Sheikh v. Sheikh, No. 01-05-00218-CV (Tex. App. 11/1/2007)
| Decision Date | 01 November 2007 |
| Docket Number | No. 01-05-00218-CV.,01-05-00218-CV. |
| Parties | WASIM AHMED SHEIKH, Appellant, v. SHAMA SHEIKH, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from 311th District Court, Harris County, Texas, Trial Court Cause No. 2004-02532.
Panel consists of Justices TAFT, HANKS, and HIGLEY.
Appellant, Wasim Ahmed Sheikh, appeals from a decree of divorce dissolving the marriage between himself and appellee, Shama Sheikh. That decree divided the parties' property, made an owelty award to Shama, and also awarded Shama $330,000 in separate tort damages for assault and fraud on her person by Wasim. We determine whether the trial court abused its discretion (1) in dividing the marital estate as it did and (2) in awarding tort damages to Shama. We affirm.
Wasim and Shama married in Pakistan in March 1985. The couple moved to New York City in 1989, where Wasim began his residency and eventually worked in a hospital emergency room. Shama did not work outside the home. They had three children, who were 13, 14, and 17 years old at the time of trial in October 2004. The family moved to Houston in 1999. Wasim continued his emergency-room work out of town part of the week and maintained a private practice, which he began in 2001, in Houston the rest of the week.
Shama presented evidence that, throughout their entire marriage, Wasim sexually and physically assaulted her, sometimes in front of the children, and also physically abused the children. She also presented evidence that, over a 10-year period, Wasim did not report as income large sums of cash that he earned through various means and that, against her will, he sent $2,090,000 of this cash to his extended family living in Virginia and in Pakistan. She also presented evidence that Wasim committed adultery before they were separated. Wasim denied these allegations and produced controverting evidence.
The couple separated in December 2003, after Wasim assaulted and choked Shama until she blacked out. On January 21, 2004, Shama applied for (and quickly obtained) protective orders to protect her and the children from Wasim and filed suit for divorce, eventually alleging insupportability, cruel treatment by Wasim, and Wasim's adultery as grounds.1 She sought a disproportionate division of community property, alleging in support, among other grounds, Wasim's fault in the break-up, his fraud on the community, his wasting of community assets, and gifts that he had made during the marriage. Shama also asserted the following as tort claims: assault, intentional infliction of emotional distress, breach of fiduciary duty, actual and constructive fraud, waste of assets, fraudulent transfers of community property, economic duress, monies had and received, and conversion. Shama sought actual and exemplary damages; an equitable accounting; an audit from Wasim and of Highland Medical Center, P.A.; a receivership of Sheik & Sheik Investments, Inc. and Al-Karim International, Inc.; and costs and attorney's fees. Wasim counter-petitioned for divorce, alleging cruel treatment by Shama.
The case was tried to the court in October 2004. The trial court rendered its first decree in December 2004. Wasim moved for new trial, which the trial court denied in all aspects except for one that is not relevant to Wasim's complaints on appeal. Thereafter, in March 2005, the trial court vacated the December 2004 decree and rendered a new final decree. In its March 2005 final decree, the trial court, among other things, (1) divided the marital estate disproportionately; (2) awarded Shama an owelty judgment of $632,000 to equalize the property division;2 (3) awarded Shama $ 330,000 in actual damages against Wasim on her claims of assault and actual fraud against her personally; (4) denied Shama's request for exemplary damages; (5) denied her claim for intentional infliction of emotional distress; (6) and denied all relief not expressly granted. The trial court entered original and supplemental findings of fact and conclusions of law. Wasim appeals.
Findings of fact in a case tried to the court have the same force and dignity as a jury's verdict upon jury questions. City of Clute v. City of Lake Jackson, 559 S.W.2d 391, 395 (Tex. Civ. App.-Houston [14th Dist.] 1977, writ ref'd n.r.e.). The trial court's findings of fact are not conclusive when, as here, we have a complete reporter's record.Middleton v. Kawasaki Steel Corp., 687 S.W.2d 42, 44 (Tex. App.-Houston [14th Dist.] 1985),writ ref'd n.r.e., 699 S.W.2d 199 (Tex. 1985). The trial court's findings of fact are reviewable for legal- and factual-sufficiency of the evidence using the same standards that are applied in reviewing the sufficiency of the evidence underlying jury findings. Vannerson v. Vannerson, 857 S.W.2d 659, 667 (Tex. App.-Houston [1st Dist.] 1993, writ denied). In contrast, we review conclusions of law de novo. See BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002).
When, as here, an appellant attacks the legal sufficiency of an adverse finding on an issue for which he did not have the burden of proof, he must demonstrate that there is no evidence to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). Such a no-evidence challenge will be sustained when "`(a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact.'" King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).
In our legal-sufficiency review, "we must view the evidence in a light that tends to support the finding of disputed fact and disregard all evidence and inferences to the contrary." Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 2003). Nonetheless, City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).
In reviewing a factual-sufficiency challenge to a fact finder's finding on an issue on which the appellant did not have the burden of proof, we consider and weigh all of the evidence and set aside the judgment only if the evidence that supports the challenged finding is so weak as to make the judgment clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We must examine both the evidence supporting and that contrary to the judgment. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989).
The fact finder is the sole judge of witnesses' credibility and the weight to be given their testimony, and the fact finder may choose to believe one witness over another. Wilson, 168 S.W.3d at 819 (legal sufficiency); Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003) (factual sufficiency). Because it is the fact finder's province to resolve conflicting evidence, we must assume that the fact finder resolved all evidentiary conflicts in accordance with its decision if a reasonable human being could have done so. See Wilson, 168 S.W.3d at 820 (legal sufficiency); Jackson, 116 S.W.3d at 761 (factual sufficiency). An appellate court may not impose its own opinion to the contrary of the fact finder's implicit credibility determinations. Wilson, 168 S.W.3d at 819 (legal sufficiency); Jackson, 116 S.W.3d at 761 (factual sufficiency).
In 14 issues, Wasim argues that the trial court abused its discretion in dividing the parties' marital property.
"In a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage." Tex. Fam. Code Ann. § 7.001 (Vernon 2006). "The trial court may make an unequal division of the marital property if there is a reasonable basis for doing so." O'Connor v. O'Connor, No. 01-06-00445-CV, 2007 WL 1440990, at *6 (Tex. App.-Houston [1st Dist.] May 17, 2007, no pet.). "The division of property must not be so disproportionate as to be inequitable, and the circumstances must justify awarding more than one-half to one party." Hailey v. Hailey, 176 S.W.3d 374, 380 (Tex. App.-Houston [1st Dist.] 2004, no pet.). Some factors that courts have identified as relevant to division of the marital estate include (1) the parties' education; (2) their relative earning capacities; (3) the size of their separate estates; (4) the community property's nature; (5) the parties' age, health, and physical condition; (6) any fault in breaking up the marriage; (7) the benefits that the innocent spouse would have derived from the marriage's continuation; and (8) the probable need for future support. Id. at 380 & n.5. The court may also consider in its property division (1) any attorney's fees that it may decide to award either party and (2) the parties' own use of community funds to pay their attorney's fees. Grossnickle v. Grossnickle, 935 S.W.2d 830, 846-47 (Tex. App.-Texarkana 1996, writ denied).
It was Shama's burden to show that Wasim transferred community property; if she carried that burden, then it became Wasim's burden to show the transfer's fairness....
To continue reading
Request your trial