Opinion
Nos. 14-05-00113-CV, 14-06-00341-CV
Memorandum Opinion filed July 3, 2007.
On Appeal from the 309th District Court Harris County, Texas Trial Court Cause No. 2000-29196.
Panel consists of Justices YATES, ANDERSON, and HUDSON.
MEMORANDUM OPINION
In this appeal, appellant, Mohammed Malekzadeh, challenges the final decree of divorce granting a divorce from appellee, Rebecca Malekzadeh. Mohammed complains the decree awards Rebecca his separate property and denies him visitation with his two children from the marriage. We affirm.
I. BACKGROUND
The Malekzadehs were married in 1987. Two children, A.M. and C.M., were born of the marriage. A.M. was born in July 1990, and C.M. was born in July 1992. Rebecca had a daughter, Ashlea, from a prior marriage.
Mohammed, who immigrated from Iran, was in the business of buying salvage cars, reconditioning them, and reselling them. In 1989, Mohammed was arrested for indecency with a child and fraudulent possession of prescription forms. In 1992, Mohammed was convicted of both offenses and sentenced to 20 years' confinement and a $10,000 fine for indecency with a child, and 10 years' confinement and a $5,000 fine for fraudulent possession of prescription forms. Both convictions were affirmed. Malekzadeh v. State, Nos. 01-92-00886-CR 01-92-00887-CR, 1994 WL 681724 (Tex.App.-Houston [1st Dist.] Dec. 8, 1994, pet. ref'd) (op. on reh'g).
In May, 1992, Mohammed was arrested for improper contact with Rebecca's daughter from a previous marriage, Ashlea. Mohammed entered into a plea bargain with the State. Several years later, Ashlea recanted her statement. In 1995, Rebecca had another child, S.H., outside the marriage.
In June 2000, Rebecca filed her petition for divorce. Mohammed, who was in prison, was not present at the trial. In October 2000, the trial court entered a final decree of divorce. Mohammed appealed the divorce decree to this court. We reversed the judgment and remanded it to the trial court because Mohammed was prevented from participating in the trial when the trial court did not issue a bench warrant for his attendance. Malekzadeh v. Malekzadeh, No. 14-01-00216-CV, 2002 WL 1315819 (Tex.App.-Houston [14th Dist.] June 6, 2002, no pet.).
On remand, the divorce proceeding was tried to the bench. The trial court found, without regard to fault, the marriage was insupportable because of discord or conflict of personalities. The trial court appointed Rebecca sole managing conservator and Mohammed possessory conservator, but determined he could not exercise visitation because he is serving his prison sentence in Amarillo and further limited his access to the children by mail only to be sent through the court. The trial court also granted permanent injunctive relief against Mohammed, enjoining him from communicating with Rebecca and the children except by mail through the court. Mohammed appeals the final divorce decree.
II. APPEALPermanent Injunction
In his first issue, Mohammed asserts the trial court abused its discretion in issuing a permanent injunction enjoining him from contacting his children, except by mail sent to them "care of" the trial court, because Rebecca did not plead for such relief.
The trial court may not grant relief in the absence of pleadings supporting such relief. Vaughn v. Drennon, 202 S.W.3d 308, 314 (Tex.App.-Tyler 2006, no pet.); see also TEX. R. CIV. P. 301 ("The judgment of the court shall conform to the pleadings, . . ."). The purpose of pleadings is to give the opposing party notice of each parties' claims and defenses, as well as notice of the relief sought. Perez v. Briercroft Serv. Corp., 809 S.W.2d 216, 218 (Tex. 1991). This requirement, however, may be waived. Leggett v. Brinson, 817 S.W.2d 154, 157 (Tex.App.-El Paso 1991, no writ); First Nat'l Indem. Co. v. First Bank Trust, 753 S.W.2d 405, 407 (Tex.App.-Beaumont 1988, no writ). The party complaining of the injunction is must present the lack of pleading to support injunctive relief to the trial court by objection or motion for new trial in order to complain of the trial court's action on appeal. Siegler v. Williams, 658 S.W.2d 236, 240 (Tex.App.-Houston [1st Dist.] 1983, no writ); Wm. S. Baker, Inc. v. Sims, 589 S.W.2d 492, 493 (Tex.Civ.App.-Dallas 1979, writ ref'd n.r.e.). Because Mohammed did not raise Rebecca's failure to plead for injunctive relief in his motion for new trial, he has waived this complaint on appeal.
Appellant raised this issue in his request for findings of fact and conclusions of law on ultimate and controlling issues filed on January 21, 2005. However, this was not the appropriate method for raising this issue.
Mohammed further argues injunctive relief is not proper because it did not contain an express statement of the reason for prohibiting the enjoyment of his parental rights of phone calls and writing to the children. Mohammed did not raise this issue in trial court and, therefore, it is waived on appeal. TEX. R. APP. P. 33.1. In any event, his complaint is without merit. Rule 683 provides "Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; . . ." TEX. R. CIV. P. 683. However, Rule 683 applies to temporary injunctions, not permanent injunctions. Vaughn, 202 S.W.3d at 321; Qaddura v. Indo-European Foods, Inc., 141 S.W.3d 882, 892 (Tex.App.-Dallas 2004, pet. denied); Shields v. State, 27 S.W.3d 267, 273 (Tex.App.-Austin 2000, no pet.). Because the trial court granted a permanent injunction, not a temporary injunction, Rule 683 is not applicable.
Mohammed also contends the trial court abused its discretion by appointing him possessory conservator, but then enjoining him from having contact with his children when there is no finding that his having access to his children would cause them any harm.
When reviewing the legal sufficiency of the evidence, we review the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We credit favorable evidence if a reasonable fact finder could, and disregard contrary evidence unless a reasonable fact finder could not. Id. at 827. The evidence is legally sufficient if it would enable fair-minded people to reach the verdict under review. Id. When conducting a factual sufficiency review, we must examine the entire record, considering both the evidence in favor of, and contrary to, the challenged finding, and set aside the finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam).
