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Smith v. Payandeh

Court of Appeals of Texas, First District

June 20, 2019


          On Appeal from County Court at Law No. 2 Galveston County, Texas Trial Court Case No. 17-FD-2098

          Panel consists of Justices Keyes, Higley, and Landau.


          Laura Carter Higley Justice

         Sherry Antoinette Smith, acting pro se, appeals the divorce decree dissolving the marriage between her and Mohammad Hamid Payandeh. In two issues, Smith contends the trial court abused its discretion in granting Payandeh the exclusive right to designate the primary residence of the parties' child, Z.K.P., and she asserts that the trial court misinterpreted the effect of her invocation of her Fifth Amendment right against self-incrimination during trial.[1]We affirm.


         Smith and Payandeh were married in September 2014, and Z.K.P. was born on September 9, 2015. Smith also has four children from prior relationships, who lived with the couple.

         Payandeh and Smith separated in January 2017 and began living in separate residences. Z.K.P. lived with Payandeh but would go to Smith's home for visitation. Payandeh would later testify that, on July 31, 2017, he went to Smith's home to pick up Z.K.P. from a visit. One of Smith's other children opened the door and let Payandeh in the apartment. Payandeh then saw that Smith was smoking "kush," an illegal substance.

         Smith filed a petition for divorce in early August 2017. She requested to be named Z.K.P.'s sole managing conservator and the conservator with the right to designate Z.K.P.'s primary residence. She requested that Payandeh's possession of Z.K.P. be limited because she believed that he would attempt to take Z.K.P. out of the country. Payandeh filed a counterpetition, requesting "full custody" of Z.K.P. until the divorce was finalized.

         The trial court signed temporary orders in September 2017 in which Payandeh and Smith were appointed Z.K.P.'s joint managing conservators. However, Smith was not permitted to have overnight possession of Z.K.P. She was given possession odd-week Fridays and Sundays from 9 a.m. to 5 p.m. and from 6 p.m. to 8 p.m. on Thursdays. Payandeh had possession of Z.K.P. at all other times.

         The trial court conducted a bench trial in March 2018 with the parties presenting evidence relating to issues of conservatorship, possession, and child support. Payandeh requested that he be named the managing conservator who would establish Z.K.P.'s primary residence, and he requested that Smith's possession of Z.K.P. be limited to daytime visits as they had been under the temporary orders.

         Payandeh testified that he is originally from Iran and had immigrated to the United States in 1984. He stated that he served as an officer in the United Sates Navy, and he is a permanent resident of the United States. During Payandeh's testimony, it was pointed out that Smith had expressed concern that Payandeh would attempt to take Z.K.P. to Iran. When asked about this, Payandeh stated that he cannot return to Iran under Iran's current regime because of his service as an officer in the United States Navy. Payandeh also testified that neither he nor Z.K.P. has a passport. He said that he has no plans to get a passport for Z.K.P. When asked, Payandeh said that he had no problem with the trial court enjoining him from taking Z.K.P. out of the United States.

         Payandeh stated that he works for the Galveston transit authority, driving bus and the city trolley. He earns between $600 and $1, 000 per week. While Payandeh works, Z.K.P. attends daycare. Payandeh's mother also lives with him and helps cares for Z.K.P.

         In addition, Payandeh's neighbor testified at trial. She stated that she is a friend of Payandeh, sees Z.K.P. every day, and babysits Z.K.P. when needed. She said she is a stay-at-home mom, who is available anytime to help with Z.K.P.

         Payandeh testified that he had concerns for Z.K.P.'s safety when the child was in Smith's possession. Payandeh stated that, on July 31, 2017, he went to Smith's apartment to pick up Z.K.P. from visitation. He said that, when Smith did not answer phone, one of Smith's children let him in the apartment. When he entered, Payandeh saw signs that Smith had been smoking "kush." Payandeh saw Smith exiting the bathroom with an ashtray containing a blunt. Smoke was coming out of the bathroom behind Smith, and she was spraying deodorizer. Payandeh said Smith looked like she had just gotten out of bed. He testified that he had seen Smith smoke the illegal substance other times as well. Payandeh stated that he was also concerned about Smith's brother, who comes to Galveston on the weekends. Payandeh said that he has seen the brother in possession of kush and has seen Smith and her brother smoke the drug. Payandeh indicated that he continues to see the brother's car in front of Smith's residence.

