                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-13-00407-CV

                                          Jacek DZIERWA,
                                              Appellant

                                                   v.

                                          Veronica CERDA,
                                              Appellee

                      From the 45th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2012-CI-18975
                        Honorable Barbara Hanson Nellermoe, Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: August 6, 2014

REVERSED AND REMANDED; MOTION TO DISMISS DENIED

           Jacek Dzierwa appeals the trial court’s divorce decree. Because the trial court abused its

discretion by granting a divorce on the ground of adultery, we reverse the decree of divorce and

remand the case for a new trial.

                                            BACKGROUND

           Dzierwa and Veronica Cerda were married in 1998 and are the parents of two minor

children. Cerda petitioned for divorce in November 2012, and Dzierwa filed a general denial. In

January 2013, Dzierwa left the United States for his native country of Poland. On the date the
                                                                                      04-13-00407-CV


divorce was set for trial, Dzierwa attempted to appear by telephonic conference, but his request

was denied by the trial court. After the hearing, the court rendered its decree of divorce. Dzierwa

filed a motion for new trial, which was denied. He then perfected this appeal.

                                    CERDA’S MOTION TO DISMISS

       Cerda has filed a motion to dismiss this appeal on two theories: 1) Dzierwa has accepted

the benefits of the trial court’s divorce decree, and 2) dismissal is warranted because Dzierwa has

violated the terms of the decree.

           A. Acceptance of the Benefits

       A party who accepts the benefits of a judgment is estopped to challenge the judgment on

appeal. Carle v. Carle, 234 S.W.2d 1002, 1004 (Tex. 1950); Gathe v. Gathe, 376 S.W.3d 308, 313

(Tex. App.—Houston [14th Dist.] 2012, no pet.). The doctrine arises frequently in divorce cases

in which one spouse accepts certain assets awarded by the judgment and then seeks to appeal the

remainder of the judgment. Gathe, 376 S.W.3d at 313. Cerda bears the burden to prove that

Dzierwa has accepted the benefits of the divorce decree. See id.

       Cerda contends that Dzierwa accepted the benefits of the decree by “taking his share of

monies from financial accounts awarded to him.” The evidence submitted by Cerda in support of

her motion shows that, before the trial court rendered the divorce decree, Dzierwa had withdrawn

funds from accounts that would eventually be subject to a fifty-fifty split under the decree. Because

Dzierwa withdrew the monies from those accounts prior to the rendition of the decree, he cannot

be considered to have accepted the benefits of the decree. See id. at 316 (“If [appellant] mortgaged

her cars prior to the February 7, 2011 decree, then there was no final judgment from which

[appellant] could accept benefits.”). Cerda also contends that the accounts into which Dzierwa

deposited the withdrawn funds were also subject to a fifty-fifty split under the decree and that

Dzierwa has not allowed her access to them. However, she has not shown either that these accounts
                                                -2-
                                                                                                       04-13-00407-CV


had balances at the time the divorce was rendered or that Dzierwa has used any funds from those

accounts since that date. Thus, Cerda has not met her burden to show Dzierwa is estopped from

contesting the divorce decree.

           B. Noncompliance with the Divorce Decree

       Cerda also contends we should dismiss Dzierwa’s appeal because he has not complied with

the divorce decree. She offered evidence that Dzierwa has not paid the full amount of child support

or any amount of the school tuition, spousal maintenance, or his children’s medical insurance

premiums. He has also not notified Cerda of his current residence, mailing address, or telephone

number.

       Cerda cites Texas Rule of Appellate Procedure 42.3 (“Involuntary Dismissal in Civil

Cases”) as authority for the proposition that this court may dismiss Dzierwa’s appeal for

noncompliance with the divorce decree. The rule permits this court to dismiss an appeal (a) for

want of jurisdiction; (b) for want of prosecution; or (c) because the appellant has failed to comply

with a requirement of these rules, a court order, or a notice from the clerk requiring a response or

other action within a specified time. TEX. R. APP. P. 42.3. In interpreting a similar rule under the

earlier rules of appellate procedure, the Supreme Court held that the authority of a court of appeals

to dismiss a case for noncompliance with an “order of the court,” when placed in context, only

authorized dismissals for failure to comply with an order of the court of appeals, not of the trial

court. 1 O’Connor v. Sam Houston Med. Hosp., Inc., 807 S.W.2d 574, 576 (Tex. 1991) (per



1
  The Court in O’Connor was interpreting what was then Rule 60 of the Texas Rules of Appellate Procedure
(“Involuntary Dismissal”). As relevant to civil appeals, the rule stated:

