Opinion issued April 18, 2013




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                             NO. 01-12-00308-CV
                          ———————————
                   ANNE MORELAND DORAI, Appellant
                                      V.
                           SURI DORAI, Appellee



                   On Appeal from the 387th District Court
                          Fort Bend County, Texas
                    Trial Court Case No. 11-DCV-190567



                         MEMORANDUM OPINION

      Anne Moreland Morai appeals from a decree of divorce dissolving the

marriage between her and Suri Dorai. In four issues, Anne argues the trial court

(1) erred by mischaracterizing certain property as Suri’s separate property, (2)
abused its discretion by denying her motion for new trial, (3) abused its discretion

by assigning Suri the responsibility of designating their child’s primary residence,

and (4) abused its discretion by denying her motion for continuance.            Suri

requested in a motion that we dismiss the appeal under the acceptance of the

benefits doctrine.

      We dismiss as moot Anne’s first, second, and fourth issues. We further

affirm the judgment of the trial court.

                                    Background

      Anne and Suri were married on March 23, 2004. They had one child. On

June 9, 2011, Suri filed a petition for divorce. Anne answered and filed a counter-

petition for divorce. The parties went to trial on January 10, 2012. The trial court

issued its final decree of divorce about two weeks later.

      At trial, Suri requested a joint conservatorship with Anne having the right to

designate the child’s primary residence.          Anne requested sole managing

conservatorship.     During the trial, the trial court expressed concerns about

assigning Anne the right to designate the child’s primary residence. Suri admitted

that he felt conflicted about his request for Anne to make the determination, but

ultimately stood by his request. In the judgment, the trial court assigned Suri and

Anne as joint conservators of their child with Suri having the right to designate the

child’s primary residence.


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      Later that year, after Anne had filed her notice of appeal, the trial court

signed an order requested by the parties concerning conveyance of title in their two

homes. The order explains that, at a hearing on a number of motions, the parties

had reached an agreement on the disposition of two homes acquired during the

marriage; that the order reflected the agreement of the parties; and that the parties

requested the trial court to enter the agreement as an order of the court. The order

required Suri to “execute a Special Warranty Deed conveying all rights, title and

interest” in their Maryland home to Anne. It further required Suri to execute any

further deeds if the special warranty deed was insufficient to convey full title in the

home to Anne. The order required the conveyance to be completed on the date the

order was signed.

                            Acceptance of the Benefits

      Under the acceptance of the benefits doctrine, “[a] litigant cannot treat a

judgment as both right and wrong, and if he has voluntarily accepted the benefits

of a judgment, he cannot afterward prosecute an appeal therefrom.” Carle v.

Carle, 234 S.W.2d 1002, 1004 (Tex. 1950). “The doctrine arises most often in

divorce cases in which one spouse accepts certain assets awarded by the judgment

and then seeks to appeal the remainder of the judgment.” Williams v. LifeCare

Hosps. of N. Tex., 207 S.W.3d 828, 830 (Tex. App.—Fort Worth 2006, no pet.). If

he accepts the benefits of a judgment, a party is estopped from challenging that


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judgment on appeal. Waite v. Waite, 150 S.W.3d 797, 803 (Tex. App.—Houston

[14th Dist.] 2004, pet. denied). In that event, the appeal is rendered moot and must

be dismissed. Harlow Land Co., Ltd. v. City of Melissa, 314 S.W.3d 713, 716

(Tex. App.—Dallas 2010, no pet.).

      The appellee bears the burden of proof to establish application of the

acceptance of the benefits doctrine. Richards v. Richards, 371 S.W.3d 412, 414

(Tex. App.—Houston [1st Dist.] 2012, no pet.). The parties may rely on affidavits

and other satisfactory evidence to establish whether the appellate court retains

jurisdiction over the appeal. See id. (citing TEX. GOV’T CODE ANN. § 22.220(c)

(Vernon Supp. 2011); TEX. R. APP. P. 10.2).

