### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00467- CV

Moham m ad Ashraf

, Appellan t

v. Shah naz Ashraf, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 200 TH JUDICI AL DISTRICT NO. D-1 -F M- 07- 0028 95, H ONO RAB LE GISELA D. TRI ANA-DO Y AL, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Appellant Mohammad Ashraf appea ls fro m th e f inal decr ee in his divorce proce eding from appellee Shahnaz Ashraf

. Appellant chall enges portions of the decr ee dividing proper ty 1 betwee n the parties and claims that he rece ived i neff ective assistance of counsel at t rial. Be cause we hold that ther e is no err or in the divorce decr ee, w e af firm the trial c ourt’s judg ment.

BACK GR OUND The parties wer e marrie d in Fe bruar y 1981. Ashraf ear

ned a deg ree in arc hitecture 2
from the University of Nebr aska at L incol n an d we n t o n to work for Travis County , the City of

At the appellee ’s reque st, the divorce decr ee order ed that her name be chang ed back to her 1 maiden name of Shahnaz Khan. Acc ording ly , we will here inafter ref er to the appellant as “Ashra f” and the a ppellee a s “Kha

n” for clar ity

. The fa cts rec ited here in are taken f rom the testimony

prese nted at trial. 2Austin, and the Texas Depa rtment of Transpor

tation. Khan ear

ned a deg ree in home economics in Pakistan, but seldom worke d out s i d e t he home during the m arr iag e, ins tead stay ing home to raise the parties’ son and daug hter, who are now adults. Khan filed for divorce in J u n e 2007, citing insupportability

as we ll as crue lty

and adulter

y on the par

t of Ashra f. The trial court hear d the case on J uly 29, 2010. Howeve r, the trial was temporar ily delay ed when Ashraf failed to appea r on time. Ashraf

’s attorney informed the court that Ashraf was
at his doctor’s office and would arr ive shortly

. When Ashraf appea red, he prese nted the court with

a doctor’s letter requ es t i ng that the trial be postponed due to medical problems aff ecting Ashraf

. Kh an ’s at t o rn ey arg ued that the letter was a stalling tactic by Ashraf

. Noting that the parties ’ daugh t er had flown in to testify and that the case had alre ady drag g ed on for three y ear s, causing
g rea t distress to Khan, her at t o rney reque sted that the trial g o forwa rd. The court stated, “Well, I don’t think—this is just a reque st. I t doesn’t say he’s unable to participa te, so I ’m g oing to g o ahea d, and we ’re not going

to—I ’ll deny

the continuanc e and just g o on and g et this done.” The parties proce eded to e x plain their proposals for the division of proper ty

. Khan
reque sted a disproportionate share of the estate, including the family home; 50% of the value of an empty lot owned by the parties in their neig hborhood, worth about $30,000; and a 70% share of the four retire ment acc ounts in Ashraf ’s name, which the parties stipulated wer e worth about $1,580 in income per month. Khan cited fra ud on the community by Ashraf as t h e b as i s for this division. Khan also asked that she and her son reta in the L exus vehicles they had eac h been driving and that Ashraf rec eive the 1998 H onda Civic he had been dr iving. B ased on he r limited earning potential

2a

n d f a mi ly v io le n c e c o mm it

te d b y A s h

r a f , K h a n r e q u e s te d s p o u s a l ma in

te n a n c e . S e e T e x. F a m. Co d e 3
Ann. § 8.051 (West 2006). Finally , she reque sted that the court awa rd her $7,500 in attorney ’s fee s. I n support of her proposal, Khan prese nted testimony from herse lf, her attorney , and the parties’ g rown daug hter, Mahim Ashraf

. Khan first testified as to her alleg ation that Ashraf was 4
g uilty of cruelty

. She g ave examples of m alicious and controlling behavior by Ashraf throug hout their marria g e. F or example, Khan te stified that Ashraf once pour ed an e ntire g allon of milk over her head when she had just finished taking a sho we r. S h e stated that Ashraf did not permit their children to have any interac tions with members of the opposite sex. I n addition, Khan claimed that Ashraf was controlling with money , making her show him eac h load of laundry she neede d to wash befor e he would g ive her coins for the laundry machines at the renta l proper ty wher e they once lived. Khan testified that Ashraf rar ely permitted her to w ork outside the home, so she had only sporadic work e x perie nce a s a substitute day car e provide r and a t a depa rtment store. Khan also descr ibed sever al instances of phy sical abuse by Ashraf, i n cl u ding “[a] couple of times” when he hit or pushed her . Khan a lso describe d an incident when Ashraf hit her with a remote control for ref using to turn on t h e television for him. Khan further contende d that Ashraf phy sically abused their children, beg inning when the oldest was just ten months old. Finally , she stated that Ashraf

’s 2008 arr est for family violence occur red afte r he pulle d Kh an ’s h air and pushed her

into a wall, ca

using a reddish mar

k on her ba ck.