               (1) If an appeal or writ of error is subject to dismissal for want of jurisdiction or
               for failure of appellant to comply with any requirements of these rules or any order
               of the court, the appellee may file a motion for dismissal or for affirmance and
               judgment for costs on the appeal bond or for the cash deposit. If the ground of the
               motion is failure to file the transcript, the motion shall be supported by certified

                                                       -3-
                                                                                                        04-13-00407-CV


curiam). The reasoning of O’Connor is equally applicable to Rule 42.3. Nevertheless, two of our

sister courts of appeal have held that an appellate court has the authority under this rule to dismiss

an appeal when the appellant has repeatedly failed to comply with the trial court’s post-judgment

discovery orders and failed to pay the associated sanctions. See Byrnes v. Ketterman, No. 08-12-

00224-CV, 2013 WL 173010 (Tex. App.—El Paso Jan. 16, 2013, no pet.); Ark of Safety Christian

Church, Inc. v. Church Loans & Inv. Trust, 279 S.W.3d 775 (Tex. App.—Amarillo 2007, no pet.).

These cases do not cite O’Connor or take its analysis into account. Because O’Connor forecloses

an interpretation of Rule 42.3 that would permit this court to dismiss an appeal for an appellant’s

noncompliance with a trial court’s order, we decline to follow Byrnes and Ark of Safety. Cf. Roosth

v. Roosth, 889 S.W.2d 445, 450 (Tex. App.—Houston [14th Dist.] 1994, writ denied) (declining

to dismiss an appeal for appellant’s failure to pay child support in accordance with divorce decree

while case was on appeal).

                                            DZIERWA’S APPEAL

       Dzierwa raises six issues on appeal. He contends the trial court abused its discretion

because there was legally or factually insufficient evidence to support 1) its division of the

community estate; 2) its award of spousal maintenance to Cerda; 3) its deviation from the standard

possession and access order; 4) its order that Dzierwa pay child support in excess of the Family

Code’s guidelines; 5) its award of attorney’s fees to Cerda; and 6) the granting of the divorce on

the basis that Dzierwa committed adultery.


               or sworn copies of the judgment and the appeal bond or other document perfecting
               or attempting to perfect the appeal or writ of error.

               (2) If it appears to the appellate court that an appeal or writ of error is subject to
               dismissal for want of jurisdiction or for failure to comply with any requirements
               of these rules or any order of the court, the court may, on its own motion, give
               notice to all parties that the case will be dismissed unless the appellant or any
               party desiring to continue the appeal or writ of error, files with the court within
               ten days a response showing grounds for continuing the appeal or writ of error.

                                                       -4-
                                                                                      04-13-00407-CV


           A. Standard of Review

       Most of the appealable issues in a family law case are evaluated against an abuse of

discretion standard. In re A.B.P., 291 S.W.3d 91, 95 (Tex. App.—Dallas 2009, no pet.); Grayson

v. Grayson, 103 S.W.3d 559, 561 (Tex. App.—San Antonio 2003, no pet.). The test for abuse of

discretion is whether the trial court acted without reference to any guiding rules or principles; in

other words, whether the act was arbitrary or unreasonable. Worford v. Stamper, 801 S.W.2d 108,

109 (Tex. 1990) (per curiam).

       Under the abuse of discretion standard, “legal and factual insufficiency are not independent

grounds of reversible error; instead they constitute factors relevant to our assessment of whether

the trial court abused its discretion.” Garza v. Garza, 217 S.W.3d 538, 549 (Tex. App.—San

Antonio 2006, no pet.). Therefore, in considering whether the trial court abused its discretion

because the evidence is legally or factually insufficient, we apply a two-prong test: 1) did the trial

court have sufficient evidence upon which to exercise its discretion, and 2) did the trial court err

in its application of that discretion? Id.; see, e.g., Grayson, 103 S.W.3d at 561 (“[A]lthough

appellant challenges the sufficiency of the evidence to support the divorce decree, he must show

that the evidence, or lack thereof, caused the court to act without reference to any guiding rules or

principles or to act arbitrarily or unreasonably.”).

           B. Adultery

       In his sixth issue, Dzierwa contends the trial court abused its discretion in granting the

divorce on the ground of adultery because there was legally or factually insufficient evidence that

he had committed adultery. In her petition for divorce, Cerda pled two grounds for the dissolution

of her marriage: 1) the marriage had become insupportable and 2) Dzierwa had committed

adultery. The trial court dissolved the marriage solely on the ground of adultery, impliedly finding

that Dzierwa had committed adultery.
                                                 -5-
                                                                                    04-13-00407-CV


       “The court may grant a divorce in favor of one spouse if the other spouse has committed

adultery.” TEX. FAM. CODE ANN. § 6.003 (West 2006). “‘Adultery’ means voluntary sexual

intercourse of a married person with one not the spouse.” In re S.A.A., 279 S.W.3d 853, 856 (Tex.

