Kaizer Sheriff v. Shehnaz Moosa ( 2015 )

Affirmed and Opinion Filed August 11, 2015
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-01143-CV
KAIZER SHERIFF, Appellant
V.
SHEHNAZ MOOSA, Appellee
On Appeal from the 380th Judicial District Court
Collin County, Texas
Trial Court Cause No. 380-54072-2011
MEMORANDUM OPINION
Before Justices Bridges, Lang-Miers, and Fillmore
Opinion by Justice Bridges
Kaizer Sheriff appeals the trial court’s final decree of divorce. In five issues, Sheriff
argues the trial court erred in failing to confirm a foreign judgment; violated his due process and
due course of law rights by denying registration of the foreign judgment without holding a
hearing and denying enforcement of the parties’ premarital agreement without holding a full trial
on the merits; abused its discretion by failing to uphold and enforce the premarital agreement;
and failing to include an enforceable possession schedule for the parties’ child. We affirm the
trial court’s judgment.
Sheriff and Shehnaz Moosa were married in 2004 and had one child, A.K.S. On August
12, 2012, Moosa filed her original petition for divorce alleging Sheriff had a “history or pattern
of committing family violence during the two-year period preceding the date” of the petition.
The petition requested the court to determine whether there was a risk of international abduction
of A.K.S. and to take measures necessary to protect A.K.S.
On August 24, 2011, Sheriff filed his original counterpetition for divorce seeking, among
other things, to be “designated as the conservator who has the exclusive right to designate the
primary residence of” A.K.S. Sheriff alleged he was a domiciliary of Texas for the preceding
six-month period and a resident of Collin County for the preceding ninety-day period. Sheriff
alleged he and Moosa had entered into a prenuptial agreement defining their rights to their
property and requested the court to confirm and enforce the agreement. The prenuptial
agreement was attached as an exhibit. The agreement provided that all property and assets of
each party would remain that party’s sole personal property. The agreement further provided
that the parties agreed to get married under the Muslim Personal Marriage Laws that govern
Muslim marriages in India, to conduct the marriage according to the Muslim Shia Ismaili
traditions, and to get married by the “nikha” ceremony.
On September 7, 2011, the trial court conducted a hearing at which Moosa testified
Sheriff straddled her and punched her in the face with a closed fist in October 2009, slapped
Moosa while she was holding her daughter on Memorial Day 2010, and threatened to take
Moosa’s daughter away from her on “multiple occasions.” Moosa testified she feared being
alone with Sheriff and feared A.K.S. being alone with him because she feared Sheriff would take
A.K.S. away from her. Moosa testified Sheriff has property in India, and she was concerned
about him having control of A.K.S.’s passport.
Moosa testified she signed the prenuptial agreement in August 2004. She was not
represented by an attorney at the time. Moosa testified her marriage to Sheriff was an arranged
marriage, and Sheriff said he wasn’t going to get married unless the prenuptial agreement had
been signed. Sheriff said he got the prenuptial agreement “off the Internet,” and he gave Moosa
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“a few minutes to look over it.” Moosa testified she did not think the prenuptial agreement was
fair, she did not think it adequately provided her with information regarding Sheriff’s assets and
liabilities, she had no opportunity to obtain disclosure of Sheriff’s assets and liabilities, and
Sheriff did not ask her for copies of her assets and liabilities.
Moosa testified she makes $56,860 yearly, and Sheriff makes approximately $120,000,
but they each paid half of their monthly bills, including the mortgage on the marital residence.
Moosa testified that, despite the terms of the prenuptial agreement, she needed child support,
temporary spousal support, and assistance for attorney’s fees. Moosa testified Sheriff had been
alone with A.K.S. three times, had never been overnight with A.K.S. alone, and had only asked
to see A.K.S. six times since the divorce was filed. Moosa requested that the court appoint a
parenting facilitator to help Sheriff and Moosa “learn how to co-parent together.”
