Banakar v. Krause
| Decision Date | 28 March 2023 |
| Docket Number | 01-21-00609-CV |
| Parties | JAMSHID BANAKAR, Appellant/Cross-Appellee v. ULRIKE KRAUSE, Appellee/Cross-Appellant |
| Court | Texas Court of Appeals |
1
JAMSHID BANAKAR, Appellant/Cross-Appellee
v.
ULRIKE KRAUSE, Appellee/Cross-Appellant
No. 01-21-00609-CV
Court of Appeals of Texas, First District
March 28, 2023
On Appeal from the 308th District Court Harris County, Texas Trial Court Case No. 2016-88890
Panel consists of Justices Goodman, Countiss, and Farris.
OPINION
Julie Countiss Justice
Appellant/cross-appellee, Jamshid Banakar, challenges the trial court's order, entered after a bench trial, denying Banakar's petition to modify a previous order in a suit affecting the parent-child relationship and granting, in part, the second amended counterpetition of appellee/cross-appellant, Ulrike Krause, to modify a
previous order in a suit affecting the parent-child relationship. In two issues, Banakar contends that the trial court erred in ordering his child support obligation increased and failing to timely file findings of fact.
In her two issues on cross-appeal, Krause contends that the trial court erred in denying her request to redirect to her the federal social security benefits for the children received as part of Banakar's social security old age benefits (the "children's [s]ocial [s]ecurity benefits")[1] and denying her request for attorney's fees.
We affirm.
Background
In 2017, Banakar and Krause signed an Agreed Final Decree of Divorce (the "agreed divorce decree") that included terms for visitation, child support, and health insurance coverage for their two minor children, C.K.B. and K.K.B. (the "children"). The agreed divorce decree named Banakar and Krause joint managing conservators of the children, with Krause having the exclusive right to designate the children's primary residence. The agreed divorce decree required Banakar, the noncustodial parent, to pay $800.00 as his child support obligation each month beginning on March 1, 2017.
In 2018, the trial court entered an Agreed Child Support Review Order (the "2018 agreed child support order"), which, pursuant to an agreement between Banakar and Krause, ordered Banakar to pay $1,893.00 as his child support obligation each month beginning on September 1, 2018. The trial court also ordered Krause to provide health insurance coverage for the children, which was available through her employment. And it required Banakar to pay Krause "cash medical support, as additional child support," in the amount of $13.32 each month to cover the cost of maintaining health insurance coverage for the children.
On March 10, 2020, Banakar filed a petition to modify the 2018 agreed child support order, alleging that since the 2018 agreed child support order was entered, "[t]he circumstances of the children or a person affected by the order ha[d] materially and substantially changed . . ., and the [child] support payments previously ordered should be decreased." Banakar, thus, requested a reduction in his monthly child support obligation.
Krause answered, generally denying the allegations in Banakar's petition. Krause also filed a counterpetition to modify the 2018 agreed child support order. In her second amended counterpetition to modify the 2018 agreed child support order, Krause alleged that "[t]he circumstances of the children or a person affected" by the 2018 agreed child support order "ha[d] materially and substantially changed since the date of the rendition of th[at] order," and "the [child] support payments
previously ordered should be increased." Krause requested an increase in Banakar's monthly child support obligation and that the trial court "order that the [children's] [s]ocial [s]ecurity [benefits] be redirected to [Krause]."
Krause further alleged that Banakar had repeatedly violated the 2018 agreed child support order by "fail[ing] to pay child and medical support."[2] She requested that the trial court "confirm[] . . . child and medical support arrearages," and she sought a "judgment for the arrearages." Krause also requested that the trial court order Banakar's income to be withheld for the "child and medical support arrearages." And she requested that the trial court award her reasonable attorney's fees, expenses, and costs.
Banakar responded to Krause's second amended counterpetition by filing combined special exceptions and a motion to strike evidentiary facts from Krause's second amended counterpetition, in which, among other things, he stated that he "earn[ed] at or near the cap on monthly net resources prescribed in [Texas Family Code section 154.066]."
