,000 of equity in the house,

and she introduced a document from the Fort Bend Central Appraisal District

showing the house’s appraised value for tax year 2017. The house was damaged

during Hurricane Ike in 2008 and the parties received a $23,000 check from the

insurance company, which Qutiefan made Safi cash. Qutiefan took the money but

8

did not spend it to repair the house. The parties received a second insurance check

for $10,000 for additional damage to the house. Safi had the uncashed check in her

possession. Because of hurricane and other damage to the house, the homeowner’s

association had assessed numerous citations for HOA violations, including for a

damaged front door, cars in the driveway, and failing to maintain the yard. When the

violations went unpaid, the HOA obtained an $8,000 judgment against Safi. Safi

introduced the judgment into evidence.

Safi also testified about the parties’ separate property. She owned two

vehicles, including one that she had recently purchased for her oldest daughter from

a lump sum child support payment she had received from Qutiefan. She had one

bank account with a few hundred dollars in it, her and her children’s clothing, and

other household items. She testified that she had a dowry contract with Qutiefan,

which she described as: “when a woman gets divorced, her husband has to pay that

money that’s listed on the document.” The only evidence of the dowry was a

Palestinian marriage certificate, translated into English, that stated a dowry existed.

Safi’s request for relief during trial mirrored her pretrial requests for relief as

discussed above.

The trial court gave Qutiefan wide “latitude” in his pro se cross-examination

of Safi, often allowing him to ask questions over Safi’s objections. When Safi

attempted to refuse to answer Qutiefan’s question about the contents of a safety

9

deposit box, the trial court ordered Safi to answer and admonished her that she could

be held in contempt for not answering. She answered the question. Qutiefan lodged

numerous legal objections to Safi’s testimony, many of which were sustained. He

also repeatedly objected to Safi’s testimony by claiming it was false and attempting

to testify to his own version of the facts. The trial court overruled these objections

and told Qutiefan that he would have an opportunity to testify. Beginning on the

third day of trial, Qutiefan also repeatedly requested continuances, arguing that he

needed additional time to hire counsel because he was unable to represent himself.

The trial court denied his motions. The court told Qutiefan that trial was initially set

for November 2015 but had been reset several times until July 2017. In addition, the

court noted that trial took place on various days over a five-week period, thus

affording Qutiefan additional time during trial to hire legal counsel.

Safi’s attorney testified regarding her attorney’s fees, and Qutiefan cross

examined her. Counsel answered all of Qutiefan’s questions except those to which

she objected on the basis of attorney-client privilege, which the trial court sustained.

On the fourth day of trial, Qutiefan asked for a continuance because he was

ill. The court continued the trial until the following Monday and ordered Qutiefan to

provide a doctor’s note. The record indicates that the doctor’s note showed no

malady.

10

During his case in chief, Qutiefan testified in narrative form. He accused Safi

of lying about “whatever she claims in the divorce” and lying to obtain the protective

orders against him. He said Safi has “mental and psychological issues that’s causing

this divorce.” He admitted that his children are disabled, and he testified that Safi

only wants custody of the children so she can receive their social security benefits

and food stamps. He said Safi alienates the children, brainwashes them against him,

and bad mouths him in front of them. He testified that he handled the children’s

medical issues before the parties separated and that their conditions had worsened

since then. He denied committing family violence against Safi or the children.

Qutiefan further testified that Safi abandoned the parties’ house and refused

to fix it. He said that he cashed the first insurance check for damages to the house

from Hurricane Ike, but Safi spent the money and emptied the parties’ bank accounts.

He testified that he had to borrow money to fix the house. However, he also testified

that, at the time of trial, the roof had holes in it and the house had water leaks and

missing flooring. He introduced photographs showing the condition of the house. He

also conceded that he had not paid any of the fines assessed by the HOA.

In the middle of his testimony, Qutiefan called his uncle, Ziad Alkhateeb, as

an out-of-order witness. Safi objected because Qutiefan had not produced a witness

list. Although Qutiefan could not prove he had produced a witness list, the court

allowed Alkhateeb to testify. Alkhateeb said that he would meet Safi to pick up the

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children to visit Qutiefan but Safi usually would not bring all the children with her.

