Siddiqui v. Siddiqui ((Tex. App. – Houston [14th Dist.] Mar. 3, 2009)(Hedges)
(SAPCR divorce appeal, pro se litigants, intervention by attorney for fees, child support guideline deviation)
AFFIRMED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Anderson and Seymore
14-07-00235-CV Zahoor Siddiqui v. Masoon Siddiqui and Queta Vera
Appeal from 257th District Court of Harris County
Trial Court Judge: Judy L. Warne
M E M O R A N D U M O P I N I O N
Appellant, Zahoor Siddiqui, a pro se litigant, appeals from a final decree of divorce dissolving his marriage to
appellee Masoon Siddiqui. In the decree, the trial court awarded past due legal fees to appellant's former
attorney, appellee Queta Vera, who had intervened in the divorce action. On appeal, appellant challenges the
awards made to both appellees. We affirm.
Background
Masoon filed a petition seeking dissolution of her marriage to appellant. Appellant filed his own pleadings
asserting, among other things, claims for intentional infliction of emotional distress, defamation, and assault.
After the trial court entered temporary orders in the case, appellant filed several motions for enforcement
alleging violations of the temporary orders by Masoon. The final motion for enforcement was heard at the
same time as the final trial. During the course of the proceedings, appellant was represented by three
attorneys but ultimately represented himself at trial and represents himself on appeal. One of his former
attorneys, Queta Vera, filed a petition in intervention seeking past due attorney's fees and expenses. In
response, appellant filed pleadings against Vera for professional negligence. At the close of trial, the trial court
granted a directed verdict against appellant's professional negligence claims. The court then granted the
divorce, denied the motion to enforce based on insufficient evidence of violations of the temporary orders,
found no evidence of intentional infliction of emotional distress or defamation, and found insufficient evidence
of assault. The trial court further found that appellant was intentionally underemployed and assessed child
support accordingly. In its final decree, the court named both parents as joint managing conservators of the
one remaining minor child and gave primary custody to Masoon and a standard possession order to appellant.
The trial court further ordered appellant to pay $4,666.39 to Vera as past due fees and expenses, and $10,350
to Masoon's attorney for her fees. The trial court additionally divided the marital assets and liabilities between
the parties.
In his first two issues on appeal, appellant complains that (1) he was not timely served with the final decree
prior to entry, and (2) Masoon submitted various documents to the court just one day before trial and never
served them on appellant. In issues three through nine, appellant contends that the trial court erred in (1)
denying his motion for enforcement; (2) refusing to award damages for assault, intentional infliction of
emotional distress, and defamation; (3) awarding Vera $4,666.39; (4) dividing the marital estate; (5) ordering
him to pay child support on the basis of a job he had not had for four years; (6) ordering him to pay $10,350 for
Masoon's attorney's fees; and (7) refusing to find that appellee Vera negligently represented him.
Discussion
While we have compassion for the plight of the pro se litigant attempting to follow the rules of legal procedure
and substantive laws, and therefore construe pro se pleadings and briefs liberally, we must still hold appellant
to the same standard as a licensed attorney, requiring that he follow those same rules and laws. Mansfield
State Bank v. Cohn, 573 S.W.2d 181, 184‑85 (Tex. 1978); Cooper v. Circle Ten Council Boy Scouts of Am.,
254 S.W.3d 689, 693 (Tex. App.- Dallas 2008, no pet.). To do otherwise would give a pro se litigant an unfair
advantage over a litigant represented by counsel. Mansfield State Bank, 573 S.W.2d at 185; Cooper, 254 S.W.
3d at 693. Before a complaint can be raised on appeal, it first must be made in the trial court in the form of a
timely and sufficiently specific objection, request, or motion. Tex. R. App. P. 33.1(a). If the appellant failed to
make the complaint in the trial court, it is not preserved for appellate review. Cayan v. Cayan, 38 S.W.3d 161,
164 (Tex. App.- Houston [14th Dist.] 2000, pet. denied). Among other requirements, an appellate brief must
contain appropriate argument for the relief sought. See Tex. R. App. P. 38.1(h). The brief must also contain
appropriate citations to the record and to relevant authority. Id. Failure to make appropriate argument or
provide relevant citations will result in the overruling of the issue raised. See, e.g., Sterling v. Alexander, 99 S.
