Sabrina Ismail v. Mohammad Sayem Khan ( 2020 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00039-CV
Sabrina Ismail, Appellant
v.
Mohammad Sayem Khan, Appellee
FROM THE 425TH JUDICIAL DISTRICT COURT OF WILLIAMSON COUNTY
NO. 17-2600-F425, THE HONORABLE BETSY F. LAMBETH, JUDGE PRESIDING
MEMORANDUM OPINION
Sabrina Ismail appeals the district court’s final decree of divorce in the underlying
suit filed by Mohammad Sayem Khan. In three issues, Ismail contends that the district court
erred by: (1) finding that her monthly net resources for calculating child support were $4,000 per
month; (2) characterizing real property in Bangladesh as community property; and (3) dividing
the marital estate without sufficient evidence to make a just-and-right division. We will affirm
the district court’s decree.
BACKGROUND
Ismail and Khan married in 2004 and have two children. Khan filed for divorce
in 2017. After a bench trial, the district court determined that Ismail had monthly net resources
of $4,000 and signed a divorce decree ordering her to pay $280 in monthly child support. The
decree also awarded Ismail and Khan an undivided 50% interest in “[t]he parties’ partial
ownership of land in Mirpur, Bangladesh.” This appeal followed.
DISCUSSION
Monthly net resources for child-support calculation
In her first issue, Ismail contends that the district court erred by finding that her
monthly net resources for calculating child support were $4,000 per month. She states that the
evidence at trial showed she was “destitute,” and specifically contends that the district court
should not have considered money she receives from family as part of her “resources” because
her family has no obligation to continue providing that money. Thus, in her view, her monthly
net resources are not $4,000, but zero.
A trial court’s child-support order will not be disturbed on appeal unless the
complaining party shows a clear abuse of discretion. Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011).
A trial court abuses its discretion when it acts arbitrarily or unreasonably, without reference to
guiding rules or principles, or by failing to analyze or apply the law correctly. Id. Under this
standard, legal and factual sufficiency of the evidence are not independent grounds for appeal but
are relevant considerations in determining whether the trial court abused its discretion. Goodson
v. Castellanos, 214 S.W.3d 741, 756 (Tex. App.—Austin 2007, pet. denied). There is no abuse
of discretion if some probative and substantive evidence supports the trial court’s order. Legere
v. Legere, No. 03-12-00046-CV, 2013 Tex. App. LEXIS 1768, at *10 (Tex. App.—Austin Feb.
22, 2013, no pet.) (mem. op.) (citing Ziefman v. Michels, 212 S.W.3d 582, 587 (Tex. App.—
Austin 2006, pet. denied)).
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The Family Code defines “resources,” for the purpose of determining child-
support liability, as including:
(1) 100 percent of all wage and salary income and other compensation for
personal services (including commissions, overtime pay, tips, and bonuses);
(2) interest, dividends, and royalty income;
(3) self-employment income;
(4) net rental income (defined as rent after deducting operating expenses and
mortgage payments, but not including noncash items such as depreciation);
and
(5) all other income actually being received, including severance pay, retirement
benefits, pensions, trust income, annuities, capital gains, social security
benefits other than supplemental security income, United States Department
of Veterans Affairs disability benefits other than non-service-connected
disability pension benefits, as defined by 38 U.S.C. Section 101(17),
unemployment benefits, disability and workers’ compensation benefits,
interest income from notes regardless of the source, gifts and prizes, spousal
maintenance, and alimony.
Tex. Fam. Code § 154.062(a), (b) (emphases added); see Rumscheidt v. Rumscheidt, 362 S.W.3d
661, 668 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (concluding that trial court was
entitled to consider financial assistance father received from his parents or trust in determining
his ability to pay child support); In re L.R.P., 98 S.W.3d 312, 314 (Tex. App.—Houston [1st
Dist.] 2003, pet. dism’d) (rejecting father’s contention that trial court’s child-support calculation
should exclude money that father received monthly from family member for living expenses
because section 154.062(b)(5) includes “gifts” and “all other income actually being received” in
definition of “resources”).
Here, Khan, Ismail, and Ismail’s sister testified about Ismail’s financial resources.
Khan testified that Ismail has an extensive inheritance from her parents. But Ismail’s sister
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denied knowing of any assets that Ismail inherited or would inherit. Ismail testified that she
receives financial assistance from her family each month:
Court: How much money do you receive from your family on a monthly basis?
