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
                     Trial Court Case No. 2011-60365



                                OPINION

      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.

                                   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.

             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.




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