At the conclusion of the hearing, the trial court named Sheriff and Moosa joint managing
conservators of A.K.S., with Moosa having physical custody and Sheriff having standard
visitation. Concerning the prenuptial agreement, the trial court stated, “my personal view at the
moment is the pre-nup is against public policy. It attempts to change the laws of the State of
Texas and I don’t think it can do that.”
On December 14, 2011, the trial court entered temporary orders prohibiting either Sheriff
or Moosa from removing A.K.S. from the jurisdiction and ordering A.K.S.’s passport to be
turned over to Moosa’s attorney for safe-keeping. The temporary orders set out a visitation
schedule, ordered Sheriff to pay $1500 per month in child support and $3000 for interim
attorney’s fees, and made provisions for A.K.S.’s health care. Sheriff also received temporary
exclusive use of the marital residence.
On February 8, 2012, Sheriff filed a petition to register a foreign judgment. The “foreign
judgment” was a letter from an “advocate high court” in India purporting to memorialize
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Sheriff’s pronouncement of “Talaq,” thereby dissolving his marriage with Moosa. The letter
stated Sheriff acted in accordance with the prenuptial agreement between the parties and its
provision that the parties were married in accordance with Muslim Personal Marriage Laws.
Also attached to the petition was an “opinion” from “Advocate Neelofar Akhtar” purporting to
make a distribution of property and custody determination. In a supporting affidavit, Sheriff
represented, among other things, that he was “a bonafide domiciliary of the State of Maharashtra,
India,” and therefore A.K.S. was “also a domicile [sic] of India.”
On February 17, 2012, Moosa filed an emergency motion for temporary restraining order,
objection to registration of foreign order, and motion for additional temporary orders and
injunctive relief. Moosa argued the “foreign order” Sheriff sought to register was registered
more than six months after Moosa filed her original divorce petition and more than five months
after the trial court ruled on temporary orders in the divorce. Moosa requested that the trial court
strike Sheriff’s attempt at registering the foreign order. Moosa also requested that Sheriff be
enjoined from certain acts, including instituting any action in any other county, state, or nation in
an attempt to obtain orders concerning the marriage relationship of the parties. That same day,
the trial court entered an order restraining Sheriff from the enumerated acts, enjoining Sheriff
and his family from exercising any periods of possession or access to A.K.S. until the validity of
the foreign order could be determined.
On March 9, 2012, the trial court conducted a hearing at which Moosa’s counsel stated he
was “taken aback” when he learned Sheriff had filed or initiated an Indian divorce. Counsel
characterized Sheriff’s actions as an attempt to not only reverse the trial court’s rulings in
temporary orders hearings in September and October but also to “declare the marriage over by
divorce deed,” reverse all the custody and child support arrangements, and allow Sheriff and his
father to do whatever they wanted with A.K.S. Sheriff’s counsel responded that Sheriff had “a
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right to allege that there’s a foreign decree and ask the law in Texas to recognize that decree and
give full faith and credit to it.” Sheriff testified at the hearing that he registered the Indian
“decree” because the prenuptial agreement said he and Moosa were married under Muslim law,
and he “sought a divorce through the officials of [his] faith in India.” Sheriff testified he stood
by his “comments in the affidavit attached to [his] foreign filing.” At the conclusion of the
hearing, the trial court took the matter under advisement.
The trial court continued to enter temporary orders. On October 25, 2012, Sheriff filed a
“notice of determination of law of foreign country” asking the trial court to take notice of the
Muslim Women (Protection of Rights on Divorce) Act; the “Divorce Certificate from Chief
Judge Mumbai, India”; the Opinion of Neelofar Akhtar; and the “Muslim Personal Law (Shariat)
Application Act 1937.”
