      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-11-00467-CV



                                  Mohammad Ashraf, Appellant

                                                  v.

                                     Shahnaz Ashraf, Appellee


   FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
  NO. D-1-FM-07-002895, HONORABLE GISELA D. TRIANA-DOYAL, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Appellant Mohammad Ashraf appeals from the final decree in his divorce proceeding

from appellee Shahnaz Ashraf.1 Appellant challenges portions of the decree dividing property

between the parties and claims that he received ineffective assistance of counsel at trial. Because

we hold that there is no error in the divorce decree, we affirm the trial court’s judgment.


                                          BACKGROUND

                The parties were married in February 1981.2 Ashraf earned a degree in architecture

from the University of Nebraska at Lincoln and went on to work for Travis County, the City of



       1
         At the appellee’s request, the divorce decree ordered that her name be changed back to her
maiden name of Shahnaz Khan. Accordingly, we will hereinafter refer to the appellant as “Ashraf”
and the appellee as “Khan” for clarity.
       2
           The facts recited herein are taken from the testimony presented at trial.
Austin, and the Texas Department of Transportation. Khan earned a degree in home economics in

Pakistan, but seldom worked outside the home during the marriage, instead staying home to raise

the parties’ son and daughter, who are now adults. Khan filed for divorce in June 2007, citing

insupportability as well as cruelty and adultery on the part of Ashraf.

                The trial court heard the case on July 29, 2010. However, the trial was temporarily

delayed when Ashraf failed to appear on time. Ashraf’s attorney informed the court that Ashraf was

at his doctor’s office and would arrive shortly. When Ashraf appeared, he presented the court with

a doctor’s letter requesting that the trial be postponed due to medical problems affecting Ashraf.

Khan’s attorney argued that the letter was a stalling tactic by Ashraf. Noting that the parties’

daughter had flown in to testify and that the case had already dragged on for three years, causing

great distress to Khan, her attorney requested that the trial go forward. The court stated, “Well, I

don’t think—this is just a request. It doesn’t say he’s unable to participate, so I’m going to go ahead,

and we’re not going to—I’ll deny the continuance and just go on and get this done.”

                The parties proceeded to explain their proposals for the division of property. Khan

requested a disproportionate share of the estate, including the family home; 50% of the value of an

empty lot owned by the parties in their neighborhood, worth about $30,000; and a 70% share of the

four retirement accounts in Ashraf’s name, which the parties stipulated were worth about $1,580 in

income per month. Khan cited fraud on the community by Ashraf as the basis for this division.

Khan also asked that she and her son retain the Lexus vehicles they had each been driving and that

Ashraf receive the 1998 Honda Civic he had been driving. Based on her limited earning potential




                                                   2
and family violence committed by Ashraf, Khan requested spousal maintenance.3 See Tex. Fam. Code

Ann. § 8.051 (West 2006). Finally, she requested that the court award her $7,500 in attorney’s fees.

               In support of her proposal, Khan presented testimony from herself, her attorney, and

the parties’ grown daughter, Mahim Ashraf.4 Khan first testified as to her allegation that Ashraf was

guilty of cruelty. She gave examples of malicious and controlling behavior by Ashraf throughout

their marriage. For example, Khan testified that Ashraf once poured an entire gallon of milk over

her head when she had just finished taking a shower. She stated that Ashraf did not permit their

children to have any interactions with members of the opposite sex. In addition, Khan claimed that

Ashraf was controlling with money, making her show him each load of laundry she needed to wash

before he would give her coins for the laundry machines at the rental property where they once lived.

Khan testified that Ashraf rarely permitted her to work outside the home, so she had only sporadic

work experience as a substitute day care provider and at a department store.

               Khan also described several instances of physical abuse by Ashraf, including “[a]

couple of times” when he hit or pushed her. Khan also described an incident when Ashraf hit her

with a remote control for refusing to turn on the television for him. Khan further contended that

Ashraf physically abused their children, beginning when the oldest was just ten months old. Finally,

she stated that Ashraf’s 2008 arrest for family violence occurred after he pulled Khan’s hair and

pushed her into a wall, causing a reddish mark on her back.



