Syed Kazmi v. Syeda Kazmi

• Court: Court of Appeals of Texas
• Decided: November 17, 2023
• Docket: 03-22-00330-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-22-00330-CV

Syed Kazmi, Appellant

v.

Syeda Kazmi, Appellee

FROM THE 261ST DISTRICT COURT OF TRAVIS COUNTY NO. D-1-AG-18-001131, THE HONORABLE MADELEINE CONNOR, JUDGE PRESIDING

OPINION

Syed Kazmi appeals from a final judgment dissolving his marriage to

Syeda Maheen Kazmi (Maheen). 1 By eleven issues, Syed challenges the district court’s division

of the community estate; awards of child support, spousal support, and attorney’s fees;

judgments for retroactive child and spousal support; deviation from the standard possession

order; and setting payment deadlines that expired before the court signed the judgment. We will

affirm in part, reverse and render in part, and remand in part.

1 Because the parties share a surname and have similar given names, we refer to appellant by his given name and to appellee by her middle name. BACKGROUND 2

The parties are both originally from Pakistan. Syed moved to the Austin area

with his parents in 1992. After graduating from Duke University in 2008, he returned to Austin

to pursue a PhD in biomedical engineering from the University of Texas. At the same time,

Maheen was training as a doctor in Pakistan. In 2015, the parties married in Pakistan in a

ceremony paid for by both their parents.

Syed returned to the United States after the marriage while Maheen remained in

Pakistan to finish her last year of medical school. Maheen applied for permanent residency in

the United States with Syed as her sponsor. As part of the process, Syed executed an affidavit

promising to maintain her income at not less than 125% of the federal poverty level. See

8 U.S.C. § 1183a. Maheen’s application was approved, and she moved in with Syed in his

parents’ residence in August 2016.

Maheen immediately began studying for the first part of the United States

Medical Licensing Examination (USMLE), a prerequisite to obtaining a Texas medical license.

Maheen did not have a driver’s license, and Syed did not add her as a signatory to his bank

account until a few months after she arrived. Syed explained at trial that she chose not to pursue

a driver’s license so that she could focus on her studies and did not need access to a bank account

because he or his parents covered all her expenses.

Although the couple originally planned for Maheen to take the first part of the

exam as soon as possible, she was dissatisfied with her scores on practice exams. She could not

fully understand the factual details behind each question, the questions used “advanced

2 We draw these facts from the testimony of Syed; his mother, Iffat Kazmi; Maheen; and the documentary evidence admitted at trial. 2 terminology” that she was unfamiliar with, and the questions required her to employ a procedure

for diagnosing a condition that was significantly different from how she had been trained in

Pakistan. To address these issues, she enrolled in courses at Austin Community College on

subjects such as organic chemistry and microbiology. At the time of trial, her plan was to

complete the last of those courses by summer of 2022 and then enroll in a physician’s assistant

program. The coursework for the program would help with her test preparation and working as a

physician’s assistant would provide clinical experience. She would then take the USMLE and

enroll in a medical residency program.

Maheen learned that she was pregnant in mid-June 2017. Approximately a week

later, Maheen left the house and moved in with a family member in Pflugerville. The parties

enlisted their sheikh to mediate, and Maheen returned home approximately a month and a half

later. She left again in August when Syed was out of the country on business. To make ends

meet, Maheen borrowed money from her family. The district court later admitted a summary she

prepared reflecting she owes them $36,060.

Z.K. was born in February 2018. The parties agreed that Syed would provide

Maheen $400 in child support per month provided in the form of a prepaid credit card. They

also agreed that Syed would pay the cost of Z.K.’s birth and the portions of his medical bills not

covered by insurance.

In July 2018, the Office of the Attorney General sued Syed (and named Maheen

as a party) over support for Z.K. The parties reached a mediated settlement agreement calling

for Syed to immediately start weekly two-hour supervised visits with Z.K., transitioning

to unsupervised visits twice a week. Syed agreed to pay $1,440 in child support beginning

March 1, 2019. The district court signed temporary orders consistent with the agreement.

3 Syed filed a petition for divorce, and Maheen filed a counterpetition. Maheen

alleged in her petition that Syed had committed fraud on the community and asked the district

court to reconstitute the marital estate. After the parties exchanged discovery, it emerged that

Syed had transferred significant sums of money from his accounts, including the joint account,

from 2017 to 2019. The district court admitted records at trial reflecting that Syed transferred or

withdrew $38,940 in 2016; approximately $50,000 in 2017; and $47,000 in 2019. Syed and his

mother, Iffat Kazmi, testified that the transfers were repayments for debts the couple or Syed

individually owed to his parents. Maheen also asked the district court to order Syed to continue

to pay child support, to pay spousal support pursuant to the I-864 affidavit, to award her

retroactive judgments for unpaid support, and to order Syed to pay her attorney’s fees. She

requested that the court appoint her managing conservator of Z.K. with the right to establish his

primary residence and Syed possessory conservator, and to award Syed possession under the

expanded standard possession order.

In July 2020, an associate judge signed temporary orders increasing Syed’s child

support obligation to $1,782 per month and ordering him to pay $2,500 per month in interim

spousal support and $13,000 in attorney’s fees.

In November 2020, Maheen filed an amended petition that omitted her request to

enforce the I-864 affidavit. In January of 2021, Maheen filed an amended petition that included

her request for I-864 support and a motion for leave to amend.

The parties tried the case to the bench on February 8–11, 2021. 3 On the second

day of trial, the parties’ counsel announced an agreement on certain matters, including Maheen’s

3 The Office of the Attorney General did not participate. All future references to the parties refer to Syed and Maheen. 4 motion for leave to amend. Syed’s counsel stated that while he did not agree with the requested

relief, “we understand that [Maheen’s petition] has been amended to this trial and are proceeding

on those issues.” The district court accepted the agreement and proceeded with the trial. The

district court heard testimony from the parties, Iffat, and the parties’ counsel. At the close of

trial, the district court granted the divorce, announced its ruling on several issues, and asked the

parties to draw up a draft divorce decree.

Maheen filed a motion to enter the decree in August 2021. Syed filed a

Motion for Reconsideration and Clarification and attached his affidavit. On March 7, 2022, the

district court denied Syed’s motion and signed the final decree of divorce. 4 In the decree, the

district court:

• ordered Syed to pay $1,782 per month in child support and $1,329 in spousal support under the I-849 affidavit;

• awarded Maheen a $14,975 judgment for retroactive child support and a $47,629 judgment for retroactive spousal support;

• ordered Syed to pay Maheen $53,255.70 in attorney’s fees and expenses;

• found that Syed depleted the community estate of $163,377 through constructive fraud and awarded Maheen a $99,125 judgment to compensate her;

• ordered Syed to pay Maheen $2,200 for “maintenance” of the “2014 Chrysler Town & Country motor vehicle” awarded to her; and

• appointed the parties joint managing conservators with Maheen having the right to designate Z.K.’s primary residence and Syed having possession under a modified standard possession order until Z.K. turns eight, at which time Syed will have possession under the expanded standard possession order.

4 Maheen filed a motion to strike Syed’s affidavit. The district court did not explicitly rule on the motion but indicated in its order denying Syed’s Motion for Reconsideration and Clarification that it considered the parties’ evidence. 5 At Syed’s request, the district court filed findings of fact and conclusions of law.

Syed filed a motion for new trial and an alternative motion to modify the

judgment. In the motion for new trial, Syed challenged the award of attorney’s fees, child

support, spousal support, and possession and access to Z.K. Syed argued in the motion to

modify that the judgment improperly set deadlines for him to begin paying the various awards

that preceded the signing of the judgment. The district court denied the motion to modify by

written order and allowed the motion for new trial to be overruled by operation of law. This

appeal ensued.

