Saturday, July 19, 2008

Texas Family Code & Islamic Marriage

Arranged Marriages, Religious Marriages, Dowry, etc.
How should Texas law be applied to address alien matrimonial customs and practices?

Houston being an international city with a large foreign-born population, it is hardly surprising that marriages entered into abroad, or in accordance with foreign customs, end up in local divorce courts too. In this case of an arranged marriage gone awry, the court of appeals reverses judgment on an agreement for the husband to pay the wife $50,000, made pursuant to Islamic custom, holding that the parties were already married when the deal was made, which means that it could not be enforced as a premarital agreement, the legal theory upon which the trial court had relied in making the award. The judgment, including the property division, is reversed and remanded to the trial. One panel member, former Harris County divorce court judge Eva Guzman, wrote separately, criticising the majority for going out of its way to suggest that the trial court consider another - valid - theory to uphold the award of the money in dispute to the wife.

Ahmed v. Ahmed
(Tex.App.- Houston [14th Dist.] June 17, 2008)(Yates)
(divorce, Islamic marriage, enforceability of agreement for payment of money as prenup)


In this divorce case, appellant Amir Ahmed appeals from the trial court's order awarding his ex-wife, appellee Afreen S. Ahmed, $50,000 pursuant to an Islamic marriage certificate signed by the parties. We affirm in part and reverse and remand in part.

Amir and Afreen married in a civil ceremony in November 1999. Both are of Indian descent, and both practice the Islamic faith. The marriage was arranged between the parties' families. They did not live together until about six months later after their Islamic marriage ceremony in New York on May 21, 2000.

As part of this ceremony, the parties signed an Islamic marriage certificate called a "Nikah Nama," which mentions a deferred "Mahr" of $50,000. According to Afreen's trial testimony, a Mahr is an Islamic religious custom whereby the husband contracts to give the wife a sum of money, either at the time of the marriage or deferred in the event of a divorce.Divorce proceedings began in July 2005.

The trial court determined that the Mahr was a marital contract executed by the parties "in contemplation of a forthcoming marriage" and "a valid, binding, and enforceable contract under Sections 4.001-003 of the Texas Family Code" which governs premarital agreements. According, the trial court awarded Afreen $50,000 as liquidated contract damages.

Amir argues that the Mahr agreement cannot be enforced as a premarital agreement because the parties made the agreement after being married.

We agree.

A premarital agreement is "an agreement between prospective spouses made in contemplation of marriage." Tex. Fam. Code Ann. ' 4.001(1) (Vernon 2006). It is undisputed that the parties were married in a civil ceremony six months before they signed the agreement. Afreen argues that the date of the religious ceremony controls and because their religious ceremony came after signing the Mahr agreement, it qualifies as a premarital agreement. Afreen's authority does not support this argument.

Although the cases she cites involve religious ceremonies, they do not address the issue of two separate ceremonies[1] or the date of the marriage was otherwise not an issue.[2] If the legal requirements for a ceremonial marriage are satisfied, Texas does not distinguish between civil and religious marriage ceremonies. See Zetune v. Jafif-Zetune, 774 S.W.2d 387, 389 (Tex. App.- Dallas 1989, writ denied). It is the parties' marital status, rather than a specific type of ceremony, that is significant. See id. at 389.

Because the parties participated in a valid civil wedding ceremony six months before signing the Mahr agreement, they were already spouses, not "prospective spouses," and their agreement could not have been made "in contemplation of marriage." See Tex. Fam. Code Ann. ' 4.001(1).

Thus, the trial court erred in enforcing the Mahr agreement as a premarital agreement.

Afreen argues in the alternative that the Mahr agreement can be enforced as a postmarital partition and exchange agreement under Family Code section 4.102. See In re ExxonMobil Corp., 97 S.W.3d 353, 358 n.5 (Tex. App.- Houston [14th Dist.] 2003, orig. proceeding) (stating that appellate court must uphold trial court's ruling if it reaches right result, even if for wrong reason). Amir argues that the terms of the Mahr agreement are too vague and uncertain to be enforced, which would prevent enforcing the agreement either as a premarital or postmarital agreement.

