DISMISS; and Opinion Filed June 3, 2014.




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-12-01560-CV

                    IN THE INTEREST OF L.T. AND E.T., CHILDREN

                      On Appeal from the 401st Judicial District Court
                                   Collin County, Texas
                          Trial Court Cause No. 401-52955-2011

                             MEMORANDUM OPINION
                         Before Justices FitzGerald, Fillmore, and Evans
                                  Opinion by Justice Fillmore

       Yadira Tarango Aguirre appeals from a divorce decree dissolving the marriage between

her and Saul Tarango complaining, in eleven issues, about the trial court’s division of the marital

estate. Tarango contends Aguirre is estopped from bringing this appeal because she accepted the

benefits of the divorce decree. We dismiss the appeal for lack of jurisdiction. We issue this

memorandum opinion because the law to be applied in this case is well-settled. See TEX. R. APP.

P. 47.1, 47.4.

                                          Background

       Aguirre and Tarango married in April 1992.         On June 10, 2011, Tarango filed for

divorce. Aguirre subsequently filed a counter-petition. The only witnesses at the trial before the

court on May 14, 2012 were Tarango, Aguirre, and Tarango’s attorney. Both Tarango and

Aguirre testified about the conservatorship of L.T. and E.T., the couple’s two children. Tarango

also offered testimony and evidence about his and Aguirre’s incomes, assets belonging to the
community estate, assets he claimed as his separate property, and the amount of the community

debts. Aguirre testified about her and Tarango’s incomes, but offered no evidence of the value

of the community assets or the amount of the community debts. Tarango’s attorney testified that

Tarango had incurred attorney’s fees of $12,934.50. Tarango requested the trial court consider

the amount of attorney’s fees he had incurred when dividing the marital estate.

           The trial court granted the divorce and made orders for the conservatorship and support

of L.T. and E.T. The trial court also divided the marital estate. Tarango was awarded the marital

residence and the land on which it was located, a contract for the cellular tower located on the

property, all personal property and cash in his possession, all life insurance policies insuring his

life, a 2002 Ford F250, a Dump trailer, a 1999 Speedy Bill 18-wheeler cab motor vehicle, and his

trucking business. Aguirre was awarded all personal property and cash in her possession, all life

insurance policies insuring her life, a 2010 Volvo, a 2008 Ford F150, her cleaning business, and

$18,000 “for her portion of the land and trailer.” Except any debt owed on the 2010 Volvo or the

2008 Ford F150 awarded to Aguirre, Tarango was required to pay all outstanding community

debt, including the mortgage on the marital residence, which was more than its appraised value;

the amount owed on the Dump trailer; and almost $20,000 in credit card debt. 1 The trial court

ordered that a bull, a cow, and a calf be sold and that Tarango and Aguirre each receive fifty

percent of the sales proceeds. Finally, the trial court ordered that, “to effect an equitable division

of the estate of the parties and as a part of the division,” each party was responsible for paying

his or her own attorney’s fees. Aguirre appealed only the trial court’s division of property

           In his responsive brief on appeal, Tarango raised the issue of whether Aguirre is estopped

from bringing this appeal because she accepted payment for her share of the marital residence

     1
        We recognize that one of the parties’ credit cards, a Bank of America card ending in 9579 with an outstanding balance of $6173.14, is
listed twice in the trial court’s judgment. However, the evidence at trial established there was also a Bank of America credit card ending in 4448
with an outstanding balance of $3,612.76. The trial court ordered that Tarango was responsible for paying this debt as well. The total credit card
debit assumed by Tarango was $19,865.63.



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and the land on which it is located and for her share of the proceeds from the sale of certain

livestock. On May 7, 2014, we notified the parties that we would consider Tarango’s issue as a

motion to dismiss the appeal. We specifically requested the parties file letter briefs, along with

supporting affidavits, regarding the jurisdictional question of whether Aguirre had accepted

benefits under the judgment that she was now challenging on appeal. See TEX. GOV’T CODE

ANN. § 22.220(c) (West Supp. 2013) (“Each court of appeals may, on affidavit or otherwise, as

the court may determine, ascertain the matters of fact that are necessary to the proper exercise of

its jurisdiction.”); Demler v. Demler, 836 S.W.2d 696, 698 (Tex. App.—Dallas 1992, no writ)

(when record does not clearly reflect acceptance of benefits, one appropriate way to develop

record is through affidavits), disapproved on other grounds, Dallas Mkt. Ctr. Dev. Co. v.

Liedeker, 958 S.W.2d 382, 386–87 (Tex. 1997) (per curiam).