LEGAL STANDARDS

We review the issues raised in this appeal for an abuse of discretion. See In re

J.A.J., 243 S.W.3d 611, 616 (Tex. 2007) (conservatorship); Murff v. Murff, 615 S.W.2d 696, 698

(Tex. 1981) (property division); Kelly v. Kelly, 634 S.W.3d 335, 364 (Tex. App.—Houston

[1st Dist.] 2021, no pet.) (spousal support); In re E.A.C., 665 S.W.3d 763, 775 (Tex. App.—

San Antonio 2023, no pet.) (attorney’s fees); White v. White, No. 03-21-00323-CV,

2022 WL 2542004, at *1 (Tex. App.—Austin July 8, 2022, no pet.) (mem. op.) (child support).

A trial court abuses its discretion when it rules arbitrarily, unreasonably, without regard for

guiding rules or principles, or without supporting evidence. Transcor Astra Group S.A.

v. Petrobras Am. Inc., 650 S.W.3d 462, 482 (Tex. 2022).

In this context, the abuse-of-discretion standard overlaps with traditional

standards for reviewing the sufficiency of the evidence. Zeifman v. Michels, 212 S.W.3d 582,

587 (Tex. App.—Austin 2006, pet. denied). Consequently, the legal and factual sufficiency of

the evidence are not independent grounds of error but are relevant factors in assessing

6 whether the trial court abused its discretion. A.S. v. Texas Dep’t of Fam. & Protective Servs.,

665 S.W.3d 786, 795 (Tex. App.—Austin 2023, no pet.). The reviewing court determines first

“whether the trial court had sufficient information on which to exercise its discretion and, if so,

whether the trial court erred in its application of discretion.” Id. The focus of the first inquiry is

the sufficiency of the evidence, which we answer using traditional sufficiency standards of

review. Mason v. Mason, No. 03-17-00546-CV, 2019 WL 1967166, at *2 (Tex. App.—Austin

May 3, 2019, no pet.) (mem. op.).

In reviewing for legal sufficiency, “we view the evidence in the light most

favorable to the verdict, crediting favorable evidence when reasonable jurors could do so and

disregarding contrary evidence unless reasonable jurors could not.” Pike v. Texas EMC Mgmt.,

LLC, 610 S.W.3d 763, 794 (Tex. 2020). A party challenging the legal sufficiency of an adverse

finding on which it did not bear the burden of proof at trial “must demonstrate on appeal that no

evidence supports the adverse finding.” Graham Cent. Station, Inc. v. Pena, 442 S.W.3d 261,

263 (Tex. 2014) (per curiam). We will sustain a no-evidence challenge when (1) evidence of a

vital fact is absent, (2) rules of law or evidence bar us from giving weight to the only evidence

offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere

scintilla, or (4) the evidence conclusively establishes the opposite of the vital fact. Bos v. Smith,

556 S.W.3d 293, 299–300 (Tex. 2018).

In reviewing for factual sufficiency, “we examine the entire record and consider

and weigh all the evidence, both in support of and contrary to the challenged finding.” Ortiz

v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). When a party attacks the factual sufficiency of an

adverse finding on which it did not bear the burden of proof, we will set aside the finding “only

if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and

7 unjust.” Republic Petroleum LLC v. Dynamic Offshore Res. NS LLC, 474 S.W.3d 424, 433 (Tex.

App.—Houston [1st Dist.] 2015, pet. denied) (citing Cain v. Bain, 709 S.W.2d 175, 176

(Tex. 1986)).

Under either standard, the trier of fact “is the sole judge of the credibility of

witnesses and the weight to be given their testimony.” Altice v. Hernandez, 668 S.W.3d 399,

410 (Tex. App.—Houston [1st Dist.] 2022, no pet.) (citing Golden Eagle Archery, Inc.

v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003)). We therefore “may not pass upon the witnesses’

credibility or substitute our judgment for that of the fact finder.” 4922 Holdings, LLC v. Rivera,

625 S.W.3d 316, 325 (Tex. App.—Houston [14th Dist.] 2021, pet. denied).

Syed’s issues involve questions of statutory interpretation, which we review de

novo. Odyssey 2020 Acad., Inc. v. Galveston Cent. Appraisal Dist., 624 S.W.3d 535, 540 (Tex.

2021). Our goal in construing a statute is to ascertain and give effect to the legislature’s intent.

Hegar v. Health Care Serv. Corp., 652 S.W.3d 39, 43 (Tex. 2022). “In doing so, we enforce the

plain meaning of statutory text, informed by its context.” Id. We seek to “give effect to all

words of a provision and avoid constructions that would render any part of it meaningless.”

Odyssey 2020 Acad., 624 S.W.3d at 540. We apply essentially the same rules in analyzing

federal statutes. See In re Acad., Ltd., 625 S.W.3d 19, 25 (Tex. 2021) (orig. proceeding) (“In

analyzing federal statutes, we apply principles substantially similar to those that govern our

interpretation of Texas law.”).

DISCUSSION

Syed argues in eleven issues that the district court abused its discretion by: (1–3)

concluding that he depleted the community estate through constructive fraud and reconstituting

8 the estate by $163,377; (4–6) ordering him to pay support pursuant to the I-864 affidavit and

awarding a judgment for unpaid support; (7) awarding him custody of Z.K. under a modified

standard possession order; (8) miscalculating the amount of unpaid child support; (9) ordering

him to pay Maheen $2,200 for maintenance on her vehicle; (10) setting payment deadlines that

expired before the date that the district court signed the decree; and (11) ordering him to pay

Maheen’s attorney’s fees.

Constructive Fraud

Syed argues in his first three issues that the district court abused its discretion by

finding that he depleted the community estate through constructive fraud and by reconstituting

the estate by $163,377.

In a divorce case, the trial court must order a division of the community estate in a

manner the court deems “just and right, having due regard for the rights of each party and any

children of the marriage.” Tex. Fam. Code § 7.001. Trial courts have “wide latitude” in

determining what constitutes a just and right division, Murff, 615 S.W.2d at 698, and may order

an unequal division of property if there is a reasonable basis for doing so, O’Carolan v. Hopper,

414 S.W.3d 288, 311 (Tex. App.—Austin 2013, no pet.).

Waste of community assets by a spouse may support an unequal division of

property. Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998). “A fiduciary duty exists

between a husband and a wife as to the community property controlled by each spouse.”

Puntarelli v. Peterson, 405 S.W.3d 131, 137 (Tex. App.—Houston [1st Dist.] 2013, no pet.). A

presumption of “‘constructive fraud’ arises when one spouse disposes of the other spouse’s

interest in community property without the other’s knowledge or consent.” Id. at 137–38. Once

9 the presumption arises, the burden of proof “shifts to the disposing spouse to prove the fairness

of the disposition of the other spouse’s one-half community ownership.” Id. at 138. In

determining whether a disposition is fair, the court may consider the size of the disposition in

relation to the total size of the community estate; the adequacy of the remaining estate; and the

relationship of the parties involved in the transaction. Wheeling v. Wheeling, 546 S.W.3d 216,

225 (Tex. App.—El Paso 2017, no pet.) (citing Puntarelli, 405 S.W.3d at 138). If the trier of

fact finds that a spouse committed fraud, the trial court shall “calculate the value by which the

community estate was depleted as a result of the fraud on the community and calculate the

amount of the reconstituted estate” and “divide the value of the reconstituted estate between the

parties in a manner the court deems just and right.” Tex. Fam. Code § 7.009(b).

