                          NUMBER 13-14-00001-CV

                          COURT OF APPEALS

                THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

ANTUN DOMIT,                                                           Appellant,

                                      v.

MARIA DOMIT,                                                           Appellee.


                 On appeal from the 370th District Court of
                         Hidalgo County, Texas.


                       MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Garza and Longoria
             Memorandum Opinion by Justice Longoria
      By three issues, appellant Antun Domit (“Antun”) challenges the judgment of

divorce from appellee Maria Domit (“Maria”). Maria has filed a motion to dismiss the

appeal, asserting that we lack jurisdiction. Maria contends that the appeal is moot

because Antun has accepted the benefits of the judgment. We grant the motion in part
and dismiss Antun’s first two issues as moot. We overrule Antun’s third issue and affirm

the judgment of the trial court.

                                         I. BACKGROUND

       The parties’ community estate included interests in eleven entities that controlled

or possessed interests in various real estate developments in the McAllen area. One of

these entities was Las Misiones at the Grove Plaza, LP (“Las Misiones, LP”), of which the

community estate owned 61.49% of the shares. The decree of divorce awarded to Antun

100% of the community’s interest in Las Misiones, LP. The decree awarded to Maria

100% of the community’s interest in Las Misiones Apts, L.L.C., the entity which is the

general partner in Las Misiones, LP. The decree also ordered Antun to pay $1,875 in

child support per month to Maria.

       Antun perfected an appeal from the judgment of divorce in which he argues three

issues:   (1) the trial court erred by failing to file more detailed findings of fact and

conclusions of law on the valuation of specific properties in the community estate; (2) the

division of the estate was so unfair and unjust as to rise to the level of an abuse of

discretion; and (3) the trial court erred by ordering Antun to pay child support without

entering any findings or conclusions explaining its reasoning.

       After Antun perfected this appeal, he testified in a proceeding involving one of the

parties’ minor children that he had transferred the entire interest he was awarded in Las

Misiones, LP to Patricia Gomez Monroy. Antun and Monroy are now married, but the

transfer occurred prior to the marriage. According to Maria, Las Misiones, LP is currently

listed for sale for a price of $4,500,000. Antun is listed as the real estate agent handling




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the sale.1

                                              II. MOTION TO DISMISS

        A. Applicable Law

        Generally, a party who accepts the benefits of a judgment is estopped from

challenging the judgment by appealing it. F.M.G.W. v. D.S.W., 402 S.W.3d 329, 332

(Tex. App.—El Paso 2013, no pet.); Waite v. Waite, 150 S.W.3d 797, 803 (Tex. App.—

Houston [14th Dist.] 2004, pet. denied). As the Texas Supreme Court put it in Carle v.

Carle, also a divorce case, 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.” 149 Tex. 469, 472, 234 S.W.2d 1002, 1004 (1950). This

doctrine arises frequently in divorce cases where one spouse accepts certain benefits of

the judgment but attempts to appeal the remainder of it. See Waite, 150 S.W.3d at 803

(collecting cases). The burden is on the appellee to prove that appellant is estopped from

appealing the judgment. See id.; see also In re M.A.H., 365 S.W.3d 814, 818 (Tex. App.—

Dallas 2012, no pet.). If the doctrine applies, the appeal is moot and the appellate court

must dismiss for want of jurisdiction. F.M.G.W., 402 S.W.3d at 334 (holding that the

acceptance-of-the-benefits doctrine is a “jurisdictional rule”); Harlow Land Co., Ltd. v. City

of Melissa, 314 S.W.3d 713, 716 (Tex. App.—Dallas 2010, no pet.) (same).

        If the appellee successfully demonstrates that the doctrine applies, the burden

shifts to the appellant to establish either of two narrow exceptions. F.M.G.W., 402 S.W.3d


        1  We take the facts involving the transfer and listing for sale of Las Misiones, LP from the affidavit
Maria attached to her motion to dismiss. We may consider documents outside of the appellate record for
purposes of determining our own jurisdiction. See TEX. GOV'T CODE ANN. § 22.220(c) (West, Westlaw
through 2013 3d C.S.) (providing that an appellate court may consider documents outside of the record “to
ascertain matters of fact that are necessary to the proper exercise of its jurisdiction”); see also Harlow Land
Co., Ltd. v. City of Melissa, 314 S.W.3d 713, 716 n.4 (Tex. App.—Dallas 2010, no pet.) (considering an
affidavit attached to a motion to dismiss in a similar case).

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at 332. The first exception is for circumstances where the acceptance of the benefits is

due to financial duress or other economic circumstances. Id. The second is for cases

where the appellant accepted “only that which appellee concedes, or is bound to concede,

to be due him under the judgment.” Tex. State Bank v. Amaro, 87 S.W.3d 538, 544 (Tex.

2002) (citing Carle, 234 S.W.2d at 1004); see Williams v. LifeCare Hosp. of N. Tex., L.P.,

207 S.W.3d 828, 830 (Tex. App.—Fort Worth 2006, no pet.). This exception is a narrow

one that “does not tolerate chance or uncertainty.” Waite, 150 S.W.3d at 807.

