Friday, May 1, 2015

The Deed was not done for just $10, and parol evidence was not barred to show that the "other valuable consideration" had not been paid


Lopez v. Rivas, 
No. 01-14-00592-CV (Tex. App. - Houston [1st Dist] Apr. 30, 2015) 

In an opinion issued April 30, 2015, a panel of the First Court holds that the parol evidence rule did not bar testimony regarding an oral promise by one sibling and his spouse to pay the other two siblings $20,000 each for their respective shares of a house valued at $60,000 that they had jointly inherited from their parents. 

The general warranty deed recited that the conveyance was done for $10 dollars and other good and valuable consideration


General Warranty Deed: Recitation of Consideration 
In a memorandum opinion written by Justice Huddle, the panel holds that the testimony about the nature of this "other" valuable consideration did not contradict the language in the deed, and further holds that evidence of want or failure of consideration would be admissible anyhow. 
   
As for the acknowledgment of receipt and sufficiency thereof recited in the deed, the court concludes that it pertained to the promise to pay the $20,000 each, rather than the actual payment thereof. Therefore, the trial court did not err in entering judgment against the sibling who took the house and did not compensate the others for their respective shares. 
  
The liability of the sibling's spouse is not discussed separately. Huddle adds in a footnote that the statute of frauds had not been invoked as an affirmative defense to enforcement of the oral agreement regarding the two $20,000 payments for the two siblings' shares of the property.

Opinion issued April 30, 2015

In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00592-CV
———————————
HUMBERTO LOPEZ, JR. AND OLGA LOPEZ, Appellants
V.
MAYRA RIVAS AND LINDA LOPEZ, Appellees
On Appeal from the 190th District Court
Harris County, Texas
Trial Court Case No. 2011-32028

MEMORANDUM OPINION

Appellees Mayra Rivas and Linda Lopez conveyed, by a general warranty
deed, their respective one-third interests in their deceased parents’ property to their
brother and sister-in-law, Appellants Humberto Lopez, Jr. and Olga Lopez. Two
years later, Mayra and Linda sued Humberto and Olga, asserting that Humberto

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and Olga orally promised to pay them each $20,000, plus interest, for their
interests in the property in addition to the consideration of $10 recited in the deed.
After a bench trial, the trial court entered a final judgment awarding Mayra and
Linda damages in the amount of $20,000 each, plus interest. In their sole issue on
appeal, Humberto and Olga contend that the judgment must be reversed because
the parol evidence rule bars the trial court from considering Mayra and Linda’s
testimony concerning Humberto and Olga’s oral promise that contradicts the
express terms of the deed. We affirm.

Background

Humberto Lopez, Sr. and Delia Lopez were married and owned a home at
7833 Dayton Street in Houston, Texas. After their death, the Dayton Street
property devolved to their three surviving children—Mayra, Linda, and Humberto.
Each of the three siblings executed an “Affidavit of Distributees” in which they
stated that they each received a one-third interest in the property, which they
valued at $60,000.

Mayra and Linda conveyed their interests in the Dayton Street property to
Humberto and Olga by general warranty deed in April 2009. The deed recites that
Mayra and Linda granted, sold, and conveyed the Dayton Street property to
Humberto and Olga “for and in consideration of the sum of TEN AND NO/100
DOLLARS ($10.00) and other good and valuable consideration to the Grantor in

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hand paid by Humberto Lopez and Olga Lopez . . . the receipt and sufficiency of
which is hereby acknowledged.”
Two years later, in May 2011, Mayra and Linda sued Humberto and Olga,
asserting breach of agreement, fraud in a real estate transaction, restitution, and
seeking attorney’s fees.1

According to Mayra and Linda, Humberto and Olga
orally agreed but failed to pay Mayra and Linda each $20,000 within one year, plus
3.5 percent interest for their respective interests in the property. Mayra and Linda
alternatively requested that in the event the trial court could not enforce their oral
agreement, the trial court restore the ownership interests they held before executing
the deed.2