W.3d 793, 799 (Tex. App.- Houston [14th Dist.] 2003, pet. denied).
In his first issue, appellant contends that he was not served with the final decree, and thus was not able to
review it, prior to entry. Under this issue, appellant complains not only that he was not timely served but also
that the decree is incorrect on several points, including that: (1) the case was heard on a particular date, (2)
the making of a record was waived by the parties, and (3) the parties entered into a written agreement. In
regards to the date the court heard the case, the decree makes apparent reference to the date of entry, not
the date of trial, as appellant suggests. Regarding the other points raised by appellant, although he raised the
issue of inability to review the decree in his motion for new trial, and he makes numerous factual allegations in
his brief, he has not provided any proof in support of his accusations. The pleadings filed in the case, to which
appellant cites, are not evidence. Grass v. Golden, 153 S.W.3d 659, 660 (Tex. App.- Tyler 2004, orig.
proceeding) (citing Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995)). The
factual statements made in appellant's briefs are not evidence. See Calp v. Tau Kappa Epsilon Fraternity, 75
S.W.3d 641, 647 (Tex. App.- Amarillo 2002, pet. denied) (disregarding factual statements not supported by
record references). Because appellant has not supported his factual allegations with evidence or citation to
evidence, we overrule his first issue.
In his second issue, appellant complains that appellee Masoon submitted various pleadings, exhibits, and
orders to the court just one day before trial and never served them on appellant. Appellant, however, does not
cite to any place in the record where he made an objection, request, or motion on this basis, and our review of
the record has discovered no such objection, request, or motion. Consequently, this issue is not preserved for
review. See Tex. R. App. P. 33.1(a). We overrule appellant's second issue.
In appellant's third issue, he contends that the trial court erred in denying his motion for enforcement. The
court denied the motion based on a finding of insufficient evidence of violations of the court's temporary orders
as alleged in the motion. See generally City of Keller v. Wilson, 168 S.W.3d 802, 810-27 (Tex. 2005)
(discussing standards governing sufficiency of the evidence). In his briefing, appellant claims that Masoon
violated the trial court's temporary orders by failing to timely attend a program for divorcing parents and timely
file verification of such attendance. Appellant further complains that Masoon committed perjury by telling the
court that she had properly complied with these portions of the temporary orders and that since she lied in
regards to that issue it means she also lied on other statements, such as when she denied not surrendering
the children to appellant on his assigned visitation days. Appellant additionally asserts that Masoon talked to
the children about the case, controlled their daughter against him, and failed to timely register the children for
counseling, all in violation of the court's temporary orders. The burden of proof on the motion for enforcement
was on appellant. See In re M.M.S., 256 S.W.3d 470, 477-78 (Tex. App.- Dallas 2008, no pet.). In her
testimony, Masoon generally denied the allegations made by appellant. In his testimony, appellant complained
generally that Masoon did not let him see the kids and had turned the kids against him. He did not offer any
specifics. As factfinder, the trial court was free to accept Masoon's generalized testimony and disregard
appellant's. See, e.g., Graybar Elec. Co., v. LEM & Assocs., L.L.C., 252 S.W.3d 536, 544 (Tex. App.- Houston
[14th Dist.] 2008, no pet.). The items appellant cites to in the clerk's record, such as Masoon's certificate of
completion of the parenting program, do not constitute evidence because they were not admitted as exhibits at
trial or judicially noticed by the court. See In re J.R.S., 232 S.W.3d 278, 280-81, 281 n.4 (Tex. App.- Fort
Worth 2007, no pet.). Based on the evidence actually in the trial record, we cannot say that the trial court
erred in denying appellant's motion for enforcement.[1] Accordingly, we overrule his third issue.