       3
          In April 2008, Ashraf was arrested for family violence. He was tried and convicted of
family violence assault. See Tex. Penal Code Ann. § 22.01 (West 2011).
       4
         Because the parties’ daughter shares the appellant’s last name, we will refer to her by her
first name for clarity.

                                                 3
               Additionally, Khan testified that Ashraf had allowed their home to fall into disrepair.

She claimed that the house suffered minor water damage in 2001 or 2002, but because Ashraf never

repaired it, water built up in the wall and eventually seeped into the living room and the furniture.

Khan stated that her children were embarrassed by the state of the house and stopped having friends

over to visit. According to Khan, her lack of access to the family finances prevented her from taking

action to repair the house. She testified that Ashraf opened a home equity line of credit for $50,000

with Compass Bank, claiming he would use the money to make repairs. However, Ashraf did not

permit Khan to sign the deposit form so that she could also withdraw from the line of credit. Khan

testified that the home equity funds were not used to repair the home after all. Instead, according

to Khan, Ashraf used the money to buy two Lexus automobiles.

               The court admitted photos of the home into evidence. One photo depicted a rat inside

the home. Khan testified that there were “a couple” of rats at one point, although they were gone by

the time of trial. Khan also stated that there were cockroaches throughout the home and these were

never exterminated because Ashraf believed it would be a waste of money. Khan testified that the

photos had been taken between 2006 and 2008, but reflected the conditions she had been living in

for the past ten years. She testified that the tax appraisal value of the home was approximately

$121,000. However, Khan claimed, three real estate agents had appraised the home at closer to

$105,000 due to its condition.

               Khan testified as to her belief that Ashraf had committed adultery, stating that she

“caught him cheating . . . over the phone” and “caught him in the driveway with a girl.” Additionally,

Khan testified with regard to her claim that Ashraf was guilty of fraud on the community. Khan



                                                  4
stated that Ashraf purchased the second Lexus with the home equity line of credit in violation of

temporary orders entered by the trial court enjoining Ashraf from using that account. She further

testified that Ashraf had begun drawing from a retirement account with the Employees Retirement

System (ERS) despite temporary orders prohibiting either party from doing so.

               Moreover, Khan testified that the empty lot did not belong to Ashraf’s sister, as

Ashraf claimed. She testified that Ashraf at one point leased the property to a construction company

that was working on a nearby road for six months. Further, Khan claimed that even after she filed

for divorce, Ashraf approached her about building a new home on the lot. She stated that she had

seen drawings and plans Ashraf had created for the project. Khan further stated that she heard

Ashraf tell a friend that the lot would pass to Ashraf’s children when he died.

               The parties’ twenty-six-year-old daughter, Mahim, also testified in support of her

mother’s claims. Mahim testified that Ashraf had frequently beaten his children. She stated that

Ashraf would pull the children up by the hair if he found them seated in his chair at the dining table.

Mahim said Ashraf hit her on a regular basis, mostly slapping her on the face but also punching her

or twisting her arms. Mahim also testified that, while her brother was standing up to use the toilet,

her father would push open the bathroom door and tell him he needed to sit down to use the toilet.

Ashraf would then stop his son in the middle of urinating and tell him to sit down. Mahim also

testified that Ashraf had abused Khan throughout the children’s lives. She recalled one incident

when Ashraf threw a television remote at Khan’s back and another, in April 2008, when Mahim

called the police after Ashraf pulled Khan’s hair and pushed her against the wall.

               Mahim also corroborated that Ashraf restricted the family’s access to money. “We

never saw money or got money or received allowance or anything,” Mahim testified. She stated that

                                                  5
her mother obtained money and food from family and community members, shopped at Goodwill,

and used credit cards for basic household items. According to Mahim, Ashraf behaved as if it would

be ludicrous for Khan to request his financial support. Mahim added that the family home was an

unhealthy, unsanitary environment as a result.

               Ashraf was the only witness to testify in favor of his proposal. He requested an even

division of the parties’ estate, proposing either that Khan receive the entire house and Ashraf receive

all of his retirement income, or that the house be sold and the proceeds divided evenly while the

retirement would also be divided evenly. Ashraf claimed that the empty lot should not be divided

between the parties because it belonged to his sister. Finally, Ashraf requested either that he receive

a better vehicle than the Honda Civic or that all of the vehicles be sold and the proceeds be split

evenly between the parties.