When Safi did not bring all the children, Alkhateeb called the police to report her.

When she did bring the children, Alkhateeb testified that they were “happy [and]

excited” to see Qutiefan. Alkhateeb denied knowing whether Qutiefan had ever

abused Safi. He testified that he owned a construction company and had spoken to

Safi about repairing the house but she did not cooperate. He said Safi would get mad

at him for not spending the insurance proceeds on materials to repair the house. He

eventually lent Qutiefan money to repair roof leaks in the house, and he testified that

other family members had also lent Qutiefan money.

Qutiefan introduced more than thirty exhibits during trial, many of which

were not admitted because they lacked a proper predicate. The trial court told

Qutiefan he could attempt to readmit the exhibits. The court did admit some of

Qutiefan’s exhibits, including a text message from Safi in Arabic, photographs of

damage to the parties’ house, and Qutiefan’s financial information sheet.

Both parties gave a closing statement. At the end of trial, the court granted the

divorce and took the parties’ various requests under advisement.

The trial court entered a final divorce decree on February 28, 2018. The decree

appointed Safi as sole managing conservator and Qutiefan as possessory conservator

of the children. Qutiefan was allowed visitation with the children on specific

weekends each month from 10 am to 6 pm each day so long as Qutiefan gave Safi

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seventy-two hours’ notice of his intent to exercise a possessory period. The decree

awarded Safi $391 per month in child support for the four youngest children for an

indefinite period of time. The decree further ordered Safi to maintain Medicaid for

the four youngest children and denied additional medical support from Qutiefan

except that the parties were required to split non-reimbursable health care expenses.

The decree awarded the parties’ house to Safi but ordered her to sell it. Safi

was awarded 60% of the net proceeds from the sale and Qutiefan was awarded the

remaining 40% of the net proceeds. The decree also awarded Safi the uncashed

insurance check in her possession and required her to use the proceeds on repairs to

the house before selling it. The decree awarded the HOA judgment against Safi to

Qutiefan. It further awarded Safi’s two vehicles to her, and it awarded each party the

cash in their possession, clothing, jewelry, and personal effects. Each party was

awarded their own debt. The decree denied spousal maintenance, recovery for the

dowry contract, and injunctive relief. Finally, the decree awarded Safi her attorney’s

fees.

Qutiefan filed a motion for new trial, which was signed by a retained attorney.

Qutiefan briefly challenged the trial court’s denial of his requests for continuances

13

to secure funds to hire counsel, and he primarily challenged various findings in the

divorce decree. The trial court denied the motion. This appeal followed.2

Appointment of Counsel

In his first issue, Qutiefan contends that the trial court erred by denying his

request for a court-appointed attorney and forcing him to represent himself at trial.

He contends that he did not know how to present evidence properly. He

acknowledges that the trial court appointed him counsel during the enforcement

proceedings, but that representation was limited to those proceedings and did not

extend to trial. He argues that he diligently but unsuccessfully pursued pro bono

counsel and that he filed numerous motions for continuances to obtain counsel,

which were mostly denied. Safi responds that Qutiefan was not entitled to appointed

counsel at trial. Safi further argues that Qutiefan was represented by three different

private attorneys during the divorce proceedings, all of whom withdrew from his

case, and that he had ample opportunity and resources to hire legal counsel.

A. Standard of Review and Governing Law

Under the Government Code, a district court has discretion to appoint counsel

to an indigent party in a civil case, but the Texas Supreme Court has not recognized

a right to counsel in civil cases. See TEX. GOV’T CODE § 24.016 (“A district judge

2

After the parties filed their briefs, the Court abated this case on Qutiefan’s

suggestion of bankruptcy. See TEX. R. APP. P. 8.1, 8.2. The appeal was reinstated in

January 2021. See TEX. R. APP. P. 8.3(a).