In the fourth issue, appellant contends that the trial court erred in refusing to award him damages on his claims
for assault, intentional infliction of emotional distress, and defamation. The trial court specifically found that
appellant presented no evidence of intentional infliction of emotional distress or defamation and insufficient
evidence of assault. In support of this issue, the only relevant record citations appellant provides are to (1)
Masoon's testimony that they had a fight, (2) a neighbor's testimony that he once saw appellant with scratch
marks on his face, and (3) appellant's own testimony wherein he accused Masoon of trying to poke his eye
out. The record further reveals that Masoon also testified that appellant was the aggressor and the abuser in
the relationship, and that the neighbor did not testify as to how appellant received the scratches he observed.
As factfinder, the court was free to believe Masoon's testimony and disbelieve appellant's testimony. See, e.g.,
Graybar Elec. Co., 252 S.W.3d 536 at 544. Although the testimony appellant cites may have been relevant to
his assault claim, it does not establish that the trial court erred in refusing to award damages on that claim.
See generally Morgan v. City of Alvin, 175 S.W.3d 408, 418 (Tex. App.- Houston [1st Dist.] 2004, no pet.) (AA
person commits an assault by (1) intentionally, knowingly, or recklessly causing bodily injury to another; (2)
intentionally or knowingly threatening another with imminent bodily injury; or (3) intentionally or knowingly
causing physical contact with another when the person knows or should reasonably believe that the other will
regard the contact as offensive or provocative.). Furthermore, in his brief, appellant fails to provide any
relevant citations to authority. See Tex. R. App. P. 38.1(h). Accordingly, this issue is overruled.
In issue number five, appellant contends that the trial court erred in awarding his former attorney, Queta Vera,
$4,666.39 for her outstanding fees and expenses. During trial, Vera introduced her billing records into
evidence and testified regarding (1) the contract between her and appellant, (2) a check from appellant that
was returned for insufficient funds, and (3) the reasonableness and necessity of the fees charged. In his
testimony, appellant alleged, with limited explanation, that Vera overcharged him, produced unuseable
discovery, and turned against him at mediation. In his appellate brief, appellant provides a further litany of
conclusory allegations against Vera (and Masoon) unsupported by citation to trial evidence. Appellant cites
primarily to Vera's billing records, which generally support her claims to fees and expenses due, and to the
clerk's record. Nothing in the clerk's record constituted evidence at trial unless admitted as an exhibit at trial or
judicially noticed by the court. See In re J.R.S., 232 S.W.3d at 280-81, 281 n.4. Appellant also does not assert
any particular legal argument as a basis for overturning the award. Because appellant fails to make proper
legal arguments supported by proper citations to the record, we overrule his fifth issue. See Sterling, 99 S.W.
3d at 799.
In his sixth issue, appellant contends that the trial court erred in its division of the marital estate. Appellant
specifically asserts that (1) the assets and liabilities listed for him in one of Masoon's exhibits were four years
old at the time of trial; (2) since that time, Masoon has “acquired new loans and sold stocks, while appellant
Asold bonds and . . . acquire more debt; and (3) appellant began but was not allowed to complete repairs to
the electrical system of the house. A trial court has broad discretion in dividing the marital estate at divorce.
Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981); Zagorski v. Zagorski, 116 S.W.3d 309, 313 (Tex. App.-
Houston [14th Dist.] 2003, pet. denied). On appeal, we will presume the trial court properly exercised its
discretion and reverse only where the trial court clearly abused its discretion. Murff, 615 S.W.2d at 698;
Zagorski, 116 S.W.3d at 313. Apart from the statements listed above, appellant offers no explanation of how
the trial court abused its discretion in dividing the marital property. Appellant also does not cite any authority in
support of his statements and the only record cites he provides do not support his position. Consequently, we
find this issue improperly briefed. See Tex. R. App. P. 38.1(h); Sterling, 99 S.W.3d at 799. Issue six is
overruled.