         Payandeh also testified that he was concerned about who cares for Z.K.P. when he is in Smith's possession. He stated that he knew "for a fact that [Smith] runs the streets. The minute somebody calls, she's going to be out there running to the bars." Payandeh testified that he has seen Smith leaving bars at night when he he has been driving the trolley, and he indicated that Smith had a history of going out to drink when he lived with her.

         Payandeh said that he was concerned that Smith left the children unsupervised when she was not home. Smith's four children from prior relationships were ages 16, 14, 11, and 9 at the time of trial. Payandeh said that Smith would leave the younger children in the care of her two teenage daughters, but the daughters would not stay at home to watch the younger children, leaving them unattended.

         Payandeh explained that Smith's 11-year-old son, S.M., has autism and requires supervision. Payandeh said that he had safety concerns related to S.M. being unsupervised. He testified that S.M. does not understand the concept of safety. He explained that S.M. tries to cook but does not know how to cook safely. Payandeh's testimony indicated that he was concerned that S.M.'s cooking may start a fire. Payandeh stated that S.M. has a history of turning on the stove and then leaving. Payandeh also recalled that S.M. had "burned down" six or seven microwaves, filling the house with smoke.

         Police reports were also admitted into evidence. One report showed that, two months before trial, Smith's 14-year-old daughter had been picked up by police at 1:00 a.m. while riding in a car driven by a 14-year-old unlicensed driver along with six other 13 and 14-year old juveniles. Another police report, dated one month before trial, stated that Smith's 14-year-old daughter, along with two teenage friends, was reported to have attacked another teenage girl. The report stated that Smith had driven her daughter and the two friends to the location where they attacked and assaulted the girl. Smith had waited in the car during the assault and n had then driven her daughter and her two friends away from the scene.

         Payandeh also testified that Smith had a history of disappearing for periods of time. He said that, at least three times a year, Smith would say that she was "done with the kids." She would leave and fly to different locations, such as Ohio or Virginia, and be away for one or two weeks. He testified that, after they had separated, Smith went to Pennsylvania in June 2017. When asked who babysat Smith's four children while she was gone, Payandeh responded, "The four children, they were just at the house by themselves. Neighbors. I would stop, bring food, send food. They would call me. Until she put a stop to it, the kids were still calling me at that time; and she told them to stop communicating with me."

         Payandeh also testified that Smith prioritizes spending money on items such as makeup and getting her nails done before buying food for her children. He said that Smith's children would call him, "saying there was no food, so I would send them pizza and food." Payandeh reported his concerns regarding Smith's children to CPS, but the agency "ruled out" the report after speaking with Payandeh and Smith.

         Two other police reports show that Smith made unfounded allegations of abuse against Payandeh. Smith reported to police that, when she got Z.K.P. from Payandeh for a visit, Z.K.P. had a burn mark on his leg. The report indicated that the mark was not a burn but a bug bite that Z.K.P. had scratched. The police report noted that a call to CPS had determined that Smith had been making unfounded allegations against Payandeh to that agency as well. The report stated that the investigating police officer spoke with a CPS investigator who told him that Smith had recently "lost custody" of Z.K.P. and that the child was staying with Payandeh. The CPS investigator told police that Smith had made a report to CPS against Payandeh that was determined to be false. The CPS investigator indicated that the making of false reports was "an ongoing problem they have with [Smith]."

         Another police report shows that Smith made an unfounded allegation that Payandeh had sexually abused Z.K.P. The report indicates that, after Smith made the allegation, she was directed to take Z.K.P. to the hospital. The police report states that "Smith was . . . making blind accusations of Sexual Abuse and insisted that UTMB perform a SANE exam, an intrusive exam used to collect biological evidence of sexual assault." The investigating police officer reported that he spoke with the attending physician at the hospital and that the doctor had "advised that there was no physical evidence of sexual abuse and it was his recommendation not to perform a SANE exam." The investigating officer also spoke to Payandeh who said that he believed that Smith had made the allegation "because earlier in the day, [Payandeh] was awarded full ...

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