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may appoint counsel to attend to the cause of a party who makes an affidavit that he

is too poor to employ counsel to attend to the cause.”); Traveler’s Indem. Co. of

Conn. v. Mayfield, 923 S.W.2d 590, 594 (Tex. 1996) (“While a court has a duty to

ensure that ‘judicial proceedings remain truly adversarial in nature,’ we have never

held that a civil litigant must be represented by counsel in order for a court to carry

on its essential, constitutional function.”) (internal citations omitted). A court also

has inherent authority, “in some exceptional cases,” to appoint counsel in a civil case

in which “the public and private interests at stake are such that the administration of

justice may best be served by appointing a lawyer to represent an indigent civil

litigant.” Mayfield, 923 S.W.2d at 594. No provision of the Family Code requires a

court to appoint counsel for the trial of a divorce case, although the Code does

require appointment of counsel for an indigent respondent in enforcement

proceedings in certain limited circumstances. TEX. FAM. CODE § 157.163(a), (b), (d),

(e), (i).

B. Analysis

Qutiefan filed several pretrial documents entitled “Request to Invoke Sixth

Amendment Constitutional Right,” in which he claimed indigency and requested

that the court appoint him counsel. The court denied his motions, although the record

indicates that Qutiefan was represented by counsel during the enforcement

15

proceedings prior to trial. At trial, Qutiefan did not make a request for appointed

counsel; instead, he repeatedly requested continuances to hire counsel.

Qutiefan was not entitled to appointment of counsel at trial, and he does not

show on appeal that his case was exceptional and that the administration of justice

was best served by appointing him counsel. See Mayfield, 923 S.W.2d at 594. The

mere fact that he represented himself is not exceptional. See id. (“Indeed, thousands

of cases each year are prosecuted in our courts by pro se litigants.”). We therefore

conclude that, to the extent Qutiefan made a request for appointment of counsel at

trial, the trial court did not abuse its discretion in denying his request. We overrule

Qutiefan’s first issue.

Motions for Continuance

In his second issue, Qutiefan argues that the trial court erred by denying his

motions for continuances to hire legal counsel and coercing him to represent himself.

A. Standard of Review and Governing Law

We review the grant or denial of a motion for continuance for an abuse of

discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). We will uphold the

trial court’s decision absent a clear abuse of discretion. Id. A court abuses its

discretion by acting unreasonably or in an arbitrary manner without reference to any

guiding rules and principles. Landers v. State Farm Lloyds, 257 S.W.3d 740, 747

16

(Tex. App.—Houston [1st Dist.] 2008, no pet.) (quoting Beaumont Bank, N.A. v.

Buller, 806 S.W.2d 223, 226 (Tex. 1991)).

When a party moves for a continuance to obtain legal counsel, he must show

that the failure to be represented at trial was not due to his own fault or negligence.

See Villegas, 711 S.W.2d at 626; TEX. R. CIV. P. 253 (“[A]bsence of counsel will not

be good cause for a continuance or postponement of the cause when called for trial,

except it be allowed in the discretion of the court, upon cause shown or upon matters

within the knowledge or information of the judge to be stated on the record.”).

B. Analysis

Qutiefan filed four written motions for continuances prior to trial, but none

were based on Qutiefan’s need to hire counsel. During trial, however, Qutiefan made

numerous oral requests for continuances to obtain counsel, which the court denied.

The court explained to Qutiefan that trial had been reset for nearly two years, during

which time he had ample opportunity to hire private counsel. Moreover, trial began

on July 13, 2017, but did not proceed over consecutive days. Rather, it was spread

out over five weeks, ending on August 21, which provided Qutiefan additional time

during trial to hire counsel. Qutiefan had also been represented by at least three

private attorneys prior to trial. Qutiefan offers no argument on appeal that his failure

to have legal representation at trial was not due to his own fault or negligence. See

Villegas, 711 S.W.2d at 626.

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Qutiefan had adequate opportunity to hire legal counsel not only in the two

years prior to trial when he had notice of the impending trial, but also in the five

weeks between the first and last days of trial. We also note that the trial court granted

Qutiefan’s request for a continuance when he claimed to be ill during trial, even

though the doctor’s note he provided showed no malady. We conclude that the trial

court did not abuse its discretion in denying Qutiefan’s oral motions for continuances

to obtain legal counsel during trial. We overrule Qutiefan’s second issue.

