in the Interest of D.W. and K.W., Children

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00293-CV
IN THE INTEREST OF D.W. AND
K.W., CHILDREN
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FROM THE 322ND DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 322-396129-06
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MEMORANDUM OPINION1
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Alaa Weiss (Appellant) appeals the modification of the divorce decree in
Rania Arwani’s (Appellee’s) favor on the issues of travel and child support. In six
points of error, Appellant argues (1) the trial court erred by allowing Appellee’s
expert to testify because the expert’s opinions were not disclosed during
1
See Tex. R. App. P. 47.4.
discovery, (2) the trial court erred by allowing Appellee’s expert to testify because
the expert was not qualified, (3) the admission of the expert’s testimony probably
caused an improper judgment, (4) the trial court’s findings of changed
circumstances are against the great weight and preponderance of the evidence,
(5) the trial court abused its discretion by finding Appellant was intentionally
unemployed or underemployed, and (6) the trial court abused its discretion when
calculating Appellant’s net resources. We sustain Appellant’s first and third
issues and reverse the trial court’s order as to travel. We otherwise affirm the
trial court’s judgment.
Background
The July 25, 2008 divorce decree between Appellant and Appellee
contained a lengthy section regarding restrictions on international travel with the
children. International travel with the children was restricted to countries that
were compliant members of the Hague Convention on the Civil Aspect of
International Child Abduction (the Hague Convention). The decree specifically
stated that neither Dubai nor other countries from the United Arab Emirates (the
UAE) were compliant with the Hague Convention.
In Appellee’s June 20, 2011 “Second Amended Petition to Modify Parent-
Child Relationship,” she specifically sought modification to provide for travel with
the children to include Dubai within the UAE. On May 24, 2013, the trial court
signed an “Order in Suit to Modify Parent-Child Relationship.” The order allowed
for travel to Dubai with numerous terms and conditions. Within the trial court’s
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plenary jurisdiction, it thereafter signed a “Corrected and Nunc Pro Tunc Order in
Suit to Modify Parent-Child Relationship.” It also allowed for travel to Dubai with
numerous terms and conditions. The trial court made a finding of intentional
underemployment and increased the amount of child support from $513.32 per
month to $1,242.47 per month.
First Issue: Whether Appellee Properly Disclosed in Her Responses to
Discovery Her Expert’s Opinions and Methods Used in Arriving at His
Opinions
In Appellant’s first issue, he contends the trial court erred in allowing
Appellee’s expert, Tarik Nassar, to testify on the law in Dubai regarding the
enforceability of an American family order because his opinions were not
disclosed during discovery in compliance with rule 194.2(f) of the Texas Rules of
Civil Procedure. Appellant filed a motion to exclude Appellee’s expert and
argued, among other reasons, that Appellee’s designation was improper because
it failed to provide the expert’s opinion and the methods he used to arrive at his
opinions. Tex. R. Civ. P. 194.2(f)(3). When Appellee called Nassar to testify at
trial, Appellant objected to his testimony based upon Appellee’s failure to provide
her expert’s opinion in response to requests for discovery as required by rule 194
of the Texas Rules of Civil Procedure. Appellant argued Nassar’s testimony
should be excluded under rule 193.6 of the Texas Rules of Civil Procedure.
Because Appellant did not know the expert’s opinion, Appellant claimed surprise.
The trial court refused to exclude Nassar’s testimony.
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Appellee contends she sent Appellant her “Third Amended Responses to
Respondent’s Rule 194 Requests for Disclosure to Appellant” on March 5, 2012,
which included Nassar’s information. Appellee appears to understand
Appellant’s complaint as one of timeliness and not as one of a complete failure to
respond.
Appellee’s response was, in pertinent part,
The subject matter Mr. Nassar is expected to testify as to is the law
of Dubai, United Arab Emirates. Mr. Nassar will provide his expert
opinion regarding all aspects of Dubai generally (including, but not
limited to appearance, income level, safety, tourists and all other
matters related to Dubai generally), and as a place to visit. Mr.