In his seventh issue, appellant contends that the trial court erred in ordering him to pay child support on the
basis of a job he had not held for four years. Appellant additionally asserts that the court erred in ordering
child support exceeding 20% of his disposable earnings for one child and 50% of his disposable earnings over
all. Generally, a trial court has broad discretion in setting child support payments, and absent a clear abuse of
discretion, the court's order will not be disturbed on appeal. In re Davis, 30 S.W.3d 609, 616 (Tex. App.-
Texarkana 2000, no pet.). Here, at the conclusion of trial, the trial court stated that it found appellant was
intentionally underemployed and thus based his child support obligation on a previous job. See Tex. Fam.
Code ' 154.066 (“If the actual income of the obligor is significantly less than what the obligor could earn
because of intentional unemployment or underemployment, the court may apply the support guidelines to the
earning potential of the obligor.); Schaban-Maurer v. Maurer-Schaban, 238 S.W.3d 815, 826 (Tex. App.- Fort
Worth 2007, no pet.) (discussing section 154.066). Beyond asserting that child support should be based on
current wages, appellant makes no argument explaining why the court erred in holding that he was intentionally
underemployed. In support of his argument that the court erred in awarding over 50% of his disposable
income, appellant cites the wage withholding order, wherein it states: “The maximum amount to be withheld
shall not exceed fifty percent (50%) of the Obligor's disposable earnings. As appellee Masoon points out in her
brief, this statement prevents an employer from withholding more than 50% of appellant's disposable earnings
but does not prevent the court from ordering him to pay over 50% of his earnings. Because appellant has
failed to make an argument explaining why the trial court erred and has failed to cite relevant authority for the
points raised, we overrule appellant's seventh issue. See Tex. R. App. P. 38.1(h); Sterling, 99 S.W.3d at 799.
In issue eight, appellant contends that the trial court erred in ordering him to pay $10,350 for Masoon's
attorney's fees. Appellant first suggests that Masoon should be responsible for her own attorney's fees
because she instituted the divorce proceedings. Appellant, however, does not cite any authority in support of
this strict proposition, and we are aware of none. Appellant next asserts, without citation to the record or
authority, that Masoon did not plead for attorney's fees. Masoon's pleadings, however, consistently contained
a request that attorney's fees be awarded against appellant. Appellant additionally states that he was charged
with attorney's fees because he was allegedly responsible for eight delays in the trial setting. Appellant then
goes through eleven continuances or resettings and attempts to explain why he did not cause them. Although
Masoon's counsel testified regarding the reasonableness and necessity of her fees and various delays in the
proceedings, she stopped short of blaming appellant for those delays. Furthermore, the trial court said nothing
in its findings or in the decree about the award of attorney's fees being based on delays caused by appellant.
Thus, appellant's arguments that he did not cause such delays do not demonstrate, without more, that the trial
court erred in awarding attorney's fees. Appellant offers no further argument as to how the trial court erred in
ordering him to pay Masoon's attorney's fees. Consequently, we overrule issue eight.
In issue nine, appellant contends that the trial court erred in refusing to find that Vera negligently represented
him. To be successful on a professional negligence, or malpractice, cause of action, a claimant must
demonstrate: (1) the professional owed a duty to the claimant, (2) the professional breached that duty, (3) such
breach proximately caused injury to the claimant, and (4) compensable damages occurred. Grimes v.
Reynolds, 252 S.W.3d 554, 558-59 (Tex. App.- Houston [14th Dist.] 2008, no pet.). At the close of appellant's
case-in-chief, Vera's attorney moved for a directed verdict on appellant's negligence claims on the ground that
appellant had failed to present any evidence regarding duty, breach, or causation. The trial court granted the
motion. In his briefing on this issue, appellant does not cite to any evidence in the record establishing any of
the elements of professional negligence. Because appellant has not provided any relevant record citations, we
overrule appellant's ninth issue. See Tex. R. App. P. 38.1(h).
We affirm the trial court's judgment.
/s/ Adele Hedges
Chief Justice
Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.
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[1] Appellant also complains under this issue about various delays he says were occasioned by attorneys
involved in the case. Appellant, however, does not explain how these delays support his contention that the
court erred in denying the motion for enforcement, and such a link is not obvious.