          In his jurisdictional letter brief, Tarango stated that, on October 17, 2012, his attorney

delivered to Aguirre’s attorney (1) a check for $18,000, representing the amount awarded to

Aguirre in the divorce decree “for her portion of the land and trailer,” (2) three checks, each in

the amount of $657.14, representing child support for August, September, and October 2012, and

(3) a check for $1,732, representing the one-half share awarded to Aguirre in the divorce decree

of the proceeds from the sale of a bull and a calf and that Aguirre negotiated the checks on

October 22, 2012. 2 Supporting Tarnago’s jurisdictional brief are an affidavit from his attorney

regarding the transmittal of the checks to Aguirre’s counsel and an affidavit from Tarango

regarding the preparation of the checks. Attached to Tarango’s affidavits are copies of the front

and back of each check showing that Aguirre endorsed and negotiated each check.



     2
       Tarango’s attorney represented in correspondence to Aguirre’s attorney dated October 27, 2012 that Tarango had not yet sold the cow that
was also the subject of the divorce decree. Tarango’s attorney represented that Tarango believed the cow could be sold for approximately $1,000
and Aguirre’s share would be $500. There is no evidence in the record regarding whether the cow was sold or for how much or whether Aguirre
accepted her share of the sales proceeds.



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       In her jurisdictional letter brief, Aguirre did not dispute that she accepted $18,000 for her

share of the marital residence and the property on which it is located and $1,732 for her share of

the proceeds from the sale of some of the livestock. Rather, she argues the acceptance of the

benefits doctrine does not apply because she accepted only property “which the opponent

concedes, or is bound to concede” is due to her and because economic necessity required her to

accept the funds. Aguirre neither submitted any affidavits nor included record cites to any

evidence in support of her arguments.

                                            Analysis

       Generally, a party “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.” Tex. State Bank v. Amaro, 87 S.W.3d 538, 544 (Tex. 2002) (quoting Carle v. Carle,

234 S.W.2d 1002, 1004 (1950) (op. on reh’g)).          The acceptance of the benefits doctrine

commonly arises in divorce cases when a former spouse accepts certain assets awarded in the

judgment and seeks to appeal the remainder of the judgment. In re M.A.H., 365 S.W.3d 814, 818

(Tex. App.—Dallas 2012, no pet.); F.M.G.W. v. D.S.W., 402 S.W.3d 329, 332 (Tex. App.—El

Paso 2013, no pet.). The appellee bears the burden of proving the appellant is estopped from

challenging the judgment by appeal. In re M.A.H., 365 S.W.3d at 818; F.M.G.W., 402 S.W.3d at

332. When the doctrine applies, an appeal is rendered moot, and the proper disposition is

dismissal. Harlow Land Co. Ltd. v. City of Melissa, 314 S.W.3d 713, 716 (Tex. App.—Dallas

2010, no pet.); F.M.G.W., 402 S.W.3d at 332.

       There are narrow exceptions that permit the appellant to avoid the application of the

doctrine. Amaro, 87 S.W.3d at 544; F.M.G.W., 402 S.W.3d at 332. The doctrine does not apply

when: (1) the acceptance of the benefits is not voluntary because of financial duress or other

economic circumstances; or (2) the reversal of the judgment on the grounds appealed cannot

                                               –4–
possibly affect the appellant’s right to the benefits accepted under the judgment. Amaro, 87

S.W.3d at 544; In re M.A.H., 365 S.W.3d at 818; Richards v. Richards, 371 S.W.3d 412, 414

(Tex. App.—Houston [1st Dist.] 2012, no pet.) (op. on reh’g). The appellant has the burden of

establishing the applicability of an exception to the doctrine. F.M.G.W., 402 S.W.3d at 332;

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

           The evidence at trial established that Aguirre was in possession of the 2008 Ford F150,

the 2010 Volvo, the personal property and cash under her control, and her cleaning business.

Tarango has established that, after the divorce decree was signed, Aguirre accepted and

negotiated checks in the amount of $18,000 for her share of the marital residence and the land on

which it is located and in the amount of $1,732 for Aguirre’s fifty-percent share of the proceeds

from the sale of a bull and a calf. 3 Accordingly, Aguirre has taken control of practically every

significant asset awarded to her in the divorce decree. We conclude that Tarango has met his

burden of establishing that Aguirre accepted the benefits of the divorce decree. See Leedy v.

Leedy, 399 S.W.3d 335, 338, 343 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (op. on reh’g)

(concluding that similar evidence established appellant had accepted benefits of judgment).