"In order to be legally binding, a contract must be sufficiently definite in its terms so that a court can understand what the promisor undertook" T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992). This rule is designed to ensure that all parties to the contract understand and agree to the essential terms. See Oakrock Exploration Co. v. Killam, 87 S.W.3d 685, 690 (Tex. App.- San Antonio 2002, pet. denied).

The agreement states that the parties "have been united . . . in matrimony as husband and wife against a Mahr of $50,000 of which prompt payment is nil and deferred payment is $50,000." Amir contends this language is too vague to be enforceable because it does not explain who would make the payment and when and how it would be paid.

Based on the evidence presented at trial, we conclude the Mahr agreement was sufficiently specific in this case. We may look to the relationship between the parties and the circumstances surrounding the contract to determine if the terms were sufficiently definite for the parties to understand their obligations. See Atofina Petrochemicals, Inc. v. Cont'l Cas. Co., 185 S.W.3d 440, 443 (Tex. 2005).

Both parties were raised in the Islamic faith, and Afreen testified that the Mahr agreement is a contract based on Islamic custom and religious principles. Amir offered no testimony regarding the Mahr, but Afreen explained that the Mahr constitutes a promise of an amount to be paid to the bride and if not given before, it must be given at the time of a divorce. If credited by the trial court as factfinder, this evidence establishes that the parties understood their agreement and that the terms are sufficiently specific to be enforced. See id.; see also O'Farrill Avila v. González, 974 S.W.2d 237, 244-45 (Tex. App.- San Antonio 1998, pet. denied).

Nevertheless, we cannot conclude whether the Mahr agreement constitutes a valid postmarital partition and exchange agreement in this case based on the other statutory requirements for such agreements. For example, partition and exchange agreements require an intent to convert community property into separate property. See Tex. Fam. Code Ann. ' 4.102 (Vernon 2006).

However, the record is devoid of any evidence as to whether or not the parties intended the Mahr payment to come from Amir's separate property or from the community property. Thus, because Afreen's alternative theory is not established in the record, we cannot affirm the trial court's judgment on this basis. See In re ExxonMobil, 97 S.W.3d at 358 (noting that alternative ground must be "supported by the record"); State v. Stone, 271 S.W.2d 741, 753 (Tex. Civ. App.- Beaumont 1954, no pet.) (holding that appellate court cannot affirm on alternative ground if fact issues exist as to that ground).

Because the trial court's improper award of $50,000 to Afreen pursuant to enforcement of the Mahr agreement as a premarital agreement materially impacted the trial court's distribution of the parties' assets, we must remand for the trial court to reconsider this distribution. [...]

Furthermore, we believe it serves the interests of justice to allow Afreen another opportunity on remand to prove that the Mahr agreement is enforceable on grounds other than as a premarital agreement, be it a partition and exchange agreement or otherwise.[3] The supreme court has held that, after finding error in the judgment, we have broad discretion to remand in the interests of justice.

Opinion by Justice Brock Yates
Panel: Before Justices Brock Yates, Guzman and Brown
Appellate cause no.: 14-07-00008-CV
Full case style; Amir Ahmed v. Afreen S. Ahmed
Appeal from 308th District Court of Harris County
Trial Court Judge: Judge Georgia Dempster
Concurring and Dissenting Opinion by Justice Guzman
Also see: Houston divorce property cases Family law cases with international aspects

Friday, July 18, 2008

City of Houston v. Buttitta (Tex.App.- Houston 2008)

First Court of Appeals says NO to City's attempt to get Civil Service Commission ruling in dispute over disciplinary action overturned by the courts. Uniform Declaratory Judgments Act is not to be used to create basis for lawsuit where judicial review is not authorized by statute. Appeal is only available to an aggrieved firefighter or police officer, not to the City.

(Tex.App.- Houston [1st Dist.] July 17, 2008)(Hanks) (City of Houston litigation, public employment, firefighters and policemen, disciplinary action, plea to the jurisdiction against city proper, DJA not available here)


The City of Houston appeals the trial court's order granting the plea to its jurisdiction. The City contends that the trial court erred in granting the plea because the City's pleadings sufficiently set out facts establishing jurisdiction under the Declaratory Judgment Act. We affirm.


