Adnan Ismik v. Ayse Ibrahimbas

• Court: Court of Appeals of Texas
• Decided: June 16, 2011
• Docket: 14-10-00057-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed June 16, 2011.

In The

Fourteenth Court of Appeals

NO. 14-10-00057-CV

Adnan Ismik, Appellant

v.

Ayse Ibrahimbas, Appellee

On Appeal from the 308th District Court

Harris County, Texas

Trial Court Cause No. 2008-46889

MEMORANDUM OPINION

            In this appeal from a final decree of divorce, appellant Adnan Ismik contends the trial court abused its discretion by (1) dividing the community estate without sufficient evidence of its value; (2) awarding a grossly disproportionate division of the community estate; (3) refusing to allow appellant to introduce evidence of adultery; and (4) refusing to rule on appellant’s breach of contract and promissory estoppel claims.  For the reasons explained below, we affirm.

I

            Ayse Ibrahimbas (“Wife”) and Adnan Ismik (“Husband”) met on the Internet and were married in Canada in May 2005.  They had no children.  In June 2006, they separated, and Wife moved to Texas the following year.  In 2008, Wife filed for divorce.  Among other things, she asked that all indebtedness that Husband had incurred in her name be assessed against him.  Husband answered and filed a counter-petition for divorce, in which he also asserted claims for breach of contract and promissory estoppel based on a sponsorship agreement Wife signed to enable Husband to immigrate to Canada.

            At the divorce trial, Wife testified that she grew up in Turkey, and then moved to Canada, where she obtained a master’s degree in petroleum geology.  Husband was working on Wall Street in New York City when they met, and he agreed to move to Canada because his job prospects were more flexible than hers.  After the couple married, their relationship became difficult.  When they separated, Wife went to Turkey for a couple of months to stay with her family and work on her master’s thesis.  When she returned to Canada, she stayed with a friend, while Husband continued to live in the house they had shared.  She later accepted a job offer from ExxonMobil and moved to London.  After that, Wife and Husband tried to reconcile, but their attempts were ultimately unsuccessful.

            In 2007, during one of Husband’s trips to London to see Wife, Husband persuaded her to let him invest $50,000 that she had earned from ExxonMobil.  Not long after that, their relationship deteriorated further and Wife asked for the money back.  According to Wife, Husband initially agreed to return her money, but he later refused.  Instead, Husband put the money in a TD Waterhouse investment account in his name.  According to Husband, he put an additional $50,000 of his own money in the account.  The money was used to invest in an energy company.  Husband also borrowed money on margin to buy additional shares of the company.  Unfortunately, when the stock market declined in 2008, the shares lost value and TD Waterhouse issued one or more margin calls.  Wife testified that she did not know that Husband was investing on margin.

            In October 2008, Wife obtained her credit report and discovered several credit-card debts totaling about $50,000.  Although the accounts were in her name, Wife did not recognize most of them, and she denied that she received any benefits from them.  One of the accounts was opened in September 2008, after she had filed for divorce.  She believed that Husband had fraudulently opened the accounts without her authorization. 

            Wife acknowledged signing the sponsorship agreement, and she acknowledged that under the agreement she was obligated to sponsor Husband for three years.  It was also her understanding that Husband was obligated to inform her if he needed support, but he never did so.  She also believed that the $50,000 she gave Husband exceeded any obligation of hers under the agreement, and she did not ask the court to order him to pay it back.  Additionally, Wife believed that she provided for Husband’s basic requirements while they lived together.

            Wife also testified that she had a fifty-percent interest in a company, Osh Enterprises LLC, which she and a business partner had recently started to sell Turkish rugs in the United States.  She had invested about $50,000 in that business.  On cross-examination, Wife admitted that her business partner in Osh Enterprises was a friend of hers who was now her boyfriend.  Wife also acknowledged transferring various sums of money from her account out of the country or to other accounts, and she also wrote checks to herself and made cash withdrawals.  She testified that she used this money to help support her family, for her living expenses, and to make loans to friends, which were later repaid.