           We next turn to whether Aguirre met her burden of establishing that an exception to the

doctrine is applicable in this case. Aguirre first argues she is not estopped by the acceptance of

the benefits doctrine from bringing this appeal because it is undisputed she is entitled to the

property she received, and the only issue on appeal is whether she should receive a greater share

of the marital estate. See Amaro, 87 S.W.3d at 544 (As long as an appellant “accepts only that

which appellee concedes, or is bound to concede, to be due him under the judgment he is not


     3
       Because the amount of child support awarded to Aguirre in the divorce decree is not an issue on appeal and is severable from the property
division, Aguirre’s acceptance of child support payments awarded in the divorce decree does not affect her right to appeal the property division.
See Tomsu v. Tomsu, 381 S.W.3d 715, 717 (Tex. App.—Beaumont 2012, no pet.) (acceptance of benefits doctrine does not preclude spouse who
accepted property awarded in decree from appealing issues relating to spousal maintenance); Roa v. Roa, 970 S.W.2d 163, 166 (Tex. App.—Fort
Worth 1998, no pet.) (spouse who accepts property division is not estopped from appealing severable portion of judgment, such as child support).



                                                                     –5–
estopped to prosecute an appeal which involves only his right to a further recovery.” (quoting

Carle, 234 S.W.2d at 1004)). The entitlement exception is a narrow one and rests upon whether

(1) a reversal of the judgment could possibly affect Aguirre’s right to the benefits accepted by

her under the judgment, and (2) Tarango would be compelled to concede in a new trial that

Aguirre has a right to retain the benefits regardless of the outcome of the litigation. Carle, 234

S.W.2d at 1004; Waite v. Waite, 150 S.W.3d 797, 807 (Tex. App.—Houston [14th Dist.] 2004,

pet. denied). For this exception to apply, Aguirre’s “right to the benefits accepted must be

unquestionable.” Leedy, 399 S.W.3d at 341; see also Waite, 150 S.W.3d at 807.

        At trial, Tarango requested that he be awarded the 2008 F150 and that the livestock be

kept for the parties’ children. He also testified that the value of Aguirre’s share of the marital

residence and the land on which it located was $10,000. Therefore, Tarango did not concede that

Aguirre is due all the property accepted by her.

       Further, Aguirre has not shown that, if the property division is reversed on appeal, she

would have an undisputed right to the funds she accepted. Although there was no evidence of an

outstanding debt on the property on which the marital residence was located, there was evidence

that the marital residence itself was appraised at less than the amount owed on the mortgage.

There was limited evidence of the value of Tarango’s trucking business and no evidence of the

value of Aguirre’s cleaning business. Tarango testified that, other than the “dish,” he paid all

community bills during the pendency of the divorce, including the mortgage and insurance on

the marital residence, utilities for the marital residence, payments on the loan for the 2008 F150

awarded to Aguirre, insurance for the 2002 F250 and the 2008 F150, and payments on the

parties’ outstanding credit card debt. Tarango further testified that Aguirre kept all money she

earned during the eleven months the divorce was pending and that he periodically gave Aguirre

money for the children. Aguirre testified that, during the pendency of the divorce, she made the

                                               –6–
payments on the loan for the 2010 Volvo, which she purchased after Tarango filed for divorce,

paid for insurance on the 2010 Volvo, and paid for most of the children’s personal expenses.

Aguirre failed to respond to discovery inquiring about her income during the pendency of the

divorce and the community assets under her control and did not testify at trial about the value of

those assets, including the 2008 F150, the 2010 Volvo, and the balance in her checking account.

All of those assets, as well as her cleaning business, were awarded to Aguirre. There was

evidence that Tarango had incurred over $12,000 in attorney’s fees that he was required to pay.

There was no evidence of the amount of attorney’s fees incurred by Aguirre. Finally, the trial

court required Tarango to pay all the community debt.

           Based on this record, we cannot conclude that Aguirre was bound to receive all the

property awarded to her in the divorce decree. While she might receive more following a new

trial with a more developed record, she might also receive less. See TEX. FAM. CODE ANN.

§ 7.001 (West 2006) (“just and right” division of community estate); Bloom v. Bloom, 935

S.W.2d 942, 947-48 (Tex. App.—San Antonio 1996, no writ). We cannot conclude that it is

unquestionable that, if this case was reversed, Aguirre would be entitled to receive more of the

marital estate than was awarded to her in the divorce decree.                                         We conclude that Aguirre has

failed to establish the entitlement exception applies in this case. See Barras v. Stark, No. 09-12-

00499-CV, 2013 WL 3487360, at *1 (Tex. App.—Beaumont July 11, 2013, pet. denied) (mem.