I n April 2008, Ashraf was arr ested for family violence. He was tried and con v i ct ed o f 3 family violence a ssault. See Tex. P enal Code A nn. § 22.01 (West 2011). Be cause the parties’ daug hter share s the appellant’ s last name, we will ref er to her by her 4 first name f

or cla rity

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

.

She claimed that the house suffe red minor water damag e in 2001 or 2002, but beca use Ashraf never
repa ired it, wate r built up in the wall and eve ntually seepe d into the living room a nd the furniture

. Khan stated that her children wer e embar rasse d by the state of the house and stopped having friends

over to visit. Acc ording to Khan, her lack of acc ess to the family financ es preve nted her from taking action to repa ir the house. She testified that Ashraf opened a home equity line of cre dit for $50,000 with Compass Bank, c laiming he would use the money to make re pairs. Howeve r, Ashraf did not permit Khan to sign the deposit form so that she could also withdraw from the line of cre dit. Khan testified t hat t he home equity fun d s wer e not used t o repa ir the hom e after all. I nstead, accor ding to Khan, Ashra f used the mone y to buy two L exus automobi les. The court admitted photos of the home into evidenc e. One photo depicted a rat inside the home. Khan testified that there wer e “a couple” of rats at one point, althoug h they wer e g one by the time of trial. Khan also stated that there wer e cockr oache s throug hout the home and these wer e

never exterminated beca

use Ashraf believed it would be a waste of money . Khan testified that the photos ha d been taken be tween 2006 a nd 2008, but refle cted the c onditions she ha d been living in for the past ten y ear s. She testified t hat the tax appra isal value of the home was approximately $121,000. Howeve r, Khan claimed, three rea l estate ag ents had appra ised the home at closer to $105,000 due to its condition.

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

“ c a u g h t h im c h e a

ti n g . . . o v e r th e p h o n e ” a

n d “ c a u g h t h im in th e d

r iv e w a y w it h a g ir l. ” A d d it io n a ll y , Kh an testified with reg ard to her claim that Ashraf was g uilty of fra ud on the commun i t y . Kh an

4stated that Ashraf purcha sed t h e second L exus with the home equity line of cre dit in violation of

temporar y order s enter ed by the t rial court enjoining As h ra f fr o m using that acc ount. She further testified that Ashraf had beg un draw ing from a retire ment acc ount w ith the Employ ees Retirement Sy stem (ERS) despite tempora ry order s prohibiting either

party from doing so. Moreove r, Khan testified that the empty lot did not belong to As h ra f’ s sister, as Ashraf claimed. She testified that Ashraf at one point lease d the proper ty to a construction company that was working on a near by road for six months. F urther, Khan claimed that even afte r she filed for divorc e, Ashra f appr oache d her a bout building a ne w home on the lot. She stated that she ha d

seen draw ings and plans Ashraf had cre ated fo r t h e projec t. Khan further stated that she hear d Ashraf tell a frie nd that the lot would pass to Ashraf ’s childre n when he died. The parties’ twenty -six -y ear -old daug hter, Mahim, also t es t i fied in support of her mother’s claims. Mahim testified that Ashraf had fre quently b ea t en h is children. She stated that Ashraf would pull the children up by the hair if he found them seate d in his chair at the dining table. Mahim said Ashraf hit her on a reg ular basis, mostly slapping her on the fac e but also punching her

or twisting her arms. Mahim also testified that, while her brother was standing up to use the toilet, her fathe r would push open the bathroom door and tell him he neede d to sit down to use the toilet. Ashraf would then stop his son i n t h e m i d d l e of urinating and tell him to sit down. Mahim also testified that Ashraf had abused Khan throug hout the children’s l i v es . She rec alled one incident when Ashraf threw a television remote at Khan’ s back and another , in April 2008, wh en M ahim called the police af

ter Ashr af pulled K

han’s ha ir and pushed he r ag ainst the wall. Mahim also corr oborate d that Ashraf restric ted the family ’s acc ess to mone y . “We

never saw money or g ot money or rec eived allowanc e or any thing,” Mahim testified. She stated that

