Fardad Aduli v. Valerie Aduli

Affirmed and Opinion filed May 17, 2012.
In The
Fourteenth Court of Appeals
___________________
NO. 14-10-01039-CV
___________________
FARDAD ADULI, Appellant
V.
VALERIE ADULI, Appellee
On Appeal from the 308th District Court
Harris County, Texas
Trial Court Cause No. 2008-60128
OPINION
In this divorce appeal, Fardad Aduli argues that the trial court erred in denying his
special appearance and abused its discretion in permitting his counsel to withdraw on the
day of trial; denying his motions for a continuance and a new trial on the basis that he had
been forced to leave the country; and adopting his wife’s proposed division of the marital
estate without sufficient evidence. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Fardad and Valerie Aduli married in Louisiana in 2003. Fardad, an Iranian citizen,
was in the United States on an H-1 work visa. Valerie, a citizen of France, was in the
country on an H-4 visa as Fardad’s spouse.1 For about five years, the Adulis lived in a
suburb of New Orleans while Fardad worked for his brother, who had sponsored Fardad’s
visa. In 2006, Fardad and Valerie visited Houston. The Adulis took a liking to the city,
and Fardad spoke of moving there to find work at the Texas Medical Center after he got his
green card. In early 2008, Fardad bought and furnished a condominium in Houston, and
Valerie moved there in January of that year.
According to Valerie, Fardad planned to join her in Houston after he got his green
card. According to Fardad, however, Valerie moved to Houston because the Adulis had
decided to separate. In his telling, Fardad purchased the condo in Houston because
Valerie wanted to live there and Fardad “wanted [Valerie] to be comfortable” during their
separation, but Fardad never intended to move to Houston himself. For the next several
months, Fardad paid Valerie’s utility bills, made mortgage payments on the condo, and
paid condominium association fees. He also gave Valerie $1,000 each month for living
expenses. According to Fardad, he visited Valerie “maybe once every month and a half,
once a month” for “[t]wo days, three days max” during their separation. According to
Valerie, Fardad visited two or three times a month, for four days at a time. When Fardad
visited, the Adulis shared a bed but were never intimate; Valerie had long suspected Fardad
of engaging in an extramarital affair—a suspicion Fardad confirmed about a month before
Valerie filed for divorce—and, as she stated, did not want to risk becoming pregnant by a
man she did not trust.
In October 2008, Valerie filed for divorce in the trial court, citing irreconcilable
differences, cruel treatment and adultery. Fardad filed a special appearance on the basis
that Texas was not the Adulis’ last marital residence and there was no other valid basis for
asserting personal jurisdiction over Fardad. After a hearing, the trial court denied
Fardad’s special appearance. Shortly thereafter, Fardad and Valerie agreed to a set of
1
The record does not indicate Valerie’s immigration status before the Adulis’ marriage.
2
temporary orders and injunctions relating to spousal support, payment of debts, temporary
use of property, and discovery. Under the discovery provisions, each party had to provide
a sworn inventory and appraisement of all separate and community property, and Fardad
was required to provide tax returns for the first five years of the Adulis’ marriage. Fardad
was also ordered to pay Valerie’s attorneys’ and experts’ fees. In addition, both parties
were bound by a restraining order from “making any withdrawals from any checking,
savings, or brokerage account in any financial institution, for any purpose,” except as
authorized by the trial court.
Over the next year, Fardad repeatedly violated the trial court’s restraining order by
withdrawing money from his accounts. He also failed to comply with the trial court’s
discovery orders and failed to pay Valerie’s attorneys’ and experts’ fees. On three
separate occasions in late 2009, the trial court warned Fardad that failure to comply with
the trial court’s orders would result in Fardad’s pleadings being struck. After Fardad
continued to disregard the trial court’s orders, the trial court struck Fardad’s pleadings as a
sanction and ordered that he would not be allowed to offer “any controverting testimony to
testimony and or evidence presented by [Valerie] . . . except through cross examination.”
In February 2009, Fardad filed a motion to dismiss, representing to the trial court
that his application for a permanent work visa had been denied and that both he and Valerie
were required to leave the country. He attached two letters from the United States
Citizenship and Immigration Services (“USCIS”), dated in September 2008, informing
Fardad and Valerie of this decision separately. The trial court denied Fardad’s motion to
dismiss. Although Fardad had declared his intent to comply with the USCIS order
immediately, a year later he filed a Suggestion of Bankruptcy based on a Chapter 7
bankruptcy proceeding he had initiated in Louisiana that month, and requested a stay of the
divorce proceedings. No order relating to this request appears in the record.