op.); Waite, 150 S.W.3d at 807. 4


     4
        Although not relied upon by Aguirre, we recognize there is an exception to the acceptance of the benefits doctrine when the appellant has
received only cash payments, the use of which would not prejudice the appellee. See Demler, 836 S.W.2d at 698; Leedy, 399 S.W.3d at 342.
This exception is based on the premise that the trial court could take the accepted benefits into account when making any new division of
property in the event of a remand. Demler, 836 S.W.2d at 698; Leedy, 399 S.W.3d at 342. However, in this case, at least a portion of the cash
received by Aguirre was from the sale of community property pursuant to the trial court’s order. Further, the evidence at trial did not establish
that Tarango had $18,000 in cash to pay Aguirre her share of the marital residence and the land on which it is located. There is nothing in the
record to establish the source of the $18,000 that was paid to Aguirre or whether Tarango was required to sell community assets to raise the
funds. Finally, as set out above, there was no evidence of the value of a number of the assets awarded to Tarango and Aguirre. Aguirre does not
cite or discuss any evidence of the total value of the marital estate and does not offer any evidence on appeal to assist our jurisdictional analysis.
Accordingly, on this record, we cannot conclude that Aguirre established the marital estate is of a sufficient size that Tarango would not be
prejudiced on remand by Aguirre’s acceptance of a total of $19,732 in cash, consisting of negotiated checks in the amount of $18,000 for her
share of the marital residence and the land on which it is located and in the amount of $1,732 for Aguirre’s fifty percent share of the proceeds


                                                                        –7–
           Aguirre also argues, in one paragraph of her jurisdictional letter brief, that the acceptance

of the benefits doctrine does not apply because she accepted the money awarded to her in the

divorce decree out of economic necessity. In her jurisdictional letter brief, Aguirre states she

was “left with virtually no property,” “she was awarded custody of the children . . . [but

Tarango] was awarded the marital residence,” “she was left without a home and testified [at trial]

that her only form of employment was cleaning houses and that she made $300.00 per week in

doing so,” and because she was ordered to leave the marital residence within thirty days after the

divorce hearing, she “needed the funds immediately to find a new home for her and the

children.” We first note that the amount Aguirre earned from her cleaning business was disputed

at trial, and the trial court found that Aguirre earned $45,000 annually from the business.

Further, Tarango testified Aguirre retained all the income she earned and did not pay any of the

community bills during the pendency of the divorce. Although Tarango requested through

discovery information about the amount of Aguirre’s income and the assets under her control,

Aguirre provided no substantive responses to the discovery requests and did not testify at trial

about the value of any community assets under her control. Aguirre did not attach to her

jurisdictional letter brief an affidavit or any other evidence setting out either her or the children’s

monthly expenses or whether her income, when combined with the child support Tarango was

ordered to pay, was sufficient to meet those expenses. Aguirre’s conclusory statements in her

jurisdictional letter brief are insufficient to establish the narrow exception of economic necessity.

See Richards, 371 S.W.3d at 415–16; Waite, 150 S.W.3d at 805–07 (noting appellant’s affidavit

regarding economic necessity for accepting property awarded to him in divorce decree was




from the sale of a bull and a calf. See Leedy, 399 S.W.3d at 342–43 (concluding cash benefits exception to acceptance of benefits doctrine was
not applicable because appellant failed to adequately brief contention on appeal and failed to establish marital estate was large enough that a cash
benefit would not prejudice appellee’s rights on remand).



                                                                       –8–
“bereft of details” and an “individual who truly needs an award of money can obtain it and still

appeal simply by filing a comprehensive affidavit”).

                                          Conclusion

       Tarango has established that Aguirre accepted benefits under the divorce decree that she

now challenges on appeal. In response, Aguirre has not met her burden of establishing that an

exception to the acceptance of the benefits doctrine is applicable in this case. Accordingly, we

grant Tarango’s motion to dismiss on the basis of the acceptance of the benefits doctrine and

dismiss this appeal as moot.




                                                    /Robert M. Fillmore/
                                                    ROBERT M. FILLMORE
                                                    JUSTICE

121560F.P05




                                              –9–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

IN THE INTEREST OF L.T. AND E.T.,                     On Appeal from the 401st Judicial District
CHILDREN                                              Court, Collin County, Texas,
                                                      Trial Court Cause No. 401-52955-2011.
No. 05-12-01560-CV                                    Opinion delivered by Justice Fillmore,
                                                      Justices FitzGerald and Evans participating.


       In accordance with this Court’s opinion of this date, the appeal is DISMISSED as moot.

       It is ORDERED that appellee Saul Tarango recover his costs of this appeal from
appellant Yadira Tarango Aguirre.


Judgment entered this 3rd day of June, 2014.




                                                  /Robert M. Fillmore/
                                                  ROBERT M. FILLMORE
                                                  JUSTICE




                                               –10–