Nassar will also provide his expert opinion regarding Dubai’s history
of cooperation with the United States, the enforceability of a
judgment from a Texas District Court in Dubai (including proper
enforcement procedure), as well as the enforceability of a contract
executed by the parties concerning travel outside the United States,
specifically to Dubai (including proper procedure). Mr. Nassar will
also provide his expert opinion regarding solutions available in Dubai
to assure the return of children traveling to Dubai with one parent to
the other parent. Mr. Nassar will also provide his expert opinion
regarding dowry’s generally, and specifically the Dowry against the
husband, including but not limited to enforcement of the Dowry in
Dubai and other countries, and how the Dowry effects the husband
generally, including but not limited to Husband’s travel to Dubai and
other Arab countries. Mr. Nassar’s testimony will also be used for
rebuttal as necessary.
Whether to admit or exclude evidence is within the trial court’s sound
discretion. $27,877 v. State, 331 S.W.3d 110, 120 (Tex. App.—Fort Worth 2010,
pet. denied). A trial court abuses its discretion when it acts without any guiding
rules or principles. Id. When determining whether a trial court abused its
discretion, appellate courts must ascertain whether the trial court’s finding served
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the purpose of thwarting legal gamesmanship and trial by ambush. Id. Appellate
courts review the trial court’s decision relating to discovery sanctions under an
abuse of discretion standard. VingCard A.S. v. Merrimac Hospitality Sys., Inc.,
59 S.W.3d 847, 855 (Tex. App.—Fort Worth 2001, pet. denied). When reviewing
a trial court’s decision, appellate courts must determine whether the trial court’s
action was arbitrary or unreasonable. Id.
Rule 194.2(f)(2) requires a party to request disclosure of “the subject
matter on which the expert will testify.” Tex. R. Civ. P. 194.2(f)(2). The parties
are not disputing Appellee complied with subsection (2) of rule 194.2(f).
Rule 194.2(f)(3) permits a party to request disclosure of “the general
substance of the expert’s mental impressions and opinions and a brief summary
of the basis for them.” Tex. R. Civ. P. 194.2(f)(3); VingCard A.S., 59 S.W.3d at
855. Additionally, when the expert is employed by the other party, as in this
case, the party may request disclosure of “all documents, tangible things, reports,
models or data compilations that have been provided to, reviewed by, or
prepared by or for the expert in anticipation of the expert’s testimony.” Tex. R.
Civ. P. 194.2(f)(4)(A).
Appellee provided Nassar’s name and the subject matter on which he
would testify, but Appellant’s request sought more than this. His request sought
and required Appellee to provide the general substance of Nassar’s mental
impressions and opinions and a brief summary of the basis for them.
Additionally, Appellee was required to provide any documents, data, or reports
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provided to Nassar, reviewed by him, or prepared by or for him in anticipation of
his testimony. Appellee provided none of this information. See VingCard A.S.,
59 S.W.3d at 855.
The rule requiring disclosure of the expert’s testimony before trial is
intended to provide adequate information about the expert’s opinions to allow the
opposing party the necessary information to prepare its cross-examination of the
expert and to rebut this testimony with its own experts. $27,877, 331 S.W.3d at
119. When a party responds to a written discovery request, it must “make a
complete response, based on all information reasonably available to the
responding party or its attorney at the time the response is made.” Tex. R. Civ.
P. 193.1; $27,877, 331 S.W.3d at 119–20. Not providing a response to a request
for disclosure results in the automatic exclusion of the witness’s testimony,
unless the trial court finds good cause or lack of surprise or prejudice. Tex. R.
Civ. P. 193.6; $27,877, 331 S.W.3d at 120; VingCard, A.S., 59 S.W.3d at 856.
The failure to respond to a request for the mental impressions and
opinions of the expert is a complete failure to respond, which triggers the
automatic exclusion under rule 193.6. $27,877, 331 S.W.3d at 120; VingCard,
A.S., 59 S.W.3d at 856. Although Appellee identified Nassar and indicated he
would give his opinions regarding the enforceability of foreign orders in Dubai,
appellee never identified what those opinions were or how Nassar arrived at
them. The trial court’s ruling allowed trial by ambush. See $27,877, 331 S.W.3d
at 120. Appellant did not have the information necessary to prepare his cross-
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examination or to rebut this testimony with his own experts. See $27,877, 331
S.W.3d at 119. We conclude Appellee completely failed to comply with rule
194.2(f)(3), as distinguished from simply giving an incomplete answer, which
would have required Appellant to take additional measures to compel fuller
compliance. Compare VingCard, A.S., 59 S.W.3d at 856 (finding complete
failure to respond), with $27,877, 331 S.W.3d at 121 (holding response was
sufficient to allow meaningful cross-examination). We sustain Appellant’s first
issue.
