Saturday, November 10, 2007

Termination of parental rights to be retried by agreement of parties - panel hearing appeal grants reversal

First Court of Appeals agrees to reverse termination of parental rights and to remand for a new trial in per curiam opinion.

Jose Angel Gonzales v. Department of Family and Protective Services, No. 01-07-00549-CV (Tex.App.- Houston [1st Dist.] Nov. 8, 2007)(per curiam)(termination of parent's rights)
Jose Angel Gonzales v. Department of Family and Protective Services

Appeal from 313th District Court of Harris County (Hon. Pat Shelton)

MEMORANDUM OPINION

The parties have filed with this Court an agreement settling their dispute on appeal. See Tex. R. App. P. 42.1(a)(2). Pursuant to their agreement and Texas Rule of Appellate Procedure 42.1(a)(2)(B), without regard to the merits, we set aside paragraphs 9 ("Termination of Respondent Father, JOSE ANGEL GONZALES' Parental Rights), 10 ("Conservatorship of the Child"), and 11 ("Rights and Duties of the Non-Parent Sole Managing Conservator") of the trial court's June 6, 2007 "Decree of Termination." We remand the case to the trial court for a new trial on the Department of Family and Protective Services' claims for parental termination and sole managing conservatorship against Jose Angel Gonzales.

We order this Court's mandate to issue immediately.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

Justice Brock Yates finds evidence insufficient to support termination of parental rights of Dad with criminal past

Father had turned his life around in jail, but trial court thought termination was required in light of his past record. Court of appeals holds that trial court had some choice, and reverses on the basis that the evidence did not support the proposition that termination was in the children's best interest. Termination requires proof of statutory fault ground and application of best interest test.

In the Interest of S.R.L., and L.L., Children, No. 14-06-00659-CV (Tex.App.- Houston [14th Dist.] Nov. 8, 2007)(Opinion by Justice Brock Yates)(Before Justices Brock Yates, Fowler and Guzman)
In the Interest of S.R.L., and L.L., Children
Appeal from 387th District Court of Fort Bend County

OPINION BY JUSTICE YATES

Appellant Luciano Lopez appeals from the trial court's order terminating his parental rights to his children S.R.L. and L.L. In five issues, he challenges the legal and factual sufficiency of the evidence supporting the termination findings, claims the trial court failed to render judgment within the statutory time frame, and asserts that his counsel provided ineffective assistance. Because we determine the evidence is legally and factually insufficient to support a finding that terminating appellant's parental rights is in the best interest of the children, we reverse and remand.

S.R.L. and L.L., ages five and three at the time of the termination hearing, are appellant's children with a woman named Jessica Lopez, to whom appellant was not married but coincidentally shared a surname. The Texas Department of Family and Protective Services (DFPS) became involved with Jessica in 2005 after receiving a report regarding one of Jessica's children with another man. The two children at issue in this case eventually went to live with relatives (one with a paternal aunt and the other with a maternal aunt), and Jessica voluntarily relinquished her parental rights.

During this time, appellant was incarcerated for assault. This was not his first trouble with the law. Over the previous ten years, appellant had been incarcerated frequently after being convicted of a series of misdemeanor crimes, including theft, drug possession, and several assaults, including assaults on Jessica and Jessica's mother but not his children. In 2003, appellant was again convicted of assault and, with enhancements, sentenced to ten years in prison. DFPS sought to terminate appellant's parental rights, arguing among other things that he knowingly engaged in criminal conduct resulting in incarceration and the inability to care for his children for not less than two years from the date of filing of the petition, as set forth in subsection Q of section 161.001 of the Family Code. Tex. Fam. Code Ann. ' 161.001(1)(Q) (Vernon Supp. 2006).

At the termination hearing in June 2006, appellant presented evidence that he had changed his life and wanted an opportunity to parent his children. He testified that he took anger management classes in prison and that these classes had made a difference in his life. He learned to change his method of conflict resolution, as evidenced by the fact that he has not been involved in any fights in prison. DFPS provided appellant a service plan, and he completed all portions that he could while in prison. Appellant explained the steps he has taken to prepare for a productive life outside of prison. To make himself employable, he took over 750 hours of electrical training, receiving several commendations from his instructor, and he tutored other prisoners. Appellant married during his incarceration, and appellant stated that he planned on living with his wife in her house after his release.

Appellant's mother testified that appellant is a changed man and that she and her husband would fully support appellant and his children after his release until he can get back on his feet. Appellant has also maintained contact with his children and has written letters to his two older children (not the subject of this suit) explaining the mistakes he has made in his life and urging them to avoid the path he took.

Appellant apparently impressed both the children's guardian ad litem and the trial court judge. Even though the guardian recommended terminating appellant's parental rights solely based on appellant's history, he stated that he believed appellant "should have some involvement with [the children]." Upon further questioning, the guardian again confirmed that he believed that appellant's parental rights should be terminated to give the children a stable home but hoped that appellant could still visit the children, even though he realized such a scenario was probably legally impossible. The trial judge also seemed conflicted. He stated repeatedly that he felt he did not "have any choice" but to terminate appellant's parental rights under subsection Q because "he=s been in jail so much," but he wanted to allow appellant to have access to his children. For example, the judge stated:

I don't see that I have got any choice. Is there any provision under the law "and I don't know of any, but is there any provision under the law that would allow me to terminate his parental rights and yet allow him to continue [to have] access to these children. I don't know of that.
After terminating appellant's parental rights under subsection Q, the judge called appellant's mother into the courtroom and explained to her as follows:

* He had just terminated appellant's parental rights because he had been in jail so much.
* He had heard no evidence that appellant had Adone anything bad" to these children.
* He would not order appellant to stay away from his older children in appellant's mother's possession, but that she should carefully monitor all visits.
* He "hope[d] there is some way that [appellant] can have some kind of contact with these children" but "he can't award it to him" because "[t]here's no legal basis for it."

A trial court can terminate a parent's rights to his children only after finding both a statutory ground for termination and that termination is in the children's best interest. Tex. Fam. Code Ann. ' 161.001; In re S.M.L., 171 S.W.3d 472, 476 (Tex. App.-Houston [14th Dist.] 2005, no pet.). At the termination hearing, the trial judge found only a statutory ground for termination, subsection Q, but did not find that termination was in the children's best interest, although he later included such a finding in his written order.[1]

Appellant argues on appeal that the evidence is legally and factually insufficient to support termination of his parental rights.

Parental rights can be terminated involuntarily only by a showing of clear and convincing evidence. Tex. Fam. Code Ann. ' 161.001; In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). "Clear and convincing evidence" means "the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Tex. Fam. Code Ann. ' 101.007 (Vernon 2002); In re J.F.C., 96 S.W.3d at 264.

When reviewing factual findings required to be made by clear and convincing evidence, we apply a standard of review that reflects this burden of proof. In evaluating the legal sufficiency of the evidence, we review all the evidence in the light most favorable to the finding to determine whether a reasonable factfinder could have formed a firm belief or conviction that the finding was true. In re J.F.C., 96 S.W.3d at 266. In a factual sufficiency review, we must also determine whether a factfinder could reasonably form a firm belief or conviction about the truth of the allegations by reviewing the entire record. Id.

Appellant argues the evidence is legally and factually insufficient to establish either subsection Q as a statutory ground for termination or that termination is in the children's best interest. We agree that the evidence is insufficient to show that the trial judge formed a firm belief or conviction that termination is in the children's best interest.[2]

Termination of the parent-child relationship is a complete severance and divests for all time the parent's rights to the child. See In re J.R., 171 S.W.3d 558, 567 (Tex. App.-Houston [14th Dist.] 2005, no pet.). Because it is such a drastic remedy, termination proceedings should be strictly scrutinized. Id. It is apparent from the trial judge's own statements that he did not form a firm conviction or belief that appellant should be deprived of all rights to his children. Indeed, he stated several times that he wanted appellant to have a part in his children's lives but felt he had no choice but to terminate appellant's parental rights under subsection Q.

But he did have a choice. The factfinder must find both a statutory violation and that termination is in the children=s best interest. The trial judge may have believed DFPS conclusively established a statutory ground for termination under subsection Q, but the best interest determination is a separate inquiry. See In re S.M.L., 171 S.W.3d at 476. Because the trial judge did not actually form a firm conviction or belief that severing appellant's relationship with his children was in their best interest, we conclude the evidence is legally insufficient.

We also conclude the evidence is factually insufficient to support a best interest finding. That a parent is imprisoned does not automatically establish that termination of parental rights is in the child's best interest. See In re C.T.E., 95 S.W.3d 462, 466 (Tex. App.-Houston [1st Dist.] 2002, pet. denied) ("Termination of parental rights should not become an additional punishment for imprisonment for any crime.").

Though appellant has a violent and unstable past, he presented substantial and uncontradicted evidence that he has turned his life around. He took anger management classes, which helped him change his attitude about conflicts and keep him out of fights in prison. He complied with all portions of the service plan possible in prison. Appellant developed job skills and has a home and family support structure in place to help him upon release. Given this evidence of changes in appellant's life and the judge's finding that appellant has never "done anything bad" to these children, we conclude the evidence is factually insufficient for the trial court to have formed a firm conviction or belief that terminating appellant's parental rights is in the children's best interest. See In re W.C., 98 S.W.3d 753, 766 (Tex. App.-Fort Worth 2003, no pet.) (finding factually insufficient evidence to support best interest finding where mother, despite past bad conduct, had "made significant progress, improvements, and changes in her life," had a good support system in place, and had done everything possible to have her children returned); In re C.T.E., 95 S.W.3d at 467-69 (holding evidence to support best interest finding factually insufficient when, among other things, incarcerated father had prepared to be reunited with his family by taking parenting courses, anger management classes, and job training); In re K.C.M., 4 S.W.3d 392, 399 (Tex. App.-Houston [1st Dist.] 1999, pet. denied) (reversing best interest finding for factual insufficiency based on the way mother turned her life around while incarcerated).

We sustain appellant's first three issues. We reverse the trial court's judgment, render judgment that terminating appellant's parental rights to S.R.L. and L.L. is not in the children's best interest, and remand for further proceedings consistent with this opinion.

/s/ Leslie B. Yates
Justice

Judgment rendered and Opinion filed November 8, 2007.
Panel consists of Justices Yates, Fowler, and Guzman.

[1] In his fourth issue, appellant argues that the trial court should have dismissed the suit because it did not make this best interest finding during the oral rendition and thus the court did not render final judgment within the statutory deadline, which fell in between the time of the oral rendition and the written order. See Tex. Fam. Code Ann. ' 263.401(a) (Vernon Supp. 2006) (providing a one-year deadline for final order or dismissal in certain suits affecting the parent/child relationship). In his fifth issue, appellant argues his trial counsel was ineffective in many respects, including by failing to move for dismissal before the statutory deadline. Because we find the evidence legally and factually insufficient to sustain the termination order, we need not reach these issues.

[2] We note that the Attorney General concedes these issues in its appellate brief.