On July 23, 2010, nine days before trial, Fardad’s counsel, Todd Frankfort, filed a
motion to withdraw, citing his inability to “effectively communicate with Fardad . . . in a
3
manner consistent with good attorney-client relations.” A hearing was set before trial on
August 2, 2010. On July 30, Fardad (though Frankfort) requested a continuance, citing
his absence from the country and attaching a second letter from the USCIS. This letter,
dated May 27, 2010, informed Fardad that his February 2010 “Application to
Extend/Change Nonimmigrant Status” had been denied and that “[t]his decision [left
Fardad] without lawful immigration status; therefore, [he was] present in the United States
in [v]iolation of the law.” In requesting a continuance, Fardad claimed that he had been
forced to return to Paris and needed time to obtain a new visa. When Frankfort’s motion
to withdraw came up for hearing before trial, the trial court considered Fardad’s request for
continuance as well.
At the hearing, the following exchange took place:
MR. FRANKFORT: Judge, I’ve had various issues with Mr. Aduli. I guess,
the most significant of which is that a good portion of my fees were
discharged in bankruptcy and now he is left owing us some money and I just
am not comfortable being in that position. He has sent me a letter opposing
my withdrawal that he would like read into the record. May I proceed with
that at this time?
....
THE COURT: Yes. Is it an e-mail?
MR. FRANKFORT: It was sent by e-mail. I received the following e-mail
from Mr. Aduli on July 30 at 12:27 p.m. It says, “. . . Your Honor, I cannot
be present at my trial because my application for an extension of visa was
denied and I had to leave the United States. I am writing this letter to
oppose my attorney[’]s Motion to Withdraw for the following reasons:
Number one, as you know, Your Honor, I have been declared bankrupt under
Chapter 7 and do not have any assets to pay Mr. Frankfort at this time. I
have no assets and have been declared bankrupt. I do not have any income
as I do not have a job.
Number two, Mr. Frankfort informed me of his intention to withdraw as my
attorney merely eight days ago and that has not left me with ample time to
find another counsel.
4
Number three, Mr. Frankfort has been my counsel for almost one year and is
fully aware of the facts of my case. Any other counsel being limited in time
would not have been able to represent my best interest as he or she would not
have had ample time to study my case.
THE COURT: A response to that.
MR. FRANKFORT: Judge, when I became aware of—I knew that a portion
of my fees had been discharged in bankruptcy. I knew that the likelihood of
me getting paid on the remainder of the case was slim. As I delved further
into the case, I felt less comfortable representing Mr. Aduli. And I just felt
like I needed to—I needed to get out. I was unable to—I had planned on
speaking with other attorneys in my office concerning the withdrawal, and
did not have an opportunity to do so prior to eight days prior to the time we
sent the motion to Mr. Aduli for his review. And based on those facts, I
would ask this Court's permission to withdraw from the case.
The trial court granted Frankfort’s motion to withdraw and denied Fardad’s request for a
continuance.
In her proposed property division, Valerie requested the condominium, valued at
$66,367.00; Fardad’s 2002 Mercedes, valued at $22,713.00; $635,457 in reimbursement
for waste of community assets; a bank account in her own name containing $170; and all of
the furniture, fixtures, electronics and computers in her possession. In total, Valerie asked
for 58% of the community assets, with a value of $726,207.00. She also submitted a
financial information sheet and a sworn trial inventory and appraisement. Valerie
conceded to Fardad his watch collection; a condominium he owned in Iran; a second car
Fardad had purchased; certain life insurance policies and annuities of undetermined value;
company retirement benefits; and other miscellaneous assets. When Valerie began her
testimony on the contents of the inventory, the trial court asked whether she was requesting
that the trial court “take judicial notice of [the inventory] for evidentiary purposes” and
further inquired whether she was “offering it as a shorthand rendition of her testimony.”
Valerie’s attorney answered affirmatively to both questions. After hearing Valerie’s
5
testimony, the trial court rendered a default judgment against Fardad and granted all of
Valerie’s requested relief.
Fardad timely filed a motion to set aside the default judgment and for a new trial.