            Wife denied that, when the stock market declined and TD Waterhouse issued a margin call on Husband’s account, she agreed to allow Husband to borrow money to cover the debt.  She also denied authorizing him to incur charges on credit cards in her name.

            Husband, called to testify by Wife, testified that he received a high-school diploma in Turkey and a bachelor’s degree in business from the University of Missouri.  After that, he moved to New York, where he obtained a master’s degree in business administration in 2001.  Husband later worked as a foreign-exchange market trader, where he earned about $70,000 per year.  He also started an import and export company called Galaxy U.S.  Husband worked in the United States under an H1B work authorization until he moved to Canada in 2005 with Wife and became a permanent resident there.  He admitted he had no disabilities or other physical conditions that would prevent him from being employed, and he still lives in the residence he and Wife shared in Canada.  Husband also admitted that he used the money Wife earned to support himself when they lived together.

            Husband testified that Wife provided around $89,000 early in their marriage, including the $50,000 he put in the TD Waterhouse account in his name.  Husband admitted signing Wife’s name on credit-card accounts and checks, but asserted that she authorized him to do so.  Husband acknowledged that he received thousands of dollars in cash advances from credit cards and bank accounts in Wife’s name.  He testified that all of the money went into his account at TD Waterhouse. 

            Concerning the sponsorship agreement, Husband testified that the agreement obligates the sponsor to provide for his basic needs, such as food, lodging, and medical expenses.  He agreed that he did not apply for or receive public assistance in Canada.  He also agreed that the sponsorship agreement obligates him to make an effort to provide for his own basic requirements.  He admitted that he did not work in Canada for four years.  But, since June 2009, he had been employed as an economist at the Bank of Canada, making around $8,000 (Canadian) per month.  Husband also acknowledged that, in his deposition, he had stated that he could have made $300,000 a year if he were living in New York.  Husband also testified that in 2006, he spent $5,000 on a two-week vacation in Cuba without Wife.  He also went to Turkey in December 2006, and he made several trips to London in 2007 to see Wife.  He agreed that he was not destitute and had the money to travel during this time. 

            On cross-examination, Husband testified that he gave up his career to move to Canada with Wife for her career and, as a result, he lost his immigration status and ability to work in the United States.  He explained that to work in the United States, an employer would have to sponsor him.  Husband also testified that, due the financial crisis beginning in 2008, it was impossible for him to find a job in the fields of banking and finance. 

            When asked about the $50,000 Wife gave Husband to invest in the stock market, Husband testified that he and Wife agreed to invest the money in the energy company.  He explained that he also borrowed about $200,000 on margin to invest in the company, and that Wife agreed to this.  However, when the financial crisis struck, the investment lost its value and, in 2008, TD Waterhouse issued margin calls.  In his inventory, Husband listed numerous loans or credit lines totaling about $166,000, most of which, he testified, were used to pay down the margin calls.  He also testified that he had Wife’s permission to use her credit cards and sign her checks to pay the debts.

            Husband stated that he had no idea Wife was sending thousands of dollars out of the country by wire transfer, or that she had transferred money out of the country for her business venture.  He also testified that, when the market crashed and he was unable to find a job, he asked Wife for help, but she refused and he had to borrow from credit cards and his family to pay his living expenses.  Husband also denied that, before the investment in the oil company was made, Wife asked for her money back; however, he admitted receiving an email in June 2007 requesting the return of her money.  Husband also admitted that all of the accounts listed on Wife’s inventory as accounts Husband created in Wife’s name without her knowledge were accounts he used to cover the margin account at TD Waterhouse.  He further admitted that some of the withdrawals from her bank account were made after Wife filed for divorce, but he testified that she nevertheless gave him permission to make the withdrawals.