We review the trial court's findings of fact for legal and factual sufficiency of the evidence by the same standards in reviewing the evidence supporting a jury's finding. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). We review a trial court's conclusions of law as legal questions. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). Conclusions of law may not be challenged for factual sufficiency, but we may review the trial court's legal conclusions drawn from the facts to determine their correctness. Id. If we determine a conclusion of law is erroneous, but the trial court rendered the proper judgment, then reversal is not required. Id. Under the abuse of discretion standard, the legal and factual sufficiency of the evidence are not independent grounds of error, but are merely relevant factors in assessing whether the trial court abused its discretion. Beaumont Bank, N.A. v. Buller, 806 sw2d 223, 226 (Tex. 1991).
We cannot weigh credibility issues that depend on appearance and demeanor. Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, 625 (Tex. 2004). Even when credibility issues are reflected in the record, we must defer to the fact finder's determinations so long as those determinations are not unreasonable. Id.
The best interest of the child is the primary consideration in the determining issues of possession and access. TEX. FAM. CODE ANN. § 153.002 (Vernon 2002). The trial court has broad discretion in determining possession and access to a child. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). If the trial court appoints a managing conservator, it may appoint one or more possessory conservators. TEX. FAM. CODE ANN. § 153.006(a) (Vernon 2002). With respect to appointing a parent as a possessory conservator, the Texas Family Code provides:
The court shall appoint as a possessory conservator a parent who is not appointed as a sole or joint managing conservator unless it finds that the appointment is not in the best interest of the child and that parental possession or access would endanger the physical or emotional welfare of the child.
TEX. FAM. CODE ANN. § 153.191 (Vernon 2002) (emphasis added). The Family Code further provides with regard to the restriction of a parent's access to a child:
The terms of an order that denies possession of child to a parent or imposes restrictions or limitations on a parent's right to possession of or access to a child may not exceed those that are required to protect the best interest of the child.
TEX. FAM. CODE ANN. § 153.193 (Vernon 2002).
The trial court's determination that access, even restricted access, would endanger the physical or emotional welfare of the child precludes the court from appointing that parent possessory conservator. In re Walters, 39 S.W.3d 280, 286 (Tex.App.-Texarkana 2001, no pet.). However, the trial court may appoint a parent possessory conservator if it determines access would not endanger the physical or emotional well being of the child, even though access to the child would not be in the child's best interest. Id.; Hopkins v. Hopkins, 853 S.W.2d 134, 137 (Tex.App.-Corpus Christi 1993, no writ). In such cases, the trial court may appoint a parent a possessory conservator and deny that parent any access to or possession of the child, if such restriction is in the best interest of the child. Hopkins, 853 S.W.2d at 137-38; see also In re Walters, 39 S.W.3d at 286 n. 2 (stating a limitation that amounts to a denial of access is permissible if it is in the best interest of the child).
We agree with Mohamed that having appointed him possessory conservator, the trial court must have found his appointment is not a danger to the children's physical or emotional welfare. However, by restricting his access to the children, the trial court must have determined it is not the children's best interest for him to have access.
A.M. was one and one-half years old and Rebecca was eight months pregnant with C.M. when Mohammed was incarcerated. The children's only visits with Mohammed in prison were in October 1998 and January or February 1999. The trial court allowed Mohammed a 30-minute visit with the children in the court in 2003. Mohammed has never held his son. Mohammed received treatment for an opium addiction, but claims his addiction did not affect his family. However, Rebecca testified he was not much of father to A.M. because of the addiction. Rebecca stated there is no relationship on which to build.
Rebecca testified she took the children to see Mohammed because she was under the impression he was being deported to Iran. However, she further explained the visits to the prison were difficult for the children because they could not understand why Mohammed is in prison. Mohammed suggested he has friends who could bring the children to visit him at the prison in Amarillo. Rebecca explained she is concerned about his friends taking the children to visit Mohammed in Amarillo because she is afraid they will be abducted from the country. Rebecca's concerns are based on Mohammed's threats to send A.M. to Iran when she was little. Mohammed planned to obtain a passport for A.M. when she was not even two years old when there were no plans for family to travel at that time. We conclude the evidence supports the trial court's implied finding that Mohammed's access to the children would not be in their best interest. See In the Interest of C.U., No. 13-03-566-CV, 2004 WL 1921227, at *4 (Tex.App.-Corpus Christi, Aug. 30, 2004, no pet.) (mem. op.) (finding that where trial court limited appellant's conservatorship on the basis that appellant had been incarcerated for essentially child's entire life and a relationship had not developed between parent and child, trial court took into account the needs and best interest of child, the circumstances of the conservators, and other relevant factors).
Mohammed also complains there is no evidence that he has engaged in any harassment of Rebecca. In finding of fact number 5, the trial court found Mohammed had engaged in a pattern of unnecessary and harassing contact with Rebecca. Mohammed accused Rebecca of having an affair with her boss at work. Rebecca testified she moved to San Antonio when she was pregnant with A.M. because of his allegation. Mohammed followed Rebecca to San Antonio where he stalked her. Rebecca further explained Mohammed has tried to get her fired from her jobs. Everywhere Rebecca has worked, she has been called into her boss's office regarding pictures taken by private investigators Mohammed had following her. Mohammed claims he has never hired private investigators to follow, and take pictures of, Rebecca. Rebecca also testified the father of her son, S.H., will not contact S.H. because Mohammed sent him and his family their "marriage history," which was written by Mohammed, apparently detailing Rebecca's misconduct during the marriage. A review of the record shows the evidence supports the trial court's finding that Mohammed had engaged in pattern of unnecessary and harassing contact with Rebecca.