The trial court conducted a bench trial at which Mayra and Linda were the
sole witnesses. They each testified that before signing the deed, Humberto and
Olga had agreed to pay Mayra and Linda each $20,000 within one year, plus 3.5
percent interest, and that they signed the deed in reliance on this promise to pay.
 1 Mayra and Linda also asserted a vendors lien under their “foreclosure” claim and
requested that the trial court (1) order Appellants to provide an inventory of all
inherited personal property and (2) “account for such personal property” that they
“took possession of after their mother’s death [and was] no longer in Defendants’
possession . . . .”
2 Mayra and Linda also requested that (1) the trial court order Humberto and Olga to
provide Mayra and Linda with an “accounting of all rental income and expenses
from the Property since June 22, 2008, and to award [Mayra and Linda] two-thirds
of the net rental income from the property” and (2) the trial court enter a
temporary injunction enjoining Humberto and Olga “from spending or using for
their own, personal benefit any of net rental income derived from the rental or
lease of the Property.” 
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Mayra and Linda also both testified that Humberto and Olga admitted that they
were attempting to secure financing to make good on their oral promise.
Specifically, Mayra and Linda testified that they received the following letter in
which Humberto and Olga’s attorney stated:

Dear Mayra and Linda: March 2, 2011
It is my understanding that it will take several more weeks to
complete and fund the loan, as the broker is still shopping for the best
deal for them. Humberto wants to thank you for your patience and
understanding . . . . As soon as they obtain the loan, all of you will sit
down together to discuss how to amicably resolve any unresolved
issues with your mother’s estate.

The trial court admitted the letter.

On April 15, 2014, the trial court entered a final judgment in favor of Mayra
and Linda. The judgment states: “as a result of [Humberto and Olga’s] breach of
contract and fraud in a real estate transaction, [Mayra and Linda] have sustained
damages and that [Mayra and Linda] should recover damages and costs from
[Humberto and Olga] jointly and severally.” The trial court awarded Mayra and
Linda attorney’s fees and ordered Humberto and Olga, jointly and severally, to pay
Mayra and Linda $20,000 each with prejudgment interest at 3.5 percent interest
and post-judgment interest at 5 percent. Humberto and Olga filed a motion for
new trial, which was overruled by operation of law. See TEX. R. CIV. P. 329b(c).

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Discussion

In their sole issue on appeal, Humberto and Olga contend that the trial court
erred in admitting parol evidence of an oral promise to contradict or vary the terms
of the general warranty deed. They argue that this error requires reversal because
it “was the only evidence offered in support of the trial court’s judgment.”

A. Standard of Review and Applicable Law

When parties reduce an agreement to writing, the law of parol evidence
presumes, in the absence of fraud, accident, or mistake, that any prior or
contemporaneous oral or written agreements merged into the final written
agreement. See DeClaire v. G & B Mcintosh Family Ltd. P’ship, 260 S.W.3d 34,
45 (Tex. App.—Houston [1st Dist.] 2008, no pet.). Any provisions not set out in
the writing are presumed to have been abandoned before execution of the
agreement or, alternatively, they are presumed to have never been made. Id.
Likewise, the parol evidence rule provides that the terms of a written contract
cannot be contradicted by evidence of an earlier, inconsistent agreement. Baroid
Equip., Inc. v. Odeco Drilling, Inc., 184 S.W.3d 1, 13 (Tex. App.—Houston [1st
Dist.] 2005, pet. denied).
The parol evidence rule is not a rule of evidence, but a rule of substantive
contract law. Jarvis v. K & E Re One, LLC, 390 S.W.3d 631, 638 (Tex. App.—
Dallas 2012, no pet.). Its applicability is a question of law that we review de novo.

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Audubon Indem. Co. v. Custom Site–Prep, Inc., 358 S.W.3d 309, 316 (Tex. App.—
Houston [1st Dist.] 2011, pet. denied).

B. Analysis

Humberto and Olga contend that the deed expressly states that the agreedupon
consideration was $10. Therefore, they argue, the parol evidence rule bars
consideration of evidence to contradict or vary that term. They contend that the
statement in the deed that the consideration’s “sufficiency . . . is hereby
acknowledged” supports their claim that the trial court could not consider evidence
of the oral promise.3

 In contrast, Mayra and Linda contend that the trial court
properly admitted parol evidence to show the amount of consideration referenced
in the deed by the words “other good and valuable consideration.” We agree with
Mayra and Linda.