Presumption of Fraud

Syed argues in his first issue that there is insufficient evidence to support the

presumption of fraud regarding the transfers. He points to Maheen’s testimony that she “didn’t

know at the time that [Syed]’s transferring that much money” and that “he’s making that much

[sic] transfers” (emphases added) and argues that the italicized language indicates that she was

aware of the transfers, if not the amounts. In the alternative, Syed argues that “even if [he] did

not tell her about the transfers, that does not prove she lacked knowledge concerning them.” He

argues that Maheen was aware of the transfers because she was a co-signer on one of the

accounts. 5 But Maheen testified that she was unaware of the specific transfers at issue and

denied seeing bank statements. The district court was entitled to conclude Maheen’s testimony

5 Syed also argues that Maheen “had seen the bank statements” by citing to her testimony where she is shown an account summary with her name on the account.

10 was credible, and we defer to that determination. See Altice, 668 S.W.3d at 410; 4922 Holdings,

625 S.W.3d at 325. Applying the appropriate standards of review, we conclude there is legally

and factually sufficient evidence to support the presumption of constructive fraud. See Slicker v.

Slicker, 464 S.W.3d 850, 861 (Tex. App.—Dallas 2015, no pet.) (upholding finding of

constructive fraud where wife testified she was unaware of large transfers and both she and

psychologist testified that her husband “controlled the relationship and the finances”).

Windfall

Next, Syed argues that the district court abused its discretion because it is

uncontested that a “significant amount” of the transfers were to repay his parents “for purchasing

items that were awarded to Maheen [in] the property division” or for expenses such as the cost of

the “wedding, the couples’ airfare, and Maheen’s courses/tutoring.” We understand Syed as

arguing that he met his burden to rebut the presumption of fraud by showing the transfers were

fair. Maheen responds that the record supports the district court’s finding that he failed to rebut

the presumption.

We agree with Maheen. The district court concluded that Syed failed to rebut the

presumption of fraud, referencing Iffat’s testimony “that he was not paying household expenses”

through the transfers but that Syed “would just give her some money to spend, like he does all

the time.” Iffat and Syed both testified that Syed was repaying his parents for certain

expenditures, and Syed provided an itemized list of some of the expenditures in his affidavit.

Even if using community funds to repay his parents for those expenditures would be legitimate,

the district court was not required to ignore that the transfers stopped when the parties exchanged

discovery in 2019. Iffat confirmed that they decided not to continue with the transfers because

11 Syed “thought that [the] attorneys don’t look at it nicely. They think that I’m – you know, what

is happening to the money?” Now, they “make two payments for one credit card.” Iffat’s

testimony supports the district court’s finding that the transfers were not legitimate uses of

community funds. Considering the relevant factors, see Wheeling, 546 S.W.3d at 225, we

conclude there is legally and factually sufficient evidence to support the district court’s

conclusion that Syed failed to rebut the presumption of constructive fraud.

Valuation of the Estate

By his third issue, Syed argues that there is insufficient evidence to support the

district court’s decision to reconstitute the estate by $163,377.

The district court found that Syed depleted the estate by $163,377 based on a

document Maheen prepared listing transfers and withdrawals from two bank accounts totaling

that amount. Syed argues that there is insufficient evidence that he made all the transfers

because he testified to not remembering some of the transfers from the joint account. He

contends that Maheen could have made some of the transfers because, even though she did not

have a debit card, she had “the ability to make transfers and/or cash withdrawals at the bank.”

And he argues she did not prove that she could not go to the bank in person or access the account

online. 6 But Maheen’s burden to present sufficient evidence that it was Syed who made the

allegedly fraudulent transfers and withdrawals does not require her to conclusively establish that

point. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005) (evidence is legally

6 We note that Syed argued in his opening brief that this document “contains a mathematical error wherein the various transfers and cash withdrawals do not add up to the $163,377 total” and, further, that the district court miscalculated the equalization judgment by $30,000. After Maheen pointed out that Syed provided no further explanation, Syed conceded in his reply brief that the summary contains no mathematical error. 12 sufficient when it “would enable reasonable and fair-minded people to differ in their

conclusions”); Republic Petroleum, 474 S.W.3d at 433 (evidence factually sufficient if it is not

“so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust”).

Maheen testified that she had no access to the account, never saw the bank statements during the

marriage, and never went to the bank to withdraw or transfer money. Moreover, Syed’s

testimony that she never needed to spend money in the first year of the marriage because he or

his parents took care of all her expenses supports that she had little to do with the couple’s

finances. 7 Applying the appropriate standards of review, we conclude there is legally and

factually sufficient evidence to support the valuation of the estate.

Having concluded that there is sufficient evidence to support the presumption of

constructive fraud, a conclusion that Syed failed to rebut the presumption, and the district court’s

valuation of the community estate, we overrule Syed’s first three issues.

I-864 Issues

Syed argues in his fourth through sixth issues that the district court abused its

discretion by ordering him to pay Maheen $1,329 in support per month pursuant to his I-864

obligation and by awarding her a judgment of $47,269 for unpaid support.

Federal law generally makes an immigrant who “is likely at any time to become a

public charge” inadmissible to the United States. 8 U.S.C. § 1182(a)(4)(A). Family-sponsored

immigrants may gain admission if their sponsor signs an affidavit of support under Section

1183a. Id. § 1183. By signing the affidavit, known as a Form I-864, the sponsor agrees to

7 Syed argues in his reply brief that Maheen ignores that Iffat was also a signatory and could have made the transfers herself. But there is no evidence that Iffat made any withdrawals or transfers from the account. 13 maintain the immigrant beneficiary “at an annual income that is not less than 125 percent of the

Federal poverty line during the period in which the affidavit is enforceable.” Id.

§ 1183a(a)(1)(A). The form “is a legally enforceable contract between the sponsor and both the

United States Government and the sponsored immigrant.” Beringer v. Beringer,

No. 04-19-00097-CV, 2020 WL 1545797, at *1 n.1 (Tex. App.—San Antonio Apr. 1, 2020, no

pet.) (mem. op.) (citing Shumye v. Felleke, 555 F. Supp. 2d 1020, 1023 (N.D. Cal. 2008)). An

immigrant beneficiary may bring an action against the sponsor “in any appropriate court” to

enforce the sponsor’s support obligation. 8 U.S.C. § 1183a(e)(1). The statute specifies five

events that terminate the sponsor’s obligation, none of which have occurred here. 8

Supported by the Pleadings

Syed argues in his fourth issue that the pleadings do not support the award of

retroactive support because Maheen did not seek damages but only requested that the district

court order “specific performance.”

A trial court’s judgment must conform to the pleadings. Tex. R. Civ. P. 301. A

cause of action is sufficiently pleaded only if the petition gives “fair notice of the claim

involved.” Id. R. 47(a). The “key inquiry” is whether the opposing party “can ascertain from the

pleading the nature and basic issues of the controversy and what testimony will be relevant.”

Kinder Morgan SACROC, LP v. Scurry County, 622 S.W.3d 835, 849 (Tex. 2021). To meet this

8 The sponsor’s duty to support terminates when the immigrant beneficiary: (1) becomes a U.S. citizen, (2) works or receives credit for 40 qualifying quarters of coverage under the Social Security Act, (3) loses their status as a lawful permanent resident and departs the United States, (4) obtains in a removal proceeding a grant of adjustment of status as relief from removal, or (5) dies. See 8 U.S.C. § 1183a(a)(2)–(3); 8 C.F.R. § 213a.2(e)(2)(i). Divorce does not terminate the support obligation. See, e.g., Erler v. Erler, 824 F.3d 1173, 1176–77 (9th Cir. 2016); Yuryeva v. McManus, No. 01-12-00988-CV, 2013 WL 6198322, at *7 (Tex. App.— Houston [1st Dist.] Nov. 26, 2013, pet. denied) (mem. op.) (same). 14 standard, a “pleading must give fair notice not just of alleged facts, but ‘of the claim and the

relief sought such that the opposing party can prepare a defense.’” Montelongo v. Abrea,

622 S.W.3d 290, 300 (Tex. 2021) (quoting In re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015) (orig.

proceeding)). When, as here, no special exceptions are filed, we “liberally construe the petition

to contain any claims that reasonably may be inferred from the specific language used in the

petition.” Fontenot v. Fontenot, 667 S.W.3d 894, 905–06 (Tex. App.—Houston [14th Dist.]