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

and used cre dit car ds for basic household items. Acc ording to Mahim, Ashraf behave d as if it would be ludicrous f

or Kha n to r equest his f

inancial support. Mahim added tha t the family home was a

n unhealthy , unsanitary

environment a s a re sult. Ashraf was the only witness to testify in favor of his proposal. He reque sted an even division of the parties’ estate, proposing either that Khan rec eive the entire house and Ashraf rec eive all of his retire ment income, or that the house be sold and the proce eds divided evenl y while the retire ment would also be divided e venly . Ashraf claimed that the e mpty

lot should not be divided betwee n the parties beca

use it belong ed to his sister. Finally , Ashraf reque sted either that he rec eive

a better vehicle than the Honda Civic or that all of the vehicles be sold and the proce eds be split evenly betwee n the par

ties.
I n support of his case , Ashraf testified that h e co u l d not find work and descr ibed the fix ed monthly income he rec eived throug h Social Security and two retire ment fu nds. Ashraf admitted that he beg an draw ing from his ERS acc ount during the divorce

. Howeve r, As h raf also claimed that he repa id Khan for the withdrawa l by using the money for utilit ies, taxes, and mortg ag e
pay ments on the family home. He also asser ted that the withdrawa l was permitted under temporar y order s that the trial court had previously enter ed providing for the pay ment of proper

ty taxes during the pende ncy

of the divorc e. Ashraf testified that he disciplined his children, but never abus e d th e m. H e c o n te n d ed th a t h e o n ly s tr

u c k M a h im o n e ti me , w h e n h e s p a n k e d h e r f o r b e a ti n g h e r b r o th e r . A s h r a f a

r g u e d th a t the children had been brainwa shed by Khan, who had alway s hated him, into believing he was a bad

6person. Ashraf testified that he alway s provided for his family , funding the children’s ro o m and

board in c olleg e and pa

y ing e x tra on the mortg ag e so that they could kee p the home if he died. Ashraf claimed that he did use funds from the home equi t y l i n e of cre dit for some
repa irs, such as installing new tile in the bathr ooms and entry way and enlarg ing the kitchen in the home. Howeve r, Ashraf admitted to taking money from that acc oun t to purcha se vehicles. Wit h
respe ct to the empty lot at i s s ue, Ashraf testified that he purcha sed it for his sister in Pakistan. Ashraf stressed that his sister had been responsible for pay ing taxes on the lot, except when he lease d it to a construction company on her be half a

nd paid the taxes with the proce eds. Whil e cross-e x amining Ashraf , Khan’ s attorney offe red e vidence of Ashraf ’s alleg ed

a d u lt e r y . T h is in c lu d e d a V a le n ti n e ’ s D a y c a r d f r o m o n e w o ma

n , a n a f f e c ti o n a te e - ma il f r o m a n o th e r , and documentation that Ashraf purcha sed a Southwest Airlines g ift car d for a fema le friend to trave l
to Austin. When a sked if he reme mbere d sending e-ma ils inviting a woman to have sex with him, Ashraf responde d, “I don’t reme mber.” L ater he asked, “Where is y our proof that I slept with her?
J ust beca use I wrote that, sent that e-ma il, does t hat m ean I slept with her? ” Ashraf admitted that h e h a d “ ma d e mi s ta

k e s ” a n d “ d o n e s o me th in g d e s tr

u c ti v e ” d u r in g th e ma

r r ia g e , b u t o n ly a s a r e s p o n s e to Khan being unfaithful many times. After this testimony , as well as the testimony of the parties’ attorney s conce rning the fee s they wer e owed, the court orally announce d its decr ee. The court stated, “I can’ t totally g o along with what [ Khan] wishes this court to do,” but expressed t hat “Mr. Ashraf may need a l ittle bit of penalty for some of

the complications he’ s cause d.” Thus, the c ourt g rante d the divorce and:

a. Awar ded the house to Khan, asse rting that Ashraf “nee ds to ge t out”;

7b. Orde red the empty lot to be sold and divided evenly , sta t i ng , “I have no evidenc e, other than the lot . . . belongs to the c ommunity ”;

c. Awar ded the Honda Civic, the Datsun, and the two L exus vehicles in t he same manner as the tempora

ry order s and Kha

n’s re quest; d. Orde red “the retire ment” to be “split 50/50" on the g rounds that “[s] he’s entitled to it, and I k n o w s h e’s g etting the house. But looking at these pictures, it might cost another $50,000 to g et that house in tip-top shape, too. So I think that’s about as fair as this Court’s going to be”; and

e. Orde red A shraf

to pay $3,000 in fee s to Khan’s a ttorney

.