            At the conclusion of the trial, the court granted the divorce, divided the community estate according to Wife’s proposed property division, and awarded Wife her attorney’s fees.  On October 6, 2009, the trial court signed the final decree of divorce.  The trial court also signed findings of fact and conclusions of law.  Husband moved for a new trial, which was not granted.  This appeal followed.

II

A

            In a divorce decree, the trial court divides the estate of the parties “in a manner that the court deems just and right.”  Tex. Fam. Code. § 7.001.  On appeal, we review the trial court’s division of community property for an abuse of discretion.  Knight v. Knight, 301 S.W.3d 723, 728 (Tex. App.—Houston [14th Dist.] 2009, no pet.).  We presume that the trial court properly used its discretion in dividing the community estate of the parties.  Zagorski v. Zagorski, 116 S.W.3d 309, 313 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (op. on reh’g).  

            When exercising its discretion in making a just and right division, the trial court may consider numerous factors, including the following:  (1) the spouses’ capacities and abilities; (2) benefits that the party not at fault would have derived from the continuation of the marriage; (3) business opportunities; (4) education; (5) physical conditions of the parties; (6) the relative financial conditions and obligations of the parties; (7) size of the separate estates; (8) the nature of the property; and (9) disparities in earning capacities and income.  Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981).  The trial court may also consider the wasting of community assets.  Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998).

            To prove that the trial court abused its discretion, the appellant must demonstrate from the evidence in the record that the division was manifestly unjust and unfair.  Evans v. Evans, 14 S.W.3d 343, 345–46 (Tex. App.—Houston [14th Dist.] 2000, no pet.).  The trial court’s ultimate division need not be equal as long as it is equitable.  Zieba v. Martin, 928 S.W.2d 782, 790 (Tex. App.—Houston [14th Dist.) 1996, no writ) (op. on reh’g).  The trial court does not abuse its discretion when it bases its decision on conflicting evidence or when some evidence of a probative and substantive character exists to support the division.  Id. at 787. 

B

            In his first issue, Husband contends the trial court abused its discretion because it did not have sufficient evidence of the value of the community estate to render an equitable division.  Specifically, Husband complains that Wife never introduced into evidence the value of the credit-card debts, which she claimed Husband fraudulently incurred and which Husband was ordered to assume.  Although Wife’s inventory and credit report were admitted into evidence, Husband argues that Wife’s inventory provides no specific values for the debts and there is no way for the court to match the debts listed in her inventory to the credit-card debts described in her credit report.  Husband cites In re Brown, 187 S.W.3d 143, 148 (Tex. App.—Waco 2006, no pet.), as his primary support for the assertion that the trial court abuses its discretion when it divides the community assets without adequate information about the value of the assets.

            In Brown, the wife presented very little evidence concerning the value of the community estate, and the husband was unable to participate in the divorce trial because he was incarcerated.  Id. at 146–47.  The trial court divided the community estate “with only a sketchy listing of community assets” and no discussion of the net value of those assets.  Id. at 148.  The Brown court reversed and remanded the trial court’s division of the community estate, concluding that on the record before it, the trial court abused its discretion in awarding “the entire net community estate to [the wife] and nothing, or only de minimis assets, to [the husband].”  Id. 

            Brown is distinguishable, however, because in this case both parties testified concerning the assigned debts and there is evidence supporting the amounts owed on those debts.  Husband appears to contend that the numbers accompanying the credit cards listed are the last digits of the cards’ account numbers, but the evidence shows these numbers reflect the amounts owed on each account in Canadian dollars.  In her inventory, Wife listed seven accounts as “debts . . . created by [Husband] in the name of [Wife] without her knowledge and in a fraudulent manner.”  Next to each account name is a number and the currency code “CAD.”  This same account information appears in Wife’s proposed property division.  The credit report also reflects the amounts owed on various accounts at the time the report was prepared.  Wife testified that she did not authorize Husband to open or charge debts to those accounts.  Further, Husband admitted that he used all of these accounts listed on Wife’s proposed property division to cover his margin account. 

