Awad, Suleiman Ibrahim v. Rasmussen-Awad, Diana ( 2004 )

Affirmed and Memorandum Opinion filed April 8, 2004

Affirmed and Memorandum Opinion filed April 8, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-02-01142-CV

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SULEIMAN IBRAHIM AWAD, Appellant

V.

DIANA RASMUSSEN-AWAD, Appellee

On Appeal from the 310th District Court

Harris County, Texas

Trial Court Cause No. 01-51663

M E M O R A N D U M   O P I N I O N

Appellant Suleiman Ibrahim Awad appeals from a divorce proceeding between Suleiman and his ex-wife, appellee Diana Rasmussen-Awad.  In three issues, Suleiman contends the trial court abused its discretion (1) in failing to file findings of fact and conclusions of law, (2) in characterizing certain real property as community property, and (3) in its division of the community estate.  We affirm.

Background

After almost 10 years of marriage, Diana filed for divorce in October of 2001. The separate property right at issue in this case is Diana=s interest in real property she acquired prior to her marriage to Suleiman.  The property located at 6815 Feather Creek, Houston, Texas (AFeather Creek property@) was valued by Diana at $68,000.00.  It is undisputed that the Feather Creek property was Diana=s residence prior to her marriage to Suleiman.  She and Suleiman, along with her children from her first marriage, lived in the house for a couple of years after they married. Diana and Suleiman subsequently moved into an apartment.

After they were married, Suleiman started ABBE, Inc., a valet company and taxi service. Diana worked for Suleiman=s business running errands.  She did not get paid by Suleiman for the work she did for his business. Prior to marrying Suleiman, Diana had received approximately $500,000 as a result of a million dollar settlement of a lawsuit.  She gave approximately $20,000 to Suleiman to help him start his business, and some of the settlement funds also were used for their shared living expenses. Otherwise, none of the funds were left by the time of the divorce proceeding.

Diana testified that she and Suleiman discussed buying a house together.  They agreed that they would sell the Feather Creek property in order to have a larger down payment to apply to the purchase of a new home.  Diana testified that she had to force her children to sign the cash warranty deeds transferring the Feather Creek property to Suleiman because they did not want to transfer the property to him.  Diana further testified that Suleiman pushed her to have her children sign the deeds transferring the property to him.  She testified that she eventually signed the deed at Suleiman=s insistence so they could afford to buy a new house. Diana further testified that Suleiman said the house would be in his name only because she did not have good credit. All of Diana=s children ultimately signed the deeds, except for Caroline, whose signature Diana forged.  Two of her children, Cynthia and Alex, testified at trial (either as live witnesses or by deposition).  Cynthia said that she signed the deed so that her mother could sell the Feather Creek property, her mother and Suleiman could buy another house together, and her grandmother could receive some financial assistance to help with bills.  Cynthia testified that she thought she was transferring her interest in the Feather Creek property to her mother and the house would be hers and Suleiman=s.  She further testified that she did not want Suleiman to have the home, and that when she asked her mother why only Suleiman=s name was on the deed, her mother said it was because Suleiman handled Aall of the transactions on behalf of them.@  Suleiman and Diana never bought a house together.  Suleiman recorded the deeds on October 1, 2001.  Diana testified that Suleiman did not give her any consideration for the deeds and that she did not owe him any money.

Suleiman testified that he posted bail for Diana=s children to get out of jail, paid for funeral expenses for Diana=s deceased aunt, paid the down payment and a note on a car driven by her daughters, paid for repairs on the vehicle after her son had an accident in it, and paid for taxes on the home of Diana=s aunt in Ohio.  There was conflicting testimony about whether Suleiman was repaid for these expenditures. Suleiman also disputed that Diana had given him $20,000 of her settlement proceeds.  Diana testified that, after the court entered an injunction as part of its temporary orders enjoining the parties from incurring additional debt, she incurred additional debt on credit cards in Suleiman=s name in the approximate amount of $2,000 for clothes. The record also reflects that Suleiman paid some of the mortgage payments on the Feather Creek property. After the parties separated, Diana leased the Feather Creek property.

