Qutiefan v. Safi

HANI HAFIZ IBRAHIM QUTIEFAN, Appellant v. LUBNA ABDELZIZ SAFI A/K/A LUBNA AZIZ SAFI, Appellee

No. 01-18-00425-CV

Court of Appeals of Texas, First District

August 5, 2021

On Appeal from the 505th District Court Fort Bend County, Texas Trial Court Case No. 13-DCV-206211

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

MEMORANDUM OPINION

April L. Farris, Justice

Appellant Hani Hafiz Ibrahim Qutiefan, appeals the trial court's entry of a final divorce decree after a bench trial and the denial of his motion for new trial. In five issues, Qutiefan argues that the trial court erred in (1) denying his requests for appointment of counsel at trial; (2) denying his motions for continuances to hire trial counsel; (3) denying his right to present testimonial and documentary evidence; (4) appointing appellee, Lubna Abdelziz Safi a/k/a Lubna Aziz Safi, as sole managing conservator and Qutiefan as possessory conservator of their minor children; and (5) dividing the marital estate.^[1] We affirm.

Background

Qutiefan and Safi were married in a religious ceremony in Palestine in September 1994. In December 1997, they moved to Houston and were married in a legal ceremony. They also bought a house in Houston. During their marriage, the parties had five children. The parties' four youngest children are permanently disabled. In August 2011, the parties separated. Safi and all five children moved out of the parties' house, where Qutiefan continued living through the end of trial in August 2017. Their oldest child turned eighteen years of age prior to trial and was not part of the divorce proceedings.

In May 2013, Safi filed an original petition for divorce from Qutiefan on the grounds of insupportability and cruel treatment. She alleged that Qutiefan had a history of committing family violence in the preceding two years, and she supported her petition with a family violence protective order issued against Qutiefan in October 2011. Safi requested that, based upon Qutiefan's history and pattern of committing family violence, the court appoint her as sole managing conservator of the parties' four youngest children and that Qutiefan's access to the children be limited to one hour on one Saturday each month with seven days' notice from Qutiefan. She requested $1, 500 per month in child and medical support for the children to continue indefinitely based on the children's disabilities, retroactive child and medical support, and spousal support.

Safi also asked the court to order the sale of the parties' home and to award her 60% of the proceeds of the sale and Qutiefan 40% of the proceeds. She requested that the court award Qutiefan a homeowner's association ("HOA") judgment against her, and she asked that the court award each party their own vehicles, bank accounts and debt. She also requested an award under a dowry contract between her and Qutiefan. Finally, Safi requested a permanent injunction and, pending trial, temporary orders requiring Qutiefan to pay child support, health insurance and uninsured medical expenses for the children, and all bills and expenses related to the parties' house.

Qutiefan filed an answer. He also filed a counterpetition, which was signed by an attorney Qutiefan hired and which largely mirrored Safi's petition. Qutiefan's counterpetition relied on the same grounds for divorce-insupportability and cruel treatment-as Safi's petition, and similarly asked the court to appoint Qutiefan as sole managing conservator and to deny or limit Safi's access to the children. Like Safi's petition, Qutiefan's counterpetition requested indefinite child and medical support for the children. Qutiefan also requested a similar division of property, but he added a claim for reimbursement of the community property used to benefit Safi's separate estate. The counterpetition asked for a temporary injunction, which included a lengthy list of prohibited actions, and a temporary order appointing him sole managing conservator of the children through trial and requiring Safi to pay child support and health insurance premiums for the children.

Prior to trial, Qutiefan filed more than forty motions and an interlocutory appeal, which this Court dismissed for want of jurisdiction. See generally Qutiefan v. Safi, No 01-17-00925-CV, 2018 WL 1189667 (Tex. App.-Houston [1st Dist.] Mar. 8, 2018, no pet.) (per curiam) (mem. op.). He filed six motions to invoke his Sixth Amendment constitutional right to appointment of counsel, which the trial court denied. He also filed three motions to continue the trial, none of which were based on a need to obtain counsel. The trial court denied his motions but continued the trial date several times for other reasons. Qutiefan also filed a motion for preparation of a social study and for psychological evaluations of the parties and their children both of which the trial court granted but later set aside when Qutiefan had not scheduled or paid for either the study or any psychological evaluations.

