                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-13-00038-CV


KALSOOM AHMAD                                                           APPELLANT

                                          V.

ISHFAQ AHMAD                                                             APPELLEE


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          FROM THE 324TH DISTRICT COURT OF TARRANT COUNTY
                    TRIAL COURT NO. 324-494783-11
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                          MEMORANDUM OPINION1

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                                    Introduction

      Appellant Kalsoom Ahmad appeals from the trial court’s final divorce

decree.   In a single issue, Kalsoom complains that the trial court abused its

discretion in its division of the parties’ marital estate. We affirm.




      1
       See Tex. R. App. P. 47.4.
                                  Background

      Kalsoom and Appellee Ishfaq Ahmad were married in Pakistan in 1987.

The parties were married for twenty-six years and had two children who are now

adults. They separated in April 2011. Ishfaq filed for divorce, and Kalsoom filed

a counter-petition for divorce.

      The case was tried to the bench on January 3, 2013. Ishfaq testified that

he had been employed as a professor at the University of Texas at Arlington for

eleven years at the time of trial, earning an annual salary of approximately

$150,000.    He further testified that he has a Bachelor’s degree in Electrical

Engineering, a Master’s degree in Computer Engineering, and a Ph.D. in

Computer Science, the latter two of which were acquired in the United States.

      Kalsoom testified that she was not employed at the time of trial. She was

last employed from 1988 to 1992 as a research assistant at Onondaga

Community College in Syracuse, New York, and before that as secretary to the

Chairman of the Microbiology Department at the State University of New York

Health Science Center. Kalsoom has a Bachelor’s degree from the University of

Punjab in Pakistan and a Bachelor of Arts in English Literature and Political

Science earned in the United States, and at the time of trial, she was pursuing a

Master’s degree in Education at the University of Texas at Arlington.

      Kalsoom suffers from hyperthyroidism and depression. She testified that

she had debts totaling over $145,000, consisting of medical bills, attorney’s fees,

and other personal obligations.

                                        2
      The parties’ marital estate included the Ahmads’ primary residence in

Grand Prairie; an apartment in China; a 2011 Honda Accord; a 2002 Honda

Odyssey; Ishfaq’s retirement account; a life insurance policy on Ishfaq; and

assorted bank accounts, credit card debts, and household belongings.

According to Ishfaq’s sworn inventory and appraisal, which the trial court

admitted into evidence, as well as his testimony, the Grand Prairie residence was

worth between $270,000 and $274,000 with a mortgage of $243,000 to

$248,000; his retirement account was worth around $185,000; and his insurance

policy had a current cash surrender value of $12,528.

      The only contested asset was the apartment in China. Ishfaq’s inventory

and appraisal reflected—and he testified—that its value was between $53,000

and $56,000, with a mortgage of about $18,000, but he claimed that it is in need

of expensive repairs. In support of his valuation, Ishfaq offered, and the trial

court admitted, what appears to be a sales contract for the apartment and

photographs of the apartment. The photographs appear to show water damage

to the walls and ceiling. The contract is in Chinese and is untranslated aside

from a few handwritten notes in English.      In contrast to Ishfaq’s valuation,

Kalsoom valued the apartment at approximately $800,000.         She offered no

evidence supporting this appraisal other than her own testimony, and a “personal

wealth analysis” report on Ishfaq, prepared by an unknown third party and

admitted by the trial court only as a summary of Kalsoom’s beliefs as to the

extent of Ishfaq’s assets.

                                       3
      The trial court awarded to Ishfaq the Grand Prairie residence and the

apartment in China along with the properties’ respective mortgages; the 2011

Honda Accord; his 401k account less the portion awarded to Kalsoom; his life

insurance policy and benefits; financial accounts and debts in his name; and all

personal and household effects in his possession.          Kalsoom was awarded

$150,000 of Ishfaq’s retirement benefit plan; the 2002 Honda Odyssey; financial

accounts and debts in her name; and all cash, personal effects, and household

furnishings in her possession. The trial court further awarded Kalsoom spousal

support of $1,500 per month for one year, and $750 per month for the following

year. Neither party requested findings of fact and conclusions of law.

                                      Issue

      By her single issue, Kalsoom contends that the trial court abused its

discretion in awarding the Chinese apartment to Ishfaq without sufficient

information on which to exercise its discretion and without any substantive or

probative evidence as to its precise location and value.

                               Standard of Review

      A trial judge is charged with dividing the community estate in a “just and

right” manner, considering the rights of both parties. Tex. Fam. Code Ann.

§ 7.001 (West 2006); Watson v. Watson, 286 S.W.3d 519, 523 (Tex. App.—Fort

Worth 2009, no pet.). The court has broad discretion in making a just and right

division, and absent a clear abuse of discretion, we will not disturb that division.

Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex. 1985); Boyd v. Boyd, 131 S.W.3d

                                         4
605, 610 (Tex. App.—Fort Worth 2004, no pet.). In family law cases, the

traditional sufficiency standards of review overlap with the abuse of discretion

standard of review; therefore, legal and factual insufficiency are not independent

grounds of error but are relevant factors in our assessment of whether the trial

court abused its discretion. Watson, 286 S.W.3d at 522. To determine whether

there has been an abuse of discretion because the evidence is legally or factually

insufficient to support the trial court’s decision, we must determine whether the

trial court had sufficient evidence upon which to exercise its discretion and

whether the trial court erred in its application of that discretion. Id. at 522–23.2 In

a bench trial, when no findings of fact or conclusions of law are filed or

requested, we must presume that the trial court made all the necessary findings

to support its judgment. Pharo v. Chambers Cnty., 922 S.W.2d 945, 948 (Tex.

