Motion For Rehearing Overruled; Memorandum Opinion of November 6,
2014, Withdrawn; Appeal Dismissed and Substitute Memorandum Opinion
filed January 29, 2015.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-13-00680-CV


                   JERRY JEROME COLBURN, Appellant
                                       V.

                        EVELYN COLBURN, Appellee


                 On Appeal from Austin County Court at Law
                            Austin County, Texas
                     Trial Court Cause No. 2012L-5672


    SUBSTITUTE MEMORANDUM                                   OPINION
      We overrule the motion for rehearing filed by appellant, Jerry Jerome
Colburn. We withdraw our memorandum opinion issued November 6, 2014, and
we issue this substitute memorandum opinion in its place.

      Jerry Jerome Colburn appeals from a Final Decree of Divorce signed on
June 27, 2013, contending that the trial court erred by confirming the parties’
marital residence as Evelyn Colburn’s separate property. We dismiss the appeal.

                                   BACKGROUND

      Jerry and Evelyn Colburn were married on August 11, 2007, and divorced
on June 27, 2013. Evelyn owned the marital residence at 372 Newcom Lane in
Sealy, Texas as her separate property before the marriage. Jerry and Evelyn
refinanced the residence in September 2007.          As part of this refinancing
transaction, Evelyn executed a Warranty Deed conveying the property at 372
Newcom Lane to herself and to Jerry.

      Jerry testified at trial that he understood Evelyn to be conveying an interest
in the Newcom Lane residence to him as a gift so they could own it together as a
married couple. In her testimony, Evelyn denied any intent to convey a gift to
Jerry in connection with the Warranty Deed executed in September 2007. Evelyn
testified that she and Jerry refinanced her house to obtain cash to pay credit card
debt. According to Evelyn, she executed the 2007 Warranty Deed because she was
told doing so was “the only way we could get the refinance and the cash out, since
we were legally a married couple . . . .”

      The trial court’s Final Decree of Divorce accomplished a division of the
parties’ property by awarding certain items to Jerry and others to Evelyn. The
decree awarded the entirety of the Newcom Lane residence to Evelyn as her
separate property.    The divorce decree also ordered Evelyn to pay, and to
indemnify and hold Jerry harmless from, “[a]ll encumbrances, ad valorem taxes,
liens, assessments, or other charges due or to become due on the real and personal
property awarded to the wife in this decree unless express provision is made in this
decree to the contrary.” The decree states as follows at the end: “This divorce
judicially PRONOUNCED AND RENDERED in court at Bellville, Austin
County, Texas, on May 6, 2013, and further noted on the court’s docket sheet on
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the same date, but signed on June 27, 2013.”

      Jerry executed a Special Warranty Deed as “Grantor” in which he conveyed
his interest in the Newcom Lane residence to Evelyn as “Grantee.” The Special
Warranty Deed is dated May 6, 2013; was signed by Jerry before a notary on June
27, 2013; and was filed with the Austin County clerk on June 27, 2013. The
“Consideration” for the conveyance is identified as follows:

      “The division of property in Cause No. 2012L-5672, styled ‘In the
      Matter of the Marriage of JERRY JEROME COLBURN and
      EVELYN COLBURN,’ entered in the County Court at Law of Austin
      County, Texas and ten dollars and other valuable consideration paid
      by the Grantee, and Grantee’s assumption of the unpaid principal and
      earned interest on the note in the original principal sum of $108,000,
      dated November 3, 2009, executed by JERRY JEROME COLBURN
      and EVELYN COLBURN, and payable to the order of EVERETT
      FINANCIAL INC., d/b/a SUPREME LENDING . . . . The note is
      secured by a vendor’s lien retained in a deed dated September 24,
      2007 . . . and additionally secured by a Texas Home Equity Security
      Instrument dated November 3, 2009 . . . .”

Jerry timely filed a notice of appeal on June 28, 2013, one day after the Final
Decree of Divorce was signed on June 27, 2013.

                                    ANALYSIS

      In a single issue on appeal, Jerry contends that the trial court erred when it
confirmed the marital residence to be entirely Evelyn’s separate property in the
Final Decree of Divorce.       According to Jerry, “Evelyn’s execution of the
Refinance Deed had the effect of conveying to . . . Jerry and herself an undivided,
separate property interest in one-half of the Marital Residence.”       He further
contends that “Evelyn did not present evidence of, much less plead or assert,
duress or undue influence which may have allowed her to overcome the gift
presumption.” Evelyn contends that “[t]he presumption of [a] gift from Evelyn to

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Jerry was rebutted by sufficient evidence that Evelyn signed the deed under duress
and subject to undue influence.”