Monday, November 5, 2007

Award of tort damages in divorce affirmed on appeal

Sheikh v. Sheikh , No. 01-05-00218-CV (Tex.App.- Houston [1st Dist.] Nov. 1, 2007)(Taft)(divorce, property division, interspousal torts)
Full style: Wasim Ahmed Sheikh v. Shama Sheikh
Appeal from 311th District Court of Harris County (Hon. Doug Warne)
Disposition: Trial court judgment affirmed
Husband's counsel: Pamela E. George
Wife's attorneys: John F. Nichols, Sr., Lynn S. Kuriger


MEMORANDUM OPINION


Appellant, Wasim Ahmed Sheikh, appeals from a decree of divorce dissolving the marriage between himself and appellee, Shama Sheikh. That decree divided the parties’ property, made an owelty award to Shama, and also awarded Shama $330,000 in separate tort damages for assault and fraud on her person by Wasim. We determine whether the trial court abused its discretion (1) in dividing the marital estate as it did and (2) in awarding tort damages to Shama. We affirm.

Background

Wasim and Shama married in Pakistan in March 1985. The couple moved to New York City in 1989, where Wasim began his residency and eventually worked in a hospital emergency room. Shama did not work outside the home. They had three children, who were 13, 14, and 17 years old at the time of trial in October 2004. The family moved to Houston in 1999. Wasim continued his emergency-room work out of town part of the week and maintained a private practice, which he began in 2001, in Houston the rest of the week.


Shama presented evidence that, throughout their entire marriage, Wasim sexually and physically assaulted her, sometimes in front of the children, and also physically abused the children. She also presented evidence that, over a 10-year period, Wasim did not report as income large sums of cash that he earned through various means and that, against her will, he sent $2,090,000 of this cash to his extended family living in Virginia and in Pakistan. She also presented evidence that Wasim committed adultery before they were separated. Wasim denied these allegations and produced controverting evidence.


The couple separated in December 2003, after Wasim assaulted and choked Shama until she blacked out. On January 21, 2004, Shama applied for (and quickly obtained) protective orders to protect her and the children from Wasim and filed suit for divorce, eventually alleging insupportability, cruel treatment by Wasim, and Wasim’s adultery as grounds.

[In her “live” petition, Shama also made third-party defendants of Sheik &Sheik Investments, Inc. and Al-Karim International, Inc., which Wasimrepresents in his brief owned the medical equipment used in his privatepractice and the real estate in which his practice was located, and of HighlandMedical Center, P.A., the professional association for Wasim’s practice.]

She sought a disproportionate division of community property, alleging in support, among other grounds, Wasim’s fault in the break-up, his fraud on the community, his wasting of community assets, and gifts that he had made during the marriage. Shama also asserted the following as tort claims: assault, intentional infliction of emotional distress, breach of fiduciary duty, actual and constructive fraud, waste of assets, fraudulent transfers of community property, economic duress, monies had and received, and conversion. Shama sought actual and exemplary damages; an equitable accounting; an audit from Wasim and of Highland Medical Center, P.A.; a receivership of Sheik & Sheik Investments, Inc. and Al-Karim International, Inc.; and costs and attorney’s fees. Wasim counter-petitioned for divorce, alleging cruel treatment by Shama.
The case was tried to the court in October 2004. The trial court rendered its first decree in December 2004. Wasim moved for new trial, which the trial court denied in all aspects except for one that is not relevant to Wasim’s complaints on appeal. Thereafter, in March 2005, the trial court vacated the December 2004 decree and rendered a new final decree. In its March 2005 final decree, the trial court, among other things, (1) divided the marital estate disproportionately; (2) awarded Shama an owelty judgment of $632,000 to equalize the property division;

“Owelty” means “‘[e]quality; an equalization charge.’” Wilkerson v.Wilkerson, 992 S.W.2d 719, 722 n.1 (Tex. App.—Austin 1999, no pet.)(quoting Black’s Law Dictionary 1105 (6th ed. 1990)). The final decreerecited that “[o]n the claims of conversion, money had and received, breach offiduciary duty, economic duress, waste of assets, and fraudulent transfer ofproperty, the court finds in favor of Petitioner, Shama Sheikh, and againstRespondent, Wasim Ahmed Sheikh, and has incorporated its findings ofdamages against Wasim Ahmed Sheikh in its owelty award and division ofproperty.” That is, the trial court did not award tort damages separate and apartfrom the owelty award for these cited claims.

(3) awarded Shama $330,000 in actual damages against Wasim on her claims of assault and actual fraud against her personally; (4) denied Shama’s request for exemplary damages; (5) denied her claim for intentional infliction of emotional distress; (6) and denied all relief not expressly granted. The trial court entered original and supplemental findings of fact and conclusions of law. Wasim appeals.


Standards of Review Applicable to All Challenges


A. Standards of Review for Findings of Fact and Conclusions of Law


Findings of fact in a case tried to the court have the same force and dignity as a jury’s verdict upon jury questions. City of Clute v. City of Lake Jackson, 559 S.W.2d 391, 395 (Tex. Civ. App.—Houston [14th Dist.] 1977, writ ref’d n.r.e.). The trial court’s findings of fact are not conclusive when, as here, we have a complete reporter’s record. Middleton v. Kawasaki Steel Corp., 687 S.W.2d 42, 44 (Tex. App.—Houston [14th Dist.] 1985), writ ref’d n.r.e., 699 S.W.2d 199 (Tex. 1985). The trial court’s findings of fact are reviewable for legal- and factual-sufficiency of the evidence using the same standards that are applied in reviewing the sufficiency of the evidence underlying jury findings. Vannerson v. Vannerson, 857 S.W.2d 659, 667 (Tex. App.—Houston [1st Dist.] 1993, writ denied). In contrast, we review conclusions of law de novo. See BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002).


B. Standards of Review for Sufficiency Challenges


When, as here, an appellant attacks the legal sufficiency of an adverse finding on an issue for which he did not have the burden of proof, he must demonstrate that there is no evidence to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). Such a no-evidence challenge will be sustained when “‘(a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact.’” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).


In our legal-sufficiency review, “we must view the evidence in a light that tends to support the finding of disputed fact and disregard all evidence and inferences to the contrary.” Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 2003). Nonetheless, “[t]he final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review. . . . [L]egal-sufficiency review in the proper light must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).


In reviewing a factual-sufficiency challenge to a fact finder’s finding on an issue on which the appellant did not have the burden of proof, we consider and weigh all of the evidence and set aside the judgment only if the evidence that supports the challenged finding is so weak as to make the judgment clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We must examine both the evidence supporting and that contrary to the judgment. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989).


The fact finder is the sole judge of witnesses’ credibility and the weight to be given their testimony, and the fact finder may choose to believe one witness over another. Wilson, 168 S.W.3d at 819 (legal sufficiency); Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003) (factual sufficiency). Because it is the fact finder’s province to resolve conflicting evidence, we must assume that the fact finder resolved all evidentiary conflicts in accordance with its decision if a reasonable human being could have done so. See Wilson, 168 S.W.3d at 820 (legal sufficiency); Jackson, 116 S.W.3d at 761 (factual sufficiency). An appellate court may not impose its own opinion to the contrary of the fact finder’s implicit credibility determinations. Wilson, 168 S.W.3d at 819 (legal sufficiency); Jackson, 116 S.W.3d at 761 (factual sufficiency).
Division of Marital Property


In 14 issues, Wasim argues that the trial court abused its discretion in dividing the parties’ marital property.


A. The Law


“In a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.” Tex. Fam. Code Ann. § 7.001 (Vernon 2006). “The trial court may make an unequal division of the marital property if there is a reasonable basis for doing so.” O’Connor v. O’Connor, No. 01-06-00445-CV, 2007 WL 1440990, at *6 (Tex. App.—Houston [1st Dist.] May 17, 2007, no pet.). “The division of property must not be so disproportionate as to be inequitable, and the circumstances must justify awarding more than one-half to one party.” Hailey v. Hailey, 176 S.W.3d 374, 380 (Tex. App.—Houston [1st Dist.] 2004, no pet.). Some factors that courts have identified as relevant to division of the marital estate include (1) the parties’ education; (2) their relative earning capacities; (3) the size of their separate estates; (4) the community property’s nature; (5) the parties’ age, health, and physical condition; (6) any fault in breaking up the marriage; (7) the benefits that the innocent spouse would have derived from the marriage’s continuation; and (8) the probable need for future support. Id. at 380 & n.5. The court may also consider in its property division (1) any attorney’s fees that it may decide to award either party and (2) the parties’ own use of community funds to pay their attorney’s fees. Grossnickle v. Grossnickle, 935 S.W.2d 830, 846–47 (Tex. App.—Texarkana 1996, writ denied).


It was Shama’s burden to show that Wasim transferred community property; if she carried that burden, then it became Wasim’s burden to show the transfer’s fairness. See in re Marriage of Notash, 118 S.W.3d 868, 873 (Tex. App.—Texarkana 2003, no pet.).


B. The Standard of Review Applicable to Divisions of Marital Property


“We review the trial court’s property division for abuse of discretion.” O’Connor, 2007 WL 1440990, at *6. This discretion is broad. Raymond v. Raymond, 190 S.W.3d 77, 82 (Tex. App.—Houston [1st Dist.] 2005, no pet.). “The test of whether the trial court abused its discretion is whether the court acted arbitrarily or unreasonably, and without reference to any guiding principles.” Hailey, 176 S.W.3d at 380. “If the division of marital property lacks sufficient evidence in the record to support it, then the trial court’s division is an abuse of discretion.” Raymond, 190 S.W.3d at 83. Nonetheless, “[u]nder an abuse of discretion standard, legal and factual insufficiency are not independent reversible grounds of error but are rather relevant factors in assessing whether the trial court abused its discretion.” Mai v. Mai, 853 S.W.2d 615, 618 (Tex. App.—Houston [1st Dist.] 1993, no writ). If we find reversible error that materially affects the trial court’s just and right division of community property, we must remand the cause for a new division of the community estate. Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex. 1985); Raymond, 190 S.W.3d at 82.


C. The Challenges


Wasim challenges three items awarded to him as part of the division of community property, i.e., in essence charged against his part of the community-property division: (1) half of the $2,090,000 that the trial court found that he had transferred to his family, (2) $75,000 in cash that he had taken from a safe in the family’s home, and (3) $72,500 in funds from a joint savings account.