In 2006, an investigation conducted by the Houston Police Department ("HPD") determined that officer Joseph A. Buttitta had engaged in conduct that violated various HPD policies. In lieu of other disciplinary action, the City accepted Buttitta's request to receive a voluntary two-level demotion. A letter from the chief of police explaining Buttitta's misconduct and demotion was prepared and placed in Buttitta's permanent personnel file, pursuant to Local Government Code section 143.089. (1) Buttitta filed a motion with the Police Officers' Civil Service Commission ("Commission"), requesting that the letter be removed from his personnel file. After hearing oral argument on the motion, the Commission granted Buttitta's request and ordered that the letter be removed from his personnel file. The letter was removed and returned to the chief of police, who, after consultation with the City's legal department, directed that the letter be placed back in Buttitta's file.

Due to the controversy as to whether the letter should be placed in Buttitta's file, the City filed a petition in district court requesting a declaration that (1) the Commission did not have jurisdiction to order that the letter be removed and (2) the letter be returned to Buttitta's file. Buttitta filed a plea to the court's jurisdiction. The court granted Buttitta's plea and the City's petition was dismissed. The City now appeals.
Plea to the Jurisdiction

In its sole issue, the City complains that the trial court improperly granted Buttitta's plea to the jurisdiction. Specifically, the City argues that its petition set out sufficient factual allegations to establish jurisdiction under the Declaratory Judgment Act. [...]

The City contends that its petition sufficiently alleged facts establishing questions of statutory construction regarding the rights, status, and legal relations of the parties, specifically about whether the Commission's order is legal and enforceable and whether the letter must be removed from Buttitta's personnel file. According to the City, it showed that there is a substantial justiciable controversy between the parties that involves a genuine conflict of tangible interests. See Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995). Therefore, the City concludes that it has pled facts that fall within the scope of the Declaratory Judgment Act ("DJA") (2) and establish the trial court's jurisdiction to hear the case.

We disagree.

It is well settled that the DJA is not a grant of jurisdiction, but "merely a procedural device for deciding cases already within a court's jurisdiction." Chenault v. Phillips, 914 S.W.2d 140, 141 (Tex. 1996) (quoting State v. Morales, 869 S.W.2d 941, 947 (Tex. 1994)); see also Tex. Civ. Prac. & Rem. Code Ann. § 37.003 (Vernon 1997) ("A court of record within its jurisdiction has power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.") (emphasis added). Regardless of whether the petitioner established a controversy resolvable under the DJA, a court must first have subject matter jurisdiction before it can render a declaratory judgment. See County of Galveston v. Tolle, 176 S.W.3d 859, 862 (Tex. App.--Houston [1st Dist.] 2005, pet. denied).
Section 143.015 of the Local Government Code provides that fire fighters and police officers dissatisfied with a Commission decision may file a petition in district court asking that the decision be set aside, but does not state that the municipality involved may do the same. Tex. Loc. Gov't Code Ann. § 143.015(a) (Vernon 2008).

Accordingly, only aggrieved fire fighters and police officers have a right to seek judicial review of a Commission decision--not municipalities. See City of Houston v. Clark, 197 S.W.3d 314, 318-20 (Tex. 2006) (recognizing that the Local Government Code affords appellate rights from a Commission decision only to aggrieved officers, because the Commission is closely aligned with the municipality); City Of Garland v. Byrd, 97 S.W.3d 601, 607-08 (Tex. App.--Dallas 2002, pet. denied).

Because the City had no right to ask the trial court to set aside the Commission's decision, the court had no subject matter jurisdiction over the underlying dispute, and, therefore, could not grant the City's requested declaratory relief. We hold that the trial court did not err in granting Buttitta's plea to the jurisdiction.
The City also asserts that it should have been given an opportunity to cure any defect in its pleadings. However, because the jurisdictional defect is incurable, the City has no right to seek judicial review of the Commission's decision, the City's cause was properly dismissed. Peek, 779 S.W.2d at 805.
We overrule the City's sole point of error.Conclusion
We affirm the judgment of the trial court.