      An appellant may avoid the application of the acceptance of the benefits

doctrine by showing the application of either of two exceptions: (1) acceptance of

the benefits of the judgment was a result of financial duress or other economic

circumstances or (2) reversal of the judgment on the grounds appealed could not

possibly affect the appellant’s right to benefits accepted. Williams, 207 S.W.3d at

830; Waite, 150 S.W.3d at 803–04. These exceptions are narrow. Waite, 150

S.W.3d at 804. The appellant bears the burden of establishing the application of

the exceptions. Richards, 371 S.W.3d at 415.

      One of the bases that Suri presents for establishing that Anne has accepted

the benefits of the bargain is that Anne has taken legal possession of the home

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awarded to her in the divorce. On January 4, 2013, the trial court signed an order

requested by the parties. The order explains that, at a hearing on a number of

motions, the parties had reached an agreement on the disposition of two homes

acquired during the marriage; that the order reflected the agreement of the parties;

and that the parties requested the trial court to enter the agreement as an order of

the court. The order required Suri to “execute a Special Warranty Deed conveying

all rights, title and interest” in their Maryland home to Anne. It further required

Suri to execute any further deeds if the special warranty deed was insufficient to

convey full title in the home to Anne. The order required the conveyance to be

completed on the date the order was signed.

      A party to a judgment accepts the benefits of the judgment when she seeks

and obtains legal title to real property awarded in the judgment. See Waite, 150

S.W.3d at 804. Accordingly, we hold that Suri has met his burden of establishing

that Anne accepted the benefits of the judgment.

      Anne did not respond to Suri’s argument that she had accepted the benefits

of the judgment. Accordingly, no grounds have been presented for considering

whether Anne meets any of the available exceptions.

      Typically, accepting the benefits of a judgment moots the entire appeal. See

Carle, 234 S.W.2d at 1004 (holding “[a] litigant cannot treat a judgment as both

right and wrong, and if he has voluntarily accepted the benefits of a judgment, he

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cannot afterward prosecute an appeal therefrom”); Harlow Land Co., 314 S.W.3d

at 716 (holding “[i]f the [acceptance of the benefits] doctrine applies, the appeal is

rendered moot, and the proper disposition is dismissal”). This is not always the

case, however. See, e.g., Tomsu v. Tomsu, 381 S.W.3d 715, 717 (Tex. App.—

Beaumont 2012, no pet.) (holding acceptance of benefits doctrine applied and

continuing to analyze issue concerning spousal maintenance).

      Anne’s third issue concerns whether the trial court abused its discretion by

assigning Suri the responsibility of designating their child’s primary residence.

This is a matter that concerns the best interest of the child. See TEX. FAM. CODE

ANN. § 153.002 (Vernon 2008) (“The best interest of the child shall always be the

primary consideration of the court in determining the issues of conservatorship and

possession of and access to the child.”).      The best interest of the child is a

paramount concern that frequently trumps procedural concerns. See Leithold v.

Plass, 413 S.W.2d 698, 701 (Tex. 1967) (holding “[t]echnical rules of practice and

pleadings are of little importance in determining issues concerning the custody of

children”).

      We have found no case holding that a parent’s acceptance of the benefits

concerning the division of the marital estate can prevent review of the paramount

concern of the best interest of the child, and we find no reason to create such a

holding. The rationale behind the acceptance of the benefits doctrine is that an

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appellant should not be permitted to accept the benefits of one portion of the

judgment while trying to obtain a better result in another portion. See Carle, 234

S.W.2d at 1004. But a review of the best interest of the child concerns what

benefits the child, not the parent. See Dupree v. Tex. Dept. of Protective &

Regulatory Servs., 907 S.W.2d 81, 86 (Tex. App.—Dallas 1995, no writ) (holding

concern is for best interest of child not for best interest of parent). Accordingly,

we hold that a parent’s acceptance of the benefit of the division of the marital

estate does not moot review of a matter concerning the best interest of the child.

      We grant Suri’s motion to dismiss as it relates to Anne’s first, second, and

fourth issues. Accordingly, we dismiss as moot Anne’s first, second, and fourth

issues. We deny the remainder of Suri’s motion.

                   Designating the Child’s Primary Residence

      In her third issue, Anne argues the trial court abused its discretion by

assigning Suri the responsibility of designating their child’s primary residence.