Khan subsequently filed a motion to enter judgme nt with a proposed final decr ee based on the trial court’s oral pronou n ce m en t. On November 24, 2010, at the hear ing on Khan’ s motion, the court
enter ed a Fina l Decree of Divorce matching Khan’ s proposed decr ee. On Dec ember 27, 2010, 5 Ashraf filed a motion for new trial. The trial court denied Ashraf ’s motion, and Ashraf now appea ls
pro se. I n his pro se bri ef o n ap p ea l, Ashraf prese nts the foll owing arg uments: (1) that he

rec eived ineffe ctive assistance of counse l that prejudice d the outcome in his ca se; (2) that the trial
court a bused its discretion in deny ing his motion for continuance; (3) that the final divorc e dec ree

was not approve d by Ashraf ’s co u n s el and differ ed from the decr ee announce d orally at the conclusion o f t h e t ri al; and (4) that the trial court abused its discretion in making the division of
proper ty beca use the e vidence was leg ally and fa ctually

insufficient to support the orde r. 6

The de cre e bea

rs the sig nature s of Khan a nd her a ttorney , but not Ashraf or his attorney

. 5 The rec ord does not establish, but neither party appea rs to dispute, that Ashraf and his attorney did not attend the hea

ring

. I n his list of “Points for Review ,” Ashraf identifies only

two issues: (1) that he r ece ived 6 ineffe ctive assistance of coun s el an d (2 ) that the trial court abused its discretion in making the proper ty division. Howeve r, he introduces additional issues in the body and conclusion of his brief, 8Khan r esponds that the doctrine of i neff ective assistance of

counsel is inapplicable in civil divorce case s; that Ashraf rec eived notice of the final divorce decr ee and failed to pr eser ve
any complaint as t o its contents; and that the t rial court did not abuse its disc retion in deny ing the continuance or making the proper ty division. I n one cross-point , Kh an re quests that we subject Ashraf to sanctions for f

iling a f rivolous appea l. See Tex. R. App. P . 45.

DISCUSSIO N

Ineff ect ive assistance of counsel Ashraf primarily complains that his trial counsel provided ineffe ctive assistance

. I n support of this claim, Ashraf alleg es that his counsel: (1) called him to testify despite Ashraf being
very ill and under the influence of presc ription medications, the side eff ects of which cause d Ashraf
to g ive i ncompre hensible testimony ; (2) fa iled to object to the admission of out dated photogra phs of the family home and to offe r evidenc e that Ashraf had made cer tain repa irs; (3) failed to prese nt other evidenc e, such as an inventory of community proper ty and documents showing that Ashraf had paid more than require d toward the mortg ag e eac h month; and (4) failed to respond when opposing counsel did not serve the proposed f inal divorce decr ee on A shraf or his counsel. The United States Supreme Court has rec og nized that ineffe ctiv e assistance of

counse l i s a violation of the Six th Amendment rig ht to counsel. See Strickland v. W ashington , 466 U.S. 668, 686 (1984). Howe ver,

and we will consider these as points of err or on appea l. See Giddens v. Brooks , 92 S.W .3d 878, 880 (Tex. App.—B eaumont 2002, pet. denied) (pro se pleading s and briefs are to be liberally construed)

. 9[i ]t is well established that the doctrine of ineffe ctive assista n ce o f counsel does

n ot extend to civil case s. The S ix th Amendment of the Unit ed S tates C onstitut ion and Article I , Section 10 of the Texa s Constit ution provide that ‘in all criminal prosec utions, the acc used shall enjoy the rig ht . . . to have the a ssistance of counsel for his defe nse.’ Thus, by their plain lang uag e neither the Six th Amendment nor Article I , Section 10 apply to civil cases.
Cherqui v. W

estheime r St. Festival Corp. , 116 S.W .3d 337, 343 (Tex. App.—Houston [14t h Dist.] 2003, no pet.); see also McCoy v. Texas Instruments, Inc. , 183 S.W .3d 548, 553 (Tex. App.—Dallas 2006, no pet.). An ex ce p t i o n to the g ener al rule has been cre ated with reg ard to trial counsel in
pare ntal termination ca ses. See In re M.S. , 115 S.W .3d 534, 544 (Tex. 2003). Howeve r, t he case befor e us does not conce rn pare ntal rig hts. Acc ording ly , the doctr i n e o f ineffe ctive assistance is inapplicable, a

nd we ove rrule this issue on appe al.