            Because there is evidence supporting the amounts of the debts and a reasonable basis for the trial court’s division of the debts, the trial court did not abuse its discretion in awarding the debts on these accounts to Husband.  See Taylor v. Taylor, 680 S.W.2d 645, 648 (Tex. App.—Beaumont 1984, writ ref’d n.r.e.) (trial court has authority to order the payment or disposition of the community debts in its consideration and to determine of the division of the community estate).  We overrule Husband’s first issue.

C

            In his second issue, Husband contends the trial court awarded a grossly disproportionate division of the community estate equating to Wife being awarded one-hundred percent of the community assets and Husband being awarded ninety-six percent of the ascertainable community debts.  Husband contends that the awards are disproportionate because the evidence showed that Wife had a higher earning capacity both during and after their marriage, as well as greater business opportunities, capacities, and abilities.  Husband also points to his testimony that he did not have the ability to work in Canada during the first few years of the marriage and that he lost his immigration work status when he moved from New York to Canada.  If anything, Husband argues, the evidence supports an inequitable division in his favor. 

            Husband also argues that the trial court abused its discretion in finding fraud as a factor in its disproportionate award of the community estate, pointing to Wife’s testimony that she transferred large sums of money to Turkey, she gave $50,000 to her boyfriend to start a rug business, and she sold her Honda CRV for $19,000 without Husband’s knowledge.[1]  But Husband’s complaint ignores the evidence supporting the trial court’s findings.  In its findings of fact and conclusions of law, the trial court specifically found that Husband fraudulently created debts in Wife’s name without her knowledge or consent and engaged in improper conduct, including creating liabilities and shifting indebtedness to Wife.  Although Husband testified that Wife gave him the authority to access her accounts and that he used the money to pay down the margin account with her permission, the trial court could have disbelieved Husband’s testimony and accepted Wife’s testimony that Husband opened accounts in her name and accessed her accounts without her knowledge or authorization.  See Murff, 615 S.W.2d at 700 (trial court has the opportunity to observe the parties’ testimony and determine their credibility).  The trial court also could have accepted Wife’s explanation for the transfers of funds and the sale of the Honda.  Because there is evidence supporting the trial court’s findings, the trial court did not abuse its discretion in awarding the debts Husband’s actions caused Wife to incur. 

            Husband does not explain how he reached his calculation of the trial court’s “grossly disproportionate” division of the community estate, and it is not immediately apparent from the record.  However, other than the debts the trial court found Husband fraudulently incurred in Wife’s name and Husband’s own debts incurred since the marriage, the parties were each awarded the property, accounts, and cash in their possession, their employment benefits, if any, and a vehicle.[2]  Wife was also awarded the entirety of her interest in Osh Enterprises and her attorney’s fees.  In making this division, the trial court had before it the evidence of the parties’ relationship, Husband’s and Wife’s educational backgrounds and employment opportunities, the evidence of the parties’ lifestyles and work histories, and perhaps most significantly, the evidence supporting the trial court’s findings that Husband incurred numerous debts in his own name and in Wife’s name without her knowledge or authorization.  On this record, we cannot say that the trial court abused its discretion when it divided the community estate to award those debts to Husband.      We therefore overrule Husband’s second issue.

III

            In his third issue, Husband contends the trial court abused its discretion by refusing to allow him to introduce evidence of Wife’s adultery when he pleaded fault in the breakup of the marriage as a factor for the court to consider in determining an inequitable division of the community estate.  Specifically, Husband contends Wife admitted to having a boyfriend and admitted to providing $50,000 out of the community estate to create a business with her boyfriend.  We review a trial court’s decision to exclude testimony under the abuse-of-discretion standard.  Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000). 

