Yakov Elmakiss v. Ruth Marie Elmakiss ( 2008 )

NO. 12-06-00405-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
YAKOV ELMAKISS, § APPEAL FROM THE
APPELLANT
V. § COUNTY COURT AT LAW NO. 2 OF
RUTH MARIE ELMAKISS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Yakov Elmakiss appeals a final decree of divorce. In four issues, he argues that the trial court
abused its discretion by (1) making a manifestly unjust and unfair property division, (2) awarding
Ruth Marie Elmakiss equitable reimbursement for payment of community debts with her separate
funds, (3) failing to appoint Yakov joint managing conservator of their child, (4) failing to order
possession according to the standard possession order, and (5) failing to correctly calculate Yakov’s
child support obligation. We reverse and remand in part and affirm in part.
BACKGROUND
Yakov and Ruth are the parents of a child, R.E.E., born April 28, 1998. In her second
amended petition for divorce, Ruth requested that she be appointed sole managing conservator and
that Yakov be obligated to make child support payments. She also requested reimbursement for
funds or assets expended by her separate estate for payment of unsecured liabilities of the community
estate. Further, Ruth requested a disproportionate share of the parties’ estate. In his counterpetition
for divorce, Yakov requested that he and Ruth be appointed joint managing conservators. The trial
court ordered that the parties exchange sworn inventories. Ruth filed a proposed parenting plan, an
inventory and appraisement, and a proposed property division. Yakov failed to file any of these
documents.
After a bench trial on April 4, 2006, the trial court approved Ruth’s parenting plan as being
in the best interest of the child and stated that it believed appointing Ruth sole managing conservator
was “mandatory.” Further, the trial court agreed that, according to the parenting plan, Yakov’s
visitation and telephone contact with R.E.E. should be limited. The trial court also granted Ruth’s
reimbursement claim and approved Ruth’s proposed property division. Before the trial court signed
the decree of divorce, Ruth applied for, and was granted, an emergency ex parte order to suspend
Yakov’s possession of and access to R.E.E.
In the final decree of divorce, the trial court appointed Ruth as sole managing conservator
and Yakov as possessory conservator of R.E.E. Further, the trial court found that “credible
evidence” had been presented of a potential risk of international abduction of R.E.E. by Yakov
because he lacked financial reasons to stay in the United States, was unemployed, and had strong
familial, emotional, or cultural ties to Israel. Thus, the trial court found that unsupervised visitation
was not in the best interest of the child, and ordered that Yakov’s sole access to R.E.E. be through
Kids Konnection and that telephone access be denied until further order of the trial court.
Further, the trial court ordered that Yakov pay child support in the amount of $266.68 per
month. The trial court also ordered that the marital residence be sold and that the sum of $5,000.00
be paid to Yakov from the net sales proceeds with the remaining proceeds to be paid to Ruth.
According to the trial court, Ruth received a greater portion of the proceeds of the marital residence
to compensate her for her reimbursement claim in the amount of $6,983.26. Finally, the trial court
divided the community property and awarded Ruth judgment against Yakov for her attorney’s fees,
expenses, accounting fees, expert witness fees, and costs in the amount of $26,664.77. This appeal
followed.
REIMBURSEMENT
In his second issue, Yakov argues that the trial court abused its discretion in awarding Ruth
equitable reimbursement for payment of community debts with her separate funds. Ruth argues that
Yakov failed to preserve error regarding this complaint when he failed to object to the tracing
summary admitted into evidence, the proposed property division, or the proposed award for
reimbursement. Even if Yakov preserved error, Ruth argues, he failed to offer any evidence to the
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contrary.
Applicable Law
A claim for reimbursement includes (1) payment by one marital estate of the unsecured
liabilities of another marital estate; and (2) inadequate compensation for the time, toil, talent, and
effort of a spouse by a business entity under the control and direction of that spouse. TEX . FAM .
CODE ANN . § 3.408(b) (Vernon 2006). The rule of reimbursement is purely an equitable one.
Vallone v. Vallone, 644 S.W.2d 455, 458 (Tex. 1982). It obtains when the community estate in
some way improves the separate estate of one of the spouses (or vice versa). Id. A right of
reimbursement arises when the funds or assets of one estate are used to benefit and enhance another
estate without itself receiving some benefit. Id. at 459. The party claiming the right of
reimbursement has the burden of pleading and proving that the expenditures and improvements were
made and that they are reimbursable. Id.; Hailey v. Haiely, 176 S.W.3d 374, 384 (Tex.
App.–Houston [1st Dist.] 2004, no pet.). A trial court may not recognize a marital estate’s claim for
reimbursement for the payment of child support, alimony, or spousal maintenance, the living
expenses of a spouse or child of a spouse, contributions of property of a nominal value, the payment
of a liability of a nominal amount, or a student loan owed by a spouse. TEX . FAM . CODE ANN . §
3.409 (Vernon 2006). Reimbursement is not available as a matter of law, but lies within the
discretion of the court. Vallone, 644 S.W.2d at 459.
