Elmakiss v. Elmakiss (Published Memo): Divorce case with good run-down of conservatorship and possession standards, as well as the hurdles for making a reimbursement claim.
Conservatorship: In a bench trial, the mother, Ruth, overcame the presumption in favor of joint managing conservatorship. She was named the sole managing conservator of their now ten year old child. The court-appointed psychologist appears to have played a big role in the trial court’s decision and the Tyler court’s affirmation.
The father, Yakov, was appointed the possessory conservator. The Tyler court affirms. The evidence showed that the parents had difficulty making joint decisions. On the element of encouraging a positive relationship, the Tyler court found that: “Yakov turned down opportunities to spend more time with his child and was openly hostile to Ruth and any positive outreaches she made to him for the benefit of his relationship with [the child].” Thomas Allen was the psychologist appointed by the trial court. The Tyler court recounted Allen’s testimony that: “[Yakov] was quick to become tearful and upset, a not uncommon way to displace guilt onto a child.” Allen recommended that Ruth be the sole managing conservator. Based in part on Allen’s testimony, the Tyler court found that there was no abuse of discretion in the trial court’s decision.
Possession: In addition to going against the presumption in favor of joint managing conservatorship, the trial court went against the presumption in favor of the standard possession order. By his own admission, most of Yakov’s visits with the child consisted of watching movies on an in-car video system, either at the lake or at a Dairy Queen. That doesn’t address the child’s developmental status or needs. They didn’t go to Yakov’s house because, apparently, he didn’t have one. Allen, the psychologist, testified that Yakov had hold him that he was living in a trailer parked at a friend’s house. The trailer did not have running water or a toilet. What’s more, Yakov asked the child to keep secrets from the mother, including the fact that a dog had bitten the child during one of the visits. And Ruth’s testimony counts too. When assessing the trial court’s decision, the Tyler court considered Ruth’s testimony that Yakov was an “emotional bully” in his dealings with the child. Taken together, the trial court didn’t abuse its discretion by imposing visitation restrictions in excess of the standard possession order.
For the property and child support issues:Continue Reading…