Diana testified that Suleiman=s abuse instigated her filing for divorce.  She testified in detail about an assault on her on Labor Day of 2001.  The police were called to that disturbance, and Suleiman was arrested and, according to Diana, charged with family disturbance and assault.   Although Suleiman disputed the medical care sought by Diana after this incident, Diana testified that she sought treatment, first at Ben Taub hospital and later on an outpatient basis at a clinic.  She was prescribed various medications, including antidepressant, anti-anxiety, and high blood pressure medications, and began a course of therapy still ongoing at the time of trial.  Diana also testified that this was not the first instance of abuse by Suleiman.

At trial in July of 2002, questions were submitted to the jury regarding whether each spouse had committed assault on the other spouse and was entitled to damages and whether Suleiman had committed fraud with respect to the separate property rights of Diana.  Although the jury found that both spouses committed assault, they found that neither Diana nor Suleiman suffered any damages as a result of the assaults.

In the final divorce decree entered by the trial court, the court found that the Feather Creek property was community property.  The trial court awarded Diana the Feather Creek property as her separate property.  The trial court also awarded Diana the following three automobiles:  (1) 1997 Lincoln Town Car, (2) 2000 Mercedes-Benz S500, and (3) 1997 Volkswagen Jetta.  The court awarded Diana all cash in accounts in her name, as well as any interest in any notes, receivables, loans, or advances to or indebtedness from Sam Jamus and Steve Martin.^[1]  The trial court awarded Suleiman the following as his separate property: (1) money in accounts belonging to Suleiman or ABBE, Inc., (2) stock or securities in his name or Diana=s name in ABBE, Inc., (3) all ownership interest in his name or Diana=s name in ABBE, Inc. or ABBE Valet, including all property used in connection with the business; (4) six automobiles, including four Mercedes-Benz vehicles, a Lincoln, and a Pontiac; and (5) a life insurance policy.

The trial court ordered Diana to pay the balance of the note on the Feather Creek property, as well as the balance of the notes on the vehicles awarded to her. The trial court further ordered Diana to pay the balances on four credit cards in her or Suleiman=s name. The trial court ordered Suleiman to pay the balance on 39 credit card accounts, revolving accounts, or other notes reflecting debts owed to various individuals or businesses.  The trial court also ordered Suleiman to pay the balances owed on the automobiles awarded to him as his separate property.

Before the court entered the final divorce decree, but after it rendered its judgment at the conclusion of trial, Suleiman asked the court to reform its judgment to reflect that the Feather Creek property was his separate property and later moved for reconsideration of the court=s oral judgment.  After the trial court=s entry of the divorce decree, Suleiman timely moved for a new trial on September 5.  The motion was heard and overruled by order of the trial court on October 21. Suleiman then perfected this appeal.

Trial Court=s Failure to File Findings of Fact and Conclusions of Law

In his first issue, Suleiman asks this court to abate this appeal until the trial court files findings of fact and conclusions of law.  After the trial court entered the final decree of divorce in this proceeding, Suleiman timely filed a request for findings of fact and conclusions of law and timely filed a notice of past due findings of fact and conclusions of law.  We need not abate this appeal because we find that Suleiman was not harmed by the trial court=s failure to file findings of fact and conclusions of law.

Section 6.711 of the Family Code provides that, in a suit for dissolution of a marriage in which the court has rendered a judgment dividing the estate of the parties, on request by a party, the court shall state in writing its findings of fact and conclusions of law concerning  certain aspects of the parties= liabilities and assets on which disputed evidence has been presented.  See Tex. Fam. Code Ann. ' 6.711 (Vernon Supp. 2003).  When properly requested, a trial court has a mandatory duty to file findings of fact. See, e.g., Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989).  If a trial court does not file findings, it is presumed harmful unless the record affirmatively shows that the appellant suffered no harm. See, e.g., Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996); Cherne Indus., 763 S.W.2d at 772. Generally, in complicated cases with disputed facts with two or more grounds for recovery or defense, the inference of harm cannot be defeated.  Randall v. Jennings, 788 S.W.2d 931, 932 (Tex. App.CHouston [14th Dist.] 1990, no writ).  If, however, the lack of findings is harmless, we can affirm.  See Tex. R. App. P. 44.1(a).  Error is harmful if it prevents a party from properly presenting a case to the appellate court.  See Tex. R. App. P. 44.1(a)(2); Tenery, 932 S.W.2d at 30.  The controlling issue is whether the circumstances of the particular case would require an appellant to guess at the reasons for the trial court=s decision.  Goggins v. Leo, 849 S.W.2d 373, 379 (Tex. App.CHouston [14th Dist.] 1993, no writ).