               In support of his case, Ashraf testified that he could not find work and described

the fixed monthly income he received through Social Security and two retirement funds. Ashraf

admitted that he began drawing from his ERS account during the divorce. However, Ashraf also

claimed that he repaid Khan for the withdrawal by using the money for utilities, taxes, and mortgage

payments on the family home. He also asserted that the withdrawal was permitted under temporary

orders that the trial court had previously entered providing for the payment of property taxes during

the pendency of the divorce.

               Ashraf testified that he disciplined his children, but never abused them. He contended

that he only struck Mahim one time, when he spanked her for beating her brother. Ashraf argued that

the children had been brainwashed by Khan, who had always hated him, into believing he was a bad




                                                  6
person. Ashraf testified that he always provided for his family, funding the children’s room and

board in college and paying extra on the mortgage so that they could keep the home if he died.

               Ashraf claimed that he did use funds from the home equity line of credit for some

repairs, such as installing new tile in the bathrooms and entryway and enlarging the kitchen in the

home. However, Ashraf admitted to taking money from that account to purchase vehicles. With

respect to the empty lot at issue, Ashraf testified that he purchased it for his sister in Pakistan.

Ashraf stressed that his sister had been responsible for paying taxes on the lot, except when he leased

it to a construction company on her behalf and paid the taxes with the proceeds.

               While cross-examining Ashraf, Khan’s attorney offered evidence of Ashraf’s alleged

adultery. This included a Valentine’s Day card from one woman, an affectionate e-mail from another,

and documentation that Ashraf purchased a Southwest Airlines gift card for a female friend to travel

to Austin. When asked if he remembered sending e-mails inviting a woman to have sex with him,

Ashraf responded, “I don’t remember.” Later he asked, “Where is your proof that I slept with her?

Just because I wrote that, sent that e-mail, does that mean I slept with her?” Ashraf admitted that

he had “made mistakes” and “done something destructive” during the marriage, but only as a response

to Khan being unfaithful many times.

               After this testimony, as well as the testimony of the parties’ attorneys concerning the

fees they were owed, the court orally announced its decree. The court stated, “I can’t totally go along

with what [Khan] wishes this court to do,” but expressed that “Mr. Ashraf may need a little bit of

penalty for some of the complications he’s caused.” Thus, the court granted the divorce and:


       a.      Awarded the house to Khan, asserting that Ashraf “needs to get out”;

                                                  7
          b.   Ordered the empty lot to be sold and divided evenly, stating, “I have no evidence,
               other than the lot . . . belongs to the community”;

          c.   Awarded the Honda Civic, the Datsun, and the two Lexus vehicles in the same
               manner as the temporary orders and Khan’s request;

          d.   Ordered “the retirement” to be “split 50/50" on the grounds that “[s]he’s entitled to
               it, and I know she’s getting the house. But looking at these pictures, it might cost
               another $50,000 to get that house in tip-top shape, too. So I think that’s about as fair
               as this Court’s going to be”; and

          e.   Ordered Ashraf to pay $3,000 in fees to Khan’s attorney.


Khan subsequently filed a motion to enter judgment with a proposed final decree based on the trial

court’s oral pronouncement. On November 24, 2010, at the hearing on Khan’s motion, the court

entered a Final Decree of Divorce matching Khan’s proposed decree.5 On December 27, 2010,

Ashraf filed a motion for new trial. The trial court denied Ashraf’s motion, and Ashraf now appeals

pro se.

               In his pro se brief on appeal, Ashraf presents the following arguments: (1) that he

received ineffective assistance of counsel that prejudiced the outcome in his case; (2) that the trial

court abused its discretion in denying his motion for continuance; (3) that the final divorce decree

was not approved by Ashraf’s counsel and differed from the decree announced orally at the

conclusion of the trial; and (4) that the trial court abused its discretion in making the division of

property because the evidence was legally and factually insufficient to support the order.6

          5
          The decree bears the signatures of Khan and her attorney, but not Ashraf or his attorney.
The record does not establish, but neither party appears to dispute, that Ashraf and his attorney did
not attend the hearing.
          6
          In his list of “Points for Review,” Ashraf identifies only two issues: (1) that he received
ineffective assistance of counsel and (2) that the trial court abused its discretion in making the
property division. However, he introduces additional issues in the body and conclusion of his brief,

                                                  8
               Khan responds that the doctrine of ineffective assistance of counsel is inapplicable

in civil divorce cases; that Ashraf received notice of the final divorce decree and failed to preserve

any complaint as to its contents; and that the trial court did not abuse its discretion in denying the

continuance or making the property division. In one cross-point, Khan requests that we subject

Ashraf to sanctions for filing a frivolous appeal. See Tex. R. App. P. 45.