In his motion, Fardad represented that his failure to appear at trial had been “the result of
accident and mistake, rather than . . . intentional or conscious indifference,” that he had a
“meritorious defense” to Valerie’s claims, and that a new trial would neither occasion
undue delay nor prejudice Valerie. To this Fardad attached an affidavit, dated September
13, 2010 and notarized by the Vice Consul of the U.S. Embassy in Paris, in which Fardad
attested that he had been forced to leave the United States and return to Paris because his
application for a permanent visa had been denied. He also included a copy of the May 27,
2010 USCIS letter identical to that which he had included in his request for a continuance
and a photocopy of a U.S. Airways boarding pass for a flight from Charlotte to Paris dated
June 30 of an unspecified year. The trial court denied Fardad’s motion and Fardad filed
his notice of appeal the same day.
II. ISSUES PRESENTED
On appeal, Fardad argues that the trial court erred in denying his special appearance.
He also contends that the trial court abused its discretion in permitting Frankfort to
withdraw, denying Fardad’s motions for a continuance and a new trial, and adopting
Valerie’s proposed division of the marital estate without sufficient evidence.
III. ANALYSIS
A. Special Appearance
Fardad first argues that the trial court erred in denying his special
appearance. Before reaching the merits of this issue, we address Valerie’s argument that
Fardad waived error by entering into a set of Agreed Temporary Orders and Injunctions
after his special appearance was denied. The Agreed Temporary Orders open with the
following statement: “The Court, having considered the pleadings, evidence, and argument
of counsel, finds . . . that this Court has jurisdiction over the parties and subject matter of
this cause.” According to Valerie, this means that the parties agreed to waive any claimed
6
jurisdictional defects. It is not until after this preliminary statement, however, that the
preface “It is agreed and ordered . . .” appears, followed by a number of orders relating to
spousal support, payment of debts, temporary use of property, and discovery. Thus, it
appears that the jurisdictional statement is not itself one of the agreed orders. Further,
because the trial judge had already ruled on the special appearance, this was a true finding
of the court and not an agreement by counsel. We decline to hold that Fardad waived
complaint about this issue. See TEX. R. CIV. P. 120a(4) (if objection to jurisdiction is
overruled, the objecting party may thereafter appear generally for any purpose, and any
such appearance shall not be deemed a waiver of the objection to jurisdiction); see also
Antonio v. Marino, 910 S.W.2d 624, 628 (Tex. App.—Houston [14th Dist.] 1995, no writ)
(filing stipulation, even without expressly making it subject to special appearance, did not
waive objection to personal jurisdiction).
Whether a court has personal jurisdiction over a defendant is a question of law that
we review de novo. Spir Star AG v. Kimich, 310 S.W.3d 868, 871 (Tex. 2010) (citing
BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002)). However, the
trial court frequently must resolve questions of fact before deciding the jurisdictional
question. BMC Software, 83 S.W.3d at 794. When, as here, a trial court does not issue
findings of fact or conclusions of law to support its special appearance determination, we
presume that all factual disputes were resolved in favor of the trial court’s ruling. Spir
Star, 310 S.W.3d at 871. However, when the appellate record includes the reporter’s and
clerk’s records, these implied findings are not conclusive and may be challenged for legal
and factual sufficiency in the courts of appeals. BMC Software, 83 S.W.3d at 795 (citing
Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989) and Zac Smith & Co. v. Otis
Elevator Co., 734 S.W.2d 662, 666 (Tex. 1987)); see id. at 794 (noting that the courts of
appeals, unlike the Texas Supreme Court, have jurisdiction to review the trial court’s fact
findings for both legal sufficiency and factual sufficiency). We determine the
appropriateness of the district court’s resolution of those disputes by an ordinary
sufficiency of the evidence review based on the entire record. Conner v. ContiCarriers &
7
Terminals, Inc., 944 S.W.2d 405, 411 (Tex. App.—Houston [14th Dist.] 1997, no writ).
For legal sufficiency points, if there is more than a scintilla of evidence to support the
finding, the evidentiary challenge fails. BMC Software, 83 S.W.3d at 795 (citing Holt
Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex. 1992)). For factual sufficiency
points, we consider all of the evidence and set aside the order “only if it is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust.” See Cain v.
Bain, 709 S.W.2d 175, 176 (Tex. 1986). If evidence supports the implied findings of fact,
we must uphold the trial court’s judgment on any legal theory supported by the findings.
Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). A defendant who challenges the
trial court’s exercise of personal jurisdiction through a special appearance carries the
burden of negating all bases of personal jurisdiction. Kawasaki Steel Corp. v. Middleton,
699 S.W.2d 199, 203 (Tex. 1985).
Texas courts may exercise jurisdiction over a nonresident defendant if the Texas
long-arm statute authorizes the exercise of jurisdiction and the exercise of jurisdiction is
consistent with federal and state due process guarantees. Max Protetch, Inc. v. Herrin,
340 S.W.3d 878, 884 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (citing Moki Mac
River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007)). In a suit for dissolution of
a marriage, a court of this state may acquire jurisdiction over a nonresident spouse if Texas
was the parties’ last marital residence or if there is any basis consistent with the state and
federal constitutions for exercise of personal jurisdiction. TEX. FAM. CODE ANN. §
6.305(a) (West Supp. 2011). Fardad argues that the trial court erred in denying his special
appearance because the evidence is factually and legally insufficient to support a
determination that the Adulis’ last marital residence was in Texas and because the trial
court’s exercise of jurisdiction is inconsistent with federal due process.2
i. Last Marital Residence
2
Fardad raises no state due process argument.
8
Fardad first argues that Houston was not the Adulis’ “last marital residence”
because he never intended to live there and he and Valerie had separated when she moved
to Houston. The Family Code does not define “last marital residence,” and few courts
have interpreted that term. However, the Austin Court of Appeals examined the term in a
context similar in some ways to the case at bar. See Goodenbour v. Goodenbour, 64
S.W.3d 69, 69 (Tex. App.—Austin 2001, pet. denied). In Goodenbour, the husband, Jay
Goodenbour, moved to New Zealand to start a new job while his wife, Kathryn, remained
in Washington State with their children. Id. at 74. Kathryn and the children planned to
move to New Zealand later, but Kathryn developed reservations and accepted a job in
Texas. Id. Jay helped Kathryn find a house in Texas, provided financial information in
connection with the mortgage, and gave Kathryn power of attorney so that she could close
the sale in his name. Id. Both spouses held title to the property. Id. Jay visited
Kathryn and the children at least five times over the next two years for a total of about forty
days, still hoping to “keep his marriage alive.” Id. When Kathryn filed for divorce, Jay
successfully filed a special appearance, and Kathryn appealed. Id. The court of appeals
reversed, holding that the Texas home was the couple’s “last marital residence.” Id. at 78.
The court observed that
[i]n applying the term “last marital residence,” we should acknowledge that
more and more frequently one spouse may, by choice or necessity, work in a
state or country apart from the family unit for a period of time. A work
separation, where spouses live apart to pursue professional opportunities,
must be distinguished from a marital separation when spouses have decided
to dissolve their marriage. . . . As long as the parties choose to maintain a
marriage, there will be a marital residence somewhere.
Id. at 76. The court noted that Jay had evinced intent to maintain the marriage
while his wife and children were in Texas. Id. at 77. He visited for family events, and
“[d]uring these trips, the parties lived together as man and wife.” Id. The court also
noted that Jay kept his personal belongings at the house in Texas and had played a major
role in purchasing the home. Id. Concluding that “[t]his family bore all the
characteristics of a functioning family unit living in Austin, even though one of the spouses
9
worked in New Zealand . . .” the court held that Austin was the couple’s last marital
residence. Id. at 77–78.
Under the analysis set forth in Goodenbour, the evidence in this case is sufficient to
show that Houston was the Adulis’ last marital residence. We find three points
particularly revealing: first, Fardad purchased the condo in Houston in his own name. He
paid the utility bills and association fees, made mortgage payments, and gave Valerie a
monthly stipend while she lived there. Second, Fardad visited Valerie frequently—even
though the Adulis, unlike the Goodenbours, had no children. As Valerie stated, Fardad
visited her because “[h]e is my husband.” Third, according to Valerie, the couple had not
separated and had no intention of doing so when she moved to Houston, notwithstanding
Fardad’s testimony to the contrary. These facts, taken together, are sufficient to show that
Houston was the Adulis’ last marital residence.
Fardad is correct to point out certain differences between this case and Goodenbour.