Due Process

In his third issue, Qutiefan contends that he was denied his right to present

testimony and documentary evidence, which raises an issue of constitutional due

process. He argues that the trial court cut his testimony short, that the court did not

admit most of his evidence, and that had he been allowed to finish his testimony and

present all his evidence, the outcome of the trial would have been different. Safi

responds that the trial court allowed Qutiefan to provide narrative testimony, cross-

examine witnesses, call his own witnesses, and present documentary evidence, and

that Qutiefan points to no particular evidence that the court prohibited him from

offering.

A. Standard of Review and Governing Law

Whether a party was deprived of a constitutional right presents an issue of law

that we review de novo. Scally v. Tex. State Bd. of Med. Exam’rs, 351 S.W.3d 434,

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446 (Tex. App.—Austin 2011, pet. denied). The United States and Texas

Constitutions prohibit the deprivation of life, liberty, and property from any person

without due process of law. U.S. CONST. amend. XIV, § 1; TEX. CONST. art. 1, § 19.

The right to be heard is a fundamental concept of due process, and an opportunity to

be heard must be granted at a meaningful time and in a meaningful manner. Fuentes

v. Shevin, 407 U.S. 67, 80 (1972); Perry v. Del Rio, 67 S.W.3d 85, 92 (Tex. 2001).

Generally, the right to be heard includes the rights to a full and fair hearing before a

court with jurisdiction, to introduce evidence at a meaningful time and in a

meaningful manner, and to produce and cross-examine witnesses. Perry, 67 S.W.3d

at 92.

B. Analysis

Qutiefan appeared pro se at trial. He cross-examined each of Safi’s witnesses,

including Safi for four days and an additional day when he recalled her as a witness.

Qutiefan repeatedly asked Safi the same questions that she had already answered.

On the third day of Safi’s cross-examination, the court gave Qutiefan notice that he

could cross-examine her for an additional twenty minutes. Qutiefan called Safi back

to testify during his case in chief. After Qutiefan asked numerous questions that Safi

had already answered, the trial court told Qutiefan that he had two hours remaining

to question Safi. Qutiefan also cross-examined Safi’s attorney on the issue of

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attorney’s fees, and counsel answered all of his questions except those that asked

about privileged conversations.

Safi’s counsel objected at various times to Qutiefan’s questions, and the court

overruled many of her objections in order to give Qutiefan “latitude” in his

questioning. When Safi attempted to refuse to answer Qutiefan’s question about the

contents of her safety deposit box, the court ordered her to answer and admonished

her that the court would hold her in contempt if she continued refusing to answer the

question. She answered the question.

The trial court also allowed Qutiefan to testify in narrative form during his

case-in-chief. In the middle of his testimony, the court allowed Qutiefan to call a

witness, Alkhateeb, out of order even though Qutiefan had not produced a witness

list. The court did not limit Qutiefan’s questioning of any of his witnesses except for

the time limit placed on his lengthy, multiple-day examinations of Safi. And even

then, the court provided advance notice to Qutiefan of the time limit. Qutiefan did

tell the court that he had additional witnesses who were out of the country, but the

court told Qutiefan that he had had more than two years’ notice of trial and that trial

had started more than one month before he began his case in chief. The record

therefore indicates that the trial court was generous with Qutiefan’s examination of

the witnesses. We conclude that the court did not violate Qutiefan’s right to produce

and cross-examine witnesses. See id.

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Qutiefan also attempted to introduce more than thirty exhibits into evidence.

The trial court admitted some of them, including an untranslated Arabic text

message, photographs of damage to the interior of the parties’ house, certain

financial information, and some of Safi’s discovery responses. The trial court did

not admit many of Qutiefan’s exhibits after sustaining Safi’s and the Attorney

General’s objections to lack of predicate and relevance, among other objections.

Qutiefan repeatedly complained that he did not know how to introduce evidence and

that he did not understand what a predicate is, and the court explained that it could

not provide him legal advice. However, the court told Qutiefan that he could attempt

to reintroduce unadmitted evidence if he wished. On appeal, Qutiefan does not say

what specific evidence that was not admitted may have changed the outcome of the

trial. We therefore conclude that the court did not violate Qutiefan’s right to

introduce evidence at a meaningful time and in a meaningful manner. See id. We

overrule Qutiefan’s third issue.