Motion for continu ance

W e n ex t consider Ashraf ’s complaint reg arding the trial court’s denial of his motion for continuance

. W e re v i ew the g rant or denial of a motion for continuance for an abuse of discretion. BMC Software Bel g
. , 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 31 5 , 318–19 (Tex. App.—Austin 2002, no pet.). This Court cannot overr ule the trial court’s decision unless the trial court acte d unrea sonably or in an arbitra ry manner , “without ref

ere nce to any g uiding rules and principles.” Beaumont Bank, N.A. v. Buller , 806 S.W .2d 223, 226 (Tex. 1991) (quoting Downer v. Aquamarine Ope rators, Inc. , 701 S.W .2d 238, 241–42 (Tex. 1985)).

Acc ording to Ashraf

, the t rial court “abuse d its discretion by deny ing [hi s] Motion for Continuance which was supported by a doctor’s statement of medical impairment and the eff ects

10of eig ht presc ription drug s on [Ashraf].” The doctor’s letter was not made part of the rec ord in this

case . Howeve r, in support of this arg ument, Ashraf asser ts that portions of his testimony at trial wer e incoher ent, “full of incomplete sentenc es,” and indicative of confusion and ag itation on his part. He also notes that Khan’ s attorney commented on Ashraf

’s “re calc itrant nature , the fac t tha t he wants to arg ue with me and spa

r with me” in his closing arg ument to the court. 7
Howeve r, t his evidence is insufficient to demonstrate that the t rial court abused its discretion in de ny ing the continuance

. I n exercising its discretion, the trial court could have taken into acc ount the entire proce dural history of this c ase. See W aste W ater, Inc. v. Alpha Finishing &
Dev eloping Corp. , 874 S.W .2d 940, 942 (Tex. App.—Houston [14t h Dist.] 1994, no writ). Thus, when prese nted with A shraf ’s motion, the trial court could have considere d not only the statement by Ashraf

’s doctor but also the long duration of the case u p u ntil that point, including multipl e continuance s and failed attempts at al t er n ati ve dispute resolution. The court could also have considere d the sug g estion by Khan’ s attorney that Ashraf was only attempting to stall ag ain and the fac t tha t a witness had flown in to testify

. Fur ther, as the trial court observe d when prese nted with the doctor’s statement, it was mere ly a reque st and did not state that Ashraf was unable to participa te.

As a re sult, we ca

nnot conclude tha t the court a cted unr easona bly or in a

n arbitra ry

manner , “without ref

ere nce to an y g uiding rules and principles,” in deny ing Ashraf ’s motion for continuance

. See B eaumont Bank , N.A. , 806 S.W .2d at 226. We overr ule this issue on appea l.

As h ra f h as attache d various documents to his brief, including sever al pag es descr ibing 7 the side eff

ects of medications. Howeve r, these are not a part of t h e ap p el late rec ord, and we do not consider them. See Adams v. Rey n o lds Tile & Flooring, Inc. , 120 S.W .3d 417, 423 (Tex. App.—Ho u s t o n [14t h Dist.] 2003, no pet.) (“[T]he attachme nt of documents as exhibi ts or appendic es to briefs does not constitute formal inclusion in the rec ord on appea l and, there fo re , [such documents] cannot be consider ed.”)

. 11F inal d ecr ee of divorce Ashraf also arg ues that the tri a l c o u rt “abuse d its discretion in signing a written decr ee that was not approve d by counsel and contains order s dividing proper ty that was not divided by the Trial J udg e.” Acc ording to Ashraf , he and his a ttorney “we re not pr ovided a copy or asked to sign the Fina l Decr ee of

Divorce ” and thus we re “ denied the r ight to re view [it] for c orre ctness.”
I n response to this issue, Khan direc ts us to her motion to enter judgme nt contained in the cler

k’s rec ord. The motion states that Khan’ s proposed decr ee wa s s ubmitted to Ashraf ’s attorney on two occa sions. The mot ion also includes a copy of t he proposed decr ee, notice of the hear ing set for November 24, 2010, and a cer tificate of service aver

ring that the motion was serve d on Ashraf

’s attorne y by fac simil e transmission on November 19, 2010. Khan a sserts that, “[a]fter being g iven an opportunity to prese nt evidenc e and object to the proposed order , Mr. Ashraf cannot complain for the first time on appea l.” See Tex. R. App. P . 33.1.