Ismail: The thing is that Mohammad Khan gives me $1,800 and after that if I need
something, they do grocery and sometimes they pay money like $300 or
$200 like that.
Ismail further testified that because of her family’s financial assistance, money does not matter to
her:
Ismail’s counsel: Do you have a job that pays you money?
Ismail: No, I am not getting money but I will give [sic] some money from
Mohammad Khan and my family members are helping me so money doesn’t
matter for me.
....
Ismail’s counsel: Do you have any cash yourself?
Ismail: Right now in my bank statement in bank account are you asking?
Ismail’s counsel: Yes, approximately how much do you have?
Ismail: $1,800 and if I need more money I would get it from Mohammad Khan
and if don’t get it from Mohammad Khan I’ll take it from my family members so
I don’t need to think about money, actually.
At the hearing on the motion to enter the final decree, Ismail’s counsel contended
that Ismail’s “testified-to income was zero” but the district court recalled that “[Ismail] testified
as to money that was coming in from other sources and that’s what I based it on.” Thus, the
record disproves Ismail’s contention that her “testified-to income was zero” by showing that
Ismail receives monthly “resources,” statutorily defined as including “gifts,” from her family
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members that may be considered in calculating child support. See Tex. Fam. Code
§ 154.062(b)(5); Rumscheidt, 362 S.W.3d at 668; In re L.R.P., 98 S.W.3d at 314.
However, the district court stated that it was “not comfortable with the
information” it had “regarding what [Ismail] receives or what she’s able to receive from her
family.” Using the wage-and-salary presumption under section 154.068 of the Family Code, the
district court ordered Ismail to pay Khan $280 in monthly child support. See Tex. Fam. Code
§ 154.068(a). That statute provides that “[i]n the absence of evidence of a party’s net resources
as defined by Section 154.062(b), the court shall presume that the party has income equal to the
federal minimum wage for a 40-hour week to which the support guidelines may be applied.” Id.
Application of the wage-and-salary presumption here yields a monthly child support obligation
of $280.91, which is slightly greater than the $280 child support that the district court ordered in
its final decree. 1 Unsurprisingly, Ismail does not complain that the district court ordered her to
pay less child support than that authorized by application of the wage-and-salary presumption in
the Family Code.
Rather, Ismail complains about the finding that her monthly net resources were
any amount greater than zero. But Ismail acknowledges that when determining her monthly net
resources available for child support, the trial court was authorized to assign a reasonable amount
of deemed income attributable to assets that do not currently produce income. See id.
§ 154.067(a). Section 154.067(a) of the Family Code provides that:
1 The statutory chart in the Family Code lists $1123.62 as the net monthly income for a
person earning the federal minimum wage. See Tex. Fam. Code § 154.061 (containing chart for
computing net monthly income). Applying to that amount the 25% guideline for two children
results in a total of $280.91. See id. § 154.125 (providing schedule of percentage guidelines
which for two children is 25% of obligor’s net resources).
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[w]hen appropriate, in order to determine the net resources available for child
support, the court may assign a reasonable amount of deemed income attributable
to assets that do not currently produce income. The court shall also consider
whether certain property that is not producing income can be liquidated without
an unreasonable financial sacrifice because of cyclical or other market conditions.
If there is no effective market for the property, the carrying costs of such an
investment, including property taxes and note payments, shall be offset against
the income attributed to the property.
Id. Here, the court’s marital-property division (excluding clothing, jewelry, and furniture with a
net value of $22,500) awarded Ismail assets with net values in excess of $85,801.97. Ismail
received liquid assets, an income-producing asset, and other assets that do not currently produce
income:
• real property in Temple, Texas with a net value of $45,789.65 that generates $1,200 in
rent (after deducting $150 payment to property-management entity);
• an Employee Retirement System account with a net value of $9,979.19;
• a Baylor Scott & White Health Retirement Savings Plan with a net value of $15,368.94;
• half of a Canadian Local Authority pension plan with Ismail’s share of net value at
$13,664.19; and
• a Wells Fargo joint checking account with a balance of $1,000.
Further, Khan was ordered to pay Ismail $1,000 monthly for spousal maintenance.
The district court could have considered these assets and spousal-maintenance
income—in addition to the $200 to $300 monthly financial support that Ismail’s family provides
to her—when determining Ismail’s net resources available for child support. See id.