In his second issue, Mohammed asserts the injunction is improper because it was issued after the divorce was granted and the court was informed that appellant intended to appeal the judgment. There is nothing in the record to support this allegation. Mohammed's first and second issues are overruled.
Children's Surname
In his third and fourth issues, Mohammed claims the trial court did not protect the best interests of the children by restoring their original birth name in order to comply with our opinion in the first appeal. In the first divorce decree in 2000, the trial court ordered the surname for each child was changed to "Harrison." We reversed the judgment of the trial court because Mohammed was denied his right to attend the trial and remanded the case without instructions. Malekzadeh, 2002 WL 1315819, at *2. When an appellate court remands a case without instruction, the case stands on the trial court's docket as if it had never been tried. In re Estate of Chavana, 993 S.W.2d 311, 315 (Tex.App.-San Antonio 1999, no pet.) (op. on reh'g). Therefore, the original divorce decree had no longer had any effect in light of our disposition. Moreover, the divorce decree entered on remand makes no mention of changing the children's last name and only refers to the children's original surname of Malekzadeh. Mohammed's third and fourth issues are overruled.
Separate Property
In his fifth and sixth issues, Mohammed complains the trial court awarded his separate property to Rebecca. All property possessed by either spouse during or on dissolution of marriage is presumed to be community property. TEX. FAM. CODE ANN. § 3.003(a) (Vernon 2006); McKinley v. McKinley, 496 S.W.2d 540, 543 (Tex. 1973). The burden of overcoming the presumption of community property is on the party asserting otherwise by clear and convincing evidence. Licata v. Licata, 11 S.W.2d 269, 272-73 (Tex.App.-Houston [14th Dist.] 1999, pet. denied). As relevant here, separate property includes property owned or claimed by the spouse before marriage.
"Clear and convincing" evidence means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). In conducting a legal sufficiency review, we should look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. Id. at 266. We must assume the fact finder resolved all disputed facts in favor of the finding if a reasonable fact finder could do so. Id. A corollary to this requirement is the reviewing court should disregard all evidence a reasonable fact finder could have disbelieved or found to have been incredible. Id. However, we need not disregard all evidence that does not support the finding. Id. Disregarding undisputed facts that do not support the finding could skew the clear and convincing analysis. Id. If we conclude that no reasonable fact finder could form a firm belief or conviction that the matter that must be proven is true, then the evidence is legally insufficient. Id.
In conducting a factual sufficiency review, we must give due consideration to evidence the fact finder could reasonably have found to be clear and convincing. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). Our inquiry is whether the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the allegations. Id. The evidence is factually insufficient if the disputed evidence that a reasonable fact finder could not have credited in favor of the finding is so significant that a fact finder could not reasonably have formed a firm belief or conviction. J.F.C., 96 S.W.3d at 266.
Whether property is separate or community is determined by its character at the inception of the party's title. Barnett v. Barnett, 67 S.W.3d 107, 111 (Tex. 2001). Inception of title is when a party first has a claim of right to the property by virtue of when title is ultimately vested. Zagorski v. Zagorski, 116 S.W.3d 309, 316 (Tex.App.-Houston [14th Dist.] 2003, pet. denied) (op. on reh'g); Smith v. Smith, 22 S.W.3d 140, 145 (Tex.App.-Houston [14th Dist.] 2000. no pet.) (op. on reh'g). To overcome the community presumption, the spouse claiming property as his separate property has the burden to trace and clearly identify that property as separate. Zagorski, 116 S.W.3d at 316; Smith, 22 S.W.3d at 144. Tracing involves establishing the separate origin of the property through evidence showing the time and means by which the spouse originally obtained possession of the property. Zagorski, 116 S.W.3d at 316; Smith, 22 S.W.3d at 144.
The trial court awarded each party, "[a]ll household furniture, furnishings, fixtures, goods, appliances, and equipment in the possession of or subject to the sole control of [Mohammed or Rebecca] as of the date of separation." The date of separation is the date of Mohammed's incarceration in 1992. Mohammed complains that because he was incarcerated, he was not able to claim his belongings. Mohammed does not complain of the just and right division of the couple's community property, but complains of Rebecca's taking of his separate business and personal property prior to, and at the time of, his incarceration. Mohammed seeks reimbursement for what he claims was his separate property taken by Rebecca.
Mohammed testified that the first time he was arrested in 1989, Rebecca took his separate property worth $15,000 from his apartment. Mohammed has not shown that the furnishings were his separate property before marriage or that he purchased such furnishings during the marriage with his separate funds. Mohammed claims after that, he purchased, with separate assets, new furnishings worth $5,000, which Rebecca took when she kicked him out of the apartment. Mere testimony that property was purchased with separate property funds, without any tracing of funds, is generally insufficient to rebut the community presumption. Zagorski, 116 S.W.3d at 316.
Mohammed further complains that Rebecca took control of his business after he was incarcerated. However, after five days, Mohammed's partner, under power of attorney, took back control of his business and sent most of the cars to auction to pay attorney fees. This shows that Mohammed had already disposed of his business assets in 1992, and Rebecca did not take that property and the trial court could not have award those assets to Rebecca in the divorce.
Mohammed filed a "Summary of Financial Information and Inventory," of which he asked the trial court to take judicial notice. However, his "summary" is nothing more than Mohammed's recounting of his allegations that Rebecca schemed to obtain his separate property. Mohammed lists amounts of attorney fees for his criminal prosecutions and two prior divorce proceedings and damages for the loss of his business that he was seeking from Rebecca. It does not describe any of the property he asserts to have been his separate property.