1. Awards and Findings Based on Wasim’s Transferring $2,090,000 to His Family

a. Pertinent Findings of Fact and Conclusions of Law


The trial court’s relevant findings of fact were as follows. First, the trial court found that Wasim had, over about a 10-year period, transferred community funds in cash to his extended family members in the total amount of $2,090,000. The court’s findings of fact also incorporated the division of marital property from the decree, which in turn awarded Wasim half of that transferred amount—$1,045,000—as his own property. The trial court’s fact findings also recited that the trial court had considered, as part of the just and right division of community property and among other factors, Wasim’s fraud on the community estate and the owelty equalization judgment that it was awarding Shama. As for the owelty equalization award, the trial court recited, as a finding of fact that [o]n the claims of conversion, money had in [sic] received, breach of fiduciary duty, economic duress, waste of assets, and fraudulent transfer of property, the court finds in favor of Shama Sheikh and against Dr. Wasim Ahmed Sheikh and has incorporated its findings of damages against Dr. Wasim Ahmed Sheikh in its owelty award in division of property and no separate award in tort is made by this court on these claims.
The trial court also found that a just and right division of the community estate included an owelty award of $632,000 in favor of Shama.

The trial court’s pertinent conclusions of law were as follows. First, the trial court recited that it had “ordered a division of the estate of the parties,” including the $1,045,000 award to Wasim and the owelty award to Shama (both of which took into account the monies that Wasim had transferred during the marriage), “in a manner that the court deem[ed] just and right, having due regard for the rights of each party and the children of the marriage.” Second, the trial court concluded that Shama was not a party to any fraud committed by Wasim.

b. Wasim’s Challenges

As part of the statement of these various issues, Wasim also asserts that (1)“the Court has failed to identify any actions which comprised the claims” thatits findings of fact recited that it had considered in making its owelty awardand (2) some of the conclusions of law are more properly considered findingsof fact. However, nowhere in his briefing does Wasim present arguments orauthority in support of these contentions. Accordingly, they are inadequatelybriefed, and we will not consider them. See Tex. R. App. P. 38.1(h); Stephensv. Dolcefino, 126 S.W.3d 120, 130 (Tex. App.—Houston [1st Dist.] 2003), pet.denied, 181 S.W.3d 741 (Tex. 2005). Moreover, as for his contention thatsome of the conclusions of law are more properly considered findings of fact,the trial court signed supplemental findings of fact and conclusions of law—atWasim’s request—stating that every conclusion of law that would moreproperly be considered a finding of fact would be so considered. See Ray v.Farmers’ State Bank of Hart, 576 S.W.2d 607, 608 n.1 (Tex. 1979) (“Althoughthis finding [of fact] appears among the conclusions of law, the designation isnot controlling and we may treat it as a finding of fact.”). Wasim’s issues alsoassert that the owelty judgment constituted a divestiture of his separateproperty, but his entire briefing on the subject is one sentence: “[F]urthermore,if these funds [the $2,090,000 transferred to family] never existed it wouldrequire [Wasim] to pay funds earned after the end of the marriage which woulddivest him of separate funds; a prima facie abuse of discretion. Eggemeyer v.Eggemeyer, 554 S.W.2d 137 (Tex. 1977).” There is no further analysis, andthere is no citation to the record in this limited discussion. Accordingly, thissub-issue is insufficiently briefed and will not be considered. See Tex. R. App.P. 38.1(h); Stephens, 126 S.W.3d at 130.

In issue one, Wasim argues that legally and factually insufficient evidence supports the trial court’s finding that he transferred $2,090,000 in community funds to his family. In issues two and three, Wasim argues that the trial court erred in awarding him half of this amount—$1,045,000—as his portion of the marital property because, in essence, legally or factually insufficient evidence supports the trial court’s related findings of fact. In issues three through five and seven through twelve, Wasim also argues that the trial court abused its discretion in awarding Shama an owelty of $632,000 because, in essence, legally and factually insufficient evidence underlies the findings of fact supporting the award.

c. Analysis

The relevant evidence, considered in the light required for a legal-sufficiency challenge,

See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Wal-MartStores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 2003).

is as follows. Wasim’s reported monthly income, from his emergency-room and private practice, was $46,324.42 gross and over $24,500 net, which included about $1,000 to $2,000 each month in cash that his private-practice patients paid for insurance deductibles and co-pays. However, Shama testified that Wasim earned an additional $18,000 to $25,000 in cash from his private practice each month that he did not report, although this sum varied depending on how many patients Wasim saw each month. This additional, unreported, cash income came from “self-paid” patients of his private practice, for whom Wasim offered a special discounted rate. Wasim instructed Shama that cash payments made by self-paid patients were to be “kept separate” and “not to be declared as income.” Likewise, Wasim instructed one of his former office workers, Laura Wilson, not to make deposit slips for cash payments, but to place the cash in a drawer. To Wilson’s knowledge, the cash that she put aside during her two-month employment with Wasim was not reported.


Shama also testified that Wasim had earned additional, unreported cash before and after starting his private practice by writing prescriptions for people and charging them cash. The prescription pads came from hospitals where he worked in the ER. He had brought in letterheads from those hospitals. He was selling that documentation to anyone who would be willing to buy that and present that in the American Consulate in Pakistan to show that this person has a medical need and they need to come here for treatment and that was a way they would get a visa on that. . . . Then he was also writing a lot of prescriptions for Viagra and other such stuff, controlled substance, prescriptions he was writing. He was also doing documentation for people who were either involved in auto accidents or other accidents stating that the pre-existing condition was actually the present condition.

Wasim kept the cash that was collected and not reported as income in the household safe, to which Shama did not have the combination. Not long before the parties separated, Wasim told Shama that the safe contained $75,000 in cash at that time, which was representative of the kinds of sums that Wasim would keep in the safe. Shama never had access to the cash.
Wasim sent this cash back home to his family in “great amount[s].” Shama calculated that, in total, Wasim sent the following sums to his extended family during the parties’ marriage:

●to Hamida Bano, his mother, in Pakistan (for residential property). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$350,000

●to Shahnaz Azhar and Azhar Hassan, his sister and brother-in-law, in Virginia (for residential property). . . . . . . . . . . . . . . .$400,000

●to Shaikh Nadeem Ahmed, his brother, in Pakistan (for commercial property). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$800,000

●to Shaikh Nadeem Ahmed, his brother, in Pakistan (for commercial real property). . . . . . . . . . . . . . . . . . . . . . . . . . . . $450,000

●to Ayesha and Ijaz Ahsan Durrani, his sister and brother-in-law, in Pakistan (for residential property). . . . . . . . . . . . . . . . . . . . .$40,000

●to Fauzia, his sister, and her husband, in Pakistan (for residential property). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$50,000
Total: $2,090,000

Wasim also declared his parents as dependants on his income-tax statements for three years. Furthermore, although Wasim’s sister (to whom Shama alleged that Wasim gave $400,000) made only $8 per hour and her husband made around $40,000 annually, they purchased their home for $400,000, with $40,000 down and $360,000 in financing with no co-signers on the note, despite their modest incomes.

Shama got these totals from a small black diary in which Wasim noted all the transfers that he had made to his family over a 10-year period. Wasim kept the diary in his pocket except when he was showering; it was during these short periods that Shama would peek in the diary to write down figures. Shama never told Wasim that she looked in his diary. She had no photocopier in the house to copy the diary’s pages, and she was afraid that if she took the diary to copy it outside the house, Wasim would find out and kill her.

To transfer this cash, Wasim generally used a system called hawallah. Shama described hawallah as “money laundering by illegal means” and explained that it entailed the sender’s giving cash to a middle man; the middle man’s issuing the sender a check; the sender’s conveying the check to the recipient in Pakistan; and the recipient’s cashing the check in Pakistan to receive the cash. Whenever Shama was in the car with Wasim as he went to conduct a hawallah transaction, he would not allow her to accompany him inside where the transaction was made.

The cash that Wasim sent to his family in Pakistan was generally used to purchase properties. Although Shama asked that he place title to the properties that he was purchasing in Pakistan in one of their names, Wasim refused, saying that he did not have time to go to Pakistan to sign paperwork and that his family “wouldn’t mind giving [the properties] to the kids later on.” Shama produced what she testified were photographs of some of the Pakistani properties that her husband had purchased for his family members. Shama testified that Wasim’s brother and sister-in-law had shown her these properties when she had visited Pakistan in 2001. Finally, Shama produced an e-mail, dated December 24, 2003, from Wasim to his nephew, which recited, “I think you should get the 1 canal residential plot and a commercial plot. Check all the details and tell me how much is the total cost on the purchase. Right now I will sent [sic] $75000/ - to Baji and then she can send it to you. If you need more let me know.”

Wasim told Shama that he “was investing all of his money back home” in Pakistan because “[h]e was planning to go back one day because conditions over here were not so good for Pakistani people.” When Shama questioned him about his motives, Wasim would angrily tell her that “it was his money and he can do whatever he wants to do with it.” Shama did not approve of or consent to these gifts of monies for the benefit of Wasim’s family. She also did not have access to the $2,090,000 that Wasim transferred to his family.

The above is some evidence that Wasim transferred $2,090,000 cash from the community’s assets to his extended family without Shama’s approval. Contrary to Wasim’s arguments on appeal, any lack of documentation supporting Shama’s testimony did not render her testimony incompetent or of no evidentiary value, even though she was an interested witness; rather, the absence of such corroborating documentation went instead to her testimony’s credibility and the weight to be accorded it—matters that we may not consider in a legal-sufficiency review. See Wilson, 168 S.W.3d at 827 (providing that, in legal-sufficiency review, appellate court may not reweigh evidence or make credibility determinations); see also Greenway Bank & Trust of Houston v. Smith, 679 S.W.2d 592, 597–98 (Tex. App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.) (providing that “[t]he uncorroborated testimony of an interested witness is not binding upon a jury, but merely raises an issue of fact” and that jury is “free to reject an interested witness’ uncorroborated testimony by observation of his demeanor, attitude, and similar factors incapable of reproduction in the written record.”) (emphasis added); Kirtley v. Kirtley, 417 S.W.2d 847, 853 (Tex. Civ. App.—Texarkana 1967, writ dism’d w.o.j.) (in divorce case in which property division was appealed, recognizing that “[g]enerally the testimony of an interested party, when not corroborated, does not conclusively establish a fact even when uncontradicted, but only raises an issue of fact for a jury.”) (emphasis added).