Second Issue: Whether Nassar Qualified as an Expert
In Appellant’s second issue, he contends Nassar did not qualify as an
expert. Because we sustained Appellant’s first issue, we need not address his
second issue.
Third Issue: Whether the Admission of Nassar’s Testimony Probably
Caused an Improper Judgment
In Appellant’s third issue, he argues that the trial court’s erroneous
admission of Nassar’s testimony probably caused an improper judgment. To
constitute reversible error, the trial court’s error in the admission or exclusion of
the evidence must have probably caused an improper judgment. VingCard, A.S.,
59 S.W.3d at 857.
Nassar was Appellee’s primary means of showing that if the children
traveled to Dubai, Appellant could still rely upon legal means to enforce his
rights. Appellee relies on the trial court’s findings that support her ties to the
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United States, such as the findings she is now a United States citizen and she is
now engaged to a United States citizen, and the finding regarding her past
compliance with court orders. Although those were contributing factors, we
cannot say those were sufficient, standing alone, absent Nassar’s assurances
Dubai would recognize Appellant’s legal rights.
Appellee also asserts the trial court took judicial notice of the laws of the
UAE. Appellee does not state where in the record the trial court did so. Our
review shows the trial court initially took judicial notice globally of the laws of
“other states and . . .other countries” effectively because they could be “readily
determined.” The trial court also stated that it could take judicial notice at any
point in the proceedings so timeliness was not an issue. The trial court was
ostensibly relying on rule 201 of the Texas Rules of Evidence, which governs
judicial notice generally. Tex. R. Evid. 201(b) (“A judicially noticed fact . . . [is]
capable of accurate and ready determination by resort to sources whose
accuracy could not reasonably be questioned.”); Tex. R. Evid. 201(f) (“Judicial
notice may be taken at any stage of the proceeding.”). However, rule 203, not
rule 201, of the Texas Rules of Evidence governs the process for taking judicial
notice of the laws of other countries. Tex. R. Evid. 203. Later the trial court
stated that it would “just wait” until the parties offered up the laws and that it
would make its ruling at that time. When making its “just wait” comment, the trial
court also referred to both rules 201 and 203 of the Texas Rules of Evidence.
Our review of the record shows Appellant filed a motion for the trial court to take
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judicial notice of some provisions in the United States Code regarding extradition
and of section 152.105(c) of the Texas Family Code. The trial court later took
judicial notice of a provision in the United States Code and a provision of the
Hague Convention. It is not clear from our review of the record that either party
ever asked the trial court to take judicial notice of the laws of the UAE or whether
the trial court specifically took judicial notice of the laws of the UAE.
In its findings of fact, the trial court found that Nassar testified that
Appellant and Appellee could enter a settlement agreement pursuant to “LAW
225 of the LAW OF LEGAL PROCEDURES IN THE UNITED ARAB EMIRATES”
and that said settlement agreement was enforceable in the Dubai courts. Nassar
did, in fact, testify to that. However, Appellant objected that the only law
Appellee had provided him was Law 237. The trial court responded by stating
that it took judicial notice of the laws of the UAE, which included Dubai. Our
review of the record, however, shows the only laws provided in writing were
“Article (237)” and “Article (238).” There is also a photograph of what appears to
be a cover page for “Federal Law No. 11 of 1992 on the Issuance of the Civil
Procedures Law as Amended by Federal Law No. (30) of 2005.” Nassar testified
that Law 225 could be found under Federal Law No. 11 as amended in 2005. In
Conclusion of Law 15, the trial court wrote, “Judicial notice was taken of LAW
225 of the LAW OF LEGAL PROCEDURES IN THE UNITED ARAB EMIRATES.”
To the extent the trial court took judicial notice of and relied on Law 225, our
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review of the record suggests the trial court could have done so strictly on the
basis of Nassar’s testimony and not upon a review of Law 225 itself.
We agree with Appellant that the improper admission of Nassar’s
testimony probably caused the rendition of an improper judgment. We sustain
Appellant’s third issue.