Unlike Jay Goodenbour, Fardad did not move most of his possessions to his wife’s new
home, and unlike the Goodenbours, who “lived as man and wife” in Austin, Valerie and
Fardad were never intimate in Houston. But not every possible indicator of a marital
relationship must be present to support a factually and legally sufficient finding that
Valerie and Fardad maintained their last marital residence in Houston. Because more than
a scintilla of evidence supports that determination, and the trial court’s ruling was not so
contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust, we
hold that the evidence is both legally and factually sufficient to support a finding that the
Adulis maintained their last marital residence in Texas. We next turn to whether the
assertion of jurisdiction was consistent with federal due process guarantees.
ii. Minimum Contacts
Federal due process protects a person’s liberty interest from being subject to binding
judgments in a forum with which he has established no meaningful contacts, ties, or
relations. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471–72, 105 S. Ct. 2174, 2181,
10
85 L. Ed. 2d 528 (1985) (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 319, 66 S. Ct.
154, 160, 90 L. Ed. 95 (1945)). Under the federal constitutional test of due process, a state
may assert personal jurisdiction over a nonresident defendant only if the defendant has
purposefully established minimum contacts with the forum state, and the exercise of
jurisdiction comports with traditional notions of fair play and substantial justice. Id., 41
U.S. at 476, 105 S. Ct. at 2184.
In determining whether there were minimum contacts between the defendant and
the forum state, we focus on whether “the defendant’s conduct and connection with the
forum state are such that he should reasonably anticipate being haled into court there.”
Id., 41 U.S. at 474, 105 S. Ct at 2183. This requirement ensures that a nonresident
defendant will not be called into this jurisdiction based solely on random or fortuitous
contacts or the unilateral activity of another party. Guardian Royal Exch. Assurance, Ltd.
v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex. 1991). A single act can
support jurisdiction as long as there is a substantial connection with the forum state.
Phillips v. Phillips, 826 S.W.2d 746, 748 (Tex. App.—Houston [14th Dist.] 1992, no writ).
However, a single act or occasional acts may be insufficient to establish jurisdiction if the
nature, quality, and circumstances surrounding their commission only create an attenuated
connection with the state, diminishing reasonable forseeability of litigation in the forum
state. Id.
Fardad purchased, furnished, and made mortgage and utility payments on the condo
in Houston; visited Houston several times a month for a few days at a time; and sent
Valerie $1,000 per month as a stipend. These actions were not “random and fortuitous
contacts” or the result of some unilateral activity on the part of Valerie. Rather, they were
purposeful and regular contacts initiated by Fardad, and they were of sufficient quality and
quantity that Fardad should not have been surprised to have been called into Texas court
for divorce and property division proceedings. See Reynolds v. Reynolds, 2 S.W.3d 429,
430 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (so holding where husband left Texas
11
after separation but continued to mail wife money for mortgage, home insurance, and car
insurance payments).
Fardad cites Dawson-Austin v. Austin, 968 S.W.2d 319, 326 (Tex. 1998), to support
his contention that he lacked minimum contacts with Texas. In Dawson-Austin, a
couple’s principal place of residence was in Minnesota and they owned a home in
California. Id. at 320–21. They had been to Texas only once, years before, to attend a
business convention. Id. at 326. After the couple separated, the husband moved to Texas
and filed for a divorce there. Id. at 321. The wife filed a special appearance, which the
trial court denied. Id. The Texas Supreme Court reversed, holding that the wife lacked
“purposeful, minimum contacts” with Texas. Id. at 326.
Dawson-Austin is distinguishable from this case. In Dawson-Austin, the wife
never purchased or helped her husband find property in Texas. She also never visited her
husband there. The only circumstance connecting either spouse with Texas was the
husband’s unilateral action of moving to Texas and buying property there. In this case,
Fardad himself bought and furnished the condominium in Texas. He also visited Valerie
there on several occasions. Cf. Goodenbour, 64 S.W.3d at 79 (distinguishing
Dawson-Austin based on similar factors). We hold that Fardad had sufficient minimum
contacts with Texas to support the trial court’s jurisdiction.
iii. Fair Play and Substantial Justice
Finally, we must determine whether the assertion of jurisdiction comported with the
due process requirement of fair play and substantial justice. In undertaking this inquiry,
we may evaluate the following factors: (1) the burden on Fardad; (2) Texas’s interest in
adjudicating the dispute; (3) Valerie’s interest in obtaining convenient and effective relief;
(4) the interstate judicial system’s interest in obtaining the most efficient resolution of the
controversies; and (5) the shared interest of the several states in furthering fundamental
substantive social policies. See Guardian Royal, 815 S.W.2d at 231; Phillips, 826 S.W.2d
at 748. Only in rare cases will the exercise of jurisdiction not comport with fair play and
12
substantial justice when the nonresident defendant has purposefully established minimum
contacts with the forum state. Guardian Royal, 815 S.W.2d at 231.