For the contrary position, Wasim relies on Southwestern Bell Media, Inc. v.Lyles, in which this Court indicated, in dictum, that an interested witness’stestimony of lost profits, without the introduction of supporting documentation,could constitute legally insufficient evidence. See 825 S.W.2d 488, 497 (Tex.App.—Houston [1st Dist.] 1992, writ denied). Wasim’s reliance on Lyles’sdictum is misplaced for two reasons. First, in support of this dictum, the LylesCourt relied on Automark of Texas v. Discount Trophies, 681 S.W.2d 828, 830(Tex. App.—Dallas 1984, no writ), overruled, Holt Atherton Industries, Inc.v. Heine, 835 S.W.2d 80 (Tex. 1992). The holding of Automark on which theLyles Court relied in dictum was, only a few months later, expressly overruledby the Texas Supreme Court. See Heine, 835 S.W.2d at 84 n.2 (additionallyproviding, in contrast to the Automark court’s cited holding, that “[a]lthough supporting documentation may affect the weight of the evidence, it is notnecessary to produce in court the documents supporting the opinions orestimates.”). Second, Lyles concerned lost profits, which have to be proved by opinions or estimates based on objective facts, figures, or data. Lyles, 825S.W.2d at 496–97; see Heine, 835 S.W.2d at 84. In contrast, Shama merelyhad to prove that community funds were diverted and in what amount, not lost profits. See in re Marriage of Notash, 118 S.W.3d 868, 873 (Tex.App.—Texarkana 2003, no pet.). Moreover, Wasim’s position—that an interested witness’s uncorroborated and contradicted testimony is no evidence,rather than its being just some evidence that raises a fact issue—runs afoul of decades of case law that is consistently to the contrary. See Silva v. Enz, 853S.W.2d 815, 818 (Tex. App.—Corpus Christi 1993, writ denied); GreenwayBank & Trust of Houston v. Smith, 679 S.W.2d 592, 597–98 (Tex.App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.); Brown v. Gulf Coast Mach.& Supply Co., 551 S.W.2d 397, 400 (Tex. Civ. App.—Beaumont 1977, writref’d n.r.e.); Pioneer Cas. Co. v. Feldman, 468 S.W.2d 910, 912 (Tex. Civ.App.—Corpus Christi 1971, no writ) (dictum); Kirtley v. Kirtley, 417 S.W.2d847, 853 (Tex. Civ. App.—Texarkana 1967, writ dism’d w.o.j.); Jamison v.Sockwell, 405 S.W.2d 618, 621 (Tex. Civ. App.—Dallas 1966, writ ref’dn.r.e.); Barker v. Kidd, 357 S.W.2d 490, 491 (Tex. Civ. App.—Austin 1962,no writ); see also Highlands Ins. Co. v. Baugh, 605 S.W.2d 314, 316 (Tex. Civ.App.—Eastland 1980, no writ) (applying same rule to uncorroboratedtestimony of interested witness without mentioning lack of corroboration); Holcemback v. Holcemback, 580 S.W.2d 877, 879 (Tex. Civ. App.—Eastland1979, no writ) (same).

Our conclusion and this authority is in accord with the rules concerning interested witnesses’ testimony generally. See In re Doe 4, 19 S.W.3d 322, 325 (Tex. 2000) (“[T]rial courts . . . are given great latitude in believing or disbelieving a witness’s testimony, particularly when the witness is interested in the outcome.”); Gevinson v. Manhattan Constr. Co. of Ok., 449 S.W.2d 458, 467 (Tex. 1969) (“The general rule is that evidence given by an interested witness, even though uncontradicted, presents an issue to be determined by the trier of fact.”); Cochran v. Wool Growers Cent. Storage Co., 140 Tex. 184, 191, 166 S.W.2d 904, 908 (1942) (“It is the general rule that the testimony of an interested witness . . . , though not contradicted, does no more than raise a fact issue to be determined by the jury.”). We thus hold that the evidence was legally sufficient to support the complained-of findings.

Wasim’s factual-sufficiency challenge is based on the following evidence, which is viewed in a neutral light: See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

1.Wasim testified that, from 1990 through July 1997, he earned in the $30,000 range annually, most of which was spent supporting his family in New York City.

2.Wasim testified that, for the entire period from 1998 to the time of trial in October 2004, his combined, total income was $2,162,000 before taxes.

3.Wasim testified that, during that eight-year period, he supported his family and bought cars and a home in Houston.

4.Wasim began his private practice in June 2002. He began with few patients, from which he argues on appeal that he could not have generated enough cash payments to send $2,090,000 to his family.

5.Wasim denied having sent money to his sister in Virginia. So did his sister. He also denied having sent money to his family in Pakistan other than $22,500, some of which represented Ramadan tithe money that he sent to be distributed in Pakistan to the poor. Shama admitted that the only written documentation of cash transfers to Pakistan was the documentation for these $22,500 in transfers.

6.Wasim testified that the December 24, 2003 e-mail from him to his nephew was simply the nephew’s query as to whether Wasim wanted to purchase property in Pakistan.
if( bInlineFloats )
[Although Wasim asserts in his brief that Shama “admits that the e-mail establishes nothing,” that is not her testimony in the record to which Wasimcites. Rather, in that record excerpt, Shama admitted simply that the e-mail nowhere said that Wasim had purchased any property.]

Wasim denied having invested money in real estate in Pakistan.

7.Shama admitted that most patients of Wasim’s private practice paid their insurance co-payments by check or credit card, rather than by cash.

8.Wasim denied ever having failed to report any income that he had received from any source, including cash payments made by his patients.

Wasim also asserts that Shama’s own expert, Jennifer McClure, who valued Highland Medical Center, P.A., was not informed of any unreported cash. However, what McClure actually said in the cited record was that she had notseen the cash-deposit slips for the cash that was reported, not that she had notbeen informed of the cash that was not reported.

9.Wasim also denied ever having heard of hawallah or having used it to transfer money to his family in Pakistan. Shama never produced the hawallah middle man at trial.

In sum, Wasim relies on this evidence to demonstrate that the $2,090,000 of community funds that the trial court found that he had diverted “never existed and [was] never diverted.”

Much of the evidence on which Wasim relies is simply evidence that the trial court could have either believed or rejected. The trial court evidently rejected it in favor of Shama’s testimony. That credibility call was for the trial court to make and not for this Court to second-guess. See Jackson, 116 S.W.3d at 761. Wasim’s factual-sufficiency argument also stands on his conclusion that the total amount of his reported income, less taxes and expenses, for the last 10 years would not have allowed him to send over $2 million to his family. However, Shama’s testimony was that Wasim took in large sums of unreported income, on which he did not pay taxes, over an approximately 10-year period. The trial court was within its discretion in believing Shama’s testimony that that unreported income was substantial and was what Wasim used to make the $2,090,000 in transfers to his family. The lack of documentary evidence for Shama’s testimony went to her credibility and the weight to be given her testimony, not to its competency. See Smith, 679 S.W.2d at 597–98; Kirtley, 417 S.W.2d at 853. We hold that the cited evidence does not render Shama’s contrary evidence so weak as to make the findings of fact or the judgment manifestly unjust. Neither would the cited evidence render the findings of fact or the judgment against the great weight and preponderance of the evidence, even if that were the proper standard of review for this adverse finding. See Cain, 709 S.W.2d at 176 (providing that, in reviewing factual-sufficiency challenge to finding, like that here, on issue for which appellant did not have burden of proof, appellate court sets aside judgment only if evidence that supports challenged finding is so weak as to make judgment clearly wrong and manifestly unjust).
According to Wasim’s calculations on appeal, and including the $1,045,000 awarded to Wasim and the $632,000 in owelty awarded to Shama, the trial court awarded net community assets of $1,444,726.91 to Wasim and of $1,242,374.67 to Shama. Also according to Wasim’s calculations on appeal, this was a division of 53.76% in favor of Wasim and of 46.24% in favor of Shama. Besides his arguments concerning the legal- and factual-sufficiency of the evidence underlying the trial court’s finding that Wasim transferred $2,090,000 to his family, which we have already overruled, Wasim does not otherwise explain how this percentage division is not just and right. Accordingly, we hold that the trial court did not abuse its discretion in dividing the parties’ estate as it did.

We overrule issues one through five and seven through twelve.

We distinguish the authority on which Wasim relies or find that it does notsupport his challenges. Lewis v. Lewis is distinguishable because, in it, thecourt held that evidence that the husband had spent only $510 on massageparlor visits was legally insufficient to support a reimbursement award of$50,000 to the wife for expenditure of community funds. No. 01-98-00354-CV, 1999 WL 442176, at *2 (Tex. App.—Houston [1st Dist.] July 1, 1999, nopet.). McElwee v. McElwee is distinguishable because, in it, the trial courterroneously characterized a significant amount of community property asseparate property, which error had more than a de minimus effect on theproperty division. 911 S.W.2d 182, 189 (Tex. App.—Houston [1st Dist.] 1995,writ denied). Thomas v. Thomas is distinguishable for the same reason as is McElwee. 738 S.W.2d 342, 345 (Tex. App.—Houston [1st Dist.] 1987, writdenied). Bybee v. Bybee is distinguishable because, in it and unlike here, the court of appeals reversed a property division when the wife could not testify to facts that were necessary to support the trial court’s property division. 644S.W.2d 218, 221–22 (Tex. App.—Fort Worth 1982, no writ). Finally,Morrison v. Morrison does not assist Wasim because that court upheld adecree that reimbursed the wife when the evidence showed that the husband had spent substantial amounts of the community estate on improper purposes. 713 S.W.2d 377, 379 (Tex. App.—Dallas 1986, writ dism’d).

Likewise, here,Shama produced evidence that Wasim had spent substantial community funds against her wishes; the principal difference is that the husband in Morrison admitted these expenses, whereas Wasim denied them. See id. at 380. As discussed above, that distinction does not render the trial court’s decision herean abuse of discretion.

2. Awards and Findings Based on Wasim’s Taking $75,000 from the Household Safe
In its decree, the trial court awarded Wasim, as part of the division of marital property, $75,000 in cash that was kept in a household safe, that had disappeared after suit was filed and before trial, and that Shama contended that Wasim had sent to his family. The court’s findings of fact incorporated the division of marital property from the decree, which in turn listed this asset, its value, and its award to Wasim. The trial court’s pertinent conclusion of law was that it had “ordered a division of the estate of the parties,” including this asset, “in a manner that the court deem[ed] just and right, having due regard for the rights of each party and the children of the marriage.”

In issue 13, Wasim argues that the trial court abused its discretion in awarding him this $75,000 because the $75,000 never existed. In support of this argument, Wasim also contends that legally and factually insufficient evidence underlies the trial court’s relevant findings.
Viewing the evidence in the light most favorable to the trial court’s findings, we note that Shama testified that (1) Wasim did not report many cash payments that he received in his private practice and otherwise; (2) he kept those unreported funds in the safe in the house; (3) he told Shama that he had $75,000 cash in the household safe soon before the couple separated; (4) she did not have the combination to the safe; and (5) he took the safe’s contents after suit was filed and did not give her an accounting of what he did with the money therein. She also testified that he “would send [cash] back home to his family” in large amounts. Finally, the December 24, 2003 e-mail from Wasim to his nephew recited, “I think you should get the 1 canal residential plot and a commercial plot. Check all the details and tell me how much is the total cost on the purchase. Right now I will sent [sic] $75000/ - to Baji and then she can send it to you. If you need more let me know.”