The parol evidence rule does not bar evidence of a consistent collateral
agreement. Ledig v. Duke Energy Corp., 193 S.W.3d 167, 179 n.10 (Tex. App.—
Houston [1st Dist.] 2006, no pet.). Thus, parol evidence may be used to clarify or
explain the agreement. Tex. Builders v. Keller, 928 S.W.2d 479, 481 (Tex. 1996).
In addition, we may consider parol evidence “‘to show want or failure of
consideration, and to establish the real consideration given for an instrument.’”
Audubon, 358 S.W.3d at 316 (quoting DeLuca v. Munzel, 673 S.W.2d 373, 376
 3 We note that Humberto and Olga did not raise the statute of frauds as a defense in
the trial court or on appeal.

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(Tex. App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.)); see McLernon v.
Dynergy, Inc., 347 S.W.3d 315, 335 (Tex. App.—Houston [14th Dist.] 2011, no
pet.) (“[P]arol evidence is admissible to show want or failure of consideration and
establish the actual consideration given for the instrument.”). Thus, we may
consider parol evidence “to determine if consideration exists even though the
parties have reduced their agreement to a writing which appears to be a completely
integrated agreement.” Audubon, 358 S.W.3d at 316 (internal quotations and
citations omitted).

Here, we conclude that Mayra and Linda’s testimony concerning the oral
promise was admissible to show the actual consideration given for the deed
because it did not contradict or vary the deed’s terms. The deed states that, in
addition to $10, “other good and valuable consideration” was given for the deed.
Deeds ordinarily embody such recitals of nominal consideration and “other good
and valuable consideration.” See, e.g., Averyt v. Grande, Inc., 717 S.W.2d 891,
898 (Tex. 1986); Tatum v. Tatum, No. 14-11-00622-CV, 2012 WL 1795112, at
*2–3 (Tex. App.—Houston [14th Dist.] May 17, 2012, no pet.); Troxel v. Bishop,
201 S.W.3d 290, 294 (Tex. App.—Dallas 2006, no pet.). Therefore, evidence that
establishes what the “other” consideration was is admissible to establish the true
consideration given in the consistent collateral agreement and does not contradict
or vary the terms of the deed. See ERI Consulting Eng’rs, Inc. v. Swinnea, 318

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S.W.3d 867, 875–76 (Tex. 2010) (testimony of consideration was proper under
exception to parol evidence rule because “if the parties agreed that the lease
obligation was to be additional consideration for the buyout, then such an
agreement was a consistent collateral agreement. Nothing in such an agreement
would contradict the written contracts.”); Deluca, 673 S.W.2d at 376 (parol
evidence admissible to explain provision of release concerning consideration);
Tarrant v. Schulz, 441 S.W.2d 868, 869–70 (Tex. Civ. App.—Houston [14th Dist.]
1969, writ ref’d n.r.e.) (where deed recited consideration of “$10 and other good
and valuable consideration . . . parol evidence was admissible to show the true
consideration or that there was no consideration given”).
Humberto and Olga rely on Johnson v. Driver, 198 S.W.3d 359 (Tex.
App.—Tyler 2006, no pet.), to support their contention that evidence of the oral
promise was inadmissible. In Johnson, the defendant argued that the deed, which
stated that the property was “granted, sold, and conveyed” “in consideration of ten
dollars and other valuable consideration,” evidenced a gift. Id. at 361. The court
of appeals held that the appellant could not introduce parol evidence to show that
the conveyance was a gift, rather than a sale, where appellant did not argue
ambiguity. Id. at 363–64. But, here, Mayra and Linda did not offer parol evidence
to prove that the conveyance was a gift; rather, they offered evidence to show that