2023, no pet.).

Maheen alleged in her amended petition that the parties separated in June of 2017

and that Syed “has refused and continues to refuse to support” her and asked the court to order

Syed to pay support “in accordance with the affidavit” and to grant her “specific performance.” 9

Syed argues that this does not support the judgment for retroactive support because this Court

has held that a request for specific performance does not support an award of money damages.

See Caruso v. Krieger, 698 S.W.2d 760, 762 (Tex. App.—Austin 1985, no writ) (“A prayer for

specific performance will not support a default judgment for compensatory damages.”). Caruso

does not control here. The plaintiff sued seeking specific performance of an earnest-money

contract and then made an oral trial amendment seeking money damages. Id. at 761. In addition

9 Syed argues that the “record clearly demonstrates that the parties did not request a trial amendment and the trial court did not grant one” and that it is “unclear” from his counsel’s statements “whether the parties agreed to a claim for retroactive I-864 support.” We understand him to mean that the agreement between counsel announced in court defines the scope of the triable issue rather than Maheen’s proposed amended petition. In announcing the agreement, Maheen’s counsel described the motion and the requirement that trial courts are to “freely” grant trial amendments to pleadings unless the opposing party demonstrates prejudice. See Tex. R. Civ. P. 66. Syed’s counsel stated that they had agreed to treat certain late-filed pleadings as “in effect, trial amendments, and that, therefore, [Syed] is acknowledging that we would not be able to satisfy to the Court that these amendments would prejudice him in maintaining his actions against the defenses.” The trial judge accepted the agreement and asked Maheen’s counsel to provide a copy of the amended petition that counsel filed with the motion for leave. We reject Syed’s argument that the trial court did not grant a trial amendment. 15 to asking for specific performance, Maheen asked the court to order Syed to support her “in

accordance with the affidavit,” in which she alleged he had failed to do since the parties

separated in 2017. Construed liberally, a request for a judgment for unpaid support may be

reasonably inferred from the language of her petition. See id. We conclude that the judgment is

supported by the pleadings.

We overrule Syed’s fourth issue.

Contract Defenses

Syed argues in his fifth issue that the district court erred by “refusing to apply

[his] contract defenses.” Specifically, Syed argues that the district court erred by rejecting his

request to apply offsets to the retroactive award and by concluding that Maheen had no duty to

mitigate her damages. See Brown v. American Transfer & Storage Co., 601 S.W.2d 931, 936

(Tex. 1980) (“The right of offset is an affirmative defense.”); Zimmerman Truck Lines, Inc.

v. Pastran, 587 S.W.3d 847, 862 (Tex. App.—El Paso 2019, no pet.) (“Failure to mitigate

damages is an affirmative defense.”). He contends those defenses apply because an action to

enforce an I-864 affidavit is a breach-of-contract action like any other. 10

We begin with Syed’s argument that he was entitled to offset the judgment for

unpaid support. He argues that the district court should have applied offsets for the spousal and

child support he paid Maheen while the divorce was pending and for the loans Maheen received

from her family during the same period but refused. Maheen responds that the district court

applied the only permissible offset, which is for support actually paid.

10 There is no dispute that Syed adequately pled both defenses. 16 We agree with Maheen. Syed began paying the temporary spousal support in

August 2020. The divorce decree states that the district court “finds and confirms that Syed

Kazmi is in arrears in the amount of forty-seven thousand six hundred twenty-nine dollars

($47,629.00) for the period of September 1, 2017 through September 1, 2020” and awards a

judgment in that amount. Syed argues that even if the judgment for unpaid support is only for

September 2017 to September 2020, he is entitled to a reduction for the support he paid in

August. The only evidence for that unpaid support is an itemized spreadsheet prepared by

Maheen stating that Syed owes a total of $47,629 in support for July 2017 to July 2020. There is

no evidence that that $47,629 awarded in the judgment includes the spousal support he paid in

August 2020.

We also agree that Syed was not entitled to additional offsets. To answer the

question of what offsets are allowed, we look to federal law. Although courts refer to an I-864

affidavit as a contract, e.g., Beringer, 2020 WL 1545797, at *1 n.1, the “statute and the

applicable regulation define the scope of the sponsors’ obligations,” Belevich v. Thomas,

17 F.4th 1048, 1051 (11th Cir. 2021), cert. denied, 142 S. Ct. 2754 (2022). The affidavit

“simply incorporate[s] statutory obligations and record[s] the [sponsors’] agreement to abide by

them.” Id. (citing Astra USA, Inc. v. Santa Clara County, 563 U.S. 110, 118 (2011) (alterations

in original)). The statute provides that the sponsor “agrees to provide support to maintain the

sponsored alien at an annual income that is not less than 125 percent of the Federal poverty line

during the period in which the affidavit is enforceable.” 8 U.S.C. § 1183a(a)(1)(A). “To

determine the appropriate damages, courts compare the plaintiff’s annual income for the

particular years at issue . . . against the 125% poverty threshold for each particular year.”

Younis v. Farooqi, 597 F. Supp. 2d 552, 554 (D. Md. 2009) (citing Shumye, 555 F. Supp. 2d at

17 1024). Thus, to determine whether Syed is entitled to additional offsets depends on what

constitutes “income.”

The statute does not define income, and courts have not followed a uniform

approach. See Flores v. Flores, 590 F. Supp. 3d 1373, 1380–81 (W.D. Wash. 2022) (citing cases

taking different approaches). Recently, several federal courts have looked to the definition in

8 C.F.R. § 213a.1:

Household income means the income used to determine whether the sponsor meets the minimum income requirements under sections 213A(f)(1)(E), 213A(f)(3), or 213A(f)(5) of the Act.

....

Income means an individual’s total income (adjusted gross income for those who file IRS Form 1040EZ) for purposes of the individual’s U.S. Federal income tax liability, including a joint income tax return (e.g., line 22 on the 2004 IRS Form 1040, line 15 on the 2004 IRS Form 1040A, or line 4 on the 2004 IRS Form 1040EZ or the corresponding line on any future revision of these IRS Forms).

8 C.F.R. § 213a.1(2) (2023). This regulation sets out definitions for use in connection with

evaluating affidavits of support. See id. Some federal courts refuse to apply Section 213a.1

because, in their view, it “applies only to determine whether a sponsor’s household income is

sufficient to sponsor an immigrant, not to calculate the sponsored immigrant’s income post-

separation.” Tsanev v. Tsanev, No. C21-1667-MLP, 2022 WL 3566759, at *6 (W.D. Wash.

Aug. 18, 2022). Without a statutory or regulatory definition, these courts interpret income

“expansively” to “include[e] the immigrant’s government benefits, educational grants, and

alimony, if any.” Ronchin v. Hoop, No. 19 C 3981, 2021 WL 4902456, at *3 (N.D. Ill.

Oct. 21, 2021); see Tsanev, 2022 WL 3566759, at *6 (citing other decisions taking expansive

approach). More recently, courts have applied Section 213a.1 even though it is not explicitly

18 applicable. See, e.g., Flores, 590 F. Supp. 3d at 1382 (deciding that “it makes sense to apply the

definition set forth in 8 C.F.R. § 213a.1”).

