Syed v. Masihuddin

• Decision Date: 18 May 2017
• Docket Number: NO. 01-16-00071-CV,01-16-00071-CV
• Parties: Rahmatullah Basha SYED, Appellant v. Khadija MASIHUDDIN, Appellee
• Court: Texas Court of Appeals

521 S.W.3d 840

Rahmatullah Basha SYED, Appellant

v.Khadija MASIHUDDIN, Appellee

NO. 01-16-00071-CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued May 18, 2017

Heather Keegan, Richard Tomlinson, David Dean, LONE STAR LEGAL AID, 1415 Fannin, 1^st Floor, Houston, TX 77002, for Appellant.

Zachary J. Howe, VINSON & ELKINS LLP, 1001 Fannin Street, Suite 2500, Houston, TX 77002-6760, for Appellee.

Panel consists of Justices Jennings, Keyes, and Huddle.

OPINION

Evelyn V. Keyes, Justice

Appellant, Rahmatullah Basha Syed, appeals the trial court's final decree of divorce terminating his marriage to appellee, Khadija Masihuddin. In three issues, Syed challenges the portion of the trial court's decree finding that deviating from the standard possession order was in his minor children's best interest and ordering that he have possession of or access to the children on the Saturdays following the first, third, and fifth Friday of each month, from 10:00 a.m. until 6:00 p.m. Because we conclude that sufficient evidence supported the trial court's determination such that its ruling did not constitute an abuse of discretion, we affirm.

Background

In this proceeding, Syed and Masihuddin were seeking to dissolve their second marriage to each other. The parties were originally married by way of an arranged marriage negotiated by their parents. The appellate record contains very limited information regarding the parties' first marriage—Masihuddin testified that the wedding occurred in India and the parties subsequently moved to the United States and lived with her family. Masihuddin also testified that Syed left her in 2007, prior to the birth of the couple's first child, U.K., on July 3, 2008, in Houston. Syed, who is not a United States citizen, returned to India when he separated from Masihuddin the first time. Syed further testified that he first saw U.K. via Skype in January 2009. Syed testified that he communicated with U.K. "frequently" during that time period, that he sent Masihuddin pictures, and that he communicated with U.K. via Skype.

Masihuddin testified that she obtained a default divorce dissolving the first marriage in 2009, and, according to the testimony at trial, the final decree awarded Syed a standard visitation order as to U.K. and ordered him to pay child support. Masihuddin testified that she did not object to the trial court's order granting a standard possession order in the first divorce—she had not been concerned about visitation because Syed was in India at the time. Masihuddin gave conflicting testimony about the communication between herself and Syed in the period between 2009 and 2012, in one instance testifying that she did not have any communication with him during that time, but later testifying that he sent her pictures in 2009 and that she was communicating with him at that point.

Syed visited the United States in 2012, and, according to Masihuddin, Syed sent a letter to Masihuddin's father stating that he wanted to visit U.K. in Houston. Syed was able to visit U.K. in July 2012 and gave U.K. a birthday gift. Around that same time, Masihuddin and her father made arrangements with Syed for Syed and Masihuddin to get remarried. Syed testified that he remarried Masihuddin because he loved U.K. and Masihuddin and because he felt like he had no choice but to remarry Masihuddin if he wanted "to be in [his] daughter's life." Masihuddin testified that she was willing to marry Syed again because he promised that he would not leave her again as he had done in 2007.

On July 21, 2012, the couple married for the second time. Masihuddin sponsored Syed so that he could remain in the United States and obtain appropriate immigration documents. They lived together at the same address with U.K. and with Masihuddin's family, including her mother, father, brothers, and sister. During this time, Syed worked and contributed to the household finances. He also took U.K. to school and did other activities with her, such as going to the park. Masihuddin testified that she provided most of U.K.'s day-to-day care.

On December 18, 2012, while Masihuddin was pregnant with the couple's second child, she and Syed separated for a second time.