Finally, in our previous opinion, we stated "In addition, to the extent Rebecca was in possession of the couple's belongings at the time Mohammed was incarcerated, the property division to each party of the belongings in their possession effectively awarded all of that property to Rebecca." Malekzadeh, 2002 WL 1315819, at *2 n. 6. Mohammed claims the trial court failed to heed the guidance we provided and made the same error on remand. Mohammed did not raise this issue in the first appeal and we did not address it. At most, our statement is dicta.
Mohammed has not shown by clear and convincing evidence that Rebecca either took his separate property or that the trial court awarded his separate property to Rebecca in the divorce decree. Mohammed's fifth and sixth issues are overruled.
Legal Documents
In his seventh issue, Mohammed contends the trial court abused its discretion by not enforcing its divorce decree or ordering Rebecca to appear at a hearing via telephone conference. In the divorce decree, the trial court ordered Rebecca to turn over all "legal documents pertaining to [Mohammed]'s criminal cases" to his attorney within 15 days of the date of the final divorce decree. When Rebecca failed to turn over all the documents during the stated period, Mohammed filed a motion to enforce complaining she had only turned over 51 pages, not the two boxes of documents Mohammed claims exist. Mohammed states the trial court set a hearing on the motion to enforce for January 27, 2005, and on February 8, 2005, the process server informed his attorney and the court that Rebecca's residence was vacant. In support of these claims, he cites to the trial court's "Bench Warrant Release/Return" and his own objection to the trial court's denial to extend his bench warrant — neither of which supports his assertions.
When a party files a motion for enforcement requesting contempt, "the trial court shall set the date, time, and place of the hearing and order the respondent to personally appear and respond to the motion." TEX. FAM. CODE ANN. § 157.061 (Vernon 2002). Mohammed claims the trial court set the hearing on January 27, 2005. Our record is deficient in that it does not contain the order of the trial court setting the hearing. However, assuming the trial court set the hearing and Mohammed attempted to serve Rebecca with notice of the hearing, Mohammed admits service on Rebecca was unsuccessful because the process server found her residence vacant. Any error is harmless in view of Mohammed's admission that he was not able to serve her.
Mohammed also states the trial court erred in failing to find that Rebecca had committed cruelty when she intentionally withheld his legal documents over five years to deny him his right of access to the courts. However, because Mohammed has not provided any supporting argument for this assertion, it is waived. TEX. R. APP. P. 38.1(h). Mohammed's seventh issue is overruled.
Appellate Costs
In his eighth issue, Mohammed contends the trial erred by not adjudicating the dispute over appeals costs from the first appeal and issuing a writ of execution ordering Rebecca to pay appeal costs in compliance with our mandate. In the first appeal, we ordered Rebecca "to pay all costs incurred in this appeal." Mohammed filed a motion for reimbursement of appeal costs. In his motion, he requested that the trial court award him all costs incurred in the first appeal. During the hearing on temporary orders, Mohammed raised the issue of the costs of the first appeal, arguing, even though the bill of costs from this court stated the costs of the appeal incurred were $475.00, the costs were actually $503.00. The trial court responded that there was nothing for it to determine with regard to the amount of appellate court costs.
Mohammed asserts the trial erred in not adjudicating the dispute in the amount of the costs of the first appeal. When the appellate court issues its mandate, the clerk of the court determines the costs of the appeal and attaches a bill of costs to the mandate. County of El Paso v. Dorado, 180 S.W.3d 854, 873 (Tex.App.-El Paso 2005, pet. denied), cert. denied, ___ U.S. ___, 127 S. Ct. 1124 (2007) (citing TEX. R. APP. P. 18.5, 43.4). The trial court has the duty to enforce the appellate court's mandate, in which the appellate court's costs are included, but it is not required to re-order that the appellee pay the costs of the appeal because those costs have already been assessed by the appellate court. Walston v. Walston, 971 S.W.2d 687, 697 (Tex.App.-Waco 1998, pet. denied) (citing TEX. R. APP. P. 51.1(b)). A party seeking corrections in specific items of costs should do so in a motion to re-tax costs. Dorado, 180 S.W.3d at 873. A motion to re-tax costs should be filed in the court where the item of costs accrued. Reaugh v. McCollum Exploration Co., 140 Tex. 322, 167 S.W.2d 727, 728 (1943). Therefore, the trial court did not err in not addressing Mohammed's dispute over the costs of the first appeal.
Mohammed further contends the trial court erred in not issuing a writ of execution to Rebecca to pay the costs of the first appeal. "Following remand to the trial court, the prevailing party on appeal may immediately seek to recover the costs of appeal by applying for a writ of execution." Walston, 971 S.W.2d at 697. When the prevailing party requests an execution for the costs of appeal, the trial court has the duty to issue a writ of execution in compliance with the appellate court's mandate. Id.
There is nothing in the record to show that Mohammed sought a writ of execution of our prior judgment to collect the appellate costs from Rebecca. Therefore, Mohammed has waived this complaint on appellate review. See id. at 698 (holding appellant, who did not seek execution of prior appellate judgment for appeal costs from appellee, did not preserve for appellate review complaint that trial court erred in not ordering appellee to pay costs of prior appeal). Nor was it error for the trial court not to issue a writ of execution when Mohammed never sought one. See id. ("[W]e cannot say that the trial court erred in not executing the judgment for costs as [appellant] has not requested them."). Mohammed's eighth issue is overruled.
Judicial Notice
In his ninth issue, Mohammed argues the trial court erred when it failed to take judicial notice of Rebecca's "fraudulent bankruptcy case" and his cross-action and supporting affidavit. "[A] trial court may take judicial notice of its own records in matters that are generally known, easily proved, and not reasonably disputed." Trimble v. Texas Dep't of Protective Regulatory Serv., 981 S.W.2d 211, 215 (Tex.App.-Houston [14th Dist.] 1998, no pet); Tschirhart v. Tschirhart, 876 S.W.2d 507, 508 (Tex.App.-Austin 1994, no writ). A court may take judicial notice that a pleading has been filed in the case, but may not take judicial notice of the truth of allegations in its records. Tschirhart, 876 S.W.2d at 508.