In deciding whether to apply this definition, we start with “the stated statutory

goal,” which is “to prevent the admission to the United States of any alien who ‘is likely at any

time to become a public charge.’” Wenfang Liu v. Mund, 686 F.3d 418, 422 (7th Cir. 2012)

(citing 8 U.S.C. § 1182(a)(4)(A)); see Beringer, 2020 WL 1545797, at *1 n.1 (“The sponsor’s

promise to maintain the immigrant is intended not only to protect the immigrant from poverty,

but to protect the government from a public burden.” (citation omitted)). Consistent with this

focus, the sponsor’s obligation of support terminates only if the immigrant becomes naturalized

or “has worked 40 qualifying quarters of coverage as defined under title II of the Social Security

Act or can be credited with such qualifying quarters.” 8 U.S.C. § 1183a(a)(2), (3)(A). Applying

Section 213a.1’s definition of income is consistent with that focus. Interpreting the term more

expansively has led courts to conclusions less consistent with the statutory purpose. See, e.g.,

Erler v. Erler, No. 12-CV-02793-CRB, 2017 WL 5478560, at *8–9 (N.D. Cal. Nov. 15, 2017),

aff’d, 798 Fed. Appx. 150 (9th Cir. 2020) (concluding that income from foreign pension funds

that immigrant beneficiary could not access constituted income); Toure-Davis v. Davis,

No. CIV.A. WGC-13-916, 2015 WL 993575, at *6 (D. Md. Mar. 4, 2015) (holding that third

party’s allowing immigrant beneficiary to sleep in basement in return for housecleaning services

constituted income).

In sum, Section 213a.1’s definition of income is consistent with the statutory text

and applying it furthers the goal of ensuring the immigrant beneficiary does not become a public

charge. In the absence of further guidance, we will apply Section 213a.1 in calculating a

sponsored immigrant’s income. See Flores, 590 F. Supp. 3d at 1382 (employing Section

19 213a.1); Sultana v. MD Safayet Hossain, 575 F. Supp. 3d 696, 699–700 (N.D. Tex. 2021)

(same); Fukita v. Gist, No. 20-CV-1869 (SRN/LIB), 2021 WL 288121, at *5 (D. Minn.

Jan. 28, 2021) (same).

Applying Section 213a.1, Syed is not entitled to an offset for his child support

payments because child support is not treated as taxable income. See 26 C.F.R. § 1.71-1T,

Q&A-15 (2023) (instructing that in computing taxable income, payment that is “payable for the

support of a child of the payor spouse . . . is not . . . includible in the income of the payee

spouse.”). That is consistent with the nature of Syed’s child support obligation. Unlike a

sponsor’s duty under a Form I-864 affidavit, a “parent’s duty of support, although often

characterized monetarily and used with terms like ‘arrearages,’ is not a debt owed to the other

parent.” Office of Atty. Gen. of Tex. v. Scholer, 403 S.W.3d 859, 866 (Tex. 2013). It is, rather,

“a legal duty arising out of the status of the parties.” Id. (citing Ex parte Hall, 854 S.W.2d 656,

658 (Tex. 1993)). The purpose of child support is not to provide a benefit to one parent but “to

help a custodial parent maintain an adequate standard of living for the child.” Williams

v. Patton, 821 S.W.2d 141, 145 (Tex. 1991). Both the nature and purpose of Syed’s child

support obligation indicate that Syed is not entitled to offset for his child support payments.

Syed relies on Naik v. Naik, 944 A.2d 713 (App. Div. 2008), to reach the contrary

result. The reviewing court there stated that when “the sponsor and sponsored immigrant are

married, alimony, child support (if any) and equitable distribution of income-producing assets

must be included in the sponsored immigrant’s available support.” Id. at 717. The basis for this

conclusion was language in Part 6 of Form I-864, which states that signing the form requires the

sponsor to provide the intended immigrant “any support necessary to maintain him or her at an

income that is at least 125 percent of the Federal Poverty Guidelines . . . .” Id. The court

20 construed this language to mean that the sponsor “is not necessarily required to pay the

sponsored immigrant 125 percent of the Federal Poverty Guidelines for the appropriate family

unit size” but is only obliged to pay the difference between the beneficiary’s actual income and

the statutory threshold. Id. at 718. While we do not disagree as a general matter, it does not

follow that any monetary payment received by the beneficiary necessarily counts as income. We

decline to follow Naik, and we conclude the district court did not err in concluding Syed’s child

support payments did not offset his support obligation. 11 See Younis, 597 F. Supp. 2d at 555

(concluding sponsor not entitled to offset for child support because child support is for benefit of

child and is not considered income for federal tax purposes).

Syed also contends that the district court should have applied an offset for

$36,960 Maheen received from her family between August 2017 and February 2019. He argues

those funds were gifts rather than nontaxable loans because there “was no formal paperwork and

there were no consequences for failing to repay them.” Generally, a “loan is not taxable income

when received because the taxpayer has an obligation to repay it.” Nath v. Commissioner of

Internal Revenue, T.C.M. (RIA) 2023-022 (T.C. 2023). The “conventional test” for a loan in the

taxation context “is to ask whether, when the funds were advanced, the parties actually intended

repayment.” Welch v. C.I.R., 204 F.3d 1228, 1230 (9th Cir. 2000). Maheen testified that she is

11 Syed also relies on Nwauwa v. Ugochukwu, No. 1:18-CV-1130-RP, 2019 WL 2077048, at *3 (W.D. Tex. May 10, 2019). Nwauwa, an immigrant beneficiary, sought a preliminary injunction to require the sponsor, Ugochukwu, to pay her I-864 support while their divorce negotiations were ongoing. Id. at *1. At the time, Ugochukwu was also paying $1,850 in monthly child support. Id. The district court concluded that Nwauwa had not met her burden to show a likelihood of success because she “provided no evidence to show that she receives less than $1,301 from Ugochukwu each year.” Id. at *3. The court mentioned the child support payments but also stressed evidence that he was making additional payments every two weeks since the separation. Id. Nwauwa does not support that child support payments offset payments under a Form I-864 affidavit. 21 expected to repay her family members, and the spreadsheet admitted into evidence reflects that

she has begun repayments. Syed presented no contrary evidence. On the record and arguments

before us, we conclude the district court did not abuse its discretion in refusing to apply an offset

for the money Maheen received from her family.

In sum, we conclude that the district court did not abuse its discretion by

refusing to apply offsets for temporary spousal support and the loans Maheen received from

family members.

We turn next to whether Maheen was obligated to mitigate her damages. “[T]he

doctrine of mitigation of damages . . . prevents a party from recovering for damages resulting

from a breach of contract that could be avoided by reasonable efforts on the part of the plaintiff.”

JCB, Inc. v. Horsburgh & Scott Co., 597 S.W.3d 481, 487 n.3 (Tex. 2019) (citing Great Am. Ins.

v. North Austin Mun. Util. Dist., 908 S.W.2d 415, 426 (Tex. 1995)). The district court concluded

that Maheen had no duty to mitigate and, in the alternative, that she fulfilled her duty. Syed

argues that Maheen had a duty to mitigate because “the I-864 affidavit is a contract” and Texas

law requires plaintiffs in contract suits to mitigate their damages. He also contends that

recognizing a duty to mitigate would further the statutory objective by encouraging sponsored

immigrants to support themselves. Maheen responds that we should follow the courts that have

concluded the statute imposes no duty to mitigate.