On November 12, 2012, Moosa filed her first amended petition for divorce in which she
sought to be appointed sole managing conservator of A.K.S. and requested the appointment of a
parenting facilitator. Moosa also requested appropriate orders on the basis of prior findings that
there was a risk of international abduction of A.K.S. by Sheriff. Moosa asked that she be
appointed temporary sole managing conservator of A.K.S. and that Sheriff be enjoined from
removing A.K.S. beyond a geographic area identified by the court.
On November 28, 2012, the trial court conducted a pretrial hearing at which Sheriff’s
attorney stated Sheriff was “still in India” caring for his sick father. Sheriff’s counsel orally
requested a continuance and argued the trial could not proceed without Sheriff being present.
Moosa’s counsel alleged Sheriff was in India “because he voluntarily flew to India when he was
court ordered to surrender his passports because the judge in May” determined that might “best
address his abduction issue.” Moosa’s counsel noted Sheriff had initiated a foreign divorce in
India “six months after this case started” and argued Sheriff was in India because he was subject
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to a motion for enforcement for failing to pay six months’ child support. Moosa’s counsel stated
Sheriff had also stopped making payments on the marital residence and allowed the residence to
go into foreclosure before the trial court appointed a receiver to sell the residence. The trial court
asked whether Sheriff’s counsel wanted to “urge [his] pretrial motions” or “rest on the
pleadings,” and counsel stated he would “rest on the pleadings.” The trial court then denied
Sheriff’s motion to enforce the prenuptial agreement, motion to dismiss due to mootness, motion
to recover property taxes, motion for recovering attorney’s fees, and motion for sanctions. After
additional arguments, the trial court granted Moosa’s motion to compel production of Sheriff’s
financial documents.
On December 10, 2012, the trial court conducted a trial before the court. Moosa again
testified that Sheriff verbally and physically abused her during the marriage. Moosa testified she
believed Sheriff went to India to avoid paying child support. At the conclusion of trial, the trial
court granted the divorce and named Moosa the sole managing conservator of A.K.S. with the
exclusive right to determine A.K.S.’s residency, consent to medical treatment and make
educational decisions with no geographic restrictions. Sheriff was awarded supervised
possession and ordered to pay child support. Moosa was awarded sixty percent of the
community estate, and Sheriff was awarded forty percent. Moosa was appointed receiver over
the community accounts, and Sheriff was ordered to pay her $17,100 in attorney’s fees. On May
16, 2013, the trial court entered the final divorce decree, and this appeal followed.
In his first issue, Sheriff argues the trial court erred in failing to confirm the foreign
judgment “pursuant to statutory mandate that the order shall be confirmed where the party
opposing the registration fails to request a hearing within 20 days of notice of the registration.”
Sheriff relies on family code sections 152.305, relating to registration of out-of-state custody
determinations, and 159.606, relating to interstate family support, in arguing Moosa had to
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request a hearing within twenty days of receiving notice of the “foreign judgment.” See TEX.
FAM. CODE ANN. §§ 152.305(d); 159.606(a) (West 2014) (person seeking to contest validity of
child custody determination or registration of support order issued by court of another state must
request hearing within 20 days after service of notice of the determination or registration).
Sheriff argues Moosa did not request a hearing within twenty days and therefore the “foreign
judgment” “should have been confirmed by operation of law.”
The record shows Sheriff filed a petition to register a foreign judgment on February 8,
2012. On February 17, 2012, Moosa filed a pleading which, among other things, objected to the
registration of the “purported ‘orders’” under both chapters 152 and 159 of the family code and
requested “a hearing on same within 20 days of” receipt of notice of the registration, which was
February 16, 2012. Because the record shows Moosa did request a hearing within twenty days of
receiving notice of the “foreign judgment,” we conclude Sheriff’s first issue lacks merit.
In his second issue, Sheriff argues the trial court’s denial of registration of the foreign
judgment without conducting a hearing violated his due process and due course of law rights. In
making this argument, Sheriff refers to the May 29, 2013 order denying his registration of a
foreign judgment because the court previously rendered a divorce on December 10, 2012. The
order refers to a January 22, 2013 trial on the registration issue, and Sheriff argues this trial was
canceled, thus depriving him of his right to a hearing. Sheriff’s argument ignores the fact that
the “foreign judgment” continued to be an issue throughout the divorce proceedings.