Conservatorship

In his fourth issue, Qutiefan argues that “doubts” exist regarding Safi’s fitness

to exercise sole managing conservatorship of the parties’ four youngest children who

are disabled and have special needs. He contends that he addressed the children’s

medical needs prior to the parties’ separation and that, after the separation, the

children’s conditions deteriorated. He further argued that Safi hid the children from

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him, alienated them against him, and spoke ill of him. Safi responds that the trial

court did not abuse its discretion in its conservatorship decision because trial lasted

seven days, the trial court interviewed the four youngest children in chambers in

determining their best interests, and Qutiefan had a history of family violence,

criminal conduct, and lack of involvement in the children’s lives.

A. Standard of Review

Like most family law issues, we review conservatorship awards for an abuse

of discretion. Whitworth v. Whitworth, 222 S.W.3d 616, 622–23 (Tex. App.—

Houston [1st Dist.] 2007, no pet.) (citing Gillespie v. Gillespie, 644 S.W.2d 449, 451

(Tex. 1982)). As stated above, a trial court abuses its discretion by acting

unreasonably or in an arbitrary manner without reference to any guiding rules and

principles. Landers, 257 S.W.3d at 747.

In family law cases, legal and factual sufficiency challenges are not

independent grounds for asserting error, but they are relevant factors in determining

whether the trial court abused its discretion. Cohen v. Bar, 569 S.W.3d 764, 773

(Tex. App.—Houston [1st Dist.] 2018, pet. denied). Our legal-sufficiency review

considers all the evidence in a light favorable to the finding, crediting favorable

evidence if a reasonable factfinder could do so and disregarding evidence unless a

reasonable factfinder could not do so. Id. at 773–74 (citing City of Keller v. Wilson,

168 S.W.3d 802, 827 (Tex. 2005), and Brown v. Brown, 236 S.W.3d 343, 348 (Tex.

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App.—Houston [1st Dist.] 2007, no pet.)). In a factual sufficiency review, we

consider all the evidence for and against the challenged finding and set the finding

aside only if the evidence is so weak as to make the finding clearly wrong and

manifestly unjust. Id. at 774 (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)).

If some evidence of a substantive and probative character exists to support the trial

court’s decision, there is no abuse of discretion. Id.

The factfinder is the sole judge of witnesses’ credibility and the weight to be

given their testimony. City of Keller, 168 S.W.3d at 819; HTS Servs., Inc. v.

Hallwood Realty Partners, L.P., 190 S.W.3d 108, 111 (Tex. App.—Houston [1st

Dist.] 2005, no pet.) (“In a bench trial, the trial court, as factfinder, is the sole judge

of the credibility of the witnesses.”). The factfinder may resolve inconsistencies in

witness testimony, regardless of whether such inconsistencies result from

contradictory accounts by multiple witnesses or from internal contradictions in the

testimony of a single witness. Guimaraes v. Brann, 562 S.W.3d 521, 549 (Tex.

App.—Houston [1st Dist.] 2018, pet. denied). The factfinder may also choose to

believe one witness over another. City of Keller, 168 S.W.3d at 819. In conducting

our factual sufficiency review, we may not substitute our judgment for that of the

factfinder. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).

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B. Governing Law

The best interest of the child is the primary consideration in determining issues

of conservatorship and possession of and access to the child. TEX. FAM. CODE §

153.002; Lenz v. Lenz, 79 S.W.3d 10, 14 (Tex. 2002). Courts consider several factors

in determining a child’s best interest, including: (1) the desires of the child; (2) the

emotional and physical needs of the child now and in the future; (3) the emotional

and physical danger to the child now and in the future; (4) the parental abilities of

the individuals seeking custody; (5) the programs available to assist the parents to

promote the best interest of the child; (6) the plans for the child by the parent seeking

custody; (7) the stability of the home or proposed placement; (8) the acts or

omissions of the parent which may indicate that the existing parent-child relationship

is not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley

v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).

In appointing conservators, the court must also consider whether a party has

engaged in family violence. TEX. FAM. CODE § 153.005(c)(1). The Family Code

provides a rebuttable presumption that appointing parents as joint managing

conservators is in the best interest of the child, but a finding that one of the parents

has committed family violence rebuts the presumption. Id. § 153.131(b). A court

may not appoint a parent as joint managing conservator if credible evidence is

presented of a history or pattern of physical abuse by the parent against the other

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parent or a child, and the court may consider family violence in determining whether

to deny or limit possession of the parent. Id. § 153.004(b).