We agree with Maheen. Although Texas law imposes a duty to mitigate, the

question is whether requiring the sponsored immigrant to mitigate her damages is consistent with

the sponsor’s obligation as defined by statute. See Belevich, 17 F.4th at 1051 (“The statute and

the applicable regulation define the scope of the sponsors’ obligations . . . .”). The Seventh

Circuit declined to impose a duty to mitigate because none appeared in the statute. Wenfang Liu,

22 686 F.3d at 422–23. The court reasoned that the “most direct path” to the statute’s stated goal of

ensuring the immigrant does not become a public charge is to “impos[e] on the sponsor a duty of

support with no excusing conditions.” Id. at 422. Imposing a duty to mitigate would only

benefit the sponsor, and “it is not for his benefit that the duty of support was imposed.” Id. In

short, the court did not “see much benefit to imposing a duty to mitigate on a sponsored

immigrant” relative to the costs. See id. at 422–23. The cases Syed relies on, in contrast,

presume a duty to mitigate exists. See, e.g., Naik, 944 A.2d at 717 (stating without analysis that

“the sponsored immigrant is expected to engage in gainful employment, commensurate with his

or her education, skills, training and ability to work in accordance with the common law duty to

mitigate damages”); see also Asilonu v. Asilonu, 550 F. Supp. 3d 282, 293 (M.D.N.C. 2021)

(analyzing similar cases).

The Seventh Circuit’s approach is most consistent with statutory text and the

objective of preventing the admission of immigrants who might become a public charge. See

Belevich, 17 F.4th at 1053 (“The express purpose of this statutory scheme is to prevent

admission to the United States of any immigrant who ‘is likely at any time to become a public

charge.’” (citing 8 U.S.C. § 1182(a)(4)(A))). In the absence of guidance from a higher court, we

follow the Seventh Circuit and conclude there is no duty to mitigate. See Wenfang Liu, 686 F.3d

at 422–23; accord Asilonu, 550 F. Supp. 3d at 293–94 (concluding traditional defenses,

including mitigation, do not apply in I-864 context); Li Liu v. Kell, 299 F. Supp. 3d 1128, 1133

(W.D. Wash. 2017) (“The federal law underlying the I–864 Affidavit clearly specifies the

instances in which the support obligation can be avoided . . . . [n]one of the criteria are met by an

immigrant’s willful failure to seek employment.”); In re Marriage of Kumar, 220 Cal. Rptr. 3d 863,

872 (2017) (holding “that an immigrant spouse seeking to enforce the support obligation of an I–

23 864 affidavit has no duty to seek employment to mitigate damages.”); Zhu v. Deng, 794 S.E.2d 808,

812–13 (2016) (same).

We overrule Syed’s fifth issue.

Sufficiency of the Evidence

Syed argues in his sixth issue that there is insufficient evidence that Maheen’s

income fell below 125% of the poverty level. To fulfill his obligation, Syed would have had to

pay $1,256.25 per month from July 2017 to January 2019, $1,301.04 from January to December

2019, and $1,329.17 from January to July 2020, when he began paying temporary spousal

support. Maheen testified that she did not work after coming to the United States and needed to

borrow money from her family to make ends meet after separating from Syed. Syed casts doubt

on whether that support qualifies as loans because there was “no corresponding paperwork and

no consequence for nonpayment” but presents no new arguments regarding why those sums

constitute income for these purposes. We conclude there is legally and factually sufficient

evidence that Maheen’s income fell below the statutory threshold at all relevant times.

We overrule Syed’s sixth issue.

Standard Possession Order

Syed argues in his seventh issue that the district court abused its discretion by

deviating from the standard possession order.

“The best interest of the child shall always be the primary consideration of the

court in determining the issues of conservatorship and possession of and access to the child.”

Tex. Fam. Code § 153.002. There is a rebuttable presumption that the standard possession order

“provides reasonable minimum possession of a child for a parent named as a possessory

24 conservator or joint managing conservator” and “is in the best interest of the child.” Id.

§ 153.252. The trial court may deviate from the standard possession order if necessary for the

child’s best interest. See id. § 153.256; In re K.S., 492 S.W.3d 419, 429 (Tex. App.—Houston

[14th Dist.] 2016, pet. denied). In deviating from the standard possession order, the trial court

must consider “the age, developmental status, circumstances, needs, and best interest 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 § 153.256.

The standard possession order sets the minimum possessory rights of the parent

who does not have the right to establish the child’s primary residence. See id. § 153.312

(standard possession order for parents who live less than 100 miles apart). Section 153.317

provides that “the court shall alter the standard possession order” to allow for an expanded

period of possession “unless the court finds that the election is not in the best interest of the

child.” Id. § 153.317(a). Here, the district court found that the expanded possession order is not

in Z.K.’s best interest and that Syed will have possession under the standard possession order

until February 2026. It also modified the standard possession order regarding summer

possession. The standard possession order provides that upon proper notice to the other parent,

the conservator who does not establish the child’s primary residence shall have possession of the

child for thirty days during the summer, “to be exercised in not more than two separate periods

of at least seven consecutive days each, with each period of possession beginning and ending at

6 p.m. on each applicable day.” Id. § 153.312(b)(2)(A). Absent proper notice, the conservator

“shall have possession of the child for 30 consecutive days beginning at 6 p.m. on July 1 and

ending at 6 p.m. on July 31.” Id. § 153.312(b)(2)(B). The divorce decree provides that Syed

may not opt for expanded possession, and if Syed fails to give notice contemplated by Section

25 153.312(b)(2), he will have possession from July 1–July 8 and July 15–July 23 of each year

rather than for thirty consecutive days.

The district court made the following findings in support of its ruling:

a. The Court finds by a preponderance of the evidence that there is a history or pattern of family violence and rendered a possession order that is designed to protect the safety and welfare of the child and Syeda Kazmi, the victim of family violence pursuant to Tex. Fam. Code §§ 153.004(d)(1); (d-l).

b. The child’s very young age at the time the parties separated as well as at the time the divorce was granted.

c. The contemplated distance between the parties’ residence, which is necessary for the completion of Syeda Kazmi’s education, which the Court finds to be in the best interest of the child.

d. At the time of marriage Syed Kazmi knew that Syeda Kazmi would need to complete her education to obtain her medical license in the United States and relocate from Austin, Texas in order to do so.

e. The Court finds that that § 153.317 election is not in the best interest of the child until the child turns 8.

f. The Court finds that it is in the best interest of the child to deviate from the standard possession order presumption until the child turns 8 pursuant to Tex. Fam. Code § 153.252 (1) and (2).

Based on these findings, the district court concluded that the modified possession schedule “is

developmentally appropriate and in the best interest of the child.” Syed argues that the record

does not support the family-violence findings, the deviation from the standard possession order

“has no bearing” on the welfare of Maheen or Z.K., and the remainder of the record conclusively

shows that an expanded summer possession is in Z.K.’s best interest. Maheen argues that there

was sufficient evidence to support the district court’s ruling.

We agree with Maheen. Maheen testified at trial that Syed was physically and

sexually abusive until she permanently moved out of the marital residence; Syed denied the

26 abuse and Iffat testified to never observing any of it. Syed argues that Maheen’s testimony is not

credible but acknowledges that because “this Court has stated that it will not adjudge witnesses’

credibility or act as a second factfinder when reviewing custody determinations,” Syed is “stuck”

with the district court’s findings. He is correct that we must defer to the district court’s

determination that Maheen’s testimony was credible. See Altice, 668 S.W.3d at 410 (trier of fact

“is the sole judge of the credibility of witnesses and the weight to be given their testimony”);

4922 Holdings, 625 S.W.3d at 325 (reviewing court “may not pass upon the witnesses’

credibility or substitute our judgment for that of the fact finder”). Crediting her testimony as we

must, we conclude that the evidence is sufficient to support the district court’s finding by a

preponderance of the evidence that there is a history of family violence.

Even if Syed was correct that there is insufficient evidence to support the findings

of family violence, the record supports the others. Maheen testified Syed saw Z.K. “seven or

eight times” in the first year of his life. After the mediated settlement agreement, Syed began

building up to more possession time, beginning with supervised visits for six weeks, then to

two-hour unsupervised visits, and then to overnight stays on the weekends. Maheen testified that

Z.K. had trouble transitioning to Syed’s home for the unsupervised visits because he did not

know Syed very well. She also described concerns about eczema and rashes on Z.K. when he

returned from longer visits with Syed. The district court also considered Maheen’s testimony

that she may need to relocate from Austin to complete her education. Although Syed’s evidence

could support awarding an expanded standard possession schedule, that does not render the

evidence supporting the order legally or factually insufficient. See HouseCanary, Inc. v. Title

Source, Inc., 622 S.W.3d 254, 259 (Tex. 2021) (“A trial court does not abuse its discretion when

basing a decision on conflicting evidence.”).