We hold that this is some evidence, when viewed in the required light, that Wasim kept unreported, community, cash earnings in the home safe; that he removed the cash from the safe shortly after suit was filed; that the cash in the safe at that time totaled $75,000; that that money may have been sent soon thereafter to his family in Pakistan; and that, in any event, Shama never received any of that cash or consented to its disposition. We thus hold that the evidence was legally sufficient to support the findings relating to the disposition of this $75,000.
The gist of Wasim’s factual-sufficiency challenge is that the only evidence of the $75,000 came from “the mouth of the wife,” without supporting documentation, and that although Shama testified that she did not receive any of these monies, “we never hear anything else about” them. This is, in essence, an argument that Shama’s testimony was not credible and that no or little weight should be accorded it. Contrary to Wasim’s implicit request, we cannot consider matters of credibility or second-guess the weight that the fact finder accorded the evidence in either a legal- or a factual-sufficiency challenge. See Wilson, 168 S.W.3d at 827 (legal sufficiency); Jackson, 116 S.W.3d at 761 (factual sufficiency). Shama’s testimony alone would have sufficed to establish the existence and disposition of the $75,000. But her testimony was not unsupported: she also produced the e-mail from Wasim to his nephew, dated shortly before suit was filed, in which Wasim stated that he was sending $75,000 and in which he discussed the purchase of property. Although corroborating evidence was not necessary for Shama’s testimony to constitute some evidence, this e-mail did corroborate it. We hold that the evidence supporting the relevant findings is not so weak as to make the judgment clearly wrong and manifestly unjust. We thus further hold that the evidence is not factually insufficient to support the relevant findings.

Given that the evidence supporting the trial court’s relevant findings was neither legally nor factually insufficient, and the fact that Wasim does not explain how the trial court otherwise might have abused its discretion regarding this asset, [See Mai v. Mai, 853 S.W.2d 615, 618 (Tex. App.—Houston [1st Dist.] 1993,no writ) (“Under an abuse of discretion standard, legal and factualinsufficiency are not independent reversible grounds of error but are ratherrelevant factors in assessing whether the trial court abused its discretion.”).] we also hold that the trial court did not abuse its discretion in dividing this asset as it did. We overrule issue 13.

3. Awards and Findings Based on Wasim’s Taking $72,500 from an ING Joint Savings Account
In its decree, the trial court awarded Wasim, as part of the division of marital property, $72,500 that Wasim had transferred pretrial from an ING joint savings account into his personal account and for which Shama alleged at trial that she had not received an accounting. The trial court’s findings of fact incorporated the division of marital property from the decree, which in turn listed this asset, its value, and its award to Wasim. In its findings, the trial court also recited that the factors that it had considered in making a just and right division of the parties’ community estate were, in part, Wasim’s fraud on the community; the benefits that the innocent spouse (Shama) might have derived from the continuance of the marriage; disparity of the spouses’ earning power and their ability to support themselves; the spouses’ education and future employability; the community’s indebtedness and liabilities; the spouses’ earning power, business opportunities, capacities, and abilities; the spouses’ need for future support; the nature of the property divided; and “attorney’s fees to be paid.” The trial court’s pertinent conclusion of law was that it had “ordered a division of the estate of the parties,” including this asset, “in a manner that the court deem[ed] just and right, having due regard for the rights of each party and the children of the marriage.”

In issue 14, Wasim argues that the trial court abused its discretion in awarding to him this $72,500 because much of that amount had already been expended on Shama’s former attorney’s fees and for her support.

The trial court’s fact findings recited that Wasim had withdrawn $72,500 anda separate $8,000. In his brief, Wasim mentions in passing, in one phrase, theseparate $8,000 withdrawal from this joint account. However, his complaintotherwise consistently concerns only the $72,500 awarded to him from thisjoint account, not the additional $8,000 that he was awarded. Accordingly, weconstrue his appellate challenge as relating only to the $72,500 award to him,not to the additional $8,000 award to him.

In support of this argument, Wasim also contends that legally and factually insufficient evidence underlies the trial court’s relevant findings.

Wasim admitted below that he withdrew $72,500 from the ING joint savings account on January 14, 2004 and deposited it into a personal account under his name only. Although Shama testified that Wasim did not give her an accounting of the funds that he had withdrawn from this account, she clarified on cross-examination that she had meant only that Wasim had not accounted to her for those funds. In fact, at trial, Wasim produced a letter from his attorney to Shama’s attorney, dated three months before trial, in which his attorney gave an accounting of the $72,500 from this account: (1) $40,000 of it was paid to Wasim’s former attorneys (Cooper & Scully for $15,000) and his current ones (Conner & Lindamood for $25,000), (2) $25,000 of it was paid to Shama’s former attorneys (Short & Jenkins), and (3) $9,000 was paid to Shama as her first support payment.

We recognize that the sum total from this accounting is $74,000, not $72,500,but Wasim’s point is that the full $72,500 that he withdrew from the ING jointsavings account was spent on these items.

This letter was admitted into evidence, it was supported by Wasim’s testimony, the correctness of the letter’s accounting was not disputed by Shama when she was cross-examined on it, and Shama does not attack the letter’s veracity on appeal. Therefore, the evidence conclusively shows that the $72,500 that Wasim transferred from this account was spent on his former and present attorney’s fees, Shama’s former attorney’s fees, and Shama’s support payment. That is, the evidence conclusively demonstrates that the portion of this joint account that was paid to or on behalf of Shama was $32,500 ($25,000 for her former attorney’s fees, plus $7,500 of $9,000 paid to her for support).

Nonetheless, we hold that Wasim has not demonstrated that the trial court abused its discretion in awarding the $72,500 from this account to Wasim in its property division. “The trial court has great discretion in deciding whether to award attorney’s fees to either party” in a suit for divorce. Grossnickle, 935 S.W.2d at 846. “This same principle applies to whether the trial court should consider a party’s payment of attorney’s fees out of community funds in the division of the property.” Id. “The allocation of attorney’s fees is a factor to be considered by the court in making an equitable division of the community estate.” Id. at 847. “Prior payments out of the community estate to attorneys in the divorce action are likewise to be taken into account in the division of the marital estate.” Id.

The trial court’s decree ordered that each party bear its own costs and attorney’s fees as part of the property division; however, the trial court specified that the fees for which it was ordering the parties to be responsible were those incurred by their current attorneys at the time: for Shama, Nichols Law, P.L.L.C.; for Wasim, Conner & Lindamood. The trial court’s findings of fact also recited that the court had considered “the attorney’s fees to be paid” in its determination of a just and right division of the community estate.

$40,000 of the funds that Wasim withdrew from this joint ING account were spent on his own attorney’s fees, both those to his current attorney’s firm of Conner & Lindamood and those to his former attorney’s firm of Cooper & Scully. Because it was within the trial court’s discretion to consider attorney’s fees, like these, that were paid out of community assets in its just-and-right property division, it was also within the trial court’s discretion to award Wasim monies that he had already spent on his own attorney’s fees. See id. at 846–47. Moreover, the trial court also ordered Wasim to pay his own attorney’s fees with respect to the firm of Conner & Lindamood, and Wasim does not complain of that portion of the decree on appeal.

It was likewise within the trial court’s discretion to make Wasim accountable for community funds that had been expended on Shama’s former attorney’s fees as part of the court’s community-property division, especially given that the trial court had also found that Wasim’s adultery and his having made the marriage “intolerable, unendurable and incapable of being borne” for and by Shama due to his conduct (including multiple assaults) justified the divorce and given its findings concerning the parties’ respective earning power, among other factors. See id. And although the trial court expressly made Shama responsible for her attorney’s fees incurred to her current attorneys at Nichols Law, P.L.L.C., it did not make her responsible to pay her own fees incurred to her former counsel at Short & Jenkins. We thus deem the trial court to have taken into account, in its division of the community estate, Shama’s fees to Short & Jenkins, which Wasim had already paid from the $72,500 that he withdrew from the joint ING savings account.

That leaves for our consideration the $7,500 that was paid to Shama out of this joint account for her support. Wasim does not explain how the assessment of this relatively small sum constitutes an abuse of discretion given the court’s otherwise broad discretion in dividing the community estate, the findings that the court made concerning Wasim’s behavior, the parties’ relative earning capacities, and like circumstances.
We overrule issue 14.

Denial of Motion for New Trial

In issue six, Wasim argues that the trial court abused its discretion in denying his motion for new trial based upon newly discovered evidence.

“It is incumbent upon a party who seeks a new trial on the ground of newly discovered evidence to satisfy the court first, that the evidence has come to his knowledge since the trial; second, that it was not owing to the want of due diligence that it did not come sooner; third, that it is not cumulative; fourth, that it is so material that it would probably produce a different result if a new trial were granted.” Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983), overruled on other grounds by Moritz v. Preiss, 121 S.W.3d 715 (Tex. 2003). “In passing on a motion for new trial on the ground of newly discovered evidence, the court will take into consideration the weight and the importance of the new evidence and its bearing in connection with the evidence received at trial.” Id. We review the trial court’s denial of a motion for new trial asserting the ground of newly discovered evidence for abuse of discretion, and make every reasonable presumption in favor of the trial court’s denial. Id. at 809–10.

In his motion for new trial, Wasim relied on the following evidence that he did not produce at trial: (1) a report by a computer-forensic expert, whom an engagement letter shows that Wasim hired after trial, opining that the December 24, 2003 e-mail from Wasim to his nephew concerning property in Pakistan could have been altered and was “suspect”; (2) certified documents from the Development Authority in Lahore, Pakistan, averring that certain of Wasim’s family members had no real property in their names in Lahore; (3) affidavits from most of Wasim’s family members that they did not hold real property in Lahore in their names and from one family member describing the sole piece of property that he held; and (4) certain documents relating to Wasim’s sister and brother-in-law’s closing on their $400,000 home in Virginia and their tax returns, which Wasim argues demonstrate that his sister’s trial testimony “was true.” Wasim also complains on appeal that he was “utterly surprised” by Shama’s trial list of monies that she alleged that he had sent to his extended family.

Although Wasim asserts on appeal that he “had no notice of the existence of [this] evidence before trial” and that he “used due diligence before trial to discover” it, the record from trial and from the new-trial hearing belies that assertion. For example, concerning the December 24, 2003 e-mail, Shama produced it in discovery in hard copy in April 2004, nearly six months before trial, and in electronic form more than 10 days before trial. On July 23, 2004—about three months before trial—Wasim’s attorney wrote to Shama’s attorney, referencing the e-mail and indicating that Wasim claimed that it was “fabricated.” Moreover, excerpts from Wasim’s pre-trial deposition, read at trial and produced in Shama’s response to his new-trial motion, show that when Wasim was questioned about this e-mail, he merely explained its meaning, without expressing surprise at not having known of it before or questioning its accuracy. The fact that he knew of the e-mail months before trial and had an electronic version within two weeks of trial demonstrates that the trial court did not err if it concluded that Wasim did not show due diligence in obtaining his computer-forensic expert’s report.