A.    Standard of Review

      A trial court has broad discretion regarding conservatorship and

determination of which conservator will have the exclusive right to establish the

child’s primary residence. In re K.L.W., 301 S.W.3d 423, 428 (Tex. App.—Dallas

2009, no pet.) (citing Dennis v. Smith, 962 S.W.2d 67, 70 (Tex. App.—Houston

[1st Dist.] 1997, pet. denied)).    Conservatorship determinations are subject to


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review only for abuse of discretion, and they may be reversed only if the decision

is arbitrary and unreasonable. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); In re

K.R.P., 80 S.W.3d 669, 674 (Tex. App.—Houston [1st Dist.] 2002, pet. denied).

We view the evidence in the light most favorable to the trial court’s decision and

indulge every legal presumption in favor of its judgment. Holley v. Holley, 864

S.W.2d 703, 706 (Tex. App.—Houston [1st Dist.] 1993, writ denied). We will

reverse only if the trial court abused its discretion by acting without reference to

any guiding rules or principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.

1990). There is no abuse of discretion if some evidence supports the decision.

Holley, 864 S.W.2d at 706.

B.    Analysis

      At trial, Suri requested a joint conservatorship with Anne having the right to

designate the child’s primary residence.         Anne requested sole managing

conservatorship.   During the trial, the trial court expressed concerns about

assigning Anne the right to designate the child’s primary residence. Suri admitted

that he felt conflicted about his request for Anne to make the determination, but

ultimately stood by his request. In the judgment, the trial court assigned Suri and

Anne as joint conservators of their child with Suri having the right to designate the

child’s primary residence.




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      Anne argues the trial court abused its discretion by assigning Suri the right

to designate the child’s primary residence because their child had resided with

Anne during the pendency of the divorce. She also argues that the parties had

agreed that Anne would have the right to designate the child’s primary residence.

      “The best interest of the child shall always be the primary consideration of

the court in determining the issues of conservatorship and possession of and access

to the child.” TEX. FAM. CODE ANN. § 153.002. Anne does not explain how the

child’s primary residence during the pendency of a divorce proceeding would have

controlling influence over the trial court’s determination of which parent will have

the right to designate the child’s primary residence after the divorce. We find no

reason to create such a rule.

      If certain requirements are met, the trial court must render an order of

conservatorship in conformity with a written agreed parenting plan. TEX. FAM.

CODE ANN. § 153.133(a) (Vernon Supp. 2012).          Even assuming there was a

general agreement about who should designate the child’s primary residence, the

agreement was not written and did not otherwise conform with section 153.133 of

the Texas Family Code. When there is no written agreement, the decision is made

by the trial court based upon the best interest of the child. TEX. FAM. CODE ANN.

§ 153.134 (Vernon 2008). Accordingly, an unwritten general agreement does not




                                         9
establish that the trial court abused its discretion by assigning Suri the right to

designate the child’s primary residence.

      Finally, Anne argues that there is no evidence to support the trial court’s

determination. She next argues,

      The record reveals that the trial court judge sanctioned Anne
      Moreland Dorai numerous times all of which were the result of her
      mental disability which prevented her from understanding the judge’s
      instructions or allowing Anne Moreland Dorai to remain focused on
      the issues at trial. The record shows numerous occasions in which
      Anne Moreland Dorai’s disability interfered with the trial and when
      taken all together more than likely resulted in the court making its
      conservatorship decision inconsistent with the wishes of the parents.

We conclude that Anne’s admitted difficulty in following instructions and

remaining focused during the span of a one-day trial could have been a basis for

the trial court to conclude that her mental disability could similarly impair her in

the rearing of her child. This is some evidence, then, upon which the trial court

could have ruled that Suri should have the right to designate the child’s primary

residence.

      We hold that Anne has not established that the trial court abused its

discretion by appointing Suri as the parent to have the right to designate the child’s

primary residence. We overrule Anne’s third issue.

                                    Conclusion

      We dismiss as moot Anne’s appeal of the portion of the trial court’s

judgment concerning characterizing and dividing the marital estate. We further

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affirm the judgment of the trial court as it relates to the right to designate the

child’s primary residence.




                                            Laura Carter Higley
                                            Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.




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