In his cross petition for divorce, Mohammed alleged that Rebecca committed adultery and acts of cruelty during their marriage. While the trial court could take judicial notice of the fact of the filing of Mohammed's cross-petition, it could not take judicial notice of the veracity of his allegations contained in his cross petition. See id. Therefore, the trial court properly refused to take judicial notice of Mohammed's cross-petition for divorce and supporting affidavits.
Mohammed further claims the trial court erred in not taking judicial notice of Rebecca's bankruptcy petition which Mohammed asserts contains false statements. If a party provides proof of another court's records, the trial court may take judicial notice of the other court's records. Krishnan v. Ramirez, 42 S.W.3d 205, 222-23 (Tex.App.-Corpus Christi 2001, pet. denied). As with taking judicial notice of the truth of allegations contained in the pleadings of its own record, the trial court may not take judicial notice of the truth of allegations in the records of another court. It was not error for the trial court to refuse to take judicial notice of contents of the bankruptcy petition. Mohammed's ninth issue is overruled.
Ground for Divorce
In his tenth issue, Mohammed asserts the trial court erred by not granting the divorce on grounds of Rebecca's cruelty when the evidence was legally and factually sufficient to support such a finding. When a party attacks the legal sufficiency of an adverse finding on which he had the burden of proof at trial, he must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam). In making this determination, we review the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. Wilson, 168 S.W.3d at 822. We credit favorable evidence if a reasonable fact finder could, and disregard contrary evidence unless a reasonable fact finder could not. Id. at 827. The evidence is legally sufficient if it would enable fair-minded people to reach the verdict under review. Id.
Because appellant challenges the factual sufficiency of an adverse finding on which he had the burden of proof, he must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Francis, 46 S.W.3d at 242. In reviewing the complaint that the fact finder's finding is against the great weight and preponderance of the evidence, we must consider and weigh all the evidence, setting aside the verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Id.
Although seldom used by the courts when granting a divorce because of the availability of no-fault divorce, the Texas Family Code provides for divorce on the ground of cruelty. Henry v. Henry, 48 S.W.3d 468, 473 (Tex.App.-Houston [14th Dist.] 2001, no pet.). "The court may grant a divorce in favor of one spouse if the other spouse is guilty of cruel treatment toward the complaining spouse of a nature that renders further living together insupportable." TEX. FAM. CODE ANN. § 6.002 (Vernon 2006). Insupportable means "'incapable of being borne, unendurable, insufferable, intolerable.'" Henry, 48 S.W.3d at 473 (quoting Cantwell v. Cantwell, 217 S.W.2d 450, 453 (Tex.Civ.App.-El Paso 1948, writ dism'd)).
Mohammed asserts Rebecca committed cruelty when she objected to probation in the indecency with a child criminal case involving the 16 year old girl. Just prior to that case going trial, Mohammed was arrested because Rebecca's daughter from a previous marriage, Ashlea, claimed Mohammed had touched her inappropriately. Mohammed contends Rebecca's treatment of him was cruel when she testified at a bond hearing in his criminal case for indecency with a child involving the 16 year old girl that he was a flight risk. Rebecca stated she testified he was a flight risk because he is from Iran. Mohammed further claims Rebecca committed cruelty by committing adultery during the marriage, resulting in her having a child by another man in 1995 — while Mohammed was in prison. Mohammed also alleges Rebecca had an affair with her boss. However, Rebecca denied this allegation.
Mohammed also asserts Rebecca committed cruelty when she no longer allowed the children to have contact with him. A.M. was one and one-half years' old and Rebecca was eight months pregnant with C.M. when Mohammed was incarcerated. Rebecca explained there is no relationship on which to build. Rebecca testified the children have difficulty understanding why Mohammed is in prison.
With regard to Mohammed's conduct during the marriage, in 1992, Mohammed was convicted of indecency with a 16 year old. Mohammed does not take responsibility for his own criminal troubles, but blames Rebecca, asserting the marriage was unstable with numerous separations and alleging that if Rebecca had been "a normal wife," they would have been "living as normal family" and "the door for the 16 year old girl coming to his apartment would have been closed because he had never committed such an offense in his life."
Mohammed videotaped sexual acts involving Rebecca and him. According to Rebecca's testimony, after Mohammed was arrested in the case involving the 16 year old girl, the police found a videotape. The police asked Rebecca to identify the female, who was unconscious, in the videotape because they were concerned about the safety of that person. Rebecca, who had never seen the videotape, saw herself on it when the police played it for her. Rebecca was not conscious and did not consent to the acts on the videotape. She was devastated by what Mohammed had done to her and filed a sexual assault charge against him. Rebecca dismissed the charges because Mohammed paid for Ashlea's biological father to come to Houston to testify against her and suggested Ashlea's father would obtain custody of her.
Rebecca also testified she moved to San Antonio when she was pregnant with A.M. because Mohammed had accused her of having an affair with her boss. Rebecca claims Mohammed followed her to San Antonio where he stalked her. Rebecca also claims Mohammed tried to get her fired by hiring private investigators to follow, and take pictures of, her. Mohammed denies that he has hired private investigators to follow Rebecca. Rebecca further testified the father of her son, S.H., will not contact S.H. because Mohammed sent him and his family a copy of their "marriage history."
We do not find evidence of such conduct establishes, as a matter of law, that Rebecca committed cruelty. Nor do we find the evidence of insupportability is so weak or is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Mohammed's tenth issue is overruled.