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the phrase “other consideration” in the deed referred to a consistent collateral
agreement. See id. Accordingly, Johnson does not support reversal here.
Humberto and Olga also contend that evidence of the oral promise was
inadmissible because the words “the receipt and sufficiency of which is hereby
acknowledged” “memorialize[d] the grantor’s admission that the consideration,
while not disclosed, was nevertheless satisfactory.” According to Humberto and
Olga, these words also mean that Mayra and Linda acknowledged receipt of all the
consideration they were provided and, therefore, no consideration can be
outstanding. But, as Mayra and Linda point out, the consideration that was
deemed sufficient and of which receipt was acknowledged was the promise to pay
Mayra and Linda each $20,000 plus interest for their respective interests in the
property. Therefore, we conclude that the phrase “the receipt and sufficiency of
which is hereby acknowledged” does not render evidence of the oral promise
inadmissible. We hold that the trial court did not err in admitting Mayra and
Linda’s evidence of Humberto and Olga’s oral promise.

We overrule Appellants’ sole issue.

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Conclusion

We affirm the judgment of the trial court.

Rebeca Huddle
Justice

Panel consists of Justices Jennings, Higley, and Huddle.

THE STATUTE OF FRAUDS WAS  NOT RAISED IN THE ANSWER 


CASE STYLE ON APPEAL: Humberto Lopez, Jr. and Olga Lopez v. Mayra Rivas and Linda Lopez., No. 01-14-00592-CV (Tex. App. - Houston [1st Dist] Apr. 30, 2015) (Memorandum Opinion by Justice Rebeca Huddle
TRIAL COURT CASE INFO:  Mayra Rivas and Linda Lopez vs. Humberto Lopez, Jr. and Olga Lopez; Harris County District Clerk Cause No 2011-32028; Judgment for Plaintiffs signed by Judge Patricia J. Kerrigan, presiding judge of the 190th District Court,


Tuesday, April 28, 2015

I thee talaq! x3 - First Court of Appeals passes judgment on validity of Pakistani Divorce; rejects arguments for non-recognition


Opinion issued April 28, 2015

In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00329-CV
———————————

FARIHA ASHFAQ, Appellant
V.
MOHAMMAD ASHFAQ, Appellee

On Appeal from the 246th District Court
Harris County, Texas

O P I N I O N

In October 2011, Fariha Ashfaq petitioned for divorce from Mohammad Ashfaq in a Harris County district court. With his answer, Mohammad proffered a Pakistani divorce decree and sought dismissal of the divorce action for want of jurisdiction based on the parties’ earlier divorce in Pakistan. After a bench trial, the trial court ruled that the Pakistani divorce was valid, dismissed the divorce action for want of jurisdiction, and treated the remainder of Fariha’s pleading as a post-divorce petition for division of assets, upon which it entered a judgment dividing the parties’ assets.

Fariha appeals, contending that the trial court erred in dismissing her petition for divorce because: (1) Texas courts have sole jurisdiction over the parties’ divorce; (2) the Pakistani divorce should not be recognized in the United States as a valid divorce; and (3) Mohammad failed to comply with Pakistani law in procuring the divorce. She does not contest the division of assets. Finding no error, we affirm.

Foreign marriages and divorce recognition as matter of comity 

Background

Fariha and Mohammad were married in Pakistan in December 2007. After the marriage, Mohammad spent a few months with Fariha in Pakistan, then returned to his home in Fort Worth. Fariha remained in Pakistan until June 2009, when she was granted a visa to join Mohammad and traveled to the United States. Fariha and Mohammad then lived together in Fort Worth as husband and wife.
The union was not a happy one. In November 2009, Fariha and Mohammad went to Pakistan to attend a family wedding. Once they arrived, Mohammad had Fariha’s parents take Fariha to their home.

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Fariha and Mohammad disagree about what happened after the separation. Mohammad testified that eight days later, he announced to Fariha his intent to divorce her, then informed the Chairman of the Union Council that he had divorced his wife. Mohammad had a divorce decree prepared and sent to Fariha’s parents’ home, where her brother received it. Fariha denied that Mohammad gave her timely notice of the divorce, but admitted to having received the divorce papers on November 23, before the divorce was final. Mohammad returned to the United States in late November 2009. He went again to Pakistan in September 2010 to marry another woman, who has since been admitted entry into the United States and lives with him in Fort Worth.

Fariha returned to the United States in April 2010. She has resided in Houston ever since and did not have any contact with Mohammad before filing the divorce petition.