We conclude that the lack of findings was harmless in this case.  Suleiman was able to present the issues on appeal, and this court is able to address and decide Suleiman=s issues without the benefit of findings of fact and conclusions of law.  Accordingly, we overrule Suleiman=s first issue.

         Characterization of Feather Creek Property as Community Property

In his second issue, Suleiman argues that the trial court abused its discretion by incorrectly characterizing the Feather Creek property as community property, instead of Suleiman=s separate property.  Suleiman further contends this improper characterization of the Feather Creek property resulted in an unjust division of the community estate. Suleiman=s issue is in essence an argument that there is no evidence to support the trial court=s conclusion that the Feather Creek property was community property.

In reviewing a Ano-evidence@ point, we must reject all evidence contrary to the fact-finder=s findings and consider only the facts and circumstances which tend to support those findings.  See Ellebracht v. Ellebracht, 735 S.W.2d 658, 662 (Tex. App.CAustin 1987, no writ).  In reviewing factual-sufficiency issues, we consider all of the evidence to determine whether the findings are so against the great weight and preponderance of the evidence as to be manifestly unjust.  Id.

AAll property, both real and personal, of a spouse owned or claimed before marriage, and that acquired afterward by gift, devise or descent, shall be the separate property of that spouse . . . .@  Tex. Const. art. XVI, ' 15.  The Texas Family Code defines separate property as that property owned by a spouse before marriage, acquired during the marriage by gift, devise, or descent, or as a recovery for personal injuries sustained during the marriage.  See Tex. Fam. Code Ann. ' 3.001 (Vernon 1998).  Community property consists of property, other than separate property, acquired by either spouse during the marriage.  See Tex. Fam. Code Ann. ' 3.002 (Vernon 1998).  The nature of property as separate or community is determined by the inception of title to the propertyCthe time and circumstances of its acquisition.  See, e.g., Evans v. Evans, 14 S.W.3d 343, 346 (Tex. App.CHouston [14th Dist.] 2000, no pet.) (citations omitted); Rusk v. Rusk, 5 S.W.3d 299, 303 (Tex. App.CHouston [14th Dist.] 1999, pet. denied).  AThe major consideration in determining the characterization of property as community or separate is the intention of spouses shown by the circumstances surrounding the inception of title.@  Rusk, 5 S.W.3d at 303 (citations omitted).  In Texas, all property possessed by either spouse during or on dissolution of the marriage is presumed to be community property. See Tex. Fam. Code Ann. ' 3.003 (Vernon 1998).  To overcome the presumption, a party must present clear and convincing evidence that the property is separate.  See Evans, 14 S.W.3d at 346.  A party contending that property is his separate property must generally trace and clearly identify the property as separate.  Id.

Suleiman has not adequately presented his issue on appeal.  Suleiman devoted merely a page and a half of his brief to argue that the cash warranty deeds signed by Diana and her children transferred title in the Feather Creek property to Suleiman as his separate property.  He cited no authority to support his contention, other than certain provisions of the Family Code and the Texas Constitution setting forth the general rules regarding what constitutes separate property in Texas.  The only evidence Suleiman cited to support his claim are the deeds themselves, and he did not discuss the contrary oral testimony given at trial.  Thus, Suleiman has not adequately briefed his argument on appeal, and, therefore, has waived his argument that the trial court improperly characterized the Feather Creek property as community property.  See Tex. R. App. P. 38.1(e), (h); see also, e.g., Nolan v. State, 102 S.W.3d 231, 238 (Tex. App.CHouston [14th Dist.] 2003, pet ref=d) (stating that appellant=s failure to present issue for review waived error); Levin v. Harrington, No. 14-99-01094-CV, 2001 WL 422072, at *6 n.7 (Tex. App.CHouston [14th Dist.] April 26, 2001, no pet.) (stating that even if appellant had presented issue for review, he waived review by failure to provide argument, cite legal authorities, and make relevant record references) (citations omitted).  Accordingly, we overrule Suleiman=s second issue.