                                           DISCUSSION


Ineffective assistance of counsel

               Ashraf primarily complains that his trial counsel provided ineffective assistance. In

support of this claim, Ashraf alleges that his counsel: (1) called him to testify despite Ashraf being

very ill and under the influence of prescription medications, the side effects of which caused Ashraf

to give incomprehensible testimony; (2) failed to object to the admission of outdated photographs

of the family home and to offer evidence that Ashraf had made certain repairs; (3) failed to present

other evidence, such as an inventory of community property and documents showing that Ashraf had

paid more than required toward the mortgage each month; and (4) failed to respond when opposing

counsel did not serve the proposed final divorce decree on Ashraf or his counsel.

               The United States Supreme Court has recognized that ineffective assistance of

counsel is a violation of the Sixth Amendment right to counsel. See Strickland v. Washington,

466 U.S. 668, 686 (1984). However,




and we will consider these as points of error on appeal. See Giddens v. Brooks, 92 S.W.3d 878, 880
(Tex. App.—Beaumont 2002, pet. denied) (pro se pleadings and briefs are to be liberally construed).

                                                  9
       [i]t is well established that the doctrine of ineffective assistance of counsel does
       not extend to civil cases. The Sixth Amendment of the United States Constitution
       and Article I, Section 10 of the Texas Constitution provide that ‘in all criminal
       prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel
       for his defense.’ Thus, by their plain language neither the Sixth Amendment nor
       Article I, Section 10 apply to civil cases.


Cherqui v. Westheimer St. Festival Corp., 116 S.W.3d 337, 343 (Tex. App.—Houston [14th Dist.]

2003, no pet.); see also McCoy v. Texas Instruments, Inc., 183 S.W.3d 548, 553 (Tex. App.—Dallas

2006, no pet.). An exception to the general rule has been created with regard to trial counsel in

parental termination cases. See In re M.S., 115 S.W.3d 534, 544 (Tex. 2003). However, the case

before us does not concern parental rights. Accordingly, the doctrine of ineffective assistance is

inapplicable, and we overrule this issue on appeal.


Motion for continuance

               We next consider Ashraf’s complaint regarding the trial court’s denial of his

motion for continuance. We review the grant or denial of a motion for continuance for an abuse

of discretion. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002) (citing

Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986)); Rocha v. Faltys, 69 S.W.3d 315, 318–19

(Tex. App.—Austin 2002, no pet.). This Court cannot overrule the trial court’s decision unless the

trial court acted unreasonably or in an arbitrary manner, “without reference to any guiding rules and

principles.” Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991) (quoting Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)).

               According to Ashraf, the trial court “abused its discretion by denying [his] Motion

for Continuance which was supported by a doctor’s statement of medical impairment and the effects

                                                 10
of eight prescription drugs on [Ashraf].” The doctor’s letter was not made part of the record in this

case. However, in support of this argument, Ashraf asserts that portions of his testimony at trial were

incoherent, “full of incomplete sentences,” and indicative of confusion and agitation on his part. He

also notes that Khan’s attorney commented on Ashraf’s “recalcitrant nature, the fact that he wants

to argue with me and spar with me” in his closing argument to the court.7

                However, this evidence is insufficient to demonstrate that the trial court abused its

discretion in denying the continuance. In exercising its discretion, the trial court could have taken

into account the entire procedural history of this case. See Waste Water, Inc. v. Alpha Finishing &

Developing Corp., 874 S.W.2d 940, 942 (Tex. App.—Houston [14th Dist.] 1994, no writ). Thus,

when presented with Ashraf’s motion, the trial court could have considered not only the statement

by Ashraf’s doctor but also the long duration of the case up until that point, including multiple

continuances and failed attempts at alternative dispute resolution. The court could also have

considered the suggestion by Khan’s attorney that Ashraf was only attempting to stall again and the

fact that a witness had flown in to testify. Further, as the trial court observed when presented with

the doctor’s statement, it was merely a request and did not state that Ashraf was unable to participate.