At trial, Mohammad adduced evidence of the Pakistani divorce laws through an expert in Pakistani family law who was licensed to practice in Pakistan. The expert witness testified about the procedural requirements for divorce in Pakistan.

An English translation of “Proceeding of Union Council under Muslim Family Law Ordinance 1961(7),” in evidence before the trial court, explains that, after the husband pronounces “talaq” (“I divorce you”) three times:

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1. He provides a copy of the divorce deed to the wife.
2. He gives notice to the Chairman of the Union Council, along with the
divorce deed, that he has divorced his wife.
3. The Chairman shall supply a notice for reconciliation to the wife.
4. The Chairman shall constitute an Arbitration Council within thirty days for
the purpose of bringing about reconciliation between the parties.
5. The prescribed period is three months (90 days). The time period begins
when the Chairman of the Union Council receives notice. If the Chairman
does not constitute an Arbitration Council for reconciliation, or
reconciliation efforts fail, or either party does not want reconciliation, the
divorce shall become final after 90 days of such a notice.
6. The Chairman will issue a divorce certificate.
Mohammad’s expert testified that Mohammad complied with the Pakistani divorce
Ordinance and opined that his divorce from Fariha is valid.

Discussion

I. Applicable Law and Standard of Review

Subject-matter jurisdiction is essential for a court to have authority to decide a case; it is never presumed and cannot be waived or conferred by consent. See Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000); Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44 (Tex. 1993); see also Alfonso v. Skadden, 251 S.W.3d 52, 55 (Tex. 2008) (per curiam) (subject-matter jurisdiction cannot be waived and can be raised at any time). States, however, are not required to give full faith and credit to foreign country judgments; dismissal based on

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comity is a matter of discretion. Acain v. Int’l Plant Servs., LLC, 449 S.W.3d 655, 659 (Tex. App.—Houston [1st Dist.] 2014, pet. filed); see Reading & Bates Constr. Co. v. Baker Energy Res. Corp., 976 S.W.2d 702, 714–15 (Tex. App.— Houston [1st Dist.] 1998, pet. denied). We therefore review the trial court’s ruling for an abuse of discretion. See Acain, 449 S.W.3d at 659.

Generally, a trial court abuses its discretion if it acts arbitrarily, unreasonably, or without regard to guiding legal principles. Id. (citing Wagner & Brown, Ltd. v. Sheppard, 282 S.W.3d 419, 428–29 (Tex. 2008)). Recognition of a foreign judgment in the absence of due process constitutes an abuse of discretion. “[D]ue process requires that no other jurisdiction shall give effect, even as a matter of comity, to a judgment elsewhere acquired without due process.” Griffin v. Griffin, 327 U.S. 220, 228, 66 S. Ct. 556, 560 (1946), quoted in In re E.H., 450 S.W.3d 166, 172 (Tex. App.—Houston [14th Dist. 2014, pet. filed); see also Litvaitis v. Litvaitis, 295 A.2d 519, 522 (Conn. 1972) (“A decree of divorce will not be recognized by comity where it was obtained by a procedure which denies due process of law in the real sense of the term . . . or where the foreign court lacked jurisdiction.”).

Because the parties tried the issue of the foreign decree’s validity to the bench, we review the propriety of the trial court’s evidentiary findings supporting the judgment, whether express or implied, through the standard applicable to those

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proceedings. In a bench trial, the trial court determines the credibility of the witnesses and the weight to be given their testimony. Zenner v. Lone Star Striping & Paving, L.L.C., 371 S.W.3d 311, 314 (Tex. App.—Houston [1st Dist.] 2012, pet. denied); see also City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). In resolving factual disputes, the trial court may believe one witness and disbelieve others, and it may resolve any inconsistencies in a witness’s testimony. Zenner, 371 S.W.3d at 314; McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986).

In making credibility determinations, the factfinder “cannot ignore undisputed testimony that is clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and could have been readily controverted.” City of Keller, 168 S.W.3d at 820. The factfinder thus is not “free to believe testimony that is conclusively negated by undisputed facts.” Id. In matters involving factual disputes, however, a trial court does not abuse its discretion “if it bases its decision on conflicting evidence and some evidence supports its decision.” See Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009) (citing In re Barber, 982 S.W.2d 364, 366 (Tex. 1998)).