§ 154.062(a), (b) (authorizing trial courts to consider “all other income actually being received,”
including net rental income, gifts, and spousal support, as “resources” for purpose of determining
parent’s child-support liability); Goodson, 214 S.W.3d at 757 (noting that trial court “may
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consider all sources that might be used to pay child support” and concluding that court could
have considered proceeds from sale of stock, deemed income from second home, or potential
value from sale of that home in making child-support determination); see also Rumscheidt, 362
S.W.3d at 668; In re L.R.P., 98 S.W.3d at 314. Given this record, the district court’s implied
finding that Ismail’s assets could produce at least $4,000 monthly—considered in the light most
favorable to that finding—was not arbitrary or unreasonable. See Goodson, 214 S.W.3d at 757
(noting that “the duty to pay child support is not limited to the parent’s ability to pay from
current earnings, and the court may consider all sources that might be used to pay child
support”); see also Norris v. Norris, No. 03-12-00108-CV, 2013 Tex. App. LEXIS 1884, at *24
(Tex. App.—Austin Feb. 27, 2013, no pet.) (mem. op.) (rejecting father’s complaint about trial
court’s conclusion that his assets provided him with net monthly income of $3,300 because
evidence indicated that he had assets in excess of $500,000 and trial court could have reasonably
determined that those assets could produce $3,300 monthly).
Because this record contains some evidence of a substantive and probative
character supporting the district court’s net-resources finding, Ismail failed to meet her burden of
showing that the district court abused its discretion in making that finding. See Iliff, 339 S.W.3d
at 78; Legere, 2013 Tex. App. LEXIS 1768, at *10; Ziefman, 212 S.W.3d at 587. And in any
event, the district court set Ismail’s child support amount at a figure well below this, applying the
wage-and-salary presumption for minimum-wage income from the Family Code. We overrule
Ismail’s first issue.
Characterization of real property in Bangladesh
In her second issue, Ismail contends that the district court erred by characterizing
real property in Bangladesh as community property. She states that testimony in the record
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“indicated that the Bangladesh property, if it exists,” is her sole and separate property. All
property possessed by either spouse during or on dissolution of marriage is presumed to be
community property. Tex. Fam. Code § 3.003(a). Overcoming this community-property
presumption requires clear-and-convincing evidence establishing that the property is separate.
Id. § 3.003(b).
However, the district court’s decree does not purport to divide any spouse’s
separate property. Rather, the decree specifies that Ismail and Khan are each awarded 50%
interest in land in which they have “partial”—not sole—ownership. Unlike the other references
to real property in the decree, there is no property description for the reference to land in
Bangladesh, and Ismail herself questions the Bangladesh property’s existence.
Further, the partial ownership of land referenced during Khan’s closing argument
was “land in Pakistan,” not in Bangladesh. 2 Khan testified that Ismail would inherit certain real
property in unspecified cities—“two four-story building[s]” located “in the capital” and “the
home [where] she was born and grew up, it’s in another city and they have acres and acres and
acres of land”—but there was conflicting testimony on the inheritance issue and nothing in the
record to establish that Ismail actually owned any such properties. When Ismail’s sister was
asked what happened to her parents’ property after their deaths, she testified, “We don’t have
any specific property. My parents used to live in a house, that house now belongs to my brother
2 Khan’s counsel stated, “We have partial ownership of the land in Pakistan which is 100
percent to the wife but there is no valuation on that because we don’t have a value so Ms. Ismail
is not exactly getting a 43 percent split compared to Mr. Khan’s 56 percent split as shown on this
spreadsheet.” (The spreadsheet referenced here is not in the record.). Ismail’s counsel
responded, “[T]here was no testimony before [the court] about a piece of property in Pakistan.”
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who lives in Bangladesh.” Ismail’s sister denied knowing of any assets that Ismail inherited or
would inherit. 3
Moreover, the decree specifies that “any assets of the parties not awarded or
divided by this Final Decree of Divorce are subject to future division as provided in the Texas
Family Code.” If Ismail has any separate property assets in Bangladesh, this decree—which is
limited to the land in which Ismail and Khan have “partial” ownership—on its face does not
purport to divide those assets. Thus, Ismail is incorrect in her contention that the district court
characterized any separate property in Bangladesh as community property. On this record, we
conclude that the district court did not abuse its discretion by dividing “[t]he parties’ partial
ownership of land in Mirpur, Bangladesh” equally between the spouses. We overrule Ismail’s
second issue.