We ag ree . To prese rve a complaint for appellate revie w, a party must make the complaint to the trial court by timely reque st, objection, or motion, state the specific g rounds there fore , and obtain a ruling

. Id. The rec ord does not demonstrate that Ashraf attended the hear ing

on the entry of the decr ee or made any reque st, objection, or motion with reg ard to its contents. By failing to take these measure s afte r rec eiving notice, Ashraf did not prese rve any issue for our revie w. S ee R i cks v. Ricks , 169 S.W .3d 523, 528 (Tex. App.—Dallas 2005, no pet.); see also W right v. W right , No. 03-08-00485- CV, 2009 Tex. App. L EXI S 8563, at *2 (Tex. App.—Austin Nov. 3, 2009,

no pet.) (mem. op.); Rebe lloso v. Rebe lloso , No. 03-96-00614- CV, 1997 Tex. App. L EXI S 3468, at

12*8 (Tex. App.—Austin J uly 3, 1997, no pet.) (mem. op., not desig nated fo r p u b l i cation). We 8 there fore do not need to evalua te Ashraf ’s claim that the final decr ee diverg ed from what was orally

announce d at trial. See Tex. R. App. P . 44.1. We overrule this iss ue on appe al.

Division of p ropert y

Finally , Ashraf complains about the divi s i o n o f p roperty in the trial court’s final divorce decr ee. Specifica lly , he argue s t h at the trial court “abuse d its discretion in making the
proper ty division and

. . . in g iving non-community proper ty to [Khan] and community proper ty to [t he par ties’ son], with no facts to support it.”
“I n a decr ee 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 rig ht, h av i n g due reg ard for the rig hts of

eac h party and any children of the marria g e.” Tex. Fam. Code Ann. § 7.001 (West 2006). Th e fac tors to be considered in the t rial court’s division of t he estate include: (1) fa u l t i n b re ak i ng up the marria g e; (2) the spouses’ capa cities and abilities; (3) business opportun i t i es ; (4) education; (5) rela tive phy sical condi t i o n s ; (6) rela tive financ ial conditions and obliga tions; (7) disparity of
ag es; (8) siz es of separ ate estates; (9) the nature of the proper ty ; and (10) disparity in ear ning
capa cities or incomes. See M urff v. Murff

, 615 S.W .2d 696, 698 (Tex. 1981).

To the ex tent that Ashraf may mean to ar g ue that he c ould not preser ve er ror be cause he 8 never rec eived notice, we note that a cer tificate of service is prima fac ie evidenc e that notice was sent, and notice proper ly sent under rule 21a raises a presumption that notice was rec eived. See Tex. R. Civ. P. 21a; Mathis v. Lockwood , 166 S.W .3d 743, 745 (Tex. 2005). I n the prese nt case , Khan’ s motion to enter judgme nt demonstrates that notice of the proposed decr ee and hear ing was proper ly sent to Ashraf

’s attorney

. Nothing in rule 21a prec ludes a party from offe ring proof that notice was not rec eived. Tex. R. Civ. P. 21a. Howeve r, Ashraf offe rs only unsupported statements sug g esting that he did not rec eive notice. Acc ording ly , we must presume that Ash ra f rec eived notice and never theless did not complain of the de cre e’s c ontents. 13The trial court has broad discretion in dividing the marital estate at divorce

. See id.

at 699. On appea l, we presume that the trial court exercised this discretion proper ly and will reve rse the cause only wher e there is a clea r abuse of discretion. See Bell v. Bell , 513 S.W .2d 20, 22 (Tex. 1974). A clea

r abuse of discretion is shown only if the division of the proper ty is manifestly unjust. See M ann v. Mann , 607 S.W .2d 243, 245 (Tex. 1980). “The party attacking the prope rty

division bear s the heavy burden of showing that the trial cou rt ’s proper ty division was not just and rig ht.” Pletche r v. Goe tz , 9 S.W .3d 442, 446 (Tex. App.—For t Worth 1999, pet. denied).
K h a n r e s p o n d s to A s h r a f

’ s a rg ument by stressing that the trial court rec eived evidenc e that Ashraf was at fault in brea king up the marria g e throug h his controlling , abusive, and neg lectful conduct and that he had g rea ter business opportunities, education, and ear ning capa city than Khan. She conclude s that the disproportionate division of the esta te was the ref ore a mply supported. We
ag ree that Ashaf has no t m et “the heavy burden of showing that the t rial court’s proper ty division was not just and rig ht.” Pletche r , 9 S.W .3d at 446.