At the hearing on his special appearance, there was no evidence, and Fardad did not
represent at that time, that he could not be in the country during the suit’s pendency.
Fardad had travelled to Houston many times to see Valerie and presented no evidence that
it would have been an excessive burden for him to continue to travel there as necessary for
the divorce proceedings. See Goodenbour, 64 S.W.3d at 80 (husband’s previous visits to
Austin while living in New Zealand showed that it would not be an excessive burden to
travel there for divorce proceedings). Distance alone is ordinarily insufficient to defeat
jurisdiction. Guardian Royal, 815 S.W.2d at 281; see Goodenbour, 64 S.W.3d at 80
(holding that the burden on husband living in New Zealand and having to attend divorce
proceedings in Texas was not great enough to defeat personal jurisdiction).
With respect to Texas’s interest in adjudicating this dispute, aside from a state’s
routine interest in adjudicating the marital status of its residents, Valerie requested the
Houston condo as part of her proposed property division. Texas has a strong interest in
adjudicating disputes involving the disposition of real property located in the state.
Goodenbour, 64 S.W.3d at 80. Also, in granting a protective order, the trial court found
that there was a clear and present danger of family violence; in the affidavit supporting her
request for this order, Valerie stated that she was afraid that Fardad would physically harm
her. Valerie is a Texas resident, and Texas certainly has an interest in protecting its
residents from the physical harm that could ensue from escaping the state’s jurisdiction, as
well as an interest in enforcing its courts’ protective orders.
Valerie, too, has a strong interest in obtaining convenient and effective relief in
Texas. Valerie lives in Houston and knows no one in Louisiana other than Fardad’s
family. Given the trial court’s finding of a “clear and present danger of family violence”
in this case and Valerie’s lack of resources and earning potential relative to Fardad—who,
prior to his bankruptcy, had made around $160,000 a year—Valerie’s interest in obtaining
13
convenient and effective relief in Texas was especially vital. In light of these
circumstances, we conclude that the trial court’s assertion of personal jurisdiction over
Fardad did not violate the requirement of fair play and substantial justice.
Because the evidence is factually and legally sufficient to show that the Adulis’ last
marital residence was in Texas and the trial court’s assertion of personal jurisdiction over
Fardad did not violate federal due process, we conclude that the trial court correctly denied
Fardad’s special appearance. Accordingly, we overrule Fardad’s first issue.
B. Withdrawal of Counsel
In his second issue, Fardad argues that the trial court erred in permitting Frankfort to
withdraw on the day of trial. An attorney may withdraw from representing a party only
upon written motion for good cause shown. TEX. R. CIV. P. 10. Fardad does not dispute
that Frankfort had good cause—failure to receive payment—to withdraw from
representing him. However, he argues that Frankfort should have withdrawn sooner so as
to minimize the harm to Fardad. See Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986)
(when counsel, without fault or negligence of client, moves to withdraw shortly before
trial, a trial court should either deny the motion to withdraw or grant a continuance).
Fardad’s counsel filed the motion to withdraw on July 23, nine days before trial. Fardad
acknowledged receiving the motion eight days before trial. In his sworn motion for
continuance, prepared by counsel and filed July 30, Fardad never represented to the trial
court that he needed more time to obtain new counsel. In his email opposing the motion to
withdraw, Fardad simply asked the court to deny Frankfort’s motion without asking for
time to obtain new counsel, and in no other filing did Fardad request a continuance on that
basis. Because Fardad did not request time to obtain new counsel, he failed to preserve
error on this point. Cf. Operation Rescue-Nat’l v. Planned Parenthood of Houston & Se.
Tex., Inc., 937 S.W.2d 60, 70 (Tex. App.—Houston [14th Dist.] 1996), aff’d as modified,
975 S.W.2d 546 (Tex. 1998) (an objection at trial that is not the same as the objection urged
on appeal presents nothing for appellate review). Accordingly, we overrule Fardad’s
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second issue.
C. Denial of Motion for Continuance
Fardad next contends that the trial court erred in denying his motion for a
continuance. We review the denial of a motion for continuance for an abuse of discretion.
Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). In his request for
a continuance, Fardad represented that he was absent from the country, but gave no
indication of when or if he would be able to return. He asked for time to obtain a visa but
presented no evidence that he had applied for one. Fardad did not ask to appear at trial by
video-conference or telephone. 3 Indeed, the trial court had reason to doubt whether
Fardad was truly absent from the country: in February 2009, Fardad had represented that he
had to leave the country immediately, but a year later he had filed for bankruptcy in
Louisiana. See Waste Water, Inc. v. Alpha Fishing & Developing Corp., 874 S.W.2d 940,
942 (Tex. App.—Houston [14th Dist.] 1994, no pet.) (trial court is permitted to consider
the entire history of the case in deciding whether or not good cause exists for granting a
continuance). Against this backdrop, the trial court had to consider the fact that Valerie
was not receiving spousal support payments and Fardad had declared bankruptcy. Taking
these facts into account, the trial court did not abuse its discretion in denying Fardad’s
motion for a continuance. We overrule Fardad’s third issue.
D. Denial of Motion for New Trial
Next, Fardad argues the trial court erred in denying his motion for a new trial
3
In light of his alleged inability to come into the United States, Fardad could have asked to appear
via video conference or telephone. Cf. Johnson v. Handley, 299 S.W.3d 925, 929 (Tex. App.—Dallas
2009, no pet.) (“When [an inmate’s] request to appear by a specifically described effective means is made,
a trial court's denial of the inmate’s motion to appear by alternative means is an abuse of discretion unless
the court allows the inmate to proceed by some other effective means.”)
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because he established each of the elements required to obtain a new trial under the
equitable principles of Craddock. See Craddock v. Sunshine Bus Lines, Inc.. 134 Tex.
388, 133 S.W.2d 124 (1939). We review a trial court’s refusal to grant a new trial for an
abuse of discretion. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009)
(citing Cliff v. Huggins, 724 S.W.2d 778, 778 (Tex. 1987)). Under Craddock, a default
judgment should be set aside when the defendant establishes that the failure to appear was
not intentional or the result of conscious indifference, but the result of an accident or
mistake; (2) the motion for new trial sets up a meritorious defense; and (3) granting the
motion will occasion no undue delay or otherwise injure the plaintiff. See Craddock, 134
Tex. at 390, 133 S.W.2d at 126. In a post-answer default judgment, the defaulting party
must establish the absence of intent or conscious indifference in failing to appear at trial by
proof that he was not given notice of the default judgment hearing; if that element is
established, he is not required to set up a meritorious defense. Almandarez v. Valentin,
14-10-00085-CV, 2011 WL 2120115, at *4 (Tex. App.—Houston [14th Dist.] May 24,
2011, no pet.) (mem. op.) (per curiam) (citing Mathis v. Lockwood, 166 S.W.3d 743, 744
(Tex. 2005) (per curiam)). In this case, however, Fardad, does not argue that he failed to
receive notice of the trial setting at which the trial court rendered default judgment against
him. Thus Fardad must still prove that his absence was not intentional or the result of
conscious indifference and the remaining elements of Craddock.
Fardad set a hearing on his motion for new trial and sent Valerie notice of the
hearing, but our record contains no reporter’s record for that hearing. It is the appellant
who bears the burden of bringing forward a sufficient record to show the trial court’s error.
Id., 2011 WL 2120115, at *5 (citing Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex.
1990)). Without a complete record, we must presume the missing portions of the record
would support the trial court’s decision. In re D.A.P., 267 S.W.3d 485, 487 (Tex.
App.—Houston [14th Dist.] 2008, no pet.). Looking solely at Fardad's affidavit, we know
that he knew of the trial setting but claimed to be out of the country on the day of trial. We
do not know when he left or what efforts he made to return for trial. His affidavit did not
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establish a meritorious defense to the property division, nor did his affidavit establish that a
new trial would not harm Valerie. Because Fardad failed to meet the elements of
Craddock, the trial court did not err in denying his motion for a new trial. We overrule
Fardad’s fourth issue.
E. Property Division
Finally, Fardad argues that the trial court abused its discretion in dividing the
marital estate in accordance with Valerie’s proposed division because the evidence was
factually and legally insufficient to support that division. Under section 7.001 of the
Texas Family Code, the trial court must divide community property in a “just and right”
manner. TEX. FAM. CODE ANN. § 7.001 (West Supp. 2011). It is well established that a
trial court may exercise wide discretion in ordering a property division. Bell v. Bell, 513
S.W.2d 20, 22 (Tex. 1974). The division of property need not be equal and it is presumed
that the trial court properly exercised its discretion in determining the value and division of
marital property. Id. We review an alleged error in dividing marital property for an
abuse of that discretion. Id. Legal and factual sufficiency are relevant factors, rather
than independent bases for reversal, in determining whether the trial court abused its
discretion. See Beaumont Bank v. Buller, 806 S.W.2d 223, 226 (Tex. 1991); London v.