Analysis
Michael Thomas, a certified public accountant accredited in business valuations, testified that
Ruth’s residence in Arizona was her separate property. According to his review of records provided
by Ruth, that residence was sold. Thomas traced the proceeds of the sale of Ruth’s separate property
that went to pay the parties’ community debts. According to Thomas, he traced the proceeds from
the settlement statement for the sale of Ruth’s Arizona residence to a bank account, and used a
“community out first” tracing method to determine what community debts were paid from those
proceeds. He determined that $6,983.26 from Ruth’s separate property funds was used to pay
community debts. Ruth offered a copy of Thomas’s tracing summary as evidence. The tracing
summary shows a deposit into the bank account of $20,619.52 identified as proceeds from the sale
of Ruth’s Arizona residence in October 2000. Twelve community debts, including credit card
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accounts, were paid with a portion of those proceeds. The amounts ranged from $9.95 paid to First
USA Bank to $2,077.30 paid to Discover Card for a total of $6,983.26. Although the exhibit
included bank statements and copies of checks, it included no information about the nature of the
amounts paid with the credit cards. At the conclusion of the evidence, the trial court granted Ruth’s
reimbursement claim and, in the divorce decree, stated that it awarded Ruth a greater portion of the
proceeds of the marital residence to compensate her for that claim.
Yakov contends there was no evidence that the debts were community debts, or that the debts
were not incurred for living expenses of the parties or their child, and that eight of the eleven
community debts were “nominal.” At trial, Yakov did not object to Thomas’s testimony, the tracing
summary, or the proposed property division. Consequently, Ruth contends that Yakov has failed to
preserve error regarding this complaint. A complaint regarding the legal or factual sufficiency of the
evidence may be made for the first time on appeal in the complaining party’s brief. TEX . R. APP . P.
33.1(a)(d); Pace v. Pace, 160 S.W.3d 706, 712 (Tex. App.–Dallas 2005, pet. denied). Thus, Yakov
did not waive his complaint by failing to complain at trial that the evidence was insufficient to
support Ruth’s reimbursement claim.
In family law cases, the abuse of discretion standard of review overlaps with the traditional
sufficiency standards of review and, as a result, legal and factual sufficiency are not independent
grounds of reversible error. Garza v. Garza, 217 S.W.3d 538, 549 (Tex. App.–San Antonio 2006,
no pet.); Moroch v. Collins, 174 S.W.3d 849, 857 (Tex. App.–Dallas 2005, pet. denied). Instead,
they constitute factors relevant to our assessment of whether the trial court abused its discretion.
Garza, 217 S.W.3d at 549; Moroch, 174 S.W.3d at 857. Thus, in considering whether the trial court
abused its discretion because the evidence is legally or factually insufficient, we conduct a two
pronged inquiry: (1) did the trial court have sufficient evidence upon which to exercise its discretion,
and (2) did the trial court err in its application of that discretion? Garza, 217 S.W.3d at 549;
Moroch, 174 S.W.3d at 857. We then consider whether, based on the evidence, the trial court made
a reasonable decision. Garza, 217 S.W.3d at 549; Moroch, 174 S.W.3d at 857.
Ruth, as the party claiming the right of reimbursement, had the burden to prove that these
expenditures were reimbursable. See Vallone, 644 S.W.2d at 459. Thomas testified, without
objection, that funds from Ruth’s separate estate were used to pay community debts and that he used
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the “community out first” tracing method to determine the amount of Ruth’s separate funds used to
pay those debts. However, neither Thomas nor Ruth testified or presented any documentation that
the expenditures were reimbursable and more particularly that they were not for, among others, the
living expenses of either spouse or the child. See TEX . FAM . CODE ANN . §§ 3.408(b), 3.409;
Vallone, 644 S.W.2d at 459. Because Ruth did not show that these expenditures were reimbursable,
she failed to meet her burden of proof regarding her claim for reimbursement. See Vallone, 644
S.W.2d at 459; Hailey, 176 S.W.3d at 384. Therefore, the trial court abused its discretion in
awarding Ruth a claim for reimbursement. Accordingly, Yakov’s second issue is sustained.
PROPERTY DIVISION
In his first issue, Yakov argues that the trial court abused its discretion by making a
manifestly unjust and unfair property division. More specifically, he contends that Ruth was
awarded community property with a net value in excess of $100,000.00 while he was awarded
property with a negative net value. Ruth contends that Yakov waived any complaint regarding the
property values because he never filed a sworn inventory and appraisement.
Standard of Review
We review a trial court’s division of property under an abuse of discretion standard. Moroch,
174 S.W.3d at 857; see also Garza, 217 S.W.3d at 548. A trial court does not abuse its discretion
if there is some evidence of a substantive and probative character to support the decision. Garza,
217 S.W.3d at 549; Moroch, 174 S.W.3d at 857. Further, we review a trial court’s findings for legal
and factual sufficiency. Garza, 217 S.W.3d at 549; Moroch, 174 S.W.3d at 857.