Fourth Issue: Whether the Trial Court’s Finding of Changed Circumstances
Allowing the Children to Travel to Countries Not Compliant with the Hague
Convention was Against the Great Weight and Preponderance of the
Evidence
In his fourth issue, Appellant contends the trial court’s findings of changed
circumstances allowing for travel to Dubai were against the great weight and
preponderance of the evidence. Because we have sustained Appellant’s first
and third issues and are remanding the cause for a new hearing regarding
whether travel with the children to Dubai should be authorized, resolution of
Appellant’s fourth issue is not necessary.
Fifth Issue: The Finding of Intentional Unemployment or Underemployment
The trial court made a finding that Appellant was intentionally unemployed
or underemployed pursuant to section 154.066 of the Texas Family Code.
Appellant limits his attack to amended findings 27, 28, 29, 29A, and 30.
Appellant asserts the trial court abused its discretion in making these findings.
The specific finding of intentional unemployment or underemployment was
finding 25. Appellant does not attack this finding. The specific conclusion of law
based upon this finding is conclusion 18. Appellant does not attack this
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conclusion. “‘[A]n appellate court will overrule a challenge to fact findings that
underpin a legal conclusion or disposition when other fact findings that also
support that legal conclusion or disposition go unchallenged.’” Howeth Invs., Inc.
v. City of Hedwig Village, 259 S.W.3d 877, 889 (Tex. App.—Houston [1st Dist.]
2008, pet. denied) (quoting Britton v. Tex. Dep’t of Crim. Justice, 95 S.W.3d 676,
682 (Tex. App.—Houston [1st Dist.] 2002, no pet.)) (citing Long v. Long, 196
S.W.3d 460, 468–69 (Tex. App.—Dallas 2006, no pet.)).
Findings 27, 28, 29, 29A, and 30 show how the court arrived at Appellant’s
child support payments. The trial court arrived at these amounts not based on
what Appellant could have earned but based on what Appellant had earned in
wages, by the selling of his inventory, and as a recovery in a lawsuit. Inasmuch
as the trial court was basing child support upon actual income, we hold the trial
court’s finding that Appellant was intentionally unemployed or underemployed is
harmless.
For the reasons set out above, we overrule Appellant’s fifth issue.
Sixth Issue: Whether the Trial Court Abused its Discretion when
Calculating Appellant’s Child Support
In Appellant’s sixth issue, he attacks the actual calculations inherent in
findings 27 through 30.
Unless the complaining party can show a clear abuse of discretion, orders
arising from a suit affecting the parent-child relationship will not be disturbed on
appeal. Hardin v. Hardin, 161 S.W.3d 14, 18–19 (Tex. App.—Houston [14th
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Dist.] 2004, pet. granted, judgm’t vacated w.r.m.). A trial court abuses its
discretion when it acts arbitrarily, unreasonably, or without regard to any guiding
rules or principles. Id. at 19. When determining whether an abuse of discretion
has occurred, appellate courts view the evidence in a light most favorable to the
trial court’s decision and indulge every legal presumption in favor of its judgment.
Id. When a court does not analyze or apply the law correctly, it abuses its
discretion. Id. As an appellate court, we are mindful that the trial court, as the
fact finder, had the discretion to not believe a witness’s testimony. Id. at 23. The
trial court is not required to accept a witness’s evidence of his income and net
resources as true. Id.
The trial court found that Appellant had net resources of approximately
$126,000. In his brief, Appellant is able to reconstruct, from the evidence, how
the trial court arrived at this number. Appellant effectively conceded the trial
court was working from the evidence. Appellant then spends eleven pages
disagreeing with the trial court on how it arrived at the results it did. Although we
may agree that there were many ways in which to view the evidence, we cannot
agree with Appellant that the trial court acted arbitrarily, unreasonably, or without
regard to any guiding rules or principles. See id. at 19. This is especially true
when viewing the evidence in a light most favorable to the trial court’s decisions
and indulging every legal presumption in favor of its judgment. Id. And this is
true where the trial court was free to simply not believe Appellant or to believe
Appellant only in part. Id. at 23. We overrule Appellant’s sixth issue.
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Conclusion
Having sustained Appellant’s first and third issues, having determined
resolution of Appellant’s second and fourth issues was unnecessary, and having
overruled his fifth and sixth issues, we reverse the trial court’s order and remand
the cause to the trial court for proceedings consistent with this opinion.
/s/ Anne Gardner
ANNE GARDNER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.
GABRIEL, J. concurs without opinion.
DELIVERED: March 19, 2015
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