II. Validity of Pakistani Divorce

A. Effect of Texas domicile

Fariha contends that Texas had sole jurisdiction over the divorce because she and Mohammad were domiciled in Texas at the time Mohammad initiated the

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proceeding. Although Texas law incorporates the concept of domicile, it is not universally applied the same way throughout the world. See Williams v. North Carolina, 325 U.S. 226, 229, 65 S. Ct. 1092, 1095 (1945) (“Under our system of law, judicial power to grant a divorce—jurisdiction, strictly speaking—is founded on domicil.” (emphasis added)). Because Mohammad adduced evidence of the

Pakistani divorce laws, any presumption that Texas law would govern the decree’s interpretation does not apply here. The question before the trial court was not whether the parties satisfied the statutory requirements to file a divorce petition in Texas, but whether to recognize the Pakistani divorce as a valid divorce that terminated the Ashfaqs’ marriage before Fariha filed her petition in Texas. Texas courts treat foreign law as a fact issue. Nguyen v. Nguyen, 355 S.W.3d 82, 89 (Tex. App.—Houston [1st Dist.] 2011, pet. denied). The party relying on such foreign law must therefore strictly plead and prove the law. Id.; see also TEX. R. EVID. 203 (providing that party who intends to raise issue concerning law of foreign country must give notice by pleadings or other writing and supply to all parties copies of any written materials that party intends to use at least 30 days before trial); see also In re Estate of Loveless, 64 S.W.3d 564, 575 (Tex. App.—Texarkana 2001, no pet.) (recognizing trial court’s right to take judicial notice of law of Honduras as evidence regarding validity of prior marriage,

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based on selected provisions of Honduran law attached to purported wife’s motion for summary judgment, as requested by purported wife). With respect to residency, the Pakistani legal expert testified that the Ordinance applies to Pakistani residents. Residency, she explained, is satisfied as
long as the parties have not relinquished their Pakistani citizenship when the divorce occurred, regardless of whether they live in another country, “whether permanently or for a fixed time.” It is undisputed that Fariha is a Pakistani citizen, and Mohammad testified that he has dual U.S. and Pakistani citizenship. Fariha did not present any controverting evidence. We hold that the trial court did not err in concluding that the Pakistani Union Council had jurisdiction over the divorce proceeding between Mohammad and Fariha.


Tex. R. Evic. 203: Determination of Foreign Law
Texas Rules of Evidence TRE 203: Determination of Foreign Law 

B. Public policy

Fariha also contends that the trial court should have held that the Pakistani
divorce law is invalid because it denies due process and is fundamentally unfair.
Inherent in the right to due process is “notice reasonably calculated, under
all the circumstances, to apprise interested parties of the pendency of the
action . . . .” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70
S. Ct. 652, 657 (1950), quoted in Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80,
84, 108 S. Ct. 896, 899 (1988). Mohammad’s expert witness distinguished the
traditional Muslim talaq from the requirements for divorce under the Pakistani

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Ordinance, which requires notice to the wife and the Union Council and authorizes
the imposition of criminal penalties for failure to comply with those requirements.
The Ordinance imposes a mandatory 90-day waiting period before the divorce is
final to allow for reconciliation efforts during that period and facilitates these
efforts by providing for constitution of an Arbitration Council for reconciliation
upon request. The record contains conflicting evidence as to whether Mohammad
timely served Fariha with notice of the divorce as required under the Ordinance,
but Fariha admitted to receiving the notice before the divorce became final. We
will not disturb the credibility determination supporting the trial court’s implicit
conclusion that the procedure prescribed by the Ordinance satisfied due process.
See Unifund CCR Partners, 299 S.W.3d at 97.