Applicable Law
A trial court is charged with dividing the estate of the parties in a “just and right” manner,
considering the rights of both parties. TEX . FAM . CODE ANN . § 7.001 (Vernon 2006); Jacobs v.
Jacobs, 687 S.W.2d 731, 733 (Tex. 1985); Moroch, 174 S.W.3d at 855. It is the duty of the
appellate court to presume that the trial court properly exercised its discretion in dividing the marital
estate. Hailey, 176 S.W.3d at 380. The community property of the marital estate need not be
equally divided. Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981). A trial court may order an
unequal division of the community property when a reasonable basis exists for granting that relief.
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Hailey, 176 S.W.3d at 380. However, the division of property must not be so disproportionate as
to be inequitable, and the circumstances must justify awarding more than one-half to one party. Id.
In exercising its discretion in dividing the marital estate, the trial court may consider many
factors, including the disparity of incomes or of earning capacity of the parties, the parties’ capacities
and abilities, benefits that the party not at fault would have derived from continuation of the
marriage, business opportunities, education, relative physical conditions, relative financial conditions
and obligations, disparity of ages, the size of the parties’ separate estates, and the nature of the
property. Murff, 615 S.W.2d at 698-99.
Analysis
Yakov argues that the divorce decree awarded him community property valued at $66,255.00,
including $10,700.00 for a tractor that had been sold over a year before the divorce decree.
Additionally, the award included an income tax benefit from the net operating loss totaling
$58,781.00. Yakov contends this award was nothing more than a contingent asset, useful only to
reduce his income when calculating future income taxes. Thus, Yakov argues that the true value of
community property awarded to him was a negative $3,226.00. Further, Ruth was awarded a
judgment against Yakov for attorney’s fees and expert fees in the amount of $26,664.77. According
to Yakov, Ruth was awarded community property assets valued at $101,676.00, in addition to the
equity she received from the sale of the marital residence.
Ruth presented evidence relating to the division of property and debts, and filed an inventory
and appraisement of the community assets. In the divorce decree, Yakov was awarded assets valued
at $81,872.01, along with a travel trailer, a brokerage account, and any retirement accounts held in
his name, the values of which were not specified. The evidence also indicates that he received the
proceeds from the tractor sold prior to the divorce. Ruth was awarded assets valued at $92,723.00,
along with four insurance polices and/or annuities, the values of which were not specified. Yakov
was ordered to pay debts in the amount of $44,086.77, together with the amounts owed on three
credit cards, the total of which was not specified. These debts included $8,021.50 for accounting,
counselor, and psychologist fees and $18,643.27 for Ruth’s attorney’s fees because the trial court
found that Yakov “made this a very expensive case when it didn’t have to be.” Ruth was ordered
to pay debts in the amount of $23,207.00. Although she was awarded a vehicle valued at $8,345.00,
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she owed approximately $7,701.00 on that vehicle.
We must presume that the trial court properly exercised its discretion in dividing the marital
estate and, thus, Yakov has the burden on appeal to overcome this presumption. See Hailey, 176
S.W.3d at 380. He presented no evidence at trial to dispute Ruth’s valuations or proposed division
of property, nor did he object to any of her valuations or the proposed property division. Because
Yakov has not called our attention to any evidence in the record to rebut the presumption, we must
presume that the trial court properly divided the marital estate. Further, although the division of
assets and debts was not precisely equal in monetary amounts, the division of property was not so
disproportionate as to be inequitable. See id. Because Yakov failed to overcome the presumption
that the trial court properly divided the marital estate, we conclude that the trial court did not abuse
its discretion in its division of the community assets and debts. See Moroch, 174 S.W.3d at 857.
Accordingly, the portion of Yakov’s first issue that relates to the property division is overruled.
We must also consider the trial court’s division of the net sales proceeds of the marital
residence. Ruth was ordered to sell the marital residence, which was to be listed at $90,000.00. The
net sales proceeds were to be paid to Ruth, less $5,000.00 that was to be paid to Yakov. The trial
court awarded Ruth a greater portion of the net proceeds of the marital residence as compensation
for her $6,983.26 reimbursement claim. Because we have determined that the trial court abused its
discretion in awarding Ruth her reimbursement claim, we conclude that the trial court did not have
a reasonable basis to order an unequal division of the net proceeds from the sale of the marital
residence. See Hailey, 176 S.W.3d at 380. Consequently, the portion of Yakov’s first issue that
relates to the division of the net sales proceeds of the marital residence is sustained.
CONSERVATORSHIP
As part of his third issue, Yakov contends that the trial court abused its discretion by failing
to appoint him joint managing conservator of R.E.E. He argues that there is insufficient evidence
to rebut the presumption that joint managing conservatorship is in R.E.E.’s best interest. Ruth
argues that the record shows that her appointment as sole managing conservator is in the best interest
of the child.