Rebecca's Sexual Assault Charge against Mohammed
In his eleventh issue, Mohammed claims the trial court erred by not allowing him to cross-examine Rebecca about certain matters related to Rebecca's reason for not pursuing her own sexual assault charge against him. As addressed above, Rebecca stated she dismissed the charge because Mohammed paid for Ashlea's biological father to come to Houston to testify against her and suggested Ashlea's father would obtain custody of her. Rebecca signed an "Affidavit of Non-Prosecution," stating the affidavit was "entirely voluntary," and she no longer desired for Mohammed to be prosecuted for sexual assault.
Mohammed's complaint is without merit. When Rebecca repeated her previous testimony that Mohammed had threatened that Ashlea's father would try to gain custody of her, the trial court observed "we've already heard all this. . . . I'm not going to allow you to go over something again, and again, and again." Mohammed had an opportunity to cross-examine Rebecca about her desire that Mohammed not be prosecuted for sexual assault of her, which he fully exercised. It was not an abuse of discretion for the trial court to not permit any further questioning about the matter.
Mohammed further asserts the trial court erred in admitting her testimony that she dropped the video charge on the basis he had threatened her because he claims such testimony was false. However, witness credibility is within the province of the fact finder; it is not a basis on which to exclude testimony.
Mohammed also claims the trial court erred in not allowing him to question Rebecca about who authored a letter to Marvin Zindler, which, according to Mohammed, states the prosecutors, not he, encouraged Ashlea's father to try to gain custody of her. Rebecca testified her mother wrote the letter. The trial court then sustained Rebecca's objection that she could not testify as to what her mother wrote. The court then suggested that Mohammed subpoena Rebecca's mother to testify about the letter. On appeal, Mohammed contends Rebecca authored the letter. To preserve error in the exclusion of evidence, a party must (1) attempt during the evidentiary portion of the trial to introduce the evidence; (2) if an objection is lodged, specify the purpose for which the evidence is offered and give the reasons the evidence is admissible; (3) obtain a ruling from the court; and (4) if the court rules the evidence inadmissible, make a record, through a bill of exceptions, of the precise evidence the party desires admitted. Carlile v. RLS Legal Solutions, Inc., 138 S.W.3d 403, 411 (Tex.App.-Houston [14th Dist.] 2004, no pet.). Because Mohammed did not articulate a legal ground for the admission of the letter or make a bill of exceptions, he has waived this complaint on appeal.
Finally, Mohammed contends the trial court erred in excluding two letters from Rebecca. Again, Mohammed has not preserved error. He failed to articulate a reason to the trial court supporting the admissibility of the letters and make a bill of exceptions. See id. Mohammed's eleventh issue is overruled.
Letter from Mohammed's Daughter
In his twelfth issue, Mohammed argues the trial court erred in excluding from evidence a letter from his daughter to him. When Mohammed's attorney attempted to introduce A.M.'s last letter to Mohammed into evidence through Mohammed's testimony, Rebecca stated she had no objection, but the guardian ad litem objected on hearsay. The trial court sustained the guardian ad litem's objection. The following day, Mohammed's attorney requested that the trial court take judicial notice of the record from the hearing on temporary orders during which letters from the children were admitted. The guardian ad litem, who was not at the temporary orders hearing, stated he had not seen the letters before. The trial court stated it would come back to the issue of judicial notice, but apparently it did not.
Mohammed argues the trial court was required to take judicial notice of the letters contained in the record of the hearing on the temporary orders. Contrary to Mohammed's assertion, the trial court may not take judicial notice of testimony of a prior hearing on temporary orders in the same case. May v. May, 829 S.W.2d 373, 376 (Tex.App. — Corpus Christi 1992, writ denied) (op. on reh'g); Continental Oil Co. v. P.P.G., 504 S.W.2d 616, 622 (Tex.Civ.App.-Houston [1st Dist.] 1973, writ ref'd n.r.e.), disapproved on other grounds by In re Smith Barney, Inc., 975 S.W.2d 593 (Tex. 1998); see also In the Interest of M.W., 959 S.W.2d 661, 664 (Tex.App.-Tyler 1997, writ denied) ("we agree that the trial court improperly took judicial notice of prior proceedings"). It was not error for the trial not to take judicial notice of the evidence admitted in the temporary orders hearing. Mohammed also requests that we take judicial notice of the letters. Like the trial court, we may not take judicial notice of that hearing. See Continental Oil Co., 504 S.W.2d at 622 ("Neither the trial court nor this court may judicially notice the testimony taken at the hearing on the temporary injunction.").
Mohammed asserts the trial court erred in excluding A.M.'s letter from evidence. After the guardian ad litem objected on hearsay, Mohammed's attorney did not assert that it was not hearsay or that there was an exception to the hearsay rule. Instead, he argued the letter was the best evidence because it was the original and Mohammed had testified the letter was written in A.M.'s handwriting. The trial court responded that it did not doubt the authenticity of the letter, but that the question was whether it was hearsay. Mohammed's attorney then requested that the letter be admitted for the limited purpose of showing communication between Mohammed and his daughter. The trial court stated the letter was hearsay and refused to admit the letter into evidence. Because Mohammed failed to state a reason the letter was admissible and failed to make of bill of exceptions, he has waived this issue on appeal. See Carlile, 138 S.W.3d at 411.
Even if the trial court erred in excluding the letter, after reviewing the entire record, we conclude Mohammed cannot show that the divorce decree turns on exclusion of his daughter's letter. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753-54 (Tex. 1995). Moreover, the trial court allowed Mohammed to testify that his daughter wrote to him and he also testified he had a close relationship with his daughter.
Finally, Mohammed asserts he has attached the letter from A.M. to his appellate brief so that we may examine it to determine if it was admissible. However, because the letter is not part of the appellate record, we may not consider it. Nguyen v. Intertex, Inc., 93 S.W.3d 288, 293 (Tex.App.-Houston [14th Dist.] 2002, no pet.). Mohammed's twelfth issue is overruled.