Furthermore, even if we did not find briefing waiver, we would still hold that Suleiman has not met his burden of showing that the Feather Creek property is his separate property.  Although it is correct that under Texas law one spouse may convey community property or his or her separate property to the other spouse, the consideration for the conveyance must be the grantee=s separate property, or the conveyance must be a gift. See, e.g., In re the Marriage of James Michael Morrison and Rosemary Annette Morrison, 913 S.W.2d 689, 691 (Tex. App.CTexarkana 1995, writ denied) (AFor over a century, Texas cases have uniformly held that when a husband conveys a parcel of community property to his wife, the entire parcel becomes the wife=s separate property, so long as the consideration for the conveyance is the wife=s separate property, or the conveyance is a gift from the husband to the wife.@).  In such a case, if the deed recites no consideration or only nominal consideration, it is construed as evidencing an intention on the part of the grantor spouse to donate the property to the grantee spouse as a gift.  Id.  Although the execution of a deed by one spouse to the other, of either separate or community property, creates a prima facie presumption that it was the intent of the grantor spouse to transfer the property to the other spouse as his or her separate property, the presumption is subject to rebuttal.  Id.

In this case, the deed does reflect that consideration was given, and aside from arguing that he should be repaid certain amounts loaned to Diana and her children, Suleiman presented no evidence of whether that consideration was his separate property.  Furthermore, the deed does not contain language indicating that Diana transferred the Feather Creek property to him as a gift to his separate property estate.  Cf. Pankhurst v. Weitinger & Tucker, 850 S.W.2d 726, 730B31 (Tex. App.CCorpus Christi 1993, writ denied) (finding husband=s assignment of interest in federal lawsuit was gift of a portion of his community property interest to his wife where there was no evidence of any onerous consideration and there was an expression of the husband=s donative intent with the use of language A>token gift of my life and esteem=@).  In addition, Diana=s testimony refutes Suleiman=s contention that the three cash warranty deeds in this case reflect her intent to convey the Feather Creek property to Suleiman as his separate property.

Also, the interspousal transfer rules do not apply to gifts by third parties.  A gift is defined as a transfer of property made voluntarily and gratuitously, without consideration.  See Rusk, 5 S.W.3d at 303 (citing Ellebracht, 735 S.W.2d at 659).  The burden of proving a gift is on the party claiming the gift was made.  Id.  One controlling factor is the donative intent of the grantor at the time of the conveyance. Id.  Suleiman does not discuss the testimony given by Diana=s children disputing that they intended to transfer their interest in the Feather Creek property to him as a gift of separate property. As we noted above, the deedsCidentical in all significant respectsCdo not contain any recitals stating that the conveyance was to the separate property of Suleiman.  See Robles v. Robles, 965 S.W.2d 605, 614, 616, 619 (Tex. App.CHouston [1st Dist.] 1998, pet. denied) (AA deed executed and delivered during the marriage with no recital that the conveyance was to the separate estate of the grantee is presumptively community property.@) (quoting Van Zandt v. Van Zandt, 451 S.W.2d 322, 326 (Tex. App.CHouston [1st Dist.] 1970, writ dism=d)); cf. Kyles v. Kyles, 832 S.W.2d 194, 196 (Tex. App.CBeaumont 1992, no writ) (stating that use of language Aas her sole and separate property and estate@ in general warranty deeds created presumption that property conveyed was grantee=s separate property).  There is no recital in the deeds that separate funds were used in the conveyances by Diana=s children to Suleiman.

Accordingly, even if he had not waived his second issue on appeal, we conclude that Suleiman has not met his burden of proving by clear and convincing evidence that the Feather Creek property conveyed to him during the marriage is his separate property.  Suleiman=s testimony alone is not sufficient to rebut the presumption of community property.  The trial court=s finding is not so against the great weight and preponderance of the evidence as to be manifestly unjust.  Thus, we overrule Suleiman=s second issue for this additional reason.