Syed alleges that this second separation occurred when he left the house they shared because of the "verbal abuse, the emotional abuse, [and] financial abuse" committed against him by Masihuddin and her parents and brothers. He testified that Masihuddin started a quarrel with him, demanding, among other things, that he turn his paycheck over to her. She also took his cell phone away from him. He decided to leave the house, but Masihuddin's father began verbally abusing him. Syed further testified that Masihuddin's father and brother "snatched" his bags and other property away from him, including his passport, his money, his permanent residency card, and his work authorization card, and they physically attempted to prevent him from leaving. Syed testified that he stayed in the house while Masihuddin, her father, mother, and brothers threatened him, including by telling him that he could not leave and that he would not see his children. Masihuddin denied that she ever mistreated Syed.

Syed testified that he reported the December 18, 2012 incident to the family violence unit of the Houston Police Department. Syed further testified that on December 20, 2012, he returned to Masihuddin's home to retrieve his personal belongings, but her family refused to give them to him. He further testified that Masihuddin's brother grabbed him by his collar and "snatched away [his] phone when [he] was seeking help from 9-1-1." Syed stated that the brother "smashed the phone ... on the ground. He grabbed my belongings, vandalized on the street." Syed further testified that Masihuddin's brother tried to force him to stay against his will, but then the police arrived. Syed was able to get all of his possessions at that time except for his immigration documents, and then the police asked him to leave, which he did.

Syed testified that he began living in his local mosque after he left Masihuddin's home. He further testified that, on December 23, 2012, Masihuddin's mother called the mosque in an attempt to have him removed, but he continued to stay there for several months until he could obtain an apartment of his own.

In January 2013, less than two weeks after she and Syed separated for the second time, Masihuddin and her family moved to a new home. Masihuddin did not give Syed their new address because she "did not know what his contact number was." Syed further stated that at the time of trial he was part of an address confidentiality program operated by the Attorney General's Office, and Masihuddin's testimony indicated that she became aware of that fact during a hearing in the trial court that occurred at some point prior to the trial.

Syed's and Masihuddin's second child, U.H., was born on June 16, 2013. Masihuddin did not list Syed's name on U.H.'s birth certificate. She testified at trial that this was because the hospital staff advised her not to list her husband because "he was not there."

Syed testified that he tried to locate Masihuddin and his children, including by visiting his former neighbors beginning in January 2013 and by seeking help from a local imam to arrange visitation with Masihuddin and his children, which Masihuddin or her father refused. Syed also procured help from the organization Child Find America, a non-profit that assisted parents in locating their estranged minor children. Child Find was able to discover Masihuddin's new address, but its internal policy prevented it from disclosing the new address to Syed. However, Child Find provided the address to the police in the area where Masihuddin was living with her parents, and police were able to conduct a welfare check on the girls in August 2013. Masihuddin acknowledged that the police visited her home to check on U.K. and U.H.'s welfare in 2013.

Syed testified that during this period, between his separation from Masihuddin and his filing of the divorce petition, he was not able to have any communication with his children. He stated that he sent cards telling them he missed them. However, all of the cards were returned to him marked as refused. Syed also testified that, in January 2013, he sent a money order for $300 out of his last paycheck received in 2012. However, Syed did not know whether Masihuddin received or cashed the money order.

Syed officially filed for divorce in February 2014. According to the testimony at trial, he also contested paternity at one point, asking Masihuddin to obtain a genetic test of U.H. However, at the trial, Syed testified that he acknowledged his paternity of U.H., and the parties asked the trial court to take judicial notice of the results of the paternity test.¹

Beginning in May 2015, Syed was able to obtain court-ordered visitation with U.K. The parties testified that the trial court had entered temporary visitation orders that required supervised "SAFE visits" so that U.K. could become familiar with her father. Masihuddin caused U.K. to miss two of these visitation appointments.

In September 2015, the temporary orders were modified, enabling Syed to have unsupervised visitation with both U.K. and U.H. on four enumerated Saturdays in the month and half leading up to the trial, from 10:00 a.m. until 6:00 p.m. Masihuddin acknowledged keeping U.H., then two years old, from visiting Syed during one of these court-ordered Saturday visitation periods because U.H. was crying and did not want to get in the car with Syed.

In a separate incident, on September 26, 2015, Syed's attempt to exercise his possession of the children resulted in both parties calling the police. U.H. did not want to get into the car with her father and clung to her mother. Syed took the child from Masihuddin and walked down the block. Masihuddin testified that she called police because Syed "grabbed the child, and he went out of my...