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Applicable Law
In determining conservatorship, the best interest of the child shall be the primary
consideration. TEX . FAM . CODE ANN . § 153.002 (Vernon 2002). The trial court has wide latitude
in determining the best interest of a child, and the decision of the trial court will be reversed only
when it appears from the record as a whole that the court has abused its discretion. Marriage of
Stein, 153 S.W.3d 485, 488 (Tex. App.–Amarillo 2004, no pet.).
Unless a trial court finds that appointment of the parents would not be in the best interest of
the child because the appointment would significantly impair the child’s physical health or emotional
development, both parents shall be appointed as joint managing conservators of the child. TEX . FAM .
CODE ANN . § 153.131(a) (Vernon 2002). It is a rebuttable presumption that the appointment of the
parents of a child as joint managing conservators is in the best interest of the child. TEX . FAM . CODE
ANN . § 153.131(b) (Vernon 2002). A rebuttable presumption “shift[s] the burden of producing
evidence to the party against whom it operates.” In re Rodriguez, 940 S.W.2d 265, 271 (Tex.
App.–San Antonio 1997, writ denied) (citing General Motors Corp. v. Saenz, 873 S.W.2d 353, 359
(Tex. 1993)). Once that burden is discharged and evidence contradicting the presumption has been
offered, the presumption disappears and is not weighed or treated as evidence. General Motors
Corp., 873 S.W.2d at 359. The evidence on the issue is then evaluated as it would be in any other
case. Id.
The parent requesting appointment as sole managing conservator has the burden to rebut the
presumption. Lide v. Lide. 116 S.W.3d 147, 152 (Tex. App.–El Paso 2003, no pet.). In determining
whether the party succeeded, an appellate court must review the following factors: (1) whether the
physical, psychological, or emotional needs and development of the child will benefit from the
appointment of joint managing conservators; (2) the ability of the parents to give first priority to the
welfare of the child and reach shared decisions in the child’s best interest; (3) whether each parent
can encourage and accept a positive relationship between the child and the other parent; (4) whether
both parents participated in child rearing before the filing of the suit; (5) the geographical proximity
of the parents’ residences; and (6) any other relevant factor. Id. (citing TEX . FAM . CODE ANN .
§ 153.134(a) (Vernon 2002)).
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Analysis
At the conclusion of the evidence, the trial court found that appointing Ruth as sole managing
conservator was “mandatory.” Yakov was appointed possessory conservator. Because Ruth
requested appointment as sole managing conservator, we review the Lide factors to determine if she
met her burden to rebut the presumption that the appointment of both parents as joint managing
conservators is in the best interest of the child. See id.
Benefits to the child
Neither party testified that R.E.E. would benefit from their appointment as joint managing
conservators. However, appointment of the parties as joint managing conservators is presumed to
be in R.E.E.’s best interest. Therefore, this lack of evidence is not contrary to the presumption.
Shared decision-making ability
Yakov testified that he disagreed with Ruth’s decision to enroll R.E.E. in the Bullard schools.
Further, he objected to R.E.E.’s earning an allowance, or as he stated, a “reward for chores,” and
informed Ruth that he thought she was teaching their child to love money. Yakov stated that Ruth
objected to R.E.E.’s having any pets. Ruth testified that Yakov objected to R.E.E.’s dressing herself
because he wanted to dress her even though she was almost seven years old. This evidence shows
that the parties had difficulty sharing parenting decisions and therefore is contrary to the presumption
of joint managing conservatorship.
Ability to encourage a positive relationship
Although Ruth invited Yakov to attend the International Day program with R.E.E.’s Brownie
troop, he refused. In a December 2005 email admitted at trial, he described Ruth as a “snake” and
stated that she had “nerve to even think I would attend any function [she] ran.” Further, he alleged
that selling Girl Scout cookies cost him money and a driving record. He explained that Ruth chose
to schedule R.E.E. to sell Girl Scout cookies on his birthday weekend instead of allowing her to
spend time with him. In April 2005, Ruth offered him time with R.E.E. on his birthday. He admitted
stating in an email that the offer was “to[o] little to[o] late,” and that he had his own plans with
friends. Yakov admitted being frustrated and that R.E.E. would have liked to see him on his
birthday. Yakov also admitted that Ruth offered him visitation with R.E.E. on Christmas Day, which
he rejected. According to Yakov, Ruth was a hypocrite because she began attending a lot more
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Friday night services after they separated. He also stated in an email at trial that he did not want
“favors” from Ruth or her attorney. Yakov did not believe R.E.E. would have enjoyed seeing him
unless they had an evening together for a Hanukkah party.
LaurieAnn Frank, a licensed master social worker and advanced clinical practitioner, stated
that she assessed R.E.E. and had seven counseling sessions with the child. According to Frank, she
had not found any alienation by one parent toward the other parent. However, Frank testified that
in the session the week before trial, R.E.E. stated that everything was going to be “okay” because
the judge had decided she would live with her father.