27 We conclude sufficient evidence supports the district court’s departure from the

standard possession order and we overrule Syed’s seventh issue.

Child Support

Syed argues in his eighth issue that the district court abused its discretion

in awarding Maheen $14,975 in retroactive child support because the record supports a

lesser amount.

Upon proper request, a trial court shall grant a cumulative money judgment for

unpaid child support arrearages. Tex. Fam. Code § 157.263(b). “In calculating child-support

arrearages, the trial court’s discretion is very limited.” White v. White, No. 03-21-00323-CV,

2022 WL 2542004, at *2 (Tex. App.—Austin July 8, 2022, no pet.) (mem. op.) (citing Chenault

v. Banks, 296 S.W.3d 186, 189 (Tex. App.—Houston [14th Dist.] 2009, no pet.)). “The trial

court can award certain offsets and credits but has no discretion to forgive or decrease a past

child-support obligation.” Walker v. Walker, 642 S.W.3d 196, 211 (Tex. App.—El Paso 2021,

no pet.); see Tex. Fam. Code § 157.263(b-3).

The district court admitted a spreadsheet prepared by Maheen stating the support

Syed owed each month between February 2018 and January 2019. It states that Syed owed a

total of $18,720 for that period, had paid $3,745, and proposed a retroactive judgment of

$14,975. Syed argues that the district court abused its discretion by ignoring undisputed

evidence that he paid an additional $6,455.63 in support—mostly to cover Z.K.’s medical

expenses—during the child’s first year. As proof, he relies on his affidavit attached to his

motion for reconsideration. Maheen responds that we may not consider Syed’s affidavit because

28 it was not properly before the district court and, even if it was, that the district court was not

required to credit Syed for the additional support.

Syed’s affidavit is properly before us because Syed submitted it before the district

court rendered judgment and the district court made a finding of fact that it considered the

affidavit in rendering judgment. See In re Thetford, 574 S.W.3d 362, 365 n.7 (Tex. 2019) (orig.

proceeding) (“In determining whether a trial court abused its discretion, a reviewing court is

generally bound by the record before the trial court at the time its decision was made.”);

Iraan-Sheffield Indep. Sch. Dist. v. Kinder Morgan Prod. Co. LLC, 657 S.W.3d 525, 529 (Tex.

App.—El Paso 2022, pet. denied) (“An appellate court may only consider the record as it

appeared before the trial court at the time the court made the decision in question.”). But the

affidavit is not uncontradicted. Syed testified at trial that he provided only the child support

amounts listed in the spreadsheet. The district court implicitly resolved the conflict between

Syed’s testimony and the affidavit by concluding that his testimony was more credible, and we

defer to that determination. See Altice, 668 S.W.3d at 410 (trier of fact “is the sole judge of the

credibility of witnesses and the weight to be given their testimony”); 4922 Holdings, 625 S.W.3d

at 325 (reviewing court “may not pass upon the witnesses’ credibility or substitute our judgment

for that of the fact finder”). Applying the appropriate standards of review, we conclude there

is legally and factually sufficient evidence to support the judgment of $14,975 in retroactive

child support.

Finding no abuse of discretion, we overrule Syed’s eighth issue.

29 Payment Deadlines

Syed argues in his ninth issue that it was error to set payment deadlines that

predate the judgment. The district court signed the decree of divorce on March 7, 2022. The

decree provides that Syed’s obligation to pay monthly spousal and child support began on

March 1, 2021; payment of the attorney’s fees judgment was due September 1, 2021; his first

monthly payments on the child support, spousal support, and fraud judgments were due

October 1, 2021; and payment of the vehicle-repair award was due by December 31, 2021. Syed

argues that this was error because it made “compliance impossible and began the premature

accrual of interest.” Maheen responds that there was no error here because Syed was “well

aware that he was ordered to make support payments and monetary judgments after the oral

rendition of the ruling in February 2021, but chose not to do so.”

We agree with Syed. A court’s judgment is its announcement of the resolution

of the issues in a lawsuit and is rendered “when the trial court officially announces its decision

in open court or by written memorandum filed with the clerk.” S&A Rest. Corp. v. Leal,

892 S.W.2d 855, 857 (Tex. 1995). “A trial court renders judgment orally when it announces

rendition as a present act and not as an ‘intention to render judgment in the future.’” State

v. Naylor, 466 S.W.3d 783, 788 (Tex. 2015) (quoting Leal, 892 S.W.2d at 858). In the case of an

oral rendition, “the judgment becomes effective immediately; the signing and entry of the

judgment are only ministerial acts.” In re A.E.M., 455 S.W.3d 684, 694 (Tex. App.—Houston

[1st Dist.] 2014, no pet.) (citing Dunn v. Dunn, 439 S.W.2d 830, 832 (Tex. 1969)). The

judgment set the payment deadlines as if the district court’s announcement at the conclusion of

trial was an oral rendition of judgment. While the district court announced its resolution of the

main issues in the case and asked the parties to prepare a draft decree, it also stated that Syed

30 would not be required to satisfy the judgments immediately and asked the parties to include a

payment schedule in the draft decree. Even though the district court announced some of its

merits rulings, its words do not reflect an intent to render a “full, final, and complete” judgment

at that time. See Leal, 892 S.W.2d at 858. We therefore conclude the district court abused its

discretion by imposing payment deadlines based on the date of the oral announcement. We

sustain Syed’s ninth issue.

Vehicle Repair Award

Syed argues in his tenth issue that there is insufficient evidence to support the

vehicle repair award. The district court awarded Maheen the 2014 Chrysler and $2,220 for

“maintenance” of the vehicle. Syed argues that there is no evidence that the vehicle needed

maintenance. Maheen responds that her inventory, which the district court admitted into

evidence, “shows a negative value of $2,200.00 associated with the vehicle.” Another column,

however, reads “Need updated debt balance.” There is no evidence that the 2014 Chrysler

requires $2,220—or any amount—in maintenance.

Maheen argues that the district court’s “intent in awarding Maheen the vehicle

and the payment of $2,200.00 was to make her whole, whether or not it was associated with the

debt on the vehicle or maintenance for the vehicle.” As proof, she relies on an exchange during

the hearing on Syed’s motion to reconsider where Syed had challenged several aspects of

Maheen’s proposed decree. In response to a question from Syed’s counsel about the vehicle, the

trial judge stated that she “certainly intended that Mr. Kazmi take the debt on the car. If—if

there wasn’t a ruling on that, that was the intention of the Court.” Even if the trial judge

intended to require Syed to pay $2,200 to clear a debt on the vehicle, that intent does not control.

31 “A trial court’s oral pronouncements are often tentative, and a trial court is free to modify its oral

pronouncement in its written decision without hearing additional evidence.” Stillwell v. Stillwell,

No. 03-17-00457-CV, 2018 WL 5024022, at *6 (Tex. App.—Austin Oct. 17, 2018, pet. denied)

(mem. op.). Consequently, if there is an inconsistency between the trial court’s oral

pronouncement at the hearing and its subsequent written judgment, the written judgment

controls. See id.; Heritage Gulf Coast Props., Ltd. v. Sandalwood Apartments, Inc., 416 S.W.3d

642, 657 (Tex. App.—Houston [14th Dist.] 2013, no pet.). Maheen may not rely on the trial

judge’s oral pronouncement to modify the award of $2,220 for maintenance. See Stillwell, 2018

WL 5024022, at *6; Heritage Gulf Coast Props., 416 S.W.3d at 657.