George C. Hanks, Jr.

AFFIRM TC JUDGMENT: Opinion by Justice Hanks
Panel members: Before Justices Alcala, Hanks and Higley
Appellate cause number: 01-07-00323-CV
Full style of case: City of Houston v. Joseph A. Buttitta
Appeal from 113th District Court of Harris County
Trial Court
Judge: Hon. Patricia Hancock

Watch Deadlines to Preserve Right to Pursue Appeal

In re Kerry Beal (Tex.App.- Houston [1st Dist.] July 17, 2008) (subst. per curiam op)(untimely notice of appeal, attempted appeal dismissed)

This case illustrates a number of things that can be done wrong when a party wants to appeal but does not pay close attention to the rules governing deadlines and extensions.


A motion for extension of time is necessarily implied when an appellant, acting in good faith, files a notice of appeal beyond the time allowed by rule 26.1, but within the fifteen-day grace period provided by Rule 26.3 for filing a motion for extension of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617-18 (Tex. 1997) (construing the predecessor to Rule 26).

However, the appellant must offer a reasonable explanation for failing to file the notice of appeal in a timely manner. See Tex. R. App. P. 26.3, 10.5(b)(1)(C); Verburgt, 959 S.W.2d at 617-18. Appellant's notice of appeal was not filed within the fifteen-day period provided by rule 26.3.

On December 10, 2007, notification was transmitted to all parties of the Court's intent to dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a). Appellant's response failed to demonstrate that this Court has jurisdiction to entertain the appeal.

After our original opinion issued on January 24, 2008, dismissing the appeal for lack of jurisdiction, appellant filed a motion for rehearing.

Appellant complains on rehearing that he filed a motion for new trial and mailed it on May 26, 2007. To be timely, a motion for new trial must be filed within thirty days after the judgment is signed. See Tex. R. App. P. 26.1. The record shows that appellant's motion for new trial, filed on June 4, 2007, was not timely filed.

Appellant also claims the deadline for perfecting his appeal was extended by a request for findings of fact and conclusions of law. The record indicates appellant's request for findings of fact and conclusions of law was filed on April 23, 2007.

A request for findings and conclusions only extends the date for perfection if findings and conclusions are required by the rules of civil procedure or could properly be considered by the appellate court. Tex. R. App. P. 26.1(a)(4). Under the rules of civil procedure, findings and conclusions are required when a party requests them within twenty days after judgment is signed in a case tried without a jury. Tex. R. Civ. P. 296. Appellant's request was not filed within twenty days after the signing of the judgment.

Appellant claims in his motion for new trial that he mailed his motion for new trial on May 26, 2007, and his request for findings on April 5, 2007. Even if these documents were mailed on the dates appellant claims, the motion and request would be considered untimely because neither was received in time to fit within the parameters of the mailbox rule.

According to the mailbox rule, a document received within ten days after the filing deadline is considered timely filed if it was sent to the proper clerk by U.S. Postal Service. Tex. R. App. P. 9.2(b)(1). Appellant claims his motion for new trial was mailed on May 26, 2007, but it was due on April 20, 2007.

The motion for new trial was filed on June 4, 2007, a date not within ten days after the filing deadline of April 20, 2007.

Appellant claims he mailed his request for findings and conclusions on April 5, 2007. The request for findings was not file-stamped until April 23, 2007, but it was due on April 10, 2007 (20 days after the judgment was signed). Thus, the request was not received within ten days of the filing deadline of April 10, 2007. Because it was not timely filed, appellant's request for findings of fact and conclusions of law did not extend the deadline to file the notice of appeal.

Because appellant did not file any timely post-judgment motions, the notice of appeal was due thirty days after judgment was signed. Appellant filed his notice of appeal on June 22, 2007, ninety-two days after the judgment was signed.

Accordingly, the appeal is ordered dismissed.


Before Justices Brock Yates, Guzman and Brown
Appellate cause no.: 14-07-00530-CV
Style: In Re Kerry Beal
Appeal from 295th District Court of Harris County
Trial Court Judge: Tracy Kee Christopher