1996); Byrnes v. Byrnes, 19 S.W.3d 556, 561 (Tex. App.—Fort Worth 2000, no

pet.). Consequently, if the trial court’s implied findings are supported by the

evidence, we must uphold its judgment on any theory of law applicable to the

case. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).




      2
        The legal and factual sufficiency standards of review are well established.
See Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007);
City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Uniroyal Goodrich Tire
Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040
(1999); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh’g);
Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).

                                          5
                                Applicable Law

      Community property does not have to be divided equally, but the division

must be equitable. Kimsey v. Kimsey, 965 S.W.2d 690, 704 (Tex. App.—El Paso

1998, pet. denied).   The trial court may consider the following non-exclusive

factors, among others, in determining whether the division of the community

estate is equitable: (1) the spouse’s capacities and abilities; (2) education; (3)

the relative financial conditions and obligations of the parties; (4) size of the

separate estates; (5) the nature of the property; (6) disparities in earning

capacities and income; (7) fault of the breakup of the marriage; and (8) any

wasting of the community assets by one of the spouses. Murff v. Murff, 615

S.W.2d 696, 699 (Tex. 1981).       In determining whether to disproportionately

divide the community estate, the trial court may consider a spouse’s dissipation

of the community estate and any misuse of community property. Vannerson v.

Vannerson, 857 S.W.2d 659, 669 (Tex. App.—Houston [1st Dist.] 1993, writ

denied).   A disproportionate division must be supported by some reasonable

basis. Smith v. Smith, 143 S.W.3d 206, 214 (Tex. App.—Waco 2004, no pet.).

                                  Discussion

      First, Kalsoom complains that the trial court had insufficient information

upon which to exercise its discretion in evaluating the residence in China.

Kalsoom asserts that the evidence was insufficient to locate, let alone value, the

residence. She contends that: (1) it is unclear how the untranslated Chinese

contract relates to the residence; (2) the address Ishfaq assigns to the residence

                                        6
does not exist; and (3) Ishfaq’s appraisal of the residence contradicts his list of

repairs.

      Available to the trial court was the parties’ testimony regarding the property

in China, Ishfaq’s inventory and appraisal, the contract for the property,

photographs of the property, and Kalsoom’s valuation. The trial court was free to

assign the weight to be given the parties’ testimony, accept or reject all or any

part of their testimony, and resolve any conflicts or inconsistencies. Liberty Mut.

Ins. Co. v. Burk, 295 S.W.3d 771, 777 (Tex. App.—Fort Worth 2009, no pet.)

(“‘[W]e may not pass upon the credibility of the witnesses or substitute our

judgment for that of the trier of fact, even if a different answer could be reached

upon review of the evidence.’” (quoting Rich v. Olah, 274 S.W.3d 878, 884 (Tex.

App.—Dallas 2008, no pet.))). Consequently, we conclude that the trial court had

sufficient information upon which to exercise its discretion.

      Kalsoom also complains that, although she participated in the trial pro se

after her attorney had withdrawn, she made every attempt to demonstrate her

inability to obtain information regarding the Chinese apartment, but the trial court

excluded as hearsay evidence of her efforts, which consisted of a series of

emails between her and real estate agents in Hong Kong regarding valuations of

the apartment. Absent that evidence, Kalsoom argues, she could only conclude




                                          7
that an apartment in the area of Hong Kong that was indicated by its address

would sell for over $750,000 based on similar property sales.3

      Kalsoom also contends that the trial court’s decision to award the

residence in China to Ishfaq caused a manifestly unfair and unjust result. She

argues that the trial court failed to consider several important factors—such as

the disparity between the parties with respect to education, income, and earning

potential—in determining a just and right division of the estate.

      Because no findings of fact and conclusions of law were requested, we

must presume the trial court made all necessary findings to support its judgment,

and if the trial court’s implied findings are supported by the evidence, we must

affirm the judgment of the trial court if it can be upheld on any legal theory

supported by the evidence.       Worford, 801 S.W.2d at 109; see Roberts v.

Roberts, 999 S.W.2d 424, 435 (Tex. App.—El Paso 1999, no pet.) (“[A]ppellant

cannot demonstrate that a trial court abused its discretion in making a just and

right division of the community estate without being able to quantify the size of

the community pie or just how large a slice each spouse was served . . . .”).

According to Ishfaq’s testimony and inventory and appraisal, the apartment in

China was valued between $53,000 and $56,000, with a mortgage of


      3
        Kalsoom states in her brief that she is not contending that the trial court
should have adopted this figure as the proper valuation of the apartment but that
the trial court was left to speculate as to the value of the apartment because the
trial court did not have sufficient probative evidence before it to exercise its
discretion to evaluate the property at all.

                                         8
approximately $18,000. We conclude the trial court accepted Ishfaq’s valuation,

and considering both the assets and the liabilities awarded to the parties, Ishfaq

received a negative net equity value, while Kalsoom received a positive net

equity value.    And while Ishfaq’s income and earning potential are greater,

Kalsoom was enrolled in a post-graduate program at the time of trial, and she

testified that she expected to graduate and obtain a teaching certificate within

one or two years. Thus, particularly in light of the two years of spousal support

the court awarded Kalsoom, we cannot say that the trial court abused its

discretion in its division of the parties’ marital estate.

                                      Conclusion

      Having overruled Kalsoom’s sole issue, we affirm the trial court’s

judgment.

                                                       /s/ Anne Gardner
                                                       ANNE GARDNER
                                                       JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and GABRIEL, JJ.

LIVINGSTON, C.J., concurs without opinion.

DELIVERED: July 17, 2014




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