We conclude the district court abused its discretion by awarding Maheen $2,220

for maintenance of the vehicle without evidence that it required maintenance. We sustain Syed’s

tenth issue.

Attorney’s fees

Syed argues in his eleventh issue that the district court abused its discretion

because there is insufficient evidence to support the full award of $53,255.70 in attorney’s fees.

He contends that the record supports an award of $26,547.45. See Tex. Fam. Code § 106.002

(“In a suit under this title, the court may render judgment for reasonable attorney's fees and

expenses . . . .”).

When a litigant “wishes to obtain attorney’s fees from the opposing party, the

claimant must prove that the requested fees are both reasonable and necessary.” Rohrmoos

Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 489 (Tex. 2019). Both elements are

questions of fact to be determined by the trier of fact. Id. The trier of fact first “determine[s] the

32 reasonable hours spent by counsel in the case and a reasonable hourly rate for such work” and

“then multiplies the number of such hours by the applicable rate, the product of which is the base

fee or lodestar.” Id. at 494 (citing El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 760 (Tex. 2012)).

Sufficient evidence “includes, at a minimum, evidence of (1) particular services performed,

(2) who performed those services, (3) approximately when the services were performed, (4) the

reasonable amount of time required to perform the services, and (5) the reasonable hourly rate

for each person performing such services.” Id. at 498. The base lodestar calculation, when

supported by sufficient evidence, is presumed to “reflect[ ] the reasonable and necessary

attorney’s fees that can be shifted to the non-prevailing party.” Id. at 499.

Maheen’s counsel, Carlos Salinas, testified in support of her request for fees, and

the district court admitted a spreadsheet prepared by Salinas reflecting Maheen’s current and

anticipated fees and costs with attached invoices. The spreadsheet lists a gross amount of

$55,755.70 in fees and expenses (representing $53,255.70 in attorney’s fees and a $2,500 expert

witness fee) and states that Syed had paid $13,000 and that there was $42,755.70 remaining.

Salinas testified that the spreadsheet is accurate and that his fees are reasonable. Syed argues

that the district court should have reduced the award by $13,000 and that Maheen failed to

establish that $11,456.25 of the remaining fees were reasonable and necessary. Maheen

responds that we must uphold the entire award because the district court could have considered

the “entire record and the common knowledge of the participants as lawyers and judges.” See

In re Moore, 511 S.W.3d 278, 288 (Tex. App.—Dallas 2016, orig. proceeding). Thus, it is a

“reasonable inference to draw from the record is that the trial court was familiar with the rates

and reasonableness of fees.” See id.

33 We agree with Syed. Maheen relies on authorities where the reviewing court

stated that, in addition to evidence provided by the claimant, the trial court may also consider the

entire record and the common knowledge of the lawyers and judges in evaluating a request for a

specific amount of fees. See, e.g., In re Moore, 511 S.W.3d at 285 (party moved for $52,500 in

fees); Keith v. Keith, 221 S.W.3d 156, 170 (Tex. App.—Houston [1st Dist.] 2006, no pet.)

(party’s attorney testified that his contingent appellate fees would be “in the vicinity of

$20,000”). While Maheen initially sought $55,755.70 in fees and expenses, her attorney testified

at trial that he was only owed $42,755.70 because Syed had already satisfied $13,000 of the

gross amount. There is no evidence that Maheen owed her counsel $53,255.70 following that

payment. Although trial courts may “draw on their common knowledge and experience as

lawyers and as judges in considering the testimony, the record, and the amount in controversy in

determining attorney’s fees,” McMahon v. Zimmerman, 433 S.W.3d 680, 693 (Tex. App.—

Houston [1st Dist.] 2014, no pet.), that does not permit a court to increase an award of fees with

no support in the record, 12 see Rohrmoos Venture, 578 S.W.3d at 501–02.

We reach the same conclusion regarding Syed’s challenge to the $11,456.25 in

fees and expenses. The spreadsheet prepared by Salinas states the name of each attorney who

worked on the case, their hourly rate, the total hours of work performed and fees incurred,

12 Maheen also argues that Salinas’ testimony could have been conclusory because Syed had an opportunity to cross-examine him but did not. She cites Garcia v. Gomez, where the supreme court held that an attorney’s cursory testimony that his fee was reasonable is “some evidence” to support the fee because “the opposing party, or that party’s attorney, likewise has some knowledge of the time and effort involved and if the matter is truly in dispute, may effectively question the attorney regarding the reasonableness of his fee.” 319 S.W.3d 638, 641 (Tex. 2010). The supreme court later explained that Garcia arose in a different context and “should not be read, in any way, as a guiding statement on the standard for whether evidence is legally sufficient to support a fee-shifting award of attorney’s fees.” Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 497 (Tex. 2019); see El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 762 (Tex. 2012) (also distinguishing Garcia). 34 broken down by each month. Maheen attached redacted invoices containing descriptions of the

work and who performed it, the timekeeper, the hours worked, when the work was completed,

and the total amount due. Maheen included invoices for every month reflected in the spreadsheet

except for January and February of 2021, a total of $11,465.25 in fees for which there was no

descriptive invoice. The only evidence supporting the reasonableness and necessity of those fees

is the spreadsheet and Salinas’s testimony, neither of which detail the services performed or what

constitutes a reasonable time to perform those services. We conclude the evidence is legally

insufficient to support the award of $11,465.25 in fees for January and February of 2021. See

El Apple I, 370 S.W.3d at 763 (overturning fee award because neither attorney who testified

specified “how the 890 hours they spent in the aggregate were devoted to any particular task or

category of tasks”).

In sum, we conclude there is insufficient evidence to support $24,465.25 of the

$53,255.70 in attorney’s fees and expenses. “[W]hen there is some evidence of damages, but not

enough to support the full amount, it is inappropriate to render judgment.” Akin, Gump, Strauss,

Hauer & Feld, L.L.P. v. National Dev. & Research Corp., 299 S.W.3d 106, 124 (Tex. 2009). In

such a case, “we may either suggest a remittitur or remand to the trial court for a new trial.”

DeNucci v. Matthews, 463 S.W.3d 200, 215 (Tex. App.—Austin 2015, no pet.). “The party

prevailing in the trial court should be given the option of accepting the remittitur or having the

case remanded.” Larson v. Cactus Util. Co., 730 S.W.2d 640, 641 (Tex. 1987). Accordingly,

we suggest a remittitur of $24,465.25. We therefore reform the award of attorney’s fees to

$28,799.45 conditioned on Maheen filing a remittitur within thirty days of the date of this

opinion. See Tex. R. App. P. 46.3 (“If the remittitur is timely filed, the court must reform and

35 affirm the trial court’s judgment in accordance with the remittitur. If the remittitur is not timely

filed, the court must reverse the trial court’s judgment.”). We sustain Syed’s eleventh issue.

CONCLUSION

We reverse the award of $2,220 for maintenance of Maheen’s vehicle and render

judgment that she take nothing on that claim; we reform the award of attorney’s fees to

$28,799.45 conditioned on Maheen filing a remittitur within thirty days of this opinion and, as

reformed, affirm the judgment except for the payment deadlines. If no remittitur is filed, we will

reverse the district court’s award of attorney’s fees and remand for a new trial on that issue. We

reverse the portion of the decree setting payment deadlines that predate the signing of the decree

and remand for the district court to set new deadlines.

__________________________________________ Rosa Lopez Theofanis, Justice

Before Chief Justice Byrne, Justices Triana and Theofanis

Reformed and, as Reformed, Affirmed in Part; Reversed and Rendered in Part; Reversed and Remanded in Part

Filed: November 17, 2023