At trial, Banakar testified that he was nearly sixty-nine years old and was a mechanical engineer with expertise in glass used for aerospace applications. He had been working in the aerospace glass field "[s]ince 1990" and was one of only "eight
people in the world" with such expertise. Banakar "work[ed] very close[ly] with" two NASA aerospace glass experts. He had worked on the "space shuttle program" for windows and window design.
According to Banakar, when he filed his petition to modify the 2018 agreed child support order in October 2019, he had been "laid off" from a contract job that had been funded by NASA.[3] Most recently, Banakar had worked from April 2020 to March 2021 on a NASA-funded project with Engineering Resources and Consulting, Inc. ("ERC") in Huntsville, Alabama. Banakar was "laid off" when the ERC project concluded because no more funding for it was available from NASA.
Banakar further explained that if there were a new project that required his expertise, NASA would "call [him] to go work as a [NASA] contractor." Banakar was actively seeking new employment. He "ha[d] been in contact" with NASA "since [he] got laid off," but he had not yet obtained a new job.
Banakar testified that, in the several months leading to trial, he had been paying "more than $2,300[.00]" a month as his child support obligation. He acknowledged that for about five months beginning in late 2019, he did not pay the full amount of his child support obligation. He paid the child and medical support arrearages he owed in full in April 2020, after he began his job with ERC.
Banakar testified that he had prepared a financial information sheet, a copy of which the trial court admitted into evidence. The financial information sheet showed that, at the time of trial, Banakar was receiving $1,874.28 a month in social security retirement benefits, $2,491.00 a month in retirement benefits from Boeing, and $83.33 a month in dividends from a Goldman Sachs investment account. The financial information sheet also listed the following assets for Banakar:
-
Member's Choice Credit Union (held for benefit of children):
$29,700.00
JSC Credit Union
$30,000.00
Investment accounts
$669,500.00
Individual Retirement Account
$440,273.00
Home
$380,000.00
Banakar stated that in addition to retirement benefits from Boeing, he previously received "around $13[,000.00] to [$]15,000 a year" in dividends. But Boeing stopped paying dividends in April 2020 "due to [the] COVID[-19] [pandemic]."[4] Banakar owned his home outright. But he had no earnings on his assets, which were valued at approximately $1 million.
Banakar further testified that he received about $925.00 in social security benefits for each child monthly. He deposited the children's social security benefits
in the Member's Choice Credit Union account. He denied using that account for his own benefit. The Member's Choice Credit Union account balance at the time of trial was $33,000.00. Banakar's IRS Form SSA-1099 - Social Security Benefit Statement showed that in 2020, Banakar received a total of $22,491.40 in social security benefits for the children.
Banakar acknowledged during his testimony that in June 2020, he made a child support payment of $6,428.46 because he had been behind on his child support obligation and had been served with a petition for enforcement. He also acknowledged that $785.00 a month was being garnished from his social security retirement benefits for partial payment of his child support obligation.
Banakar testified that from April 2020 until approximately two months before trial began, Banakar was earning $9,873.00 in gross monthly wages from ERC. He received $2,491.00 a month in retirement benefits from Boeing and approximately $1,900.00 a month for the children's social security benefits. During that time, Banakar's child support obligation was $1,892.00 per month.
Banakar requested that the trial court find that his current net resources were $3,835.00 per month and order him to pay $1,054.06 a month as his child support obligation. Banakar asserted that he should be allowed to keep the children's social security benefit payments and pay $1,054.06 a month as his child support obligation. Yet he acknowledged that the amount of the child support obligation that he
proposed was not quite half of the children's social security benefits that he received each month.
Krause testified that she was fifty-one years old and was not employed. She had been a project manager for Chevron for eleven years until she lost her job in late January 2021 as a result of the COVID-19 pandemic. She received a severance package from Chevron at the time of the layoff. Since then, she had been seeking new employment.
Krause requested that the trial court order Banakar to pay $2,300.00 a month as his child support obligation. She testified that she did not have access to the Member's Choice Credit Union account that Banakar maintained for the children's benefit. If the trial court were to "redirect" the children's social security benefits from Banakar to her, she wanted the trial court to order "[w]hatever" the amount was "to make up the difference" between the amount of the children's social security benefits and the $2,300.00 monthly child support payment she was requesting.
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