Evidence of Prior Criminal Conviction
In his thirteenth issue, Mohammed contends the trial court erred in admitting his 20 year old "dismissed misdemeanor deferred adjudication judgment." When the guardian ad litem asked Mohammed when his first criminal conviction was, Mohammed's counsel stated there was a motion in limine. After hearing argument on the motion, the trial court denied the motion and overruled Mohammed's relevancy objection. When the guardian ad litem continued to question Mohammed about a 1984 conviction for misdemeanor theft, Mohammed's counsel argued there was no conviction for theft because it was deferred adjudication.
On appeal, Mohammed contends his 1984 conviction was too remote in time for it to be admissible. Appellant's counsel did not object on the basis of remoteness. Therefore, this complaint is waived on appeal. TEX. R. APP. P. 33.1.
Evidence of a conviction is not admissible if more than ten years has elapsed since the date of the conviction or of the release of the witness from confinement, whichever is later, unless the court determines, in the interests of justice, that the probative value of the conviction substantially outweighs its prejudicial effect. TEX. R. EVID. 609(b).
Even if Mohammed had not waived error, we conclude it was not error for the trial court to admit the conviction into evidence. Convictions for felonies or involving moral turpitude are admissible in civil cases for impeachment purposes. TEX. R. EVID. 609(a); Harris County v. Jenkins, 678 S.W.2d 639, 641 (Tex.App.-Houston [14th Dist.] 1984, writ ref'd n.r.e.). Evidence of a conviction is not admissible if probation has been satisfactorily completed for the crime from which the person was convicted and that person "has not been convicted of a subsequent crime which was classified as a felony or involved moral turpitude, regardless of punishment; . . ." TEX. R. EVID. 609(c) (emphasis added). In 1992, Mohammed was convicted of three felonies. Therefore, it was not error for the trial court to admit the 1984 theft conviction.
Moreover, error, if any, was harmless because the trial court was already aware of Mohammed's other felony convictions — two convictions for indecency with a child, and one for possession of blank controlled substance prescription forms — for which he was serving time in prison. Mohammed's thirteenth issue is overruled.
Guardian ad Litem
In his fourteenth issue, Mohammed claims the guardian ad litem exceeded his statutory duties in his role at trial because he acted as Rebecca's attorney. In his fifteenth issue, Mohammed complains the evidence is legally and factually insufficient to support the inclusion of the following language in the divorce decree: "The court finds that the Guardian Ad Litem has performed all requirements of his appointment per the Texas Rules of Civil Procedure and the Texas Family Code."
Former section 107.002 of the Texas Family Code, which applies to the case before us, provided with the respect to the duties a of a guardian ad litem:
(c) A guardian ad litem appointed under this subchapter is not a party to the suit but is entitled to:
(4) attend all legal proceedings in the case but may not call or question a witness unless the ad litem is a licensed attorney; . . .
Act of June 20, 1997, 75th Leg., R.S., ch. 1294, § 2, 1997 Tex. Gen. Laws 4931, amended by Act of June 18, 2003, 78th Leg., R.S., ch. 262, § 1, 2003 Tex. Gen. Laws 1175 (emphasis added).
As Mohammed recognizes, former section 107.002 applies here because the suit was filed in 2000. Section 107.002 was amended in 2003 to provide that a guardian ad litem is entitled to "attend all legal proceedings in the case but may not call or question a witness or otherwise provide legal services unless the guardian ad litem is a licensed attorney who has been appointed in the dual role; . . ." TEX. FAM. CODE ANN. 107.002(c)(4) (Vernon Supp. 2006) (emphasis added).
Under former section 107.002, the guardian ad litem, who is a licensed attorney, was allowed to participate in the trial. The guardian ad litem questioned both Mohammed and Rebecca and made objections to the admission of evidence. These were appropriate actions in his role as guardian ad litem for the children. See Maltos v. Texas Dep't of Protective Regulatory Servs., 937 S.W.2d 560, 563 (Tex.App. — San Antonio 1996, no writ) (finding guardian ad litem, who was also an attorney, acted in role as representative of the children by presenting a brief opening statement in which he urged the jury to consider the best interests of the children, conducting brief cross-examinations of several witnesses, and otherwise playing a very limited role in the trial). We do not see anything in the record demonstrating that the guardian was representing Rebecca's interests, and find the evidence is legally and factually sufficient to support the trial court's determination that the guardian ad litem performed his duties in accordance with the Texas Rules of Civil Procedure and the Texas Family Code.
Among these multifarious issues, Mohammed also raises a number of complaints regarding the trial court's evidentiary rulings. Mohammed complains that when he tried to solicit testimony from Dr. Guilak, a pediatrician who had seen Ashlea as a patient, about letters she had written to the Texas Board of Pardons and Paroles concerning Ashlea's recanting of her allegation of improper contact, the trial court sustained the guardian ad litem's objection. To the contrary, the guardian ad litem objected to the admission of Dr. Guilak's letters, but the trial court overruled the objection, but stated it had read the letters and there was no need to ask Dr. Guilak about them.
However, the trial court permitted Dr. Guilak to testify about other actions she took when she discovered Ashlea had recanted. Dr. Guilak tried to find a way "to have the judges hear what has happened." Dr. Guilak took Rebecca to the Iranian radio station to appeal, in Persian and English, to the community to raise money to help release Mohammed. When Mohammed attempted to ask Dr. Guilak more questions about what she and Rebecca had told the community, the guardian ad litem objected. The trial court overruled the objection. According to Dr. Guilak, Rebecca stated that Ashlea said she had lied about the molestation because she wanted to get Mohammed away from her mother and Ashlea had apologized for the lie. In light of Dr. Guilak's extensive testimony, error, if any, is harmless.