            Although Husband contends the trial court prevented him from presenting evidence of Wife’s alleged adultery, Husband does not identify what additional evidence he was prevented from presenting, and he made no offer of proof or bill of exception for this court to review.  Generally, to adequately and effectively preserve error, a party complaining that evidence was improperly excluded must make an offer of proof that shows the nature of the evidence specifically enough so that the reviewing court can determine its admissibility.  See Tex. R. Evid. 103(a)(2); In re N.R.C., 94 S.W.3d 799, 806 (Tex. App.—Houston [14th Dist.] 2002, pet. denied).  Therefore, Husband’s complaint is not preserved for review.  See Smith v. Smith, 143 S.W.3d 206, 211 (Tex. App.—Waco 2004, no pet.) (complaint that evidence was erroneously excluded was not preserved for review when appellant did not make an offer of proof or file a formal bill of exception and substance of the evidence was not apparent from the record).

            Even if the trial court erred in its evidentiary ruling, however, we reverse only if the error probably caused the rendition of an improper judgment.  See Tex. R. App. P. 44.1; Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).  Husband argues a factor such as adultery “could have swayed the trial court to order a more equitable division of the community estate.”  But Husband does not argue or demonstrate that the trial court’s ruling probably caused the rendition of an improper judgment.  Further, as Husband acknowledges, the trial court had before it Wife’s admission that she had a boyfriend with whom she invested in a business.  On these facts, we cannot say that the exclusion of evidence probably caused the rendition of an improper judgment.  We overrule Husband’s third issue.

IV

            In his fourth issue, Husband contends the trial court abused its discretion by refusing to rule on his breach-of-contract and promissory-estoppel claims, which arose out of the sponsorship contract Wife signed to facilitate Husband’s immigration to Canada.  But Husband is incorrect that the trial court refused to rule on these claims.  In the final decree of divorce, signed after a trial on the merits, the trial court ruled that “all relief requested in this case and not expressly granted is denied.”[3]  Thus, the trial court could not have abused its discretion by failing to rule, because it did rule.  See Moritz v. Preiss, 121 S.W.3d 715, 718–19 (Tex. 2003) (reaffirming the finality presumption for judgments rendered after a full trial on the merits); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 201 (Tex. 2001) (“After a full trial on the merits, the statement in a judgment that all relief not requested is denied signifies finality; there is no expectation that the court tried only part of the case, absent an order for severance or separate trials.”).  There is nothing in the record to indicate that the trial court did not intend the judgment to finally dispose of the entire case.  See Moritz, 121 S.W.3d at 719.  Moreover, given the evidence before it, the trial court could have reasonably concluded that Husband’s claims were without merit.  We overrule Husband’s fourth issue.

* * *

            Having overruled Husband’s issues, we affirm the trial court’s judgment.

                                                                        /s/        Jeffrey V. Brown

                                                                                    Justice

Panel consists of Justices Anderson, Brown, and Christopher.

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[1] In her testimony, Wife stated that she sold the Honda and bought a Range Rover so that she could use it for her rug business.  She also testified that she was unaware that Husband had purchased a 2009 Acura until she received paperwork from Husband’s insurance company insuring the vehicle.

[2] Additionally, Wife contends that Husband actually received the largest community asset—an apartment in Turkey valued at 100,000 euros—and therefore the claim that the award was disproportionate is meritless.  Although an apartment in Turkey is not specifically identified in the divorce decree, Wife listed it in her proposed property division as an asset to be awarded to Husband, and she testified that Husband told her he purchased the property in 2007 and that it was worth 100,000 euros, or $147,210.  Husband denied that he owned any property in Turkey and he testified that he never told Wife that he did.  The trial court, however, could have believed Wife’s testimony over Husband’s testimony and, consistent with Wife’s property division, awarded the apartment to him.

[3] Further, in his motion for new trial, Husband did not assert that the trial court refused to rule on his claims; instead, he asserted that the evidence was legally and factually insufficient to support the trial court’s judgment “not award[ing] damages due to [p]etitioner’s breach of contract of [r]espondent’s Canadian [s]ponsorship [a]greement.”  Husband also asserted that the trial court abused its discretion “in denying [r]espondent’s breach[-]of[-]contract claim.”