      As a threshold matter, we address Evelyn’s motion to dismiss Jerry’s appeal
on grounds that Jerry conveyed the disputed interest in the marital residence to
Evelyn via Special Warranty Deed on May 6, 2013. Jerry contends that dismissal
is not warranted because “[t]he face of the Special Warranty Deed reveals it was
clearly executed pursuant to the divorce proceeding from which Jerry appeals” and
“Jerry executed the Special Warranty Deed as part and parcel of the divorce
proceeding.”

      Generally, a party who accepts benefits under a judgment is estopped to
challenge the judgment on appeal. Tex. State Bank v. Amaro, 87 S.W.3d 538, 544
(Tex. 2002); Leedy v. Leedy, 399 S.W.3d 335, 339 (Tex. App.—Houston [14th
Dist.] 2013, no pet.).

      Evelyn’s motion to dismiss implicates the acceptance of benefits doctrine,
under which “[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, 149 Tex. 469, 234 S.W.2d 1002, 1004
(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., L.P., 207 S.W.3d 828, 830
(Tex. App.—Fort Worth 2006, no pet.); Waite v Waite, 150 S.W.3d 797, 803 (Tex.
App.—Houston [14th Dist.] 2004, pet. denied). “[A] party who has accepted the
benefits of a judgment is estopped from challenging the judgment by appeal.”
Waite, 150 S.W.3d at 803; see also Leedy, 399 S.W.3d at 339; Dorai v. Dorai, No.
01-12-00308-CV, 2013 WL 1694866, at *1-2 (Tex. App.—Houston [1st Dist.]
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Apr. 18, 2013, no pet.) (mem. op.). Accepting the benefits of a judgment typically
moots the appeal and makes dismissal appropriate. See Carle, 234 S.W.2d at
1004; Harlow Land Co. v. City of Melissa, 314 S.W.3d 713, 716 (Tex. App.—
Dallas 2010, no pet.).

      Evelyn, as the movant and appellee in this case, bears the burden of proof to
establish the applicability of the acceptance of benefits doctrine. See Leedy, 399
S.W.3d at 339; Richards v. Richards, 371 S.W.3d 412, 414 (Tex. App.—Houston
[1st Dist.] 2012, no pet.). Once this burden is satisfied, Jerry can avoid the
doctrine’s application by showing that (1) acceptance of benefits was a result of
financial duress or other economic circumstances, or (2) reversal of the judgment
on the appealed grounds could not possibly affect his right to benefits accepted.
See Williams, 207 S.W.3d at 830; Waite, 150 S.W.3d at 803-04. These two
exceptions are narrow. Waite, 150 S.W.3d at 804.

      Here, Evelyn satisfied her initial burden establishing Jerry’s acceptance of
benefits by submitting the Special Warranty Deed, which showed that Jerry
conveyed his interest in the real property in consideration of, among other things,
“[t]he division of property” by the county court at law, “ten dollars and other
valuable consideration paid by [Evelyn], . . . [Evelyn’s] assumption of the unpaid
principal and earned interest on the note in the original principal sum of $108,000,”
and Evelyn’s agreement “to indemnify and hold [Jerry] harmless from payment of
the note . . . .”   See Leedy, 399 S.W.3d at 339 (husband established wife’s
acceptance of benefits where wife accepted husband’s $125,000 payment in
exchange for her 50 percent interest in a company). Jerry has not demonstrated
that one of the narrow exceptions to the acceptance of benefits doctrine applies in
this case.

      Thus, this record shows that Jerry accepted benefits under the judgment by

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virtue of (among other things) accepting consideration listed in the deed in
exchange for conveyance of his interest to Evelyn. Jerry argues that he executed
the deed pursuant to the divorce decree. But he has not demonstrated that reversal
of the judgment on the appealed ground could not possibly affect his right to
benefits accepted.

      Because Evelyn established that Jerry accepted benefits under the trial
court’s judgment, and Jerry failed to demonstrate that an exception to the
acceptance of benefits doctrine applies, we grant Evelyn’s motion to dismiss
Jerry’s appeal.

                                  CONCLUSION

      We dismiss the appeal.



                                     /s/       William J. Boyce
                                               Justice




Panel consists of Justices Boyce, Busby, and Wise.




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