Regarding Shama’s list of monetary transfers, Wasim was shown such a list at his deposition about two weeks before trial. In that deposition, he denied the transfers and commented that Shama should “bring . . . on” any proof that she had in support. During her deposition around two weeks before trial, Shama testified that Wasim’s brothers and sisters had taken her to see their family’s properties in Pakistan. And about a week before trial, Shama’s attorney sent Wasim’s attorney the photographs of what she contended were the real properties owned by his family in Pakistan, as well as documents from the local Pakistani government that she contended verified his family’s ownership. Shama also attached to her response to Wasim’s motion for new trial her affidavit, in which she averred that, at her pre-trial deposition, she had disclosed to Wasim’s counsel that she was claiming that Wasim had transferred 2,090,000 in unreported cash to his family in Pakistan, using hawallah, and to his sister in Virginia. The fact that, before trial, Wasim had seen Shama’s list of transferred funds, that he had seen the photographs of Pakistani properties that she contended were his family’s, and that his counsel had heard Shama testify that his family members had also shown her these properties demonstrates that the trial court did not err if it concluded that Wasim did not show due diligence in obtaining the affidavits and certifications from his family members or the Lahore authorities before trial.

Finally, concerning the closing documents and tax returns of Wasim’s sister and her husband, his sister testified to those matters at trial. A trial court does not abuse its discretion in denying a motion for new trial based on newly discovered evidence that is merely cumulative of evidence admitted at trial. See Jackson, 660 S.W.2d at 809 (providing that it is movant’s burden to show that evidence claimed to be newly discovered is not merely cumulative of trial evidence).
Finally, we note that Wasim did not request a continuance before trial in order to compile evidence rebutting the complained-of materials that he had received before trial.
Given the above, we hold that the trial court did not abuse its discretion in denying Wasim’s motion for new trial based on newly discovered evidence. We overrule issue six.

Tort Award

In issues 15 through 21, Wasim argues that the trial court erred in awarding Shama $330,000 in tort damages apart from the division of marital property.
In its pertinent findings of fact, the trial court found as follows:

●On the claim of assaults and actual fraud on the person, the court finds in favor of Shama Sheikh and against Dr. Wasim Sheikh in the amount of $330,000 in actual damages. The court makes no award of exemplary damages.
. . .

●On the claims of conversion, money had in [sic] received, breach of fiduciary duty, economic duress, waste of assets, and fraudulent transfer of property, the court finds in favor of Shama Sheikh and against Dr. Wasim Ahmed Sheikh and has incorporated its findings of damages against Dr. Wasim Ahmed Sheikh in its owelty award in division of property and no separate award in tort is made by this court on these claims.

The same tort award and substantively similar recitations appeared in the final judgment. The pertinent conclusions of law stated, “The tort award for assaultive behavior and fraud on the person of Shama Sheikh is separate and distinct from the division of property” and “Shama was not a party to any fraud committed by Dr. Wasim Ahmed Sheikh.”

In issues 17 through 21, Wasim argues that legally and factually insufficient evidence underlies the trial court’s award of these tort damages for the following reasons: (1) an award to Shama of damages for fraud on her person constituted a double recovery because the court had already awarded an owelty judgment based on similar grounds; (2) there was legally or factually insufficient evidence of fraud on the person; and (3) there was legally or factually insufficient evidence to sustain the actual-damages award for Shama’s claim for assault. We need consider only the award for assault for reasons that will become apparent below.

“The elements of assault are the same in both the criminal and civil context.” Hall v. Sonic Drive-In of Angleton, Inc., 177 S.W.3d 636, 649 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). “A person commits an assault if the person: (1) intentionally, knowingly, or recklessly causes bodily injury to another; (2) intentionally or knowingly threatens another with imminent bodily injury; or (3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.” Id. at 649–50 (citing Tex. Pen. Code Ann. § 22.01(a) (Vernon Supp. 2006) and Forbes v. Lanzl, 9 S.W.3d 895, 900 (Tex. App.—Austin 2000, pet. denied)).

“Non-economic damages include compensation for pain, suffering, mental anguish, and disfigurement.” Jackson, 116 S.W.3d at 763. Conscious pain and suffering may be established by circumstantial evidence. E.g., HCRA of Tex., Inc. v. Johnston, 178 S.W.3d 861, 871 (Tex. App.—Fort Worth 2005, no pet.). “The duration of the pain . . . is an important consideration.” Id. The fact finder “is given a great deal of discretion in awarding an amount of damages it deems appropriate for pain and suffering.” Id. “Once the existence of some pain and suffering has been established, . . . there is no objective way to measure the adequacy of the amount awarded as compensation.” Id. Put another way, “[t]he process of awarding damages for amorphous, discretionary injuries such as . . . pain and suffering is inherently difficult because the alleged injury is a subjective, unliquidated, nonpecuniary loss.” Id.

Mental-anguish damages, as with most damages, may be proved by direct or circumstantial evidence; direct evidence is not required, but in the absence of it, courts should give “close . . . scrutiny of other evidence offered on this element of damages.” E.g., Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995). As for proof of mental-anguish damages by direct evidence, “an award of mental anguish damages will survive a legal sufficiency challenge when the plaintiffs have introduced direct evidence of the nature, duration, and severity of their mental anguish, thus establishing a substantial disruption in the plaintiffs’ daily routine.” Id. As for proof of mental-anguish damages by circumstantial evidence, “we apply traditional ‘no evidence’ standards to determine whether the record reveals any evidence of ‘a high degree of mental pain and distress’ that is ‘more than mere worry, anxiety, vexation, embarrassment, or anger’ to support any award of damages.” Id. (quoting J.B. Custom Design & Bldg. v. Clawson, 794 S.W.2d 38, 43 (Tex. App.—Houston [1st Dist.] 1990, no writ)). Additionally, concerning circumstantial evidence, “‘some types of disturbing or shocking injuries have been found sufficient to support an inference that the injury was accompanied by mental anguish.’” Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 797 (Tex. 2006) (quoting Woodruff, 901 S.W.2d at 445) (concerning future mental-anguish damages).

The evidence viewed in the light most favorable to the judgment shows the following. Wasim had a long history—spanning the entire 19 years of marriage—of slapping, hitting (with his hands or objects), beating, pushing, shoving, and pulling the hair of Shama. The assaults happened “on many occasions”; in fact, Shama testified that they occurred on “basically a daily basis” while the family was in New York. The couple’s son and daughter confirmed that their father had abused their mother on “more than one occasion.” For example, in August 2002, Wasim hit Shama in the chest with a child’s toy cash register, leaving a substantial, dark bruise. One day in December 2003, Wasim hit Shama because she bought a pizza, then choked her to the point that she blacked out. Two of the Sheikhs’ children confirmed that this incident occurred. Wasim also beat Shama if she cried or laughed.

Shama filed three complaints seeking protective orders from Wasim for his family violence committed in New York. In one of the New York City proceedings, the parties entered into and signed an agreement to end that litigation; the agreement contained the following recitation: “Whereas physical and verbal abuse by the husband caused the wife to seek a temporary order of protection in the Family Court of the State of New York in the County of Queens.” Shama also obtained a temporary restraining order from the trial court in Harris County in January 2004 to protect her and the children from Wasim’s family violence. In February 2004, the trial court extended that protective order after having conducted a hearing at which both parties’ counsel were present; in its February order, the trial court recited that, after having heard evidence and having interviewed the children, it found that Wasim had committed family violence.

Wasim had sex with Shama throughout the marriage without her consent. Wasim also abused her and caused her pain during sex by pulling her hair, slapping her, pinching her, “using a lot of force,” hitting her, cursing her, calling her “vile names,” and forcing her to do certain sexual acts against her will. When he made her have oral sex with him, he would sometimes tell her that she “was too fat and ugly for him to have regular sex with [her].” Sometimes, Wasim would force Shama to have sexual encounters with him while she was lying with her daughter in that daughter’s bed. [Wasim sometimes made Shama sleep with the children or on the floor.]

Even when the non-consensual sex occurred in Wasim’s bedroom, the couple’s daughter would sometimes stand in the doorway or enter the bedroom and witness the incidents. In January 2004, two days before Shama sought a protective order, Wasim told Shama that “this was the last time that [she] had to please him” because of the upcoming divorce and forced her to have oral sex with him. During this incident, Wasim again refused to shut the bedroom door.

Wasim does not separately challenge the sufficiency of the evidence underlying the trial court’s conclusion that he assaulted Shama. Rather, in issues 19 through 21, Wasim argues that legally or factually insufficient evidence underlies the damage award that the court made for his assaults. Specifically, Wasim argues that there is no or factually insufficient evidence of past or future medical expenses; of past or future physical pain and suffering; of past or future mental anguish; or of any other general or special damages. His challenges concern the award of mental-anguish and physical-pain-and-suffering damages at all; we do not understand him to argue, as an alternative challenge, that if Shama proved some level of mental-anguish and physical-pain-and-suffering damages, then $330,000 is too high a figure to compensate her.
Shama did not present evidence of past medical expenses or of physical injuries requiring future medical expenses. She did, however, present ample direct and circumstantial evidence of past physical pain and suffering and past mental anguish. For example, concerning physical pain and suffering, Shama testified that Wasim’s sexual assaults hurt her; she produced evidence of a substantial bruise that Wasim made by assaulting her with a child’s toy; and she described in detail the numerous physical and sexual assaults perpetrated against her, including one assault that caused her to black out. This was direct and circumstantial evidence of physical pain and suffering.

In addition to Shama’s evidence of the severity of the assaults that she endured for over a decade, the evidence, viewed in the required light for a legal-sufficiency review, shows that Shama “knew that this [abuse] would never come to an end” and even contemplated suicide on several occasions. However, “every time that I thought of [suicide], I thought, what’s going to happen to my children; and that was the only reason I couldn’t finish myself.”

Shama’s fear for the children’s well-being if she killed herself was supportedby her testimony of Wasim’s long history of abusing the children physicallyand treating them harshly. For example, Shama and the couple’s daughter bothtestified to an incident in which Wasim threw a plate in a tantrum. The platehit the daughter in the mouth, cutting her lip. Wasim finished watching asports games before he took the daughter to his office, where he stitched herlip without anesthetic. The Sheikhs’ son confirmed that his father sometimesabused him; their daughter testified that Wasim had abused her and her brotheron many occasions.

Shama saw a psychiatrist twice in April and May, 2004 about her depression and suicidal feelings. Shama also saw an internist in June, July, and September 2004 for what the doctor described in his notes both as “major depression” and “depression.” Although this doctor did not give Shama psychological testing, his notes indicate that she was taking Effexor, an anti-depressant, at varying doses. See Physicians’ Desk Reference 3411 (61st ed. 2007).
Shama also testified that she feared for her own safety and thought that Wasim might kill her. A friend of Shama’s testified that she saw Shama on the day that Shama and Wasim separated. When the friend’s husband opened the door, Shama “screamed,” and he knew that “something was wrong with her.” The friend found Shama in the parking lot; Shama was in her car, crying and “quite upset.” The friend had seen Shama in such a state on more than one occasion. Shama felt “very bad and degraded” by the non-consensual, abusive sex that Wasim forced upon her. Wasim had indicated to Shama that he could do with her whatever he wanted to do. In fact, the assaults made Shama feel very upset. I have started thinking that I am nothing and it’s like he can do whatever he wants to do with me. It feels like I’m worse than even an animal, he can treat me in whatever manner he wants to treat me.