Thomas G. Allen, a psychologist, was appointed by the trial court to conduct a custodial and
visitation evaluation of both parents and met their child. Allen testified that Yakov’s profile was
invalid because he was so defensive and, in fact, much more so than was typical in family cases. He
stated that Yakov was very critical of Ruth, including her breast feeding. He also stated that Yakov
tended to use guilt as a tool to manipulate and control people and in order to deal with stressful
situations. Regarding Yakov’s behavior, Allen believed that Yakov was being overly controlling
when he refused visitation with R.E.E. on the first day of Hanukkah, which occurred on Christmas
Day. He stated that Yakov chose to create an issue, was too defensive about Judaism, and was being
overly critical.
Although it appears that Ruth attempted to encourage a positive relationship between Yakov
and R.E.E., Yakov turned down opportunities to spend more time with his child and was openly
hostile to Ruth and any positive outreaches she made to him for the benefit of his relationship with
R.E.E. This evidence is contrary to the presumption of joint managing conservatorship.
Child rearing participation before suit
The parties did not testify regarding their participation in rearing R.E.E. before
commencement of the suit. Debbie Markowitz, a co-adminstrator for the Tyler Jewish Sunday
School, testified that she had known Ruth for eight years. According to Markowitz, Ruth and R.E.E.
have a close relationship and Ruth brought R.E.E. to Hebrew classes, Sunday school, and synagogue.
She stated that she rarely saw Yakov at synagogue and also stated that he was not active. Beth Hill,
a member of the board of the synagogue where Ruth attends and R.E.E.’s Hebrew teacher, stated that
she has known Ruth and R.E.E. for approximately three years. She stated that R.E.E. regularly
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attended lessons and that Ruth signed her homework assignments. Before commencement of the
suit, she saw Ruth at morning services. Hill also stated that she had seen Yakov interacting with
R.E.E. at the synagogue on a few occasions. She believed that Ruth should be appointed sole
managing conservator. From this evidence, we cannot determine the extent to which the parties
participated in rearing R.E.E. before commencement of the suit. Therefore, this factor neither
supports nor contradicts the presumption.
Geographical proximity
At the time of the suit, Ruth and R.E.E. lived in Troup, Texas. Yakov was living in a trailer
on a friend’s property in Henderson, Texas, a distance of approximately twenty miles. The parties’
proximity is not contrary to the presumption.
Other relevant factors
Ruth testified that Yakov made decisions regarding R.E.E. that concerned her, including
putting R.E.E.’s picture on an internet website. Further, she stated that Yakov would not give R.E.E.
her prescription allergy medicine because he did not believe she needed it. Yakov testified that he
believed Ruth made inappropriate parenting decisions, including refusing to supplement breast
feeding causing the child to be hospitalized. He believed it was “clear negligence” by Ruth. Further,
he stated that in August 1998, Ruth knew she tended to become dizzy very easily, but held R.E.E.
by a swimming pool and spun around. He stated that they both fell into the water and that he had
to jump in and pull them out.
Frank stated that R.E.E.’s Hebrew teacher noticed anger outbursts, low self esteem, and
“interaction with peers”1 after the separation. In Frank’s opinion, these were normal reactions for
a child whose parents were going through a divorce. According to Allen, he was concerned with
Yakov’s emotionality, which was impairing a calm, rational overview of what was best for R.E.E.
He was quick to become tearful and upset, a not uncommon way to displace guilt onto a child. Allen
recommended that Ruth have sole managing conservatorship. This evidence is contrary to the
presumption.
1
Frank did not explain the meaning of “interaction with peers” in her testimony.
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Conclusion
The evidence shows that both parties showed an inability to share parenting decisions, that
Yakov was openly hostile to Ruth, that he turned down opportunities to visit his child, that he was
too emotional, defensive, manipulative, and controlling as a parent, and that he made several ill-
advised decisions as a parent, including putting R.E.E.’s picture on an internet website. Although
the record also includes evidence that is not contrary to the presumption, on balance, we conclude
that Ruth met her burden to rebut the presumption that appointment of both parents as joint
managing conservator was in R.E.E.’s best interest. The portion of Yakov’s third issue that relates
to Ruth’s appointment of sole managing conservator is overruled.
STANDARD POSSESSION ORDER
As part of his third issue, Yakov argues that the trial court abused its discretion by failing to
order possession according to the standard possession order. He argues that there is insufficient
evidence to rebut the presumption that the standard possession order provides reasonable minimum
possession by a parent appointed possessory conservator.