Just-and-right division of marital estate
In her third issue, Ismail contends that the district court erred by dividing the
marital estate without sufficient evidence to make a just-and-right division. She specifically
contends that absent evidence about the value of “the land” in Bangladesh, the district court was
unable to determine “the size of the community pie.”
3 Given the testimony at trial, evidence as to Ismail’s separate-property claim was not
conclusive. We defer to the district court’s resolution of evidentiary conflicts as the factfinder.
See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005) (noting that factfinder is sole
judge of witnesses’ credibility and weight given to their testimony); Henry v. Henry, No. 03-11-
00253-CV, 2014 Tex. App. LEXIS 4233, at *2 (Tex. App.—Austin Apr. 18, 2014, no pet.)
(mem. op.) (noting that district court as factfinder resolved conflicts in evidence and that
reviewing court may not interfere with factfinder’s resolution of such conflicts); see also
Lecuona v. Lecuona, No. 03-17-00138-CV, 2018 Tex. App. LEXIS 4376, at *3 (Tex. App.—
Austin June 15, 2018, pet. denied) (mem. op.) (rejecting contention that evidence established
separate-property status of asset and noting that evidence is considered conclusive only if
reasonable people could not differ in their conclusions), cert. denied, 2019 U.S. LEXIS 2051
(May 13, 2019).
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A trial court must make a just-and-right division of the community estate upon
divorce. Tex. Fam. Code § 7.001. The trial court has broad discretion in its division of the
marital estate, and that division should be corrected on appeal only for an abuse of discretion.
Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981); Henry v. Henry, No. 03-11-00253-CV, 2014
Tex. App. LEXIS 4233, at *2 (Tex. App.—Austin Apr. 18, 2014, no pet.) (mem. op.).
In support of this issue, Ismail relies exclusively on two cases in which the parties
presented no evidence of the value of the community estate or any of its component parts. See
Chapa v. Chapa, No. 04-17-00345-CV, 2018 Tex. App. LEXIS 2894, at *4 (Tex. App.—San
Antonio Apr. 25, 2018, no pet.) (mem. op.) (discussing divorce decree entered on respondent’s
default and noting that because record contained no evidence of value of community estate or
any of its component parts, there was “no evidence upon which the trial court could have
concluded the division of the estate in the decree is just and right”); Sandone v. Miller Sandone,
116 S.W.3d 204, 206-08 (Tex. App.—El Paso 2003, no pet.) (concluding that trial court abused
its discretion by dividing marital property when there was no evidence as to value of assets or
amount of liabilities; “a complete absence of evidence to support the division of property”).
Unlike those cases, this case does not concern a default divorce decree or a record devoid of
evidence about the value of assets and amount of liabilities in the marital estate. Thus, neither of
Ismail’s cited authorities supports her contention that the trial court abused its discretion in its
division of the marital estate.
Moreover, each party in a divorce proceeding has a burden to present sufficient
evidence of the value of the community estate to enable the trial court to make a just-and-right
division. Aduli v. Aduli, 368 S.W.3d 805, 820 (Tex. App.—Houston [14th Dist.] 2012, no pet.);
Sias-Chinn v. Chinn, No. 03-11-00128-CV, 2012 Tex. App. LEXIS 1687, at *24 (Tex. App.—
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Austin Feb. 29, 2012, no pet.) (mem. op.). If a party does not provide values for property to be
divided, that party may not complain on appeal, as Ismail does here, that the trial court lacked
sufficient information to properly divide the property. Aduli, 368 S.W.3d at 820; Chinn, 2012
Tex. App. LEXIS 1687, at *24; Deltuva v. Deltuva, 113 S.W.3d 882, 887 (Tex. App.—Dallas
2003, no pet.). Because Ismail failed to provide a value for any real property in Bangladesh, she
may not now complain that the district court had insufficient information to divide the marital
estate in a just-and-right manner. We overrule Ismail’s third issue.
CONCLUSION
We affirm the district court’s final decree of divorce.
__________________________________________
Jeff Rose, Chief Justice
Before Chief Justice Rose, Justices Triana and Smith
Dissenting Opinion by Justice Smith
Affirmed
Filed: January 24, 2020
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