The above evidence belies Wasim’s position on appeal that “[t]here is not one word from [Shama] as to how the alleged assaults . . . affected her mental state”; that Shama “never testified as to any pain or suffering attributable to these alleged assaults”; that Shama, “without much more, alleges that she has suffered mentally due to [Wasim’s] treatment”; and that her mental anguish does not “rise to a compensable level.” Rather, when viewed in the light most favorable to the judgment, this is some evidence—both direct and circumstantial—that Shama suffered the type of physical pain and suffering and mental anguish from Wasim’s numerous and violent assaults for which the law allows recovery. See Woodruff, 901 S.W.2d at 445 (“As we have noted, historically, some types of disturbing or shocking injuries have been found sufficient to support an inference that the injury was accompanied by mental anguish. As a general matter, though, qualifying events have demonstrated a threat to one’s physical safety or reputation or involved the death of, or serious injury to, a family member.”) (emphasis added); see also id., 901 S.W.2d at 442 (in dictum, noting that, in historical development of law of mental-anguish damages, “once particularly disturbing events were proved by reference to objective phenomena or conditions, the law generally allowed the claimant’s mental suffering to be presumed to flow from such events. The oldest examples of this category of cases are those involving assault, slander, and other intentional torts.”) (emphasis added; citations omitted). We distinguish the authority on which Wasim relies because, in it, there was no evidence of the level of abuse or distress that is present here. [See Rice Food Mkts., Inc. v. Williams, 47 S.W.3d 734, 739 (Tex.App.—Houston [1st Dist.] 2001, pet. denied); Phar-Mor, Inc. v. Chavira, 853S.W.2d 710, 712–13 (Tex. App.—Houston [1st Dist.] 1993, writ denied).]

We thus hold that the evidence is legally sufficient to show that Shama suffered compensable levels of mental anguish and physical pain and suffering in the past.

Although also couched in terms of factual sufficiency, most of Wasim’s argument is that there was no evidence of compensable physical pain and suffering and mental anguish. The sole factual-sufficiency challenge concerning Shama’s past physical pain and suffering that we can discern is that Shama’s direct and circumstantial evidence set out above is undermined by Wasim’s denial that he had ever assaulted Shama or the children at any time. Of course, it was up to the trial court to determine which party was credible and what weight to give his or her testimony. See Jackson, 116 S.W.3d at 761. The trial court made that credibility call in Shama’s favor—which is not surprising given that, among other things, Wasim’s denials contradicted both the recitations in the protective-order agreement that he signed in 1993 and the Harris County trial court’s earlier finding that Wasim had committed family violence. As for his factual-sufficiency challenge to Shama’s direct and circumstantial evidence concerning her past mental anguish, Wasim notes that Shama did not seek counseling or treatment until after suit was filed; she saw doctors only a few times; neither doctor recorded having tested her to confirm depression; and neither doctor gave her any “set treatment for these alleged torts.” Again, the weight to be given to Shama’s direct and circumstantial evidence of her emotional state was for the trial court to determine, and that court apparently found her evidence credible and entitled to great weight. We may not disturb those implicit determinations on appeal. See id. Moreover, we note that Shama testified to suicidal inclinations, she described feelings of despair and shame, one doctor’s medical records recited that she was taking an antidepressant, and she endured years of frequent physical and sexual assaults.

We hold that the cited evidence does not render Shama’s contrary evidence so weak as to make the findings of fact or the judgment manifestly unjust. Neither would the cited evidence render the findings of fact or the judgment against the great weight and preponderance of the evidence, even if if that were the proper standard of review for this adverse finding. See Cain, 709 S.W.2d at 176.

We overrule issues 19 through 21. Because we have overruled Wasim’s challenges to the trial court’s judgment, findings, and conclusions concerning liability and damages for assault, and because the tort award is fully supportable on Shama’s claim for assault, we need not consider Wasim’s challenges (issues 17 and 18) to the trial court’s judgment, findings, and conclusions concerning fraud on Shama’s person.

Conclusion

We affirm the judgment of the trial court.

Tim Taft
Justice
Panel consists of Justices Taft, Hanks, and Higley.

Attempted appeal in default divorce rejected as untimely

Notice of appeal from default divorce decree granted after citation was served by alternative means was many months too late. Court of appeals mentions restricted appeal, but not bill of review.

Almazov v. Chmeleva , No. 01-06-00511-CV (Tex.App.- Houston [1st Dist.] Oct. 18, 2007)(per curiam)(default divorce, alternative, service, notice of appeal untimely, no jurisdiction to entertain appeal)(Before Justices Taft, Hanks and Higley)
Full style: Andrei Almazov v. Marina Chmeleva
Appeal from 310th District Court of Harris County - Judge Lisa Millard
Disposition: Appeal dismissed for want of jurisdiction (DWOJ)
Husband's counsel: Linda Switzer
Wife's attorney: Kathleen M. McCumber

MEMORANDUM OPINION

We dismiss this appeal for want of jurisdiction.

On June 14, 2005, the trial court signed an order for alternative service, authorizing service on appellant, Andrei Almazov, by posting service of citation with a true copy of the alternative service order on the door of appellant's last known address. Subsequently, the trial court, on July 26, 2005, signed a default decree of divorce in favor of appellee, Marina Chmeleva, and against appellant. Appellant filed his notice of appeal from the decree on April 27, 2006.

Appellant filed his notice of appeal 275 days after the trial court signed the decree from which appellant desires to appeal. Appellant did not timely file his notice of appeal. See Tex. R. App. P. 26.1 (requiring notices of appeal to be filed within 30 days after the judgment appealed from is signed.); 26.1(c) (requiring notices of appeal in restricted appeals to be filed within six months after the judgment appealed from is signed).

We dismiss appellant's appeal for want of jurisdiction.

PER CURIAM

Panel consists of Justices Taft, Hanks, and Higley.

Sunday, November 4, 2007

Property division: Fault considered in no-fault divorce


Houston court of appeals affirms disproportionate division of property in divorce decree even though divorce was not granted on fault grounds; parses factors relevant to unequal division of community estate. Opinion by Justice Fowler states that fault may be considered in no-fault divorce context, and acknowledges only one appellate case holding otherwise.

Chander Mohindra v. Sudha Mohindra, No. 14-06-00056-CV (Tex.App.- Houston [14th Dist.] Oct. 23, 2007)(Opinion by Justice Fowler)(disproportionate division of community property, consideration of fault, including waste of assets and failure to make disclosure in discovery)(Before Justices Brock Yates, Fowler and Guzman)
Appeal from 246th District Court of Harris County, Judge Jim York
Disposition: Trial court's unequal division of property affirmed
Husband Appellant's counsel: Tom Alexander, Nancy Kimberly Bohannon
Wife's attorneys on appeal: Allison Hughes Jones, Eileen M. Gaffney

M E M O R A N D U M O P I N I O N BY JUSTICE WANDA FOWLER

In this appeal from a final decree of divorce, Chander Mohindra appeals the trial court's division of community property and award of future earnings from his 401K and IRA accounts. For the reasons stated below, we affirm.

Factual and Procedural Background

Chander Mohindra and Sudha Mohindra were married on January 20, 1974, and remained married for 31 years before separating in March 2005. They had two children, both of whom were over 18 years old at the time of the divorce. In her original petition for divorce, Sudha alleged that the marriage had become unsupportable because of discord or conflict of personalities. In an amended petition, she also alleged cruel treatment by Chander and requested a disproportionate share of the parties' estate for the following reasons: fault, lost benefits of marriage, wasting of community assets, reimbursement, attorney's fees, and creation of community property. Chander answered with a general denial and requested attorney's fees.

After a bench trial, the court issued its Final Decree of Divorce. In the decree, issued on December 27, 2005, the trial court ordered that the marriage was dissolved "without regard to fault." It is undisputed that the parties' community property was disproportionately divided.[1] Included in the property division were two retirement accounts at issue here - a Vanguard 401K account and Merrill Lynch IRA account - set out as follows:

A portion of CHANDER M. MOHINDRA's benefits in the Vanguard Group 401K, Plan No. 095555, that portion being the sum of $204,020.00 plus 50% of any amount over the full value of $408,039.00 in the account together with any interest, dividends, gains or losses on that amount arising since that date and more particularly defined in a Qualified Domestic Relations Order signed by the Court.
* * *
A portion of the Merrill Lynch IRRA [sic] account number 443-82F69, that portion being $210,000.00 plus 50% of any amount over the full value of $419,440.00, in the name of Chander Mohindra.

Chander moved for a new trial, asserting that the division of property was manifestly wrong and unjust. Chander also requested findings of fact and conclusions of law, but the trial court did not enter any findings or conclusions. The record does not reflect that Chander filed a notice of past due findings of fact and conclusions of law. The motion for new trial was overruled by operation of law, and this appeal followed.

Analysis of Chander's Issues

1. Did the Trial Court Abuse Its Discretion by Disproportionately Awarding Community Property in Favor of Sudha?

In his first issue, Chander contends that the trial court abused its discretion by dividing the community property in a manner that was not just or equitable, and that the division is not supported by evidence. According to Chander, the evidence favors a disproportionate division in his favor because of his lower earning capacity and physical disabilities.

a. Applicable Law and Standard of Review

In a divorce decree, the trial court "shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage." Tex. Fam. Code ' 7.001. The trial court has wide discretion in dividing the marital estate of the parties. Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex.1985). It is presumed that the trial court exercised its discretion properly, and the division will not be disturbed on appeal unless a clear abuse of discretion is shown. Murff v. Murff, 615 S.W.2d 696, 698-99 (Tex. 1981). The trial court's ultimate division need not be equal as long as it is equitable. Zieba v. Martin, 928 S.W.2d 782, 790 Tex. App.-Houston [14th Dist.] 1996, no writ) (op. on reh'g). Thus, the trial court must have some reasonable basis for an unequal division of the property. Id.