For example, A shraf complains of the trial court’s awa rd of the e ntire fa mily

home
to Khan. Howeve r, the court hear d evidenc e that the home was worth betwee n $105,000 and $121,000; that it was subject to a home equity line of cre dit with which at least two vehicles had been purcha sed; and that it required c onsiderable repa irs, which were the orig inal justification for the line of cre dit of $50,000. Acc ording ly , the house repr esente d a mix ture of financ ial assets and 9

After examining the photos admitted into evidenc e, the trial court opined that “it might cost 9 an o ther $50,000 to g et that house in tip-top shape.” Ashraf claims this statement is an ab u s e o f discretion in itself, since even experts cannot conclusively discern repa ir costs from a few pictures. Howeve r, we understand the comment t o re fe r t o the evidence that a $50,000 home equity line of cre dit was obtained for the purpose of repa iring the home. Given the additional testimony that few 14liabiliti es. The court also hear d evidenc e that Ashraf had abused Khan and their children throug hout

the marriag e, failed to maintain their home, and prohibited basic sanitary measure s like pest extermination, contributing signific antly to the brea kup of the marria g e. Consequently , we cannot conclude that the trial cour t was manife stly

unjust to award the house to Khan. Ashraf also cl aim s that it was manifestly unjust to awa rd Khan the entirety of her 401(k) acc ount while dividing his retire ment acc ounts equally betwee n the parties. At trial, the parties stipulated that Ashraf ’s various retire ment acc ounts offe red hi m ap p roxi mately $1,580 in income ea ch mont h. Meanw hile, the court hear d evidenc e that Kha n’s only retire ment acc ount

was a 401(k) worth approximately $6,000 in total and that Khan, unlike Ashraf , was not y et elig ible fo r Social Security income. I n addition, the court hear d that Khan possessed a deg ree in h o m e economics from Pakistan and had scant work history while Ashraf possessed an arc hitecture deg ree fro m t h e Uni ted States and had worke d in arc hitecture for deca des. For these rea sons, in addition to the evidenc e of abuse discussed above, we cannot ag ree with Ashraf

. The division of the retire m en t ac counts was not manifestly unjust and therefor e not a clear abuse of discretion on the part of the trial court. See B ell , 513 S.W .2d at 22; Mann , 607 S.W .2d at 245.

Ashraf also claims that insufficient evidenc e supported the trial court’s awa rd of two vehicles, the second L exus and a 1974 Da t s u n , t o the parties’ son while Ashraf rec eived only the 1998 Honda Ci vic. Howeve r, Khan testified t hat her son had pur ch as ed t h e Datsun wit h his own
money and that Ashraf expli citly said he was buy ing the second L exus for their son. Additionally ,

if any repa irs wer e actua lly made, it was not manifestly unjust for the trial court to state that the rema ining r epair s might require the same amount of money orig inally

ear marke d for that pur

pose. 15the trial court hear d that Ashraf purcha sed at least one of the vehicles using the home equity line of

cre dit in violation of a court order

. Consequently , in distributing the vehicles and stating, “Tha t

seems to be what the parties intended at the time, f or [t heir son] to drive the L exus,” the trial court did not abuse its discretion. 1 0

Finally , Ashraf arg ues that the court abused its discretion in distributing the proce eds from the empty lot betwee n the parties. Ashraf testified at trial that he purcha sed the lot for his sister and that she had larg ely been responsible for pay ing proper ty taxes on it, for which rea son the lot
was not community proper ty

. Howeve r, t he court was presented with evidenc e contradicting t h at proposition. There was evidenc e that the lot was purcha sed in Ashraf ’s name, but that another man had been listed a s the owner with Travis County