Specifically, the “foreign judgment” and its reason for being were discussed at length at the
hearing on March 9, 2012. Because the record shows the trial court conducted a hearing on
Sheriff’s motion to register the “foreign judgment,” we conclude his second issue lacks merit.
In his third issue, Sheriff argues the trial court violated his due process and due course of
law rights by denying enforcement of the prenuptial agreement during a pretrial conference and
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without holding a full trial on the merits, depriving him of a meaningful right to be heard. In his
fourth issue, Sheriff argues the trial court abused its discretion by failing to uphold and enforce
the presumptively valid prenuptial agreement.
Premarital agreements are presumed to be enforceable. Marsh v. Marsh, 949 S.W.2d
734, 739 (Tex. App.—Houston [14th Dist.] 1997, no writ) (citing Grossman v. Grossman, 799
S.W.2d 511, 513 (Tex. App.—Corpus Christi 1990, no writ)). To rebut that presumption, the
party seeking to avoid enforcement must prove either that: she signed the agreement
involuntarily; or the agreement was unconscionable when signed and the agreement failed to
fairly and reasonably disclose the “property and financial obligations of the other party.” See
TEX. FAM. CODE ANN. §4.006(a) (West 2006); see also Marsh, 949 S.W.2d at 739. In reviewing
whether the agreement is conscionable, courts have considered factors such as the maturity of the
parties, their educational levels and business backgrounds, their experiences with prior
marriages, their respective ages, and whether there were motivations to protect children. See
Marsh, 949 S.W.2d at 741. “Because disclosure forms the second prong of the test to rebut the
presumption of enforceability, lack of disclosure is material only if the premarital agreement is
unconscionable.” Id. at 743; see also Fazakerly v. Fazakerly, 996 S.W.2d 260, 265 (Tex. App.—
Eastland 1999, pet. denied) (“The issue of unconscionability must be decided by the trial court as
a matter of law before the disclosure questions are addressed.”).
Moosa testified she was not represented by an attorney at the time she signed the
prenuptial agreement in August 2004. Moosa testified her marriage to Sheriff was an arranged
marriage, and Sheriff said he wasn’t going to get married unless the prenuptial agreement had
been signed. Sheriff said he got the prenuptial agreement “off the Internet,” and he gave Moosa
“a few minutes to look over it.” Moosa testified she did not think the prenuptial agreement was
fair, she did not think it adequately provided her with information regarding Sheriff’s assets and
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liabilities, she had no opportunity to obtain disclosure of Sheriff’s assets and liabilities, and
Sheriff did not ask her for copies of her assets and liabilities. The trial court stated the prenuptial
agreement attempts to change the laws of the State of Texas. Based on this record, we conclude
the trial court did not err in refusing to enforce the prenuptial agreement because it was
unconscionable and Moosa was not provided any disclosure of Sheriff’s property or financial
obligations. See TEX. FAM. CODE ANN. §4.006(a) (West 2006); see also Marsh, 949 S.W.2d at
739. We overrule Sheriff’s third and fourth issues.
In his fifth issue, Sheriff argues the trial court’s failure to include an enforceable
possession schedule in the divorce decree violates his constitutional rights with respect to his
child and renders the decree void. Specifically, Sheriff complains of the following provisions in
the divorce decree:
Possession and Access
1. Mutual Agreement or Specified Terms for Possession
IT IS FURTHER ORDERED AND DECREED that KAIZER SHERIFF shall
have supervised possession of the child at any and all times mutually agreed to
between him and SHEHNAZ MOOSA in advance, and in the absence of mutual
agreement, IT IS ORDERED AND DECREED that KAIZER SHERIFF shall
have possession of the child under the specified terms set out below in this
Possession Order.