In contending that the Pakistani divorce should be considered void for public
policy reasons, Fariha relies on Aleem v. Aleem, 947 A.2d 489 (Md. App. 2008), in
which the Maryland Court of Appeals declined to recognize as a matter of comity
the validity of a divorce the husband obtained by appearing at the Pakistan
Embassy and performing talaq in writing without any advance notice to his wife.
Id. at 490. We find Aleem inapposite. Specifically at issue in Aleem was a dispute
regarding the division of marital property, which is not involved in this appeal.
Further, the Maryland appellate court decided that the talaq divorce was
inequitable in the apparent absence of evidence of Pakistan’s “Dissolution of

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Muslim Marriages Act, 1939,” which permits women to divorce under certain
circumstances. See id. at 490 n.1 (explaining its understanding that “where that
Islamic law has been adopted as the secular law of a jurisdiction, such as Pakistan,
a husband has a virtual automatic right to talaq, . . . but the wife only has a right to
talaq if it is in the written marriage agreement or if he otherwise delegates that
right to her”). Through his legal expert, Mohammad proffered evidence of the
1939 Act, which permits women to initiate divorce based on, among other things,
the husband’s abandonment, polygamy, imprisonment, or mistreatment.
At least one legal commentator has characterized the Pakistani divorce laws
as providing an avenue beyond traditional Islamic law that can be used to
safeguard and promote “the fundamental rights guarantees of contemporary
constitutions and the modern ideas of social justice that have influenced them.”
Karin Carmit Yefet, The Constitution and Female-Initiated Divorce In Pakistan:
Western Liberalism in Islamic Garb, 34 HARV. J.L. & GENDER 553, 562 (2011).
We also note that the U.S. State Department considers a Pakistani talaq divorce
obtained pursuant to the Ordinance—as opposed to a “bare talaq”—as valid proof
of marital status for immigration purposes, and it presumably recognized the
validity of this particular divorce in approving the visa for Mohammad’s current

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wife.1
 Accordingly, we hold that the trial court acted within its discretion in
recognizing the Pakistani divorce as valid as a matter of comity.
C. Compliance with Pakistani law
Finally, Fariha contends that the Pakistani divorce is invalid because
Mohammad failed to comply with the legal requirements for procuring it.
Mohammad’s expert witness testified to the contrary: she averred that the divorce
proceeding that Mohammad initiated complied with the law, and the divorce
became final November 15, 2009.

Mohammad testified that he (1) pronounced the triple talaq to Fariha,
(2) sent a copy of the divorce to Fariha’s family home, where it was received by
her brother, and (3) sent notice to the Union Council chairman before he left
Pakistan. Within the 90-day period before the divorce was final, Fariha’s parents
went to Mohammad’s family’s house and were given Fariha’s personal effects,
including the “maher,” a fixed dowry payment owed upon divorce, and the jewelry
also given as dowry. The expert witness testified that Fariha’s acceptance of the
maher payment equates to acceptance of the divorce.

For the first time on appeal, Fariha points to discrepancies in the dates and
other perceived flaws in the contents of the divorce documents. However, she did
not present any expert testimony in the trial court to support the conclusion that
 1 See U.S. DEP’T OF STATE, BUREAU OF CONSULAR AFFAIRS, Pakistan Reciprocity
Schedule: Documents—Divorce Certificates.

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those flaws render the divorce invalid, nor is there any other evidence to controvert
the analysis and opinion from Mohammad’s expert witness that the divorce is
valid. Moreover, Fariha does not counter Mohammad’s argument at trial that
Fariha’s acceptance of the maher estops her from denying the validity of the
divorce. See Leedy v. Leedy, 399 S.W.3d 335, 339–40 (Tex. App.—Houston [14th
Dist.] 2013, no pet.) (party who accepts and retains benefits of judgment is
thereafter estopped to assert its invalidity); Richards v. Richards, 371 S.W.3d 412,
(Tex. App.—Houston [1st Dist.] 2012, no pet.) (same). We hold that the trial court
did not err in concluding that the divorce complied with the applicable legal
requirements.

Conclusion

We hold that the trial court acted within its discretion in dismissing the divorce action for lack of jurisdiction. We therefore affirm the judgment of the trial court.

Jane Bland

Justice

Panel consists of Justices Keyes, Bland, and Massengale.

First Court of Appeals April 28, 2015 Opinion Release Page (partial snip)