Shaheen v. Khan

142 So. 3d 257, 13 La.App. 5 Cir. 998, 2014 La. App. LEXIS 1317, 2014 WL 2119168
CourtLouisiana Court of Appeal
DecidedMay 21, 2014
DocketNo. 13-CA-998
StatusPublished
Cited by1 cases

This text of 142 So. 3d 257 (Shaheen v. Khan) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shaheen v. Khan, 142 So. 3d 257, 13 La.App. 5 Cir. 998, 2014 La. App. LEXIS 1317, 2014 WL 2119168 (La. Ct. App. 2014).

Opinion

ROBERT M. MURPHY, Judge.

[^Appellant, Najmi Shamim Khan (“Dr. Khan”), appeals the trial court’s April 30, 2013 judgment following a partition trial of the parties’ community property. The issues include whether the parties, who were married in their native India and became domiciled in Louisiana at different times, had a community property regime, whether the wife Nadia Shaheen (“Ms. Sha-heen”) was entitled to the return of two sets of jewelry, whether the community was entitled to reimbursement against Dr. Khan for funds provided to his family in India during his marriage, and whether Dr. Khan was entitled to reimbursement against Ms. Shaheen for her graduate MBA education at the University of New Orleans including her living expenses. For the reasons that follow, we affirm as amended.

FACTS AND PROCEDURAL HISTORY

On February 19, 2003, the parties were wed in a Muslim ceremony in Pat-ma, India, after which Dr. Khan, a medical doctor, became domiciled in Louisiana in advance of his wife. In January 2006, approximately two years and eleven months later, Ms. Shaheen, with the equivalent of a master’s degree in | ^computer programming in India, became domiciled in Louisiana to be with her husband.1

In 2007, Ms. Shaheen began her graduate studies at UNO and graduated with a [259]*259Masters Degree in Business Administration in 2009. She contends her husband would not permit her to work and forced her to obtain an MBA.

The parties separated in 2010.2 On December 20, 2010, Ms. Shaheen filed for a La. C.C. art. 102 divorce. On December 9, 2011, the trial court granted the divorce.3 Each party filed a sworn descriptive list. Dr. Khan filed a motion to traverse. On February 6, 2013, after hearing arguments on the Islamic marriage contract, the hearing officer recommended that Ms. Sha-heen’s list be used for the partition. He found that the parties did have community property, specifically finding that “at no time after moving to Louisiana from India did the parties execute a renunciation of community.” On February 8, 2013, appel-lee filed an amended sworn detailed descriptive list of her assets and liabilities. On March 18, 2013, appellant filed his “alternative” sworn descriptive list, to be considered if the trial court were to find that a community regime existed. Both parties filed objections to the hearing officer’s recommendations which were heard by the trial court on March 21, 2013.

On April 30, 2013, the trial court rendered a judgment and assigned detailed reasons declaring that a community property regime existed pursuant to La. C.C. art. 2334.4 The trial court granted Ms. Shaheen’s reimbursement claim for the Lunreturned community funds provided to Dr. Khan’s family5 and denied Dr. Khan’s reimbursement claim for payment of Ms. Shaheen’s graduate school tuition along with her living expenses. The trial court further ordered Dr. Khan to return jewelry. Dr. Khan’s appeal followed.

ASSIGNMENTS OF ERROR

1. The trial court erroneously determined that the parties entered into a community property regime.
2. The trial court erroneously determined that the donations to family members were not a usual and customary gift of value commensurate with the economic position of the parties.
3. The trial court erroneously determined that Ms. Shaheen did not concur in the donation made to family members.
4. The trial court erroneously denied Dr. Khan’s claim for the direct financial contribution to Ms. Sha-heen’s education and training.
5. The trial court erroneously ordered that Dr. Khan return jewelry belonging to Ms. Shaheen.

STANDARD OF REVIEW

An appellate court may not set aside a trial court’s finding of fact in the absence [260]*260of manifest error. Stobart v. State, through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). The Louisiana Supreme Court established a two-part test for the reversal of a fact-finder’s determinations:

1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court; and
2) The appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).

LAW AND DISCUSSION

In assignment of error number one, the appellant contends that the trial court erroneously determined that the parties entered into a community property regime. | ^Appellant contends the parties entered into a marriage contract that excluded the legal regime of acquets and gains, and thus the couple owned no community property.

Dr. Khan argues that in India, there is no regime of community property. The appellant also contends that the parties, both Muslim, entered into a marriage contract with a separate property regime. Dr. Khan contends that it is typical in Muslim marriages for the parties to enter a secular marriage contract. Dr. Khan relies on the “mahr” provision in the contract, which sets the price to be paid by the husband to the wife in the event of a divorce. Dr. Khan contends that it was the intent of the parties to hold property in their separate names and to pay Ms. Shaheen the specified sum in the mahr provision in the contract in the event of divorce.

Appellant cites cases involving the mahr provision. In Chaudry v. Chaudry, 159 N.J.Super. 566, 388 A.2d 1000, 1002 (1978), cert. denied, 78 N.J. 335, 395 A.2d 204 (1978), the appellate court gave comity to a Pakistani judgment of divorce. It held that the wife waived her rights to any future property obtained during the marriage by signing the marriage contract and by agreeing on the price of the mahr. Appellant further cites Aziz v. Aziz, 127 Misc.2d 1013, 488 N.Y.S.2d 123, 124 (N.Y.Sup.Ct.1985), in enforcing the mahr provision as a sum certain by applying ordinary contract law. In Zawahiri v. Alwattar, No. 07AP-925, 2008 WL 2698679, at p. 1 (Ohio Ct.App. July 10, 2008), the Ohio Court similarly applied ordinary contract law, finding that the contract was not void as Islamic or foreign, but rather was unenforceable as it was entered into under duress.

The appellee first objects to the admission of the translation of the marriage contract as inadmissible hearsay, as the expert/translator provided only an attached affidavit and did not qualify as required under La. C.E. art. 604. Appellee | ficontends that appellant relies on cases that are inapposite to the instant facts. None of the cited cases from New Jersey, New York, and Ohio were adjudicated in community property states or involved the division of community property. Appellee seeks straightforward application of the domicile test of La. C.C. art. 2334 which requires application of the legal regime of the community of acquets and gains to those “spouses domiciled in this state, regardless of their domicile at the time of marriage or the place of celebration of the marriage.”

The trial court found that the legal regime of acquets and gains applied to the parties pursuant to La. C.C. art. 2334.

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Bluebook (online)
142 So. 3d 257, 13 La.App. 5 Cir. 998, 2014 La. App. LEXIS 1317, 2014 WL 2119168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shaheen-v-khan-lactapp-2014.