                As a result, we cannot conclude that the court acted unreasonably or in an arbitrary

manner, “without reference to any guiding rules and principles,” in denying Ashraf’s motion for

continuance. See Beaumont Bank, N.A., 806 S.W.2d at 226. We overrule this issue on appeal.


       7
          Ashraf has attached various documents to his brief, including several pages describing
the side effects of medications. However, these are not a part of the appellate record, and we do
not consider them. See Adams v. Reynolds Tile & Flooring, Inc., 120 S.W.3d 417, 423 (Tex.
App.—Houston [14th Dist.] 2003, no pet.) (“[T]he attachment of documents as exhibits or
appendices to briefs does not constitute formal inclusion in the record on appeal and, therefore,
[such documents] cannot be considered.”).

                                                  11
Final decree of divorce

                Ashraf also argues that the trial court “abused its discretion in signing a written decree

that was not approved by counsel and contains orders dividing property that was not divided by the

Trial Judge.” According to Ashraf, he and his attorney “were not provided a copy or asked to sign

the Final Decree of Divorce” and thus were “denied the right to review [it] for correctness.”

                In response to this issue, Khan directs us to her motion to enter judgment contained

in the clerk’s record. The motion states that Khan’s proposed decree was submitted to Ashraf’s

attorney on two occasions. The motion also includes a copy of the proposed decree, notice of the

hearing set for November 24, 2010, and a certificate of service averring that the motion was served

on Ashraf’s attorney by facsimile transmission on November 19, 2010. Khan asserts that, “[a]fter

being given an opportunity to present evidence and object to the proposed order, Mr. Ashraf cannot

complain for the first time on appeal.” See Tex. R. App. P. 33.1.

                We agree. To preserve a complaint for appellate review, a party must make the

complaint to the trial court by timely request, objection, or motion, state the specific grounds

therefore, and obtain a ruling. Id. The record does not demonstrate that Ashraf attended the hearing

on the entry of the decree or made any request, objection, or motion with regard to its contents. By

failing to take these measures after receiving notice, Ashraf did not preserve any issue for our review.

See Ricks v. Ricks, 169 S.W.3d 523, 528 (Tex. App.—Dallas 2005, no pet.); see also Wright v.

Wright, No. 03-08-00485-CV, 2009 Tex. App. LEXIS 8563, at *2 (Tex. App.—Austin Nov. 3, 2009,

no pet.) (mem. op.); Rebelloso v. Rebelloso, No. 03-96-00614-CV, 1997 Tex. App. LEXIS 3468, at




                                                   12
*8 (Tex. App.—Austin July 3, 1997, no pet.) (mem. op., not designated for publication).8 We

therefore do not need to evaluate Ashraf’s claim that the final decree diverged from what was orally

announced at trial. See Tex. R. App. P. 44.1. We overrule this issue on appeal.


Division of property

                Finally, Ashraf complains about the division of property in the trial court’s final

divorce decree. Specifically, he argues that the trial court “abused its discretion in making the

property division and . . . in giving non-community property to [Khan] and community property to

[the parties’ son], with no facts to support it.”

                “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 (West 2006). The

factors to be considered in the trial court’s division of the estate include: (1) fault in breaking up

the marriage; (2) the spouses’ capacities and abilities; (3) business opportunities; (4) education;

(5) relative physical conditions; (6) relative financial conditions and obligations; (7) disparity of

ages; (8) sizes of separate estates; (9) the nature of the property; and (10) disparity in earning

capacities or incomes. See Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981).


        8
          To the extent that Ashraf may mean to argue that he could not preserve error because he
never received notice, we note that a certificate of service is prima facie evidence that notice was
sent, and notice properly sent under rule 21a raises a presumption that notice was received. See Tex.
R. Civ. P. 21a; Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005). In the present case, Khan’s
motion to enter judgment demonstrates that notice of the proposed decree and hearing was properly
sent to Ashraf’s attorney. Nothing in rule 21a precludes a party from offering proof that notice was
not received. Tex. R. Civ. P. 21a. However, Ashraf offers only unsupported statements suggesting
that he did not receive notice. Accordingly, we must presume that Ashraf received notice and
nevertheless did not complain of the decree’s contents.