Applicable Law
In determining possession of and access to the child, the best interest of the child shall be the
primary consideration. TEX . FAM . CODE ANN . § 153.002. There is a rebuttable presumption that the
standard possession order provides reasonable minimum possession of a child by a parent named as
a possessory conservator and is in the best interest of the child. TEX . FAM . CODE ANN . § 153.252
(Vernon 2002). The trial court shall render an order that grants periods of possession of the child
as similar as possible to those provided by the standard possession order if the standard order is
unworkable or inappropriate. TEX . FAM . CODE ANN . § 153.253 (Vernon 2002). In ordering the
terms of possession of a child under an order other than a standard possession order, the court shall
be guided by the guidelines established by the standard possession order and may consider the age,
developmental status, circumstances, needs, and best interests of the child; the circumstances of the
managing conservator and of the parent named as a possessory conservator; and any other relevant
factor. TEX . FAM . CODE ANN . § 153.256 (Vernon 2002).
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Analysis
At the conclusion of evidence, the trial court determined that Ruth’s parenting plan was in
the best interest of the child. However, in the divorce decree, the trial court found that unsupervised
visitation was not in the best interest of the child and ordered that Yakov’s sole access to R.E.E. be
through Kids Konnection and that telephone access be denied until further order of the trial court.
It noted that “credible evidence” had been presented of a potential risk of international abduction of
R.E.E. by Yakov because he lacked financial reasons to stay in the United States, was unemployed,
and had strong familial, emotional, or cultural ties to Israel. We review the guidelines from the Texas
Family Code to determine if the evidence showed that the standard possession order was unworkable
or inappropriate and not in the best interest of the child. See TEX . FAM . CODE ANN . §§ 153.253,
153.256.
Age, developmental status, circumstances, and needs of the child
Ruth testified that she offered a parenting plan to the trial court granting Yakov visitation for
five or six additional Jewish holidays. According to Ruth, R.E.E. is a healthy child who loves both
parents. However, she was concerned that most of Yakov’s visits with R.E.E. appear to be sitting
in a car watching movies and that the child changes clothes in the back seat of the car. Further, Ruth
stated that she had seen Yakov driving with the dashboard television on.
Yakov testified that during visits, he and R.E.E. sometimes go to the lake and frequently
watch movies in his car. Yakov was aware that R.E.E. tells people she is worried about him because
he does not have a place to live, enough food to eat, or a job. He agreed that it was not normal for
a child to worry about her father. Regarding Yakov’s and R.E.E.’s visits, Allen stated that watching
movies in a car would be confining and that a parent-child relationship should not revolve around
just watching movies. According to Frank, R.E.E. stated that, during visitation with Yakov, they
watch movies in a car either at the lake or at the Dairy Queen parking lot. R.E.E. also stated that they
eat meat and cheese sandwiches and that they have a good time. In Frank’s opinion, such activities
show no creativity in dealing with the child, no relationship with the child, and no parenting of the
child. She was concerned because watching movies seemed to be the only activity. R.E.E.
mentioned that Yakov brought a puppy to their visits and that, on one occasion, they visited some
other children.
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Markowitz stated that Yakov contributed at temple, including “leading services,” and that
R.E.E. had been with him at temple. Hill stated that she had seen Yakov interacting with R.E.E. at
the synagogue on a few occasions. Sheila Alexander, a teacher at Bullard Middle School, testified
that she teaches with Ruth and has known her for almost six years. She stated that Yakov attended
her son’s birthday party with R.E.E., but did not interact with her. She recommended that Ruth be
the “primary” possessory conservator of R.E.E.
From this evidence, the trial court could have determined that R.E.E.’s visits with Yakov did
not meet her developmental status or needs.
The best interest of the child
Yakov denied telling R.E.E. not to tell Ruth when they have fun or that a dog bit her.
However, he admitted saying “something” to R.E.E. because, if Ruth found out about the dog
incident, she would prevent R.E.E. from having contact with a pet she liked. Allen did not have
enough information to assess whether Yakov was at risk for violence in the future. Hill stated that
in the fall of 2005, R.E.E. told her that she was bitten by a dog during a visit with Yakov. R.E.E.
also told Hill that Yakov asked her to keep the incident a secret from Ruth because if she told her
mother, Ruth would not let her be around a dog again. Hill was concerned that R.E.E. had a secret
with Yakov and said that it was “very inappropriate.”
Ruth testified that she was concerned about Yakov’s anger issues and his using guilt to
manipulate R.E.E. She referred to Yakov as an “emotional” bully. She was also concerned that
R.E.E. said she had secrets with Yakov, including knowing that birds were coming to the house, and
that she should not inform Ruth when she and Yakov had fun or what they were doing. Ruth
testified that during telephone calls between Yakov and R.E.E., she could hear Yakov grilling the
child because she did not return a telephone call or did not call him. She also stated that Yakov had
called after 9:00 o’clock in the evening.
From this evidence, the trial court could have determined that Yakov’s asking R.E.E. to keep
secrets from Ruth, including her being bitten by a dog, was not in her best interest. Further, the trial
court could have found that Yakov’s anger toward and manipulation of R.E.E. was not in her best
interest.