Mohammed also contends the trial court erred in not admitting a letter he claims was written by Rebecca to the Board of Pardons and Paroles and another letter regarding an attorney hired to work on the issue regarding Ashlea's recanting. Rebecca testified her signatures were on the letters, but she could not say she had written all portions of those letters. The trial court stated not every document on this issue needed to be introduced into evidence. However, the trial court understood Mohammed was trying show that he could not have been guilty of the charge regarding Ashlea if Rebecca agreed to help him in his appeal and, therefore, permitted his attorney to continue to question her in that regard. Indeed, Rebecca testified she had assisted in trying to obtain Mohammed's release. Again, error, if any, is harmless.
Mohammed also complains the trial court erred in not admitting a letter by Ashlea he claims Rebecca faxed to the Board of Pardons and Paroles when she testified she had never seen the letter before this trial. After Rebecca testified she had never seen Ashlea's letter, it does not appear that Mohammed's attorney ever offered the letter into evidence. Therefore, this complaint is waived on appeal. Carlile, 138 S.W.3d at 411.
Mohammed complains that the trial court erred in allowing Rebecca's testimony about the video tape incident. The only objection Mohammed's attorney lodged in the trial court was to Rebecca's testifying in the narrative. Complaints on appeal must conform to objections made at trial or they are waived. Knoll v. Neblett, 966 S.W.2d 622, 639 (Tex.App. — Houston [14th Dist.] 1998, pet. denied). Mohammed waived this complaint on appeal.
Mohammed complains of the guardian's ad litem's objections to his testimony about the video tape and Rebecca's sexual assault charge and the trial court's sustaining those objections. When Mohammed was being cross-examined about the sexual assault and the videotape, the guardian objected to his answers to questions that called for a yes or no answer as nonresponsive. Also, when Mohammed was questioned regarding how Rebecca found out about the videotape, he answered how it came to be made. The guardian ad litem objected to his answer as nonresponsive; the trial court sustained the objection and reminded Mohammed that the question was how Rebecca found out about the tape, not how it was made. There was nothing improper about the guardian ad litem's objections or the trial court's sustaining those objections. Mohammed's fourteenth and fifteenth issues are overruled.
Denial of Access to Children
In his sixteenth and seventeenth issues, Mohammed argues the trial court erred in denying him restricted visitation solely because of his convictions and incarceration without considering the best interests of the children. In finding of fact number 3, the trial court found "Mohammed Malekzadeh was convicted of a crime of sexual misconduct, is serving a sentence in a Texas prison, cannot exercise periods of possession with the children and has no ability to pay periodic child support." Mohammed complains of finding of fact number 3 because he only sought restricted visitation with the children every three months at the TDCJ facility. Mohammed also argues conclusion of law number 2, which states "the best interest of the children is the primary consideration of the court in determining the issues of conservatorship and possession of and access to the children," is not drawn correctly from the facts and is not supported by the evidence.
Mohammed complains that while the trial court appointed him possessory conservator, it erroneously denied him access to the children except to send them letters through the court. As we discussed with regard to Mohammed's first issue, the trial court may appoint a parent possessory conservator if it determines access would not endanger the physical or emotional well being of the child, even though access to the child would not be in the child's best interest. In re Walters, 39 S.W.3d at 286; Hopkins, 853 S.W.2d at 137. In such cases, the trial court may appoint a parent a possessory conservator and deny that parent any access to or possession of the child, if it such restriction is in the best interest of the child. Hopkins, 853 S.W.2d at 137-38; see also In re Walters, 39 S.W.3d at 286 n. 2 (stating a limitation that amounts to a denial of access is permissible if it is in the best interest of the child). We have already determined the evidence supports the trial court's decision that it is in the children's best interest to restrict Mohammed's access to the children.
"Nonetheless, we note that by restricting appellant's visitation with and possession of the child, the trial court has not denied appellant his rights as parent. Should circumstances change, a parent whose rights have been restricted may file a motion to modify the trial court's order. The Texas Family Code provides for modification of an order as to conservatorship, support, or possession of and access to a child if the modification would be in the best interest of the child and the circumstances of the child or the conservator, among others, has materially and substantially changed." In the Interest of C.U., 2004 WL 1921227, at *4 (citations omitted). Indeed, the trial court provided with regard to visitation after Mohammed is released from prison, "visitation shall be conducted through the S.A.F.E. Program for the first three months, or until the Court can conduct a modification hearing to determine the terms and conditions for extended visitation." Mohammed's sixteenth and seventeenth issues are overruled.
Accordingly, the judgment of the trial court is affirmed.
III. MANDAMUS
Mohammed also brings a petition for a writ of mandamus. Mandamus is an extraordinary remedy that is not issued as a matter of right, but only at the discretion of the court. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 138 (Tex. 2004) (orig. proceeding). Mandamus relief is available when the record shows (1) the trial court clearly abused its discretion, and (2) the relator has no adequate remedy by appeal. In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005) (orig. proceeding) (per curiam).
In his first issue, Mohammed asserts the trial court violated its duty to provide him with acknowledgment that the children received their presents and cards care of the trial court. There is no order, written or oral, that the trial court would notify Mohammed that the children had received his letters and gifts. See TEX. R. APP. P. 52.3(9)(j) (stating appendix to petition must include certified or sworn copy of any order complained of). We find no abuse of discretion by the trial court.
In his second through fifth issues, Mohammed asserts the trial court violated its duty to restore the children's original surname; the trial court violated its duty to issue an execution order to Rebecca to pay the costs of the first appeal; the trial court failed to protect his right of access to the court by not ordering Rebecca to appear at the contempt hearing in order to return his legal documents; and the order denying him access to the children is void because it is not in the best interest of the children. Mohammed raised, and we addressed, these issues in his appeal. Therefore, Mohammed has an adequate remedy by appeal.
Accordingly, we deny Mohammed's petition for a writ of mandamus.