                                                    13
               The trial court has broad discretion in dividing the marital estate at divorce. See id.

at 699. On appeal, we presume that the trial court exercised this discretion properly and will reverse

the cause only where there is a clear abuse of discretion. See Bell v. Bell, 513 S.W.2d 20, 22 (Tex.

1974). A clear abuse of discretion is shown only if the division of the property is manifestly unjust.

See Mann v. Mann, 607 S.W.2d 243, 245 (Tex. 1980). “The party attacking the property division

bears the heavy burden of showing that the trial court’s property division was not just and right.”

Pletcher v. Goetz, 9 S.W.3d 442, 446 (Tex. App.—Fort Worth 1999, pet. denied).

               Khan responds to Ashraf’s argument by stressing that the trial court received evidence

that Ashraf was at fault in breaking up the marriage through his controlling, abusive, and neglectful

conduct and that he had greater business opportunities, education, and earning capacity than Khan.

She concludes that the disproportionate division of the estate was therefore amply supported. We

agree that Ashaf has not met “the heavy burden of showing that the trial court’s property division

was not just and right.” Pletcher, 9 S.W.3d at 446.

               For example, Ashraf complains of the trial court’s award of the entire family home

to Khan. However, the court heard evidence that the home was worth between $105,000 and

$121,000; that it was subject to a home equity line of credit with which at least two vehicles had

been purchased; and that it required considerable repairs, which were the original justification for

the line of credit of $50,000.9 Accordingly, the house represented a mixture of financial assets and


       9
         After examining the photos admitted into evidence, the trial court opined that “it might cost
another $50,000 to get that house in tip-top shape.” Ashraf claims this statement is an abuse of
discretion in itself, since even experts cannot conclusively discern repair costs from a few pictures.
However, we understand the comment to refer to the evidence that a $50,000 home equity line of
credit was obtained for the purpose of repairing the home. Given the additional testimony that few

                                                 14
liabilities. The court also heard evidence that Ashraf had abused Khan and their children throughout

the marriage, failed to maintain their home, and prohibited basic sanitary measures like pest

extermination, contributing significantly to the breakup of the marriage. Consequently, we cannot

conclude that the trial court was manifestly unjust to award the house to Khan.

               Ashraf also claims that it was manifestly unjust to award Khan the entirety of her

401(k) account while dividing his retirement accounts equally between the parties. At trial, the

parties stipulated that Ashraf’s various retirement accounts offered him approximately $1,580

in income each month. Meanwhile, the court heard evidence that Khan’s only retirement account

was a 401(k) worth approximately $6,000 in total and that Khan, unlike Ashraf, was not yet eligible

for Social Security income. In addition, the court heard that Khan possessed a degree in home

economics from Pakistan and had scant work history while Ashraf possessed an architecture

degree from the United States and had worked in architecture for decades. For these reasons, in

addition to the evidence of abuse discussed above, we cannot agree with Ashraf. The division of the

retirement accounts was not manifestly unjust and therefore not a clear abuse of discretion on the

part of the trial court. See Bell, 513 S.W.2d at 22; Mann, 607 S.W.2d at 245.

               Ashraf also claims that insufficient evidence supported the trial court’s award of two

vehicles, the second Lexus and a 1974 Datsun, to the parties’ son while Ashraf received only the

1998 Honda Civic. However, Khan testified that her son had purchased the Datsun with his own

money and that Ashraf explicitly said he was buying the second Lexus for their son. Additionally,




if any repairs were actually made, it was not manifestly unjust for the trial court to state that the
remaining repairs might require the same amount of money originally earmarked for that purpose.