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Ruth’s circumstances
Yakov stated that R.E.E. remains in Ruth’s classroom until she finishes work, sometimes past
six o’clock in the evening. Ruth testified that she teaches at Bullard Middle School, but that she does
not stay until six o’clock every evening. She did not believe it was detrimental for R.E.E. to ride the
school bus from the elementary school to the middle school. She stated that she took R.E.E. to
Hebrew lessons, swimming and dance lessons, horseback riding, and gymnastics.
Allen stated that Ruth provided a valid profile. Although Ruth showed elevations on two
scales, he stated that those elevations tend to occur in persons experiencing a lot of tension and
stress. However, Allen testified that there was nothing in Ruth’s tests indicating alcohol or abuse
problems, personality disorders, or a significant mental illness that would impair her parental
judgment. He believed that Ruth was the primary parent. Alexander admitted that R.E.E. had
friends in Bullard because she attended school there. In fact, Alexander stated that it was common
for children of elementary schoolteachers to attend the school where their parents teach. Alexander
stated that after school, R.E.E does homework, but admitted that her homework could be done with
Yakov if she were home. Both Hill and Markowitz testified that Ruth and R.E.E. attend Sunday
school and synagogue regularly.
From this evidence, the trial court could have determined that Ruth parented in an appropriate
manner, was active in the synagogue and in R.E.E.’s life, and was R.E.E.’s primary parent.
Yakov’s circumstances
Yakov testified that in April 2006 he would be retired under social security and would have
time for R.E.E. so that she would not need to go to babysitters after school or wait at school in
Ruth’s classroom until she left work. Ruth testified that R.E.E. was worried about Yakov’s not
having a place to live, food to eat, or a job. She did not believe it was appropriate for the child to
worry about her father in this manner.
Ruth did not believe overnight visitation between R.E.E. and Yakov was appropriate until
he had employment for twelve months, had an adequate residence with utilities and working
plumbing for twelve months, and had undergone individual counseling for twelve months. She also
wanted his telephone calls limited. According to Allen, Yakov told him that he was living in a trailer
or fifth wheel parked next to a friend’s house. He believed Yakov had electricity, but no water or
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toilet facilities. Allen was concerned that Yakov did not have adequate housing arrangements for
the child and no place that she could be safe, comfortable, and sanitary.
From this evidence, the trial court could have determined that Yakov’s visitation and access
to R.E.E. should be limited, especially considering his lack of adequate housing.
Any other relevant factor
Ruth stated that she was awarded the temporary and exclusive use of the marital residence,
but that Yakov frequently entered the property without her permission. According to Ruth, Yakov
also went inside the residence, leaving bills, mail, or flowers and sometimes taking possessions.
Ruth testified that Yakov threatened her, stating that if she had the “audacity” to go into the office
at the marital residence, he would break into the house. Yakov admitted entering the marital
residence numerous times after Ruth was awarded exclusive rights to that residence in the temporary
orders. He also admitted writing a note to Ruth in which he stated that if she broke into his office
again, he would “get into the house.”
Yakov admitted during trial that he had planned before the suit to live in Israel with his
siblings. Allen could not predict whether Yakov might abduct R.E.E. to Israel. According to Allen,
Yakov’s family and support structure was in Israel and, thus, he was concerned that Yakov would
leave the country with R.E.E. After the trial, Yakov wrote an ex parte letter to the trial court. In the
first paragraph of the letter, he stated that he resented the implication that Ruth made about the
“Israel” connection. He stated that “this country is plenty big to get lost in for years if one wishes
to do so. It will take only hours to get to the woods.” As a result of that letter, Ruth moved for, and
was granted, an ex parte order to suspend possession and access. Thus, the trial court could have
determined that Yakov violated its temporary orders on numerous occasions and that there was a risk
that he might abduct R.E.E. to Israel.
Conclusion
The evidence shows that Yakov lacked adequate housing or employment, that his visits with
R.E.E. demonstrated a lack of awareness of her developmental status or needs, that he was
manipulative and inappropriate with R.E.E., including requesting that she keep secrets from Ruth
regarding their visits, that he violated the trial court’s temporary orders, and that there was a risk,
however small, that Yakov might attempt to abduct R.E.E. to Israel. On the other hand, the evidence
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showed that Ruth had stable employment and appeared to have a close, appropriate relationship with
R.E.E. Based upon our review of the record, we conclude that the trial court did not abuse its
discretion in ordering terms of possession that differed from the guidelines established by the
standard possession order. See TEX . FAM . CODE ANN . § 153.256. Accordingly, the portion of
Yakov’s third issue that relates to his possession of and access to R.E.E. is overruled.
CHILD SUPPORT
In his fourth issue, Yakov contends that the trial court abused its discretion in assessing his
child support obligation. More specifically, he argues that the only evidence in the records
established his income at $768.00 a month and that the child support ordered by the court, $266.68
per month, is more than provided for by the child support guidelines. Ruth contends that Yakov
presented no evidence relating to his net resources nor did he request any findings from the trial court
or complain to the trial court about its failure to make certain findings. Moreover, she argues that
Yakov failed to object and, thus, failed to preserve error regarding his child support.
