Sheikh v. Sheikh

248 S.W.3d 381, 2007 Tex. App. LEXIS 9814, 2007 WL 4387249
CourtCourt of Appeals of Texas
DecidedDecember 13, 2007
Docket01-05-01022-CV
StatusPublished
Cited by37 cases

This text of 248 S.W.3d 381 (Sheikh v. Sheikh) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sheikh v. Sheikh, 248 S.W.3d 381, 2007 Tex. App. LEXIS 9814, 2007 WL 4387249 (Tex. Ct. App. 2007).

Opinion

OPINION

TIM TAFT, Justice.

Appellant, Wasim Ahmed Sheikh (“Was-im”), appeals from a turnover-and-receivership order entered after a decree of divorce dissolving the marriage between himself and appellee, Shama Sheikh (“Sha-ma”). We determine whether the trial court had subject-matter jurisdiction to enter, or alternatively abused its discretion by entering, a turnover-and-receivership order that had the effect of enforcing the decree’s property division while Wasim’s appeal of the underlying divorce decree was pending. We also determine whether we have jurisdiction, in this appeal, to consider Wasim’s challenges to the portion of the order appointing the receiver as master in chancery. We reverse turnover- and-receivership portions of the order and remand the cause.

Background

Wasim and Shama married in March 1985. A final divorce decree was rendered in December 2004, but on March 9, 2005, the trial court vacated the December 2004 decree and rendered a new final decree. In its March 2005 final decree, the trial court, among other things, (1) divided the marital estate disproportionately; (2) awarded Shama an owelty judgment of $632,000 to equalize the property division; and (3) awarded Shama $330,000 in actual *385 damages against Wasim on her claims of assault and actual fraud against her personally. Because Wasim had filed his notice of appeal on March 1, 2005, it was deemed filed on March 9, 2005, the date of the new final decree. See Tex.R.App. P. 27.1(a). Wasim did not supersede the final decree.

On March 4, 2005 — before the March 9 decree was rendered and while the December 4 decree was still in effect — Shama filed a motion to enforce the property division. On March 10, 2005, Wasim moved the trial court to abate the enforcement proceeding because he had perfected his appeal. See Tex. Fam.Code Ann. § 9.007(c) (Vernon 2006) (“The power of the court to render further orders to assist in the implementation of or to clarify the property division is abated while an appellate proceeding is pending.”). Wasim asserts in his brief, Shama does not contest in her brief, and a docket-sheet entry indicates that the trial court verbally granted Was-im’s plea in abatement on April 26, 2005.

On May 9, 2005, during the pendency of the divorce appeal, Shama filed an application for post-judgment turnover and appointment of receiver. The application also requested that the receiver be appointed as master in chancery under Texas Rule of Civil Procedure 171. See Tex.R. Civ. P. 171. The turnover application identified Wasim’s property only in broad categories, not specifically. Wasim specially excepted and filed an opposition to the turnover application. His special exception asserted that the application was defective for failing to identify property or the basis for relief sufficiently for him to defend against or to respond to the application. His opposition alleged, among other things, that (1) Family Code section 9.007(c) prohibited the requested relief because he held no non-exempt assets except for those awarded to Shama in the decree; (2) “the proposed [turnover-and-reeeivership] order exceeds the Application and authorizes the receiver to take actions which are not authorized by the turnover procedure, which are not supported by any other legal authority ..., and which are unconstitutional”; and (3) the request to appoint the same person as receiver and master in chancery was inappropriate because “it would allow the party seeking the information to rule on his right to obtain that information.”

On July 18, 2005, after an evidentiary hearing at which the only evidence presented was Shama’s testimony, the trial court granted the application for turnover and receivership. The receiver was given broad powers to take possession of and to sell all non-exempt property held by Was-im. The order further provided:

8. ... Receiver is authorized to take all actions necessary to order [Wasim] to exhaust all lines of credit, including credit cards, to satisfy any amount due in this matter. Receiver is further authorized to hire, at his discretion, independent counsel for any purpose receiver deems necessary to aid in collection of the judgment and related costs. All expenses incurred by receiver for independent counsel shall be taxed as costs against [Wasim].
4. Receiver is hereby authorized to take all action necessary to gain access to all real property, leased premises, storage facilities, and safety deposit boxes wherein any real and/or personal property of [Wasim] may be situated.
7. The Receiver is also appointed to Master in Chancery under Rule 171 of the Texas Rules of Civil Procedure and shall have and exercise the fullest and broadest powers under Rule 171....
8. [Wasim] shall make a full and complete disclosure to Receiver of all of *386 his non-exempt assets and to neither directly nor indirectly interfere or impede Receiver in his performance of his duties under this Order.
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10. It is further ORDERED that [Shama] have and recover of and against [Wasim] judgment in the sum of $500.00 for additional attorney’s fees incurred in the preparation, filing, and processing of this turnover order.
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12. [Wasim] is ORDERED to execute and turn over and deliver to Receiver ... Internal Revenue Service Form 2848 — Power of Attorney and Declaration of Representative. Receiver is specifically authorized to execute Form 2848 if [Wasim] fails to deliver Form 2848 as Ordered and Receiver is further authorized •... to receive and endorse any tax refund checks to [Was-im] and request copies of [Wasim’s] ... tax returns.
13. It is Ordered that Receiver is Directed and Authorized to pay himself as Receiver’s fees, an amount equal to 25% of all proceeds coming into his possession, the possession of [Shama], and/or the registry of the court; which the Court finds is a fair, reasonable and necessary fee for the Receiver; and to distribute all remaining proceeds to the attorney for [Shama], as Trustee, without the requirement of an Order therefor. Receiver shall have full and final authority to tax as costs against [Wasim] any expenses incurred, by [Receiver and/or Shama in furtherance of any purpose of the receivership. All costs, including Receiver’s fees, are hereby taxed as costs against [Wasim].
14. All fees of Receiver shall, after application for advance is made by Receiver in writing with notice to all parties and an opportunity to respond, be taxed at regular intervals established by the Court, as costs owed by [Wasim].
15. Receiver is Ordered to post bond in the amount of $100.00
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Wasim moved for a new trial on the turnover-and-receivership order, which motion was overruled by operation of law. Additionally, Wasim timely requested findings of fact and conclusions of law and also timely filed notice of past-due findings and conclusions.

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Cite This Page — Counsel Stack

Bluebook (online)
248 S.W.3d 381, 2007 Tex. App. LEXIS 9814, 2007 WL 4387249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sheikh-v-sheikh-texapp-2007.