        B. Analysis

        Maria’s motion to dismiss alleged that Antun accepted the benefits of the divorce

judgment by transferring to Monroy the entire interest that he was awarded in Las

Misiones, LP. In his response to Maria’s motion, Antun does not contest that he accepted

the benefits of the judgment, but argues that he accepted only the benefits that Maria is

bound to concede are due to him.2 See Amaro, 87 S.W.3d at 544. Antun argues that it

is undisputed that he is entitled to at least 50% of the community’s interest in Las

Misiones, LP, and “the only issue on appeal is whether he should have been awarded

‘50/50’ of the all community/martial properties.” However, by his first two issues, Antun

requests that this Court declare the judgment of divorce “null and void,” require the trial

court on remand to issue “detailed findings of fact and conclusions of law valuing all

marital and separate property,” and to perform a new division of the estate in compliance

with section 7.001 of the Texas Family Code. See TEX. FAM. CODE ANN. § 7.001 (West,

Westlaw through 2013 3d C.S.) (providing for a “just and right” division of the martial


        2 Antun’s reply to Maria’s motion to dismiss recites both exceptions and states that Antun “first”

argues that he accepted only the benefits of the judgment indisputably due to him. However, Antun does
not present any argument regarding the exception for financial duress or other economic circumstances.
Therefore, we do not address that exception.

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estate). While it may be undisputed that Las Misiones, LP was part of the community

estate, Antun was awarded 100% of the community estate’s 61.49% ownership interest

in Las Misiones LP, and transferred all of that interest to Monroy. Antun does not explain

why he would unquestionably be entitled to an award of 100% of the community interest

in Les Misiones, LP should the trial court perform a new division of property.        See

Williams, 207 S.W.3d at 830; Waite, 150 S.W.3d at 807. There is always the possibility

the trial court could award the community interest in it differently than before. See Bloom

v. Bloom, 935 S.W.2d 942, 948 (Tex. App.—San Antonio 1996, no writ) (holding that the

appellant could not establish the exception because “she might receive more, she might

also receive less” through a new division of property). That is just the sort of “chance or

uncertainty” that makes the exception inapplicable. See Waite, 150 S.W.3d at 807. We

hold that Antun is estopped from challenging the division of property on appeal. See id.;

see also Harlow Land Co., 314 S.W.3d at 716 (appellants accepted benefit of judgment

by withdrawing from court registry the disputed sum that had been awarded to them). We

therefore grant the motion to dismiss as to these two issues.

      However, we may not grant the motion to dismiss as it relates to appellant’s third

issue because that issue challenges the trial court’s order of child support. An award of

child support is a severable portion of a judgment of divorce that can be challenged even

if the appellant accepted the benefits of the division of property. See Roa v. Roa, 970

S.W.2d 163, 166 (Tex. App.—Fort Worth 1998, no pet.) (holding that the portion of a

judgment on “child custody, visitation, and support” are severable issues that may be

challenged even by an appellant who accepted the benefits of the property division); see

also Tomsu v. Tomsu, 381 S.W.3d 715, 717 (Tex. App.—Beaumont 2012, no pet.)



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(holding the same, for an award of spousal maintenance and appellate attorneys’ fees).

We therefore deny the motion to dismiss so far as it relates to Antun’s third issue.

                                             III. CHILD SUPPORT

        By his third issue, Antun argues that the trial court erred by requiring Antun to pay

$1,875 in child support per month without making any findings of fact in support of its

ruling. However, Antun’s brief asserts only that the trial court erred by not entering

findings and conclusions under section 6.711 of the family code. TEX. FAM. CODE ANN.

§ 6.711(a) (West, Westlaw through 2013 3d C.S.). Section 6.711 requires that the trial

court make findings on the characterization and valuation of the parties’ disputed assets

and liabilities. Id. Section 154.130 governs when the trial court must make findings “in

rendering an order of child support.” Id. § 154.130(a) (West, Westlaw through 2013 3d

C.S.). Section 154.130 requires that the trial court make findings in support of an order

of child support in three circumstances: (1) if the party files a written request no later than

ten days after the date of the hearing; (2) if the party makes an oral request in open court

during the hearing; or (3) if the amount of child support ordered by the court varies from

the amount computed after applying the percentage guidelines. Id. § 154.130.

        Antun’s motion requesting findings and conclusions of law did not address child

support, and its title, a “Motion for Findings of Fact and Conclusions of Law as to Valuation

of Properties Only,” implies that he did not intend to request findings under section

154.130. Antun does not allege that he made an oral request during the hearing. 3 See


        3  Antun did not provide a reporter’s record except for a brief record documenting the judge’s
dismissal of the jury because the parties agreed there were no issues for the jury to decide. See TEX. R.
APP. P. 34.6(b) (providing that the appellant must request the reporter’s record in writing). When an
appellant does not file a complete reporter’s record or comply with the rules for designating a partial
reporter’s record, we will presume that the omitted record supports the trial court’s order. Haut v. Green
Café Mgmt., Inc., 376 S.W.3d 171, 180 (Tex. App.—Houston [14th Dist.] 2012, no pet.); Sandoval v.
Comm’n for Lawyer Discipline, 25 S.W.3d 720, 722 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).

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In re M.A.S., 233 S.W.3d 915, 922 (Tex. App.—Dallas 2007, pet. denied) (holding the trial

court did not abuse its discretion by not making findings in support of child support order

where appellant did not file a timely written request or make an oral request during the

hearing). Antun also makes no attempt to show that the amount of child support ordered

exceeded the guidelines. See TEX. FAM. CODE ANN. § 154.130(a)(3). Because Antun did

not request findings as to child support and did not attempt to show that the amount

awarded is in excess of the guidelines, we conclude the trial court did not abuse its

discretion. We overrule Antun’s third issue.

                                              IV. CONCLUSION

       We grant Maria’s motion in part and dismiss Antun’s first and second issues as

moot. See F.M.G.W., 402 S.W.3d at 334; Waite, 150 S.W.3d at 808. The judgment of

the trial court is otherwise affirmed.



                                                       NORA L. LONGORIA,
                                                       Justice



Delivered and filed the
30th day of October, 2014.




We therefore presume that the record would support that Antun did not request findings in support of the
child support order.

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