                                                 15
the trial court heard that Ashraf purchased at least one of the vehicles using the home equity line of

credit in violation of a court order. Consequently, in distributing the vehicles and stating, “That

seems to be what the parties intended at the time, for [their son] to drive the Lexus,” the trial court

did not abuse its discretion.10

                Finally, Ashraf argues that the court abused its discretion in distributing the proceeds

from the empty lot between the parties. Ashraf testified at trial that he purchased the lot for his sister

and that she had largely been responsible for paying property taxes on it, for which reason the lot

was not community property. However, the court was presented with evidence contradicting that

proposition. There was evidence that the lot was purchased in Ashraf’s name, but that another man

had been listed as the owner with Travis County. That man, whom Ashraf described as a friend in

Houston, submitted an affidavit disclaiming ownership of the lot and averring that it belonged to

Ashraf, which suggested there was some subterfuge by Ashraf with regard to the lot. Moreover,

Khan testified as to various specific circumstances, such as Ashraf planning to build on the lot and

telling a friend that the lot would pass to his children upon his death, indicating that it did not belong

to Ashraf’s sister.

                Under the family code, all property possessed by either spouse during or on the

dissolution of a marriage is presumed to be community property. Tex. Fam. Code Ann. § 3.003(a)

(West 2006); Harrison v. Harrison, 321 S.W.3d 899, 902 (Tex. App.—Houston [14th Dist.] 2010,

no pet.). To overcome this presumption, a spouse who claims that an asset is separate property




        10
         The Lexus and Datsun vehicles were awarded to Khan with the understanding that she
would give them to the parties’ son.

                                                   16
must establish that fact by clear and convincing evidence and must trace and clearly identify the

property claimed. Tex. Fam. Code Ann. § 3.003(b) (West 2006). In addition, as the finder of fact,

the trial court is the sole judge of the witnesses’ credibility and the weight to be given their testimony.

Iliff v. Iliff, 339 S.W.3d 74, 83 (Tex. 2011). Here, given the significant evidence supporting Khan’s

characterization of the lot, the trial court could have found that Ashraf did not provide clear and

convincing evidence to rebut the presumption that the lot was community property. Thus, it was not

manifestly unjust to award half of the lot’s value to Khan.11

                For the above reasons, Ashraf has failed to demonstrate that the trial court’s division

of property was not just and right. Pletcher, 9 S.W.3d at 446. We hold that the property division

was not manifestly unjust and therefore not a clear abuse of discretion. See Bell, 513 S.W.2d at 22;

Mann, 607 S.W.2d at 245. We overrule this issue on appeal.


Damages for frivolous appeal

                In a cross-point on appeal, Khan requests that this Court find Ashraf’s appeal to be

frivolous and award damages in the amount of $5,000. See Tex. R. App. P. 45 (permitting an

appellate court to award a prevailing party “just damages” for “frivolous” appeals).

                In determining whether an appeal is frivolous, we apply an objective test, reviewing

the record from the viewpoint of the advocate and deciding whether the advocate had reasonable


        11
           Ashraf also argues that the trial court abused its discretion in refusing to hear evidence of
an inheritance received by Khan. However, the record shows that Khan was questioned only as to
any inheritance she might receive in the future, and the trial court sustained an objection due to
relevance. Further, to complain on appeal that a trial court erroneously excluded evidence, the
substance of the evidence must be made known to the trial court by an offer of proof. Tex. R. Evid.
103(a)(2); Tex. R. App. P. 33.1. Having failed to make such an offer, Ashraf has not preserved this
complaint for appeal.

                                                    17
grounds to believe the judgment could be reversed. Smith v. Brown, 51 S.W.3d 376, 380 (Tex.

App.—Houston [1st Dist.] 2001, pet. denied). Whether to grant sanctions for a frivolous appeal is a

matter of discretion that an appellate court exercises with prudence and caution and only after careful

deliberation in truly egregious circumstances. Goss v. Houston Cmty. Newspapers, 252 S.W.3d 652,

657 (Tex. App.—Houston [14th Dist.] 2008, no pet.).

               Although we have noted various deficiencies in Ashraf’s appeal, and although we

have rejected his arguments, Khan has not demonstrated that Ashraf’s appeal is among the “truly

egregious circumstances” for which we would award damages. See id. We therefore exercise our

discretion to deny Khan’s request for sanctions and overrule her cross-point on appeal.


                                          CONCLUSION

               We affirm the final decree of divorce.12



                                               __________________________________________

                                               Diane M. Henson, Justice

Before Justices Puryear, Henson, and Goodwin

Affirmed

Filed: May 24, 2012




       12
          Khan filed a motion, which is pending before this Court, to accelerate this appeal or to
provide for enforcement of the trial court’s final decree. We dismiss the motion as moot.

                                                  18