App.—Dallas 2009, no pet.). “Adultery may be proved by direct or circumstantial evidence, but is

not proved by mere suggestion and innuendo.” Miller v. Miller, 306 S.W.2d 175, 176 (Tex. Civ.

App.—San Antonio 1957, no writ); see also In re Marriage of C.A.S. and D.P.S., 405 S.W.3d 373,

383 (Tex. App.—Dallas 2013, no pet.). “[C]lear and positive proof is necessary.” Ayala v. Ayala,

387 S.W.3d 721, 733 (Tex. App.—Houston [1st Dist.] 2011, no pet).

       At trial, Cerda briefly testified about why she sought a divorce on the ground of adultery.

She testified that she “kn[e]w that he was seeing another women” and that she “believe[d] he was

having an affair with that woman.” She testified that she had proof of Dzierwa’s adultery in some

of his emails. No emails were introduced into evidence, nor did Cerda testify about the contents

of those emails.

       Cerda’s testimony does not rise above the level of mere suggestion or innuendo that

Dzierwa committed adultery. Cerda’s testimony that Dzierwa was “seeing” another woman is not

substantive or probative evidence of actual sexual intercourse with another woman. See In re

S.A.A., 279 S.W.3d at 856 (holding wife’s testimony that husband was “seeing” another

unidentified woman was “conjecture” and not substantive or probative evidence of adultery). Nor

is Cerda’s “belief” that Dzierwa was “having an affair” probative evidence of adultery. See Miller,

306 S.W.2d at 176 (holding husband’s testimony that, while he was deployed, his wife visited him

with another man whom she embraced and that he had lost his love for her because she was

unfaithful to him was not evidence of adultery). Furthermore, although Cerda testified that her

belief was based on Dzierwa’s emails to another woman, those emails were not introduced into

evidence, and Cerda did not testify that those emails showed that Dzierwa had had sexual
                                               -6-
                                                                                                  04-13-00407-CV


intercourse with another woman. Because there is legally insufficient evidence that Dzierwa had

sexual intercourse with another woman, i.e., committed adultery, the trial court abused its

discretion in granting the divorce on that ground. See In re S.A.A., 279 S.W.3d at 856; Miller, 306

S.W.2d at 176; see also Aguilera v. Aguilera, No. 04–13–00034–CV, 2014 WL 1614282, at *7

(Tex. App.—San Antonio Apr. 23, 2014, pet. filed) (mem. op.) (holding there was not clear and

positive proof of adultery where husband accused wife of having an extra-marital affair and wife

denied allegation). We sustain Dzierwa’s sixth issue.

        Divorces may be rendered only on statutory grounds. Cusack v. Cusack, 491 S.W.2d 714,

717 (Tex. Civ. App.—Corpus Christi 1973, writ dism’d); see In re Marriage of Richards, 991

S.W.2d 32, 37–38 (Tex. App.—Amarillo 1999, pet. dism’d) (“[W]hile the adoption of ‘no-fault’

divorce dispenses with any burden to establish the source of the conflict rendering the marriage

insupportable, it does not relieve the petitioner of the burden to establish the existence of the

statutory elements.”). Because the trial court granted the divorce only on the ground of adultery,

we must reverse the judgment of divorce. 2 See Gathe, 376 S.W.3d at 318 (reversing a divorce

decree and remanding the cause to the trial court because there was legally insufficient evidence

of insupportability). Because the remainder of the trial court’s decree is dependent on the existence

of a divorce on a valid statutory ground, we reverse the entire decree of divorce and need not

address Dzierwa’s other issues. In the interest of justice and because Dzierwa prayed only for

remand, we do not render judgment, but remand the cause to the trial court for a new trial. See

TEX. R. APP. P. 43.3(b); Gathe, 376 S.W.3d at 318; see also In re J.E.H., 384 S.W.3d 864, 872

(Tex. App.—San Antonio 2012, no pet.).


2
  Although Cerda’s divorce petition included an alternative pleading that the marriage was insupportable, see TEX.
FAM. CODE ANN. § 6.001 (West 2006), she did not present evidence in support of that ground, the trial court did not
find that ground as a basis for the divorce, and Cerda has not requested on appeal that the decree be upheld on that
ground.

                                                       -7-
                                                                              04-13-00407-CV


                                       CONCLUSION

       We deny Cerda’s motion to dismiss. We reverse the trial court’s decree of divorce and

remand this cause for a new trial.


                                             Luz Elena D. Chapa, Justice




                                            -8-