C. Analysis

Safi testified that, after the parties divorced, she and all five children moved

out of the parties’ house and she had been the children’s sole caretaker since then.

She testified that Qutiefan did not support her or the children during the parties’

marriage or after their separation, and he rarely saw the children. She testified that

Qutiefan would not exercise his visitation rights and that, when he did see the

children, they would return upset because Qutiefan slept a lot, there was no food in

the house, the air conditioning did not work, and the house was dirty. Safi also

testified that she did not work but was able to support herself and the children on

food stamps and social security benefits for the disabled children. She was able to

find living accommodations for herself and the children and to buy two vehicles, and

she testified that the children’s conditions had improved since the parties separated.

She also testified that Qutiefan physically and verbally abused her and the children

and that she had obtained protective orders against Qutiefan, which were admitted

into evidence. See id. §§ 153.004(b), 153.131(b). The trial court also interviewed the

children in chambers in determining their best interest. The trial court appointed Safi

as sole managing conservator.

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Safi’s testimony and the trial court’s interview of the children is legally

sufficient to show that the children desired to live with Safi, that she met their

emotional and physical needs, that Qutiefan presented emotional or physical dangers

to the children, that Safi was able to care for the children and had a plan to do so,

and that she provided a stable home environment to the children. See Holley, 544

S.W.2d at 371–72; Cohen, 569 S.W.3d at 773–74.

Qutiefan testified that Safi had mental health issues, which had deteriorated

since the parties’ separation, and that he had addressed the children’s medical needs

prior to the separation. Qutiefan did not present any documentary evidence to

support his testimony. He offered no testimony about the children’s desires, their

emotional and physical needs, his plans for the children, or whether his home

provided a stable environment for the children. See Holley, 544 S.W.2d at 371–72.

Although Qutiefan and Safi testified inconsistently with each other, the trial court as

factfinder was the sole judge of their credibility and could choose to believe Safi

over Qutiefan. See City of Keller, 168 S.W.3d at 819; Guimaraes, 562 S.W.3d at

549. We may not substitute our judgment for that of the factfinder. Jackson, 116

S.W.3d at 761. Safi’s testimony and evidence were not so weak that the court’s

appointment of her as sole managing conservator was clearly wrong or manifestly

unjust. See Cohen, 569 S.W.3d at 774. Thus, the evidence was factually sufficient

to support the trial court’s conservatorship ruling.

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Because the evidence was legally and factually sufficient to support the

conservatorship determination, we hold that the trial court did not abuse its

discretion in appointing Safi as sole managing conservator of the parties’ children.

See id. at 773. We overrule Qutiefan’s fourth issue.

Division of Property

Finally, in his fifth issue, Qutiefan argues that the trial court erred in dividing

the parties’ marital estate. He contends that Safi obtained community assets unjustly,

unfairly, and inequitably, and that she mismanaged and misappropriated community

assets. Safi responds that the trial court did not abuse its discretion in dividing the

parties’ community estate because the evidence showed a disparity in the parties’

earning capacities and income, Safi’s needs in caring for the children, the children’s

disabilities, and Qutiefan’s misuse of community property. Furthermore, Safi

contends that she presented evidence of the value of the marital estate and that

Qutiefan dissipated the marital estate by wasting community funds, neglecting the

parties’ house, and causing fines and a judgment against the property due to unpaid

HOA violations.

A. Standard of Review and Governing Law

We review a trial court’s division of property in a divorce case for abuse of

discretion using the standard stated above. Raymond v. Raymond, 190 S.W.3d 77,

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82 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (citing Schlueter v. Schlueter, 975

S.W.2d 584, 589 (Tex. 1998)); see Landers, 257 S.W.3d at 747.

The Family Code requires a court to divide community property in a just and

right manner having due regard for the rights of each party and any children of the

marriage. TEX. FAM. CODE § 7.001; Schlueter, 975 S.W.2d at 588. A just and right

division of property may be disproportionate depending on the circumstances.