On Safi's motion, the trial court entered an enforcement order, finding that Qutiefan had violated temporary orders by failing to pay more than $14, 000 in temporary child support for thirty-five months pending trial. The court held Qutiefan in criminal and civil contempt, but the court suspended commitment, placed Qutiefan on community supervision, and ordered him to pay monthly arrearages in addition to current child support. The order also required Qutiefan to pay Safi's attorney's fees for bringing the enforcement action.

While this case was pending, the Office of Attorney General filed an original petition in a suit affecting the parent-child relationship ("SAPCR") seeking retroactive and ongoing child and medical support for the parties' children. The Attorney General's SAPCR was consolidated into the divorce proceedings underlying this appeal.

After nearly two years of continuances, the bench trial commenced on July 13, 2017. Trial occurred for seven days over a five-week period on July 13, July 18, August 15, August 16 August 17, August 21, and August 22, 2017. Qutiefan appeared pro se, Safi appeared with counsel, and the Attorney General appeared through counsel.

Safi testified for the first four days of trial. Qutiefan cross-examined her for three days and re-cross-examined her on a fourth day. Safi testified that Qutiefan physically and verbally abused her while they were married, including by cursing at and hitting her in front of the children. Afterwards, Qutiefan would take her phone away and hide it. At least once, one of their daughters tried to intervene in the abuse and Qutiefan pushed her away. Safi testified that Qutiefan would threaten her with imprisonment and death, and he would leave her voicemail messages telling her she was "sick, mentally sick" and not normal. She testified about and introduced two protective orders against Qutiefan: the one that issued in 2011 and was effective for two years, as discussed above, and a second one that issued in 2013 and was also effective for two years. Safi had reported Qutiefan for violating the protective orders, but the cases against him were eventually dismissed. She also testified that she had a protective order issued against Qutiefan in 2008, and that she had sought a fourth protective order against Qutiefan, which was denied. Safi characterized her marriage as "miserable" and stated that she did not feel safe around Qutiefan.

She also testified about the children's disabilities. The parties' second and fifth children have Usher's syndrome, which Safi described as an incurable genetic disease that affects the children's abilities to see and hear such that they require cochlear implants and walk with canes. The youngest child also suffers from seizures. The parties' third and fourth children have autism. Safi introduced documents showing the children's diagnoses, and she testified that the children would be disabled for the rest of their lives. The children receive social security benefits and Medicaid based on their disabilities. All five children lived with Safi continuously from the parties' separation through trial, and Safi testified that she had provided exclusive care for the children since the separation. She testified that Qutiefan did not provide for her or the children while the parties were married or since their separation.

Safi also testified that Qutiefan does not know how to take care of the children and that his house is in very bad condition. Safi testified that Qutiefan had last seen the children in September 2016 because he did not request visitation and that Qutiefan often would not show up at the designated meeting place to pick up the children. When the children had visited Qutiefan the few times since the separation, Safi testified that they returned upset and told her that Qutiefan slept a lot and kept no food in the house, that the air conditioning did not work, and that the house was dirty. Safi conceded, however, that she believed the children would be safe when visiting Qutiefan. Safi testified that the children's conditions had improved since the separation.

Safi testified that she does not work and that her only source of income is the four youngest children's social security benefits and food stamps. She introduced a financial information sheet showing her lack of income. She said that she has a bachelor's degree in social work from a university in Jerusalem. She testified that Qutiefan worked as an accountant out of the parties' home. Qutiefan's financial information sheet stated that he earned $600-900 per month but had more than $2, 000 in monthly expenses as well as significant debt. His tax returns showed his income at approximately $13, 000 per year. However, Safi testified that s...