                                    Division of the Community Estate

In his third issue, Suleiman contends the trial court improperly divided the community estate, awarding Suleiman too little assets and too many community debts and awarding Diana too many assets and too little debt.  Suleiman asserts that he was awarded $23,444 in assets and debts of $154,405, a negative estate of $147,488, and that Diana was awarded a net estate of $36,474.

In a divorce proceeding, the trial court shall order a division of the estate of the parties in a manner it deems just and right.  Robles, 965 S.W.2d at 613.  The trial court exercises wide discretion in the division of marital property, and we will not disturb the trial court=s decision unless it is shown the court has clearly abused its discretion.  Id. at 613B14 (citing, inter alia, Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex. 1985)).  AThe role of an appellate court is only to determine whether the trial court abused its discretion in its disposition of the community property and an appellate court does not have the authority to render judgment dividing the marital property.@  Id. at 621 (citations omitted).  This court presumes the trial court exercised its discretion properly.  See id. 

The trial court may order an unequal division of the community property Awhere a reasonable basis exists for doing so.@  Id. It is not required that the property be divided equally; the trial court must divide the estate in an equitable manner. Zieba v. Martin, 928 S.W.2d 782, 790B91 (Tex. App.CHouston [14th Dist.] 1996, no writ).  In making the division, the trial court may consider a myriad of factors, including, but not limited to, the following:

(1) fault in the breakup of the marriage; (2) disparity of incomes or of earning capacities; (3) benefits the innocent spouse would have received from the continuation of the marriage; (4) business opportunities, education, and training; (5) relative physical conditions and disparity of ages; (6) relative financial conditions and obligations; (7) size of respective estates and the nature of the property; (8) custody of children; (9) excessive community property gifts to others or waste of community assets; (10) tax consequences.

Id. at 790B91 (citing Baccus v. Baccus, 808 S.W.2d 694, 700 (Tex. App.CBeaumont 1991, no writ)).

Based on our review of the record, we conclude the trial court did not abuse its discretion by dividing the community estate unequally.  Suleiman operated a valet and taxi business that required the use of automobiles.  Consequently, he was awarded the majority of the vehicles and ordered to pay the notes on those vehicles.  The parties had a significant amount of debt.  Suleiman conceded that the community estate consisted mostly of debts. One asset of the community estate was the Feather Creek property, which, for the reasons we discussed above, was properly awarded to Diana.  Except for providing services to Suleiman=s business, Diana did not have a steady work history during the marriage or while the parties were separated.  Her testimony reflected that she had health problems both before and after the parties separatedCsome, such as anxiety and emotional problems, due all or in part to Suleiman=s abuse.  Suleiman=s expert, Jeffrey Schumacher, a partner in the firm of McClure, Schumacher & Associates, a CPA firm specializing in doing business valuations and the sale of businesses, valued ABBE, Inc.  Excluding the personal goodwill attributable to Suleiman, he valued ABBE, Inc. as having a market value of $54,000, including tangible assets of $3,100.  He valued the community property interest in ABBE, Inc. as approximately $18,000. Suleiman was awarded all of the ownership interest in ABBE, Inc., a going business concern.  Thus, although the community estate consisted mostly of debt, the trial court could have considered its award of ABBE, Inc. to Suleiman when it also awarded Suleiman most of the debts associated with the business. The trial court also could have considered Suleiman=s abuse in making its division of the community estate.  See generally, e.g., Faram v. Gervitz-Faram, 895 S.W.2d 839, 844 (Tex. App.CFort Worth 1995, no writ) (holding that trial court did not abuse its discretion in awarding husband 21.7% of net estate and wife 72.9% of net estate considering husband=s violent and abusive nature, husband=s steady income and retirement benefits, wife=s absence of work history, and husband=s waste of community property).

In sum, the record indicates a reasonable basis for the decisions of the trial court. Therefore, we overrule Suleiman=s third issue.

Having overruled all of Suleiman=s issues, the judgment of the trial court is affirmed.

/s/      Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed April 8, 2004.

Panel consists of Justices Yates, Hudson, and Fowler.

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^[1]  The trial court awarded other assets of the community to Diana, but for purposes of this opinion, we only discuss the significant assets.