2. Supervised Possession with Stair-Stepping Procedures
The Court finds that Respondent has remained intentionally removed from the
subject child. Therefore, IT IS ORDERED that Respondent shall have supervised
possession of and access to the subject child for a period of no less than eight (8)
months, which Respondent must exercise prior to receiving any unsupervised
periods of possession. All supervision shall be directed at the discretion of
Petitioner. Additionally, prior to any unsupervised periods of possession, the
parties shall retain a parenting facilitator to oversee the terms and conditions of
“stair-stepping” Respondent’s periods of possession from a supervised possession
schedule to an unsupervised possession schedule, culminating with a Standard
Possession Schedule, which shall be installed at such time as the parenting
facilitator reports that Respondent is 1) not a flight risk, and 2) has complied and
cooperated with all the terms and conditions of the parenting facilitator’s efforts
to monitor and facilitate the “stair-stepping” schedule.
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Sheriff argues these provisions exceed the authority of the trial court and give Moosa the
absolute discretion to determine when, where, and if Sheriff may have possession of A.K.S.
Sheriff argues the order amounts to an effective denial of Sheriff’s right to visitation.
Trial courts have wide discretion to determine a child's best interest, including issues of
custody, control, possession and visitation. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.
1982); Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.—Houston [1st Dist.] 1993, writ
denied). This is because the trial court is in the best position to observe the demeanor and
personalities of the parties and witnesses and to evaluate credibility, influences, and other forces
that are not discernible from a cold record. In re Herd, 537 S.W.2d 950, 952 (Tex. App.—
Amarillo 1976, writ ref'd n.r.e.); In re T––, 715 S.W.2d 416, 418 (Tex. App.—Dallas 1986, no
writ); In re J.R.D., 169 S.W.3d 740, 743 (Tex. App.—Austin 2005, pet. denied). Appellate
courts will reverse a trial court’s determination of conservatorship only if a review of the entire
record reveals the trial court’s decision was arbitrary or unreasonable. In re J.A.J., 243 S.W.3d
611, 616 (Tex. 2007); Patterson v. Brist, 236 S.W.3d 238, 23940 (Tex. App.—Houston [1st
Dist.] 2006, pet dism’d). A trial court does not abuse its discretion “as long as some evidence of
a substantive and probative character exists to support the trial court’s decision.” In re W.M.,
172 S.W.3d 718, 725 (Tex. App.—Fort Worth 2005, no pet.). Further, the evidence is viewed in
the light most favorable to the trial court’s decision, and every legal presumption is indulged in
favor of its judgment. Holley, 864 S.W.2d at 706.
Here, Moosa testified Sheriff threatened to take A.K.S. away from Moosa on “multiple
occasions.” Moosa testified Sheriff had been alone with A.K.S. three times, had never been
overnight with A.K.S. alone, and had only asked to see A.K.S. six times since the divorce was
filed. Moosa testified she believed Sheriff went to India to avoid paying child support. Based on
this testimony and the evidence of the risk Sheriff might abduct A.K.S. and flee to India if he had
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unsupervised possession, the trial court did not abuse its discretion in requiring Sheriff to have
supervised possession at Moosa’s discretion. See In re J.A.J., 243 S.W.3d at 616; Holley, 864
S.W.2d at 706. We overrule Sheriff’s fifth issue.
We affirm the trial court’s judgment.
131143F.P05
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
KAIZER SHERIFF, Appellant On Appeal from the 380th Judicial District
Court, Collin County, Texas
No. 05-13-01143-CV V. Trial Court Cause No. 380-54072-2011.
Opinion delivered by Justice Bridges.
SHEHNAZ MOOSA, Appellee Justices Lang-Miers and Fillmore
participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee SHEHNAZ MOOSA recover her costs of this appeal from
appellant KAIZER SHERIFF.
Judgment entered August 11, 2015.
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