In exercising its discretion, the trial court may consider many factors, including a disparity of incomes or of earning capacities, the spouses= capacities and abilities, benefits which the party not at fault would have derived from continuation of the marriage, business opportunities, education, relative physical conditions, relative financial condition and obligations, disparity of ages, size of separate estates, and the nature of the property. Murff, 615 S.W.2d at 699. The trial court may also consider the wasting of community assets. Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998). The circumstances of each marriage dictate what factors should be considered in the property division upon divorce. Young v. Young, 609 S.W.2d 758, 761 (Tex. 1980). A trial court does not abuse its discretion when it bases its decision on conflicting evidence or when there is some evidence of a substantial and probative character to support the division of the property. Zieba, 928 S.W.2d at 787. The appellant bears the burden of showing that the trial court=s abuse of discretion caused a division of property so disproportionate that it is manifestly unjust and unfair. See Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21, 23 (Tex. 1923).

b. No Abuse of Discretion Shown

Chander first argues that, because the trial court granted the divorce without regard to fault, any fault on Chander's part is not to be considered in the division of the community estate. For this proposition, Chander cites O=Carolan v. Hopper, 71 S.W.3d 529 (Tex. App.-Austin 2002, no pet.). However, the court in that case did not hold that fault could never be considered in the context of a no-fault divorce; it merely concluded that fault was not considered in the trial court's property division in that case because conflicting evidence of fault was presented and the divorce was granted on no-fault grounds. Id. at 533 n.4.[2]

In the absence of findings of fact, we do not know if the trial court actually considered evidence of fault on Chander=s part in making its property division. However, fault is recognized as a factor that trial courts may consider when dividing community property. See Murff, 615 S.W.2d at 698; Young, 609 S.W.2d at 762; Janik v. Janik, 634 S.W.2d 323, 324B25 (Tex. App.CHouston [14th Dist.] 1982, no writ). Courts, including this one, have acknowledged that fault may be considered even in the context of a no-fault divorce. See In re Marriage of Brown, 187 S.W.3d 143, 146 (Tex. App.CWaco 2006, no pet.) (holding that trial court had discretion to consider proven fault in break-up of marriage sought solely on grounds of insupportability); Bishop v. Bishop, No. 14-02-00132-CV, 2003 WL 21229476, at *3 (Tex. App.CHouston [14th Dist.] 2003, no pet.) (mem op.) (stating that it was within the trial court=s discretion to consider fault in dividing the parties=s community estate even when a no-fault divorce is granted); see also Vautrain v. Vautrain, 646 S.W.2d 309, 312 (Tex. App.CFort Worth 1983, writ dism=d) (AIt is discretionary with the court, once it decides to hear the divorce on the ground of the no fault basis, as to whether or not he shall consider the matter of fault involved in the divorce case.@); Clay v. Clay, 550 S.W.2d 730, 734 (Tex. Civ. App.CHouston [1st Dist.] 1977, no writ) (noting that trial court was authorized to consider jury=s finding that wife=s conduct toward husband constituted cruel treatment in dividing the parties= estate when divorce was granted on no-fault grounds).

Here, Sudha testified that she endured verbal and emotional abuse throughout the marriage, and at least one incident of physical abuse. She testified that the abuse sometimes caused her to be unable to work or function. Further, Sudha testified that she did not feel financially or emotionally supported by Chander, and she received no nurturing or caring from him. Chander denied abusing or being cruel to Sudha, and testified that he treated her with respect. However, there was also testimony that the Mohindra family=s home life had been Achaotic@ and that the home was a bad environment for the children. Chander acknowledged that he was alienated from his wife and son (not their daughter), but took no responsibility for any alienation, instead blaming it all on Sudha. As the sole judge of witness credibility, the trial court could have reasonably disbelieved Chander and believed Sudha. See Murff, 615 S.W.2d at 700 (noting that the trial court in a divorce case has the opportunity to observe the parties on the witness stand and determine their credibility); see also City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005) (reviewing court cannot impose its own opinions of the credibility of witnesses and weight to give their testimony contrary to those of the fact finder). However, even if we exclude this evidence from consideration, there remains ample evidence to support the trial court=s unequal division of the community estate.

Chander contends that various factors not only fail to support the trial court=s unequal division in Sudha=s favor, they favor a disproportionate award in his favor. Primarily, Chander points to evidence that Sudha, who has a master=s degree in chemistry, has worked at Shell for 18 years and earns an annual salary of $62,500. In contrast, Chander was let go from his accounting position at Texaco in 2001 with a severance package of approximately $178,000, and the only income he has earned in the last two years was $1,489 as a part-time consultant. Chander contends that he has not worked since 2001 because he had open heart surgery in 2002 and has other health problems and medical expenses. Sudha, by comparison, is four years younger than Chander and testified that she intended to continue working. Consequently, Chander contends, his opportunities to continue to work and earn money are more limited than Sudha=s.
Chander further contends that at least an equal division of the property is supported by the relative lack of community debt and the Afairly equivalent@ value of the parties= separate property. Chander also argues that the cash and investment accounts, which comprise the majority of the community estate, were readily divisible Ain kind,@ and so the trial court should have divided them equally. Moreover, given the size of that portion of the community estate, adjustments for the value of other assets not divisible in kind, such as the house and cars, as well as his interest in Sudha=s pension fund, could have been apportioned to provide equal value to him without impacting Sudha=s interest.[3]
Other evidence, however, supports the trial court=s unequal division. Concerning Chander=s health and ability to work, Chander presented no evidence that he was unable to maintain employment as a result of any health problems. To the contrary, Chander testified that he did not want to go back to work after he was let go from Texaco because he had his severance pay and wanted to take care of his health problems. He admitted that once the divorce was finished, he would go back to work.[4] Chander also admitted that nothing in his termination papers from Texaco prohibited him from going back to work, and he could have worked and earned money during the roughly three and one-half years he was unemployed. Chander=s education and training is roughly equivalent to Sudha=s, as he was educated in England as an accountant and is a C.P.A. Additionally, the record reveals that both parties have had health issues, as Sudha had previously twice battled cancer.
Evidence was also presented that Chander had wasted or secreted community assets totaling hundreds of thousands of dollars.[5] Money was periodically withdrawn from various retirement accounts over time, and was spent by Chander. As one example, Sudha testified that there had been a direct rollover into a Mellon Bank account in Chander=s name in the amount of $163,459.92, and she had no knowledge of what happened to those funds. Sudha had been unaware of the Mellon Bank account, and it was not included on Chander=s inventory. Sudha also testified that over $300,000 in four accounts had been wasted by Chander. Additionally, the funds in some accounts could not be traced because Chander apparently failed to comply with discovery requests, and failed to appear for deposition. Because Sudha could not obtain information on the balances in some accounts, she had requested that any amounts in the accounts over the amounts known to her be divided 50/50.
The trial court also could have considered the evidence of the parties= needs and the nature of the property divided. Sudha=s monthly expenses were approximately $3,600, while Chander=s monthly expenses, as provided on his financial information statement, were $2,260. Further, Sudha was awarded the family home (a non-liquid asset) and her own retirement account, from which she could not presently withdraw funds, because she was still working at Shell. In contrast, Chander was awarded liquid assets that he could invest or divest as desired.
Given the evidence presented, we cannot say that the trial court=s division of the community estate was manifestly unjust or unfair. We therefore overrule Chander=s first issue.
2. Does the Division of Retirement Accounts Improperly Award Chander=s Future Earnings to Sudha?
In his second issue, Chander contends that the trial court abused its discretion by awarding Sudha half of any future earnings on the Merrill Lynch IRA and the Vanguard 401K retirement accounts, because future earnings are separate property not subject to division. On this record, we disagree.
Initially, we note that the record does not show that Chander raised this issue in the trial court in his motion for new trial or that he otherwise brought it to the trial court=s attention. Preservation of a complaint is a prerequisite for appellate court review. Tex. R. App. P. 33.1(a). Because Chander failed to preserve his complaint below, we have nothing to review and so overrule his issue.
But, even if we were to address Chander=s issue, he would not prevail. Post-divorce increases in the value of a person=s retirement plan that are attributable to that person=s continued employment, such as raises, promotions, services rendered, and post-divorce contributions, are the individual=s separate property and are not subject to division. See Stavinoha v. Stavinoha, 126 S.W.3d 604, 610 (Tex. App.CHouston [14th Dist.] 2004, no pet.); Burchfield v. Finch, 968 S.W.2d 422, 425 (Tex. App.CTexarkana 1998, pet. denied). But, post-divorce increases in value that are not attributable to the person=s continued employment after divorce are community property subject to division. See Stavinoha, 126 S.W.3d at 610; Burchfield, 968 S.W.2d at 424.
Here, Sudha was awarded 50% of any sum existing in the retirement accounts as of the date of divorce, together with interest, dividends, gains or losses on her 50% share of the accounts only. Thus, post-divorce increases in the value of Sudha=s share of the retirement accounts will not be attributable to Chander=s post-divorce employment or to his contributions of separate property to the plans, and so were subject to the trial court=s just and right division. See Tex. Fam. Code ' 7.001; Boyd v. Boyd, 67 S.W.3d 398, 409B10 (Tex. App.CFort Worth 2002, no pet.) (holding trial court did not abuse its discretion in awarding wife 50% of husband=s 401(k) plan when award did not include any interest that would result from husband=s post-divorce employment or contributions of his separate property).
We therefore overrule Chander=s second issue.
Conclusion
We overrule Chander=s issues and affirm the trial court=s judgment.

/s/ Wanda McKee Fowler
Justice

Judgment rendered and Memorandum Opinion filed October 23, 2007.
Panel consists of Justices Yates, Fowler, and Guzman.

[1] The parties disagree as to the percentage awarded each. According to Chander, although Sudha requested that the community property be divided 55/45, Sudha was awarded 64.5% of the community estate ($906,788.00 out of $1,404,994.00 in assets). Sudha responds that the trial court=s division mirrors Sudha=s proposed division, except that the two retirement accounts at issue were divided 50/50. Sudha also contends Chander=s division included Sudha=s jewelry, which was not necessarily valued by the trial court, and does not take into consideration the debts awarded to each party, including substantial attorney=s fees owed by Sudha.
[2] We have found only one case in which a court has held that, in a no-fault divorce, evidence of fault may not be considered by the trial court in making its just and right division of the community estate. See Phillips v. Phillips, 75 S.W.3d 564, 572 (Tex. App.CBeaumont 2002, no pet.).
[3] Chander cites two cases to support his contention that the trial court abused its discretion in dividing the community property disproportionately. See O=Carolan v. Hopper, 71 S.W.3d 529 (Tex. App.CAustin 2002, no pet.); Zieba v. Martin, 928 S.W.2d 782 (Tex. App.CHouston [14th Dist.] 1996, no writ). However, the circumstances and evidence presented in those cases are not comparable to that of the present case. For example, in O=Carolan v. Hopper, the court reversed the trial court=s disproportionately high award of community property to Hopper when it found Aa total absence of evidence@ to support the award. 71 S.W.3d at 532. Among other things, Hopper did not allege fault, the parties ages were roughly the same, O=Carolan had no separate estate, Hopper had a significantly greater income, earning capacity, and business opportunities, and O=Carolan suffered from a severe brain malformation that impaired her future earning ability, while Hopper had no health problems. Id. at 532B33. In Zieba v. Martin, this court reversed the trial court=s disproportionately high award to Martin because the evidence showed that the trial court did not order reimbursement for a significant amount of community funds that were unaccounted for or that Martin spent on paramours; other evidence showed that Martin=s separate estate was roughly three times greater than Zieba=s, Zieba=s earning capacity and business opportunities were limited in comparison to Martin=s, Zieba was sole managing conservator of their child, and Zieba presented uncontroverted testimony concerning three years of physical and verbal abuse and evidence of Martin=s infidelity. 928 S.W.2d at 790B91.
[4] Sudha also testified that there was no reason Chander could not work.
[5] Chander denied Astealing@ any money, and testified that he had accounted for every penny. He also testified that he had increased the family funds through investments.