. That man, whom Ashraf descr ibed as a friend in Houston, submitt ed an aff idavit disclaiming owner ship of the lot and aver ring that it belong ed to Ashraf , which sug g ested there was some subterfug e by Ashraf with reg ard to the lot. Moreove r, Khan testified as to various specific circ umstances, 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 proper ty possessed by either spouse during or on the dissoluti on of a marria g e is presumed to be community proper ty

. Tex. Fam. Code Ann. § 3.003(a) (West 2006); Harrison v. Harrison , 321 S.W .3d 899, 902 (Tex. App.—Houston [14t h Dist.] 2010,

n o pet.). To overc ome this presumption, a spouse who claims that an asset is separ ate p ro p er t y

The L exus and Datsun vehicles wer e awa rded to Khan with the understanding t h at s h e 1 0 would g ive them to the par ties’ son. 16must establish that fac t by clea r and convincing evidenc e and must trac e and clea rly identify the
proper ty claimed. Tex. Fam. Code Ann. § 3.003(b) (West 2006). I n addition, as the finder of fac t, th e tr ia l c o u

r t is th e s o le ju d g e o f th e w it n e s s e s ’ c r e d ib il it

y a n d th e w e ig

h t to b e g iv e n th e ir te s ti mo ny . Iliff v. Iliff

, 339 S.W .3d 74, 83 (Tex. 2011). Her e, g iven the signific ant evidenc e supporting Khan’ s char acte rization of the lot, the trial court could h av e fo u n d t h at Ashraf did not provide clea r and convincing evidenc e to rebut the presumption that the lot was community proper ty

. Thus, it was not manifestly

unjust to award ha lf of the lot’s value to Khan. 1 1
For the above rea sons, Ashraf has failed to demonstrate that the trial court’s division of prope rty

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

was not manifestly unjust and there fore not a clea r abuse of discretion. See Bell , 513 S.W .2d at 22;
Mann , 607 S.W .2d at 245. We overr ule this issue on appea l.

Dam ages for frivolou s app eal

I n a cr oss-point on appea l, Khan re quests that this Court find Ashraf ’s appea l to be frivolous and awa

rd d am age s i n the amount of $5,000. See Tex. R. App. P. 45 (per mitti ng an appellate court to aw ard a preva iling par

ty “just damag es” f

or “f rivolous” appe als).
I n deter mining whether an appea l is frivolous, we apply an objective test, revie wing the rec ord from t he viewpoint of the advocate and deciding whether the advocate had rea sonable

Ashraf also arg ues that the trial court abused its discretion in ref using to hear evidenc e of 1 1 an inheritanc e rec eived by Khan. Howeve r, the rec ord shows that Khan was questioned only as to any inheritanc e she might rec eive in the future, and the trial court s u s t ai n ed an objection due to rele vance . Fur

ther, to complain on appea l that a trial court err oneously excluded evidenc e, the substance of the evidenc e must be made known to the trial court by an offe r of proof. Tex. R. Evid. 103(a) (2); Tex. R. App. P. 33.1. Having failed to make such an offe r, Ashraf has not prese rved this complaint for a

ppeal. 17g rounds to believe the judgme nt could be reve rsed. Smith v. Brow n , 5 1 S

. W

. 3d 376, 380 (Tex.

App.—Houston [1st Dist.] 2001, pet. denied)

. Whether to g rant sanctions for a frivolous appea l is a
matter of discretion that an appellate court exercises with prudenc e and caution and only afte r car eful delibera tion in truly eg reg ious circ umstances. Goss v. Houston Cmty. Newspapers , 252 S.W .3d 652, 657 (Tex. App.—Houston [14t h Dist.] 2008, no pet.).

Although we have n o t ed various defic iencies in Ashraf ’s appea l, and althoug h we have reje cte d his arg uments, Khan has not demonstrated that Ashraf ’s appea l is among the “truly
eg reg ious c ircumstance s” for whic h we would a war d damag es. See id. We the ref ore exercise our discretion to deny

Khan’ s reque st for sanc tions and overr ule her cross-point on appe al.

CONCLUSION We affir m the final dec ree of divorce

. 1 2

__________________________________________ Diane M. H enson, Jus tice
Be fore J ustices Pury ear , Henson, a nd Goodwin Affir med Filed: May

24, 2012

Khan filed a motion, which is p en d ing befor e this Court, to acc eler ate this appea l or to 1 2 provide for

enfor ceme nt of the trial cour t’s final dec ree . We dismi ss the motion as moot. 18