Schlueter, 975 S.W.2d at 588. In dividing community property, courts may consider

several factors, such as: (1) the spouses’ abilities to support themselves, including

which spouse has custody of the children, the burden of the care and maintenance of

the children, and the spouses’ education and employability; (2) a spouse’s

wrongdoing, including fault in the breakup of the marriage and tortious conduct by

one spouse against the other; (3) financial costs incurred by a spouse while the

divorce suit is pending; and (4) other considerations, including the nature of the

property. Twyman v. Twyman, 855 S.W.2d 619, 625 (Tex. 1993) (plurality op.);

Murff v. Murff, 516 S.W.2d 696, 698–99 (Tex. 1981); Vannerson v. Vannerson, 857

S.W.2d 659, 669 (Tex. App.—Houston [1st Dist.] 1993, writ denied).

B. Analysis

The final divorce decree awarded the parties’ house and the uncashed

insurance check to Safi, required her to use the insurance check to make repairs to

the house and then sell it, and awarded Safi 60% and Qutiefan 40% of the proceeds

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of the sale of the house. As stated above, the decree also awarded Safi custody of the

parties’ children.

Safi testified that she did not work because she had to care for the parties’ four

permanently disabled children. Her only income was the children’s social security

benefits and food stamps. She introduced into evidence a financial information sheet

stating her lack of income. Safi testified that Qutiefan did not support her or the

children during their marriage or after their separation even though he had the

financial ability to do so from his job as an accountant. The court’s enforcement

order showed that Qutiefan had not paid more than $14,000 in child support over

thirty-five months prior to trial. Safi also testified that Qutiefan physically and

verbally abused her.

Safi asked the court to award her 60% of the proceeds of the sale of the house,

and she presented evidence showing the parties had approximately $16,000 in equity

in the house. She testified that Qutiefan did not repair the house after it was damaged

during Hurricane Ike and that Qutiefan did not spend insurance proceeds on repairs

to the house. Qutiefan’s own photographs of the house showed significant damage

to it. Further, Qutiefan admitted that the roof had holes in it and the house had water

leaks and missing flooring as of the time of trial. Safi’s testimony and evidence is

legally sufficient to show that her ability to support herself and the children is

limited, that the four youngest children have significant care and maintenance needs

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due to their permanent disabilities, that Qutiefan engaged in tortious conduct against

her, and that she incurred costs while the divorce was pending. See Twyman, 855

S.W.2d at 625; Murff, 516 S.W.2d at 698–99; Vannerson, 857 S.W.2d at 669; see

also Cohen, 569 S.W.3d at 773–74.

Qutiefan testified at trial that Safi spent money from the insurance proceeds

that were intended to repair the house. Safi conceded that Qutiefan paid the

mortgage. Qutiefan also accused Safi of lying in all of her testimony. However, he

did not present any evidence substantiating his testimony. To the extent his

testimony conflicted with Safi’s testimony, the trial court as factfinder was the sole

judge of the parties’ credibility and could choose to believe Safi over Qutiefan, and

we may not substitute our judgment for that of the factfinder. See City of Keller, 168

S.W.3d at 819; Jackson, 116 S.W.3d at 761; Guimaraes, 562 S.W.3d at 549. Safi’s

testimony and evidence were not so weak that the court’s disproportionate division

of the parties’ community property was clearly wrong or manifestly unjust. See

Schlueter, 975 S.W.2d at 588; Cohen, 569 S.W.3d at 774. Thus, the evidence was

factually sufficient to support the trial court’s division of property.

We note that the trial court did not award Safi all the relief she requested. For

example, the trial court awarded her $391 per month in child support, much less than

the $1,500 she requested, and it denied Safi’s request for recovery on the parties’

dowry contract and her request for spousal maintenance. Because the evidence is

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legally and factually sufficient to support the trial court’s division of property, we

hold that the trial court did not abuse its discretion in dividing the parties’ community

estate. See Cohen, 569 S.W.3d at 773. We overrule Qutiefan’s fifth issue.

Conclusion

We affirm the trial court’s final decree of divorce.

April L. Farris

Justice

Panel consists of Chief Justice Radack and Justices Goodman and Farris.

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