Applicable Law
For purposes of determining child support liability, the trial court shall calculate net
resources, including all wage and salary income and other compensation for personal services,
interest, dividends, and royalty income, self-employment income, net rental income, and all other
income actually being received. TEX . FAM . CODE ANN . § 154.062(a), (b) (Vernon 2002). The duty
to support a child is not limited to a parent’s ability to pay from current earnings, but also extends
to his or her financial ability to pay from any and all sources that might be available. In re Striegler,
915 S.W.2d 629, 638 (Tex. App.–Amarillo 1996, writ denied) ; Roosth v. Roosth, 889 S.W.2d 445,
455 (Tex. App.–Houston [14th Dist.] 1994, writ denied); Musick v. Musick, 590 S.W.2d 582, 586
(Tex. Civ. App.–Tyler 1979, no writ). In rendering an order for child support, the trial court shall
make findings if (1) a party files a written request with the trial court not later than ten days after the
date of the hearing, (2) a party makes an oral request in open court during the hearing, or (3) the
amount of child support ordered by the trial court varies from the amount computed by applying the
percentage guidelines. TEX . FAM . CODE ANN . § 154.130(a) (Vernon 2002). A trial court’s failure
to make these findings upon a timely or proper request or variance constitutes reversible error.
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Hanna v. Hanna, 813 S.W.2d 626, 628 (Tex. App.–Houston (1st Dist.) 1991, no writ).
Analysis
At trial, Yakov testified that he has a degree in electrical engineering as well as a master of
business administration degree. He also stated that his current income was zero. In April 2006, he
would begin receiving monthly benefits from social security in the amount of $728.00 a month.
Yakov admitted that he and his brother-in-law began a family business that included over three
million dollars in assets. His reported income to the Internal Revenue Service was included as part
of the business income. However, Yakov stated that he did not take a salary from the business, but,
instead, retained all of his assets in a trust. Although Ruth appears to argue that Yakov was
intentionally underemployed or unemployed, there was no evidence at trial to support this argument.
Ruth requested that Yakov’s child support be based on a monthly income of $1,800.00 per
month, which would require him to pay $266.00 per month in child support. However, Ruth
presented no evidence showing how she arrived at Yakov’s alleged monthly income. In the absence
of evidence of the wage and salary income of a party, the trial court shall presume that the party has
wages or salary equal to the federal minimum wage for a forty hour week. TEX . FAM . CODE ANN .
§ 154.068 (Vernon 2002). Under the Texas Family Code, the net monthly income of an employed
person earning the federal minimum wage of $5.15 per hour is $805.53.2 See TEX . FAM . CODE ANN .
§ 154.061 (Vernon Supp. 2006). According to the child support guidelines, the amount of child
support for one child should be twenty percent of Yakov’s net monthly resources or, based on the
federal minimum wage of $5.15 per hour, $160.69 per month. See id. § 154.125 (Vernon 2002).
The amount ordered by the trial court, $266.68 a month, is above these guidelines.
Further, if the trial court based Yakov’s child support on his social security benefits of
$728.00 a month, the trial court was required to determine the amount of child support that would
be ordered under the child support guidelines and subtract from that total the amount of benefits or
the value of the benefits paid to or for the child as a result of Yakov’s receipt of social security old
age benefits. See TEX . FAM . CODE ANN . § 154.133 (Vernon 2002). There is no evidence that the
trial court determined Yakov’s child support based upon his social security benefits.
The amount of Yakov’s child support ordered by the trial court varies from the amount
calculated according to child support guidelines. Thus, the trial court was required, even without
2
Because the trial court assessed Yakov’s child support obligation in 2006, we use the Texas Family
Code’s 2006 tax chart for employed persons to determine the correct federal minimum wage.
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a timely and proper request from Yakov, to make findings and state whether the application of the
guidelines would be unjust or inappropriate. See TEX . FAM . CODE ANN . § 154.130(a), (b). By
failing to make the findings, the trial court prevented Yakov from effectively contesting the trial
court’s deviation from the child support guidelines. See Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex.
1996). Therefore, the trial court abused its discretion by deviating from the child support guidelines
without making the required findings. Accordingly, Yakov’s fourth issue is sustained.
CONCLUSION
Having sustained a portion of Yakov’s first issue and his second and fourth issues, we
reverse the portion of the trial court’s judgment awarding Ruth a greater portion of the proceeds of
the marital residence to compensate her for the $6,983.26 reimbursement claim and remand to the
trial court to determine the distribution of the net proceeds from the sale of the marital residence.
Further, we reverse the portion of the trial court’s judgment ordering Yakov to pay $266.68 per
month in child support and remand to the trial court to render child support orders in compliance
with the statutory child support guidelines or issue findings explaining its variance. In all other
respects, the trial court’s judgment is affirmed.
JAMES T. WORTHEN
Chief Justice
Opinion delivered June 11, 2008.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)
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