London, 94 S.W.3d 139, 143–44 (Tex. App.—Houston [14th Dist.] 2002, no pet.).
Fardad argues that (1) Valerie’s proposed property division, financial information
sheet, and sworn trial inventory and appraisement were never admitted into evidence and
were not properly subject to the trial court’s judicial notice; and (2) the remaining evidence
is insufficient to support Valerie’s reimbursement claims or her valuation of some of
Fardad’s assets. See Tschirhart v. Tschirhart, 876 S.W.2d 507, 508 (Tex. App.—Austin
1994, no writ) (“We believe an inventory and appraisement is analogous to a pleading . . .
unless a party’s inventory is formally admitted into evidence at trial, that party may not rely
on the inventory as evidence on appeal.”); Guyton v. Monteau, 332 S.W.3d 687, 692–93
(Tex. App.—Houston [14th Dist.] 2011, no pet.) (trial court abused its discretion in taking
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judicial notice of all documents and testimony in the case to determine whether applicant
was suitable to administer estate). Contra Vannerson v. Vannerson, 857 S.W.2d 659,
670–71 (Tex. App.—Houston [1st Dist.] 1993, writ denied) (trial court did not abuse its
discretion in considering inventory not introduced into evidence because the trial court
could have taken judicial notice of it).
First, we disagree that Valerie’s supporting documents were not offered before the
trial court as evidence. When Valerie began her testimony on the contents of the
inventory, the trial court asked whether she was requesting that the trial court “take judicial
notice of [the inventory] for evidentiary purposes” if she were asked about “each and every
item” in the inventory, and further inquired whether she was “offering it as a shorthand
rendition of her testimony.” Valerie’s attorney answered affirmatively to both questions.
The inventory was therefore offered and admitted before the trial court as evidence
relevant to division of the parties’ property.
Second, with respect to Fardad’s contention that the evidence is insufficient to
support Valerie’s reimbursement claims or her valuation of certain assets, 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. Murff v.
Murff, 615 S.W.2d 696, 698–99 (Tex. 1981); Finch v. Finch, 825 S.W.2d 218, 221 (Tex.
App.—Houston [1st Dist.] 1992, no writ). “When a party does not provide values for
property to be divided, that party may not complain on appeal that the trial court lacked
sufficient information to properly divide the property.” Deltuva v. Deltuva, 113 S.W.3d
882, 887 (Tex. App.—Dallas 2003, no pet.); accord Todd v. Todd, 173 S.W.3d 126, 129
(Tex. App.—Fort Worth 2005, pet. denied); Tschirhart, 876 S.W.2d at 509. Fardad
complains there was no testimony to support the value of his watch collection on the
inventory or for alleged unpaid spousal support. He further complains that Valerie had
insufficient information to prove the amount wasted by Fardad during the marriage.
Valerie’s inventory contained a stated value for all of the assets except for a condominium
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Fardad owned in Iran and certain life insurance policies on Fardad. She attached copies of
bank account statements that were in Fardad’s name alone. She noted in the inventory
that Fardad listed those accounts as having a balance of zero in his bankruptcy filings.
The court accepted the inventory as a shorthand rendition of her testimony.
Fardad was ordered to produce a trial inventory as early as October 16, 2008. He
failed to do so. As noted above, both parties were bound by a restraining order from
“making any withdrawals from any checking, savings, or brokerage account in any
financial institution, for any purpose,” except as authorized by the trial court. Fardad
repeatedly violated this order by withdrawing money from his accounts, and he also failed
to comply with the trial court’s discovery orders and to pay Valerie’s attorneys’ and
experts’ fees. The trial court warned Fardad that failure to comply with these orders
would result in Fardad’s pleadings being struck. On this record, Fardad cannot now
complain that the trial judge lacked complete information on which to base the division of
property. See Vannerson, 857 S.W.2d at 670. We overrule Fardad’s final issue on
appeal.
IV. CONCLUSION
We conclude that the trial court correctly denied Fardad’s special appearance and
did not abuse its discretion in allowing Frankfort to withdraw, denying Fardad’s motions
for continuance and a new trial, or adopting Valerie’s requested division of the marital
estate. Consequently, we affirm.
/s/ Tracy Christopher
Justice
Panel consists of Chief Justice Hedges and Justices Christopher and Jamison.
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