Dismissed and Opinion Filed December 12, 2016




                                          S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-14-00856-CV

                          IN THE INTEREST OF C.S.B AND R.D.B

                       On Appeal from the 255th Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. DF-11-15158

                              MEMORANDUM OPINION
                          Before Justices Francis, Stoddart and Whitehill
                                    Opinion by Justice Francis
       In this appeal from a final decree of divorce, appellant Mary Davis Beougher challenges

the trial court’s division of the parties’ property, debts, and attorney’s fees. In response, appellee

Ritchie Dean Beougher has requested this Court dismiss the appeal based on appellant’s

acceptance of certain benefits of the judgment.

       It is a well-established rule that a litigant cannot treat a judgment as both right and wrong

by voluntarily accepting some of the judgment’s benefits and appealing the remainder. See

Carle v. Carle, 234 S.W.2d 1002, 1004 (Tex. 1950); In re M.A.H., 365 S.W.3d 814, 817–18

(Tex. App.—Dallas 2012, no pet.). This doctrine often arises in divorce cases where one spouse

accepts part of the divorce decree and tries to appeal the rest. See M.A.H., 365 S.W.3d at 818.

Once a spouse affirmatively acquiesces to the judgment of divorce, and relies on it to receive

benefits, that spouse is estopped from challenging the judgment’s validity unless an exception to

the rule applies. See Waite v. Waite, 150 S.W.3d 797, 803–04 (Tex. App.—Houston [14th Dist.]
2004, pet. denied); Haggard v. Haggard, 550 S.W.2d 374, 376 (Tex. App.—Dallas 1977, no

writ). The appellee has the burden to prove estoppel. See M.A.H., 365 S.W.3d at 818. Once

estoppel is shown, the burden then shifts to the appellant to show that his or her actions fall

within an exception to the rule. See Waite, 150 S.W.3d at 804; Richards v. Richards, 371

S.W.3d 412, 415 (Tex. App.—Houston [1st Dist.] 2012, no pet.)

       In this case, the final decree of divorce awarded each of the parties a one-half, undivided,

separate property interest in a lake house owned during the marriage. The decree further ordered

that the lake house be sold and the proceeds used to pay court costs and the parties’ attorney’s

fees. The court appointed a receiver and a realtor to effectuate the sale. Appellee submitted an

affidavit in which he testified that he and appellant agreed on a sales price for the house.

Appellee also submitted evidence that the lake house was sold and, approximately two months

later, the trial court ordered the receiver to disburse the net proceeds of the sale to the parties’

attorneys. By acquiescing in both the sale of the house and the use of the proceeds to pay her

separate debts, appellant voluntarily accepted some of the benefits of the judgment she now

challenges. We conclude appellee met his burden to show that appellant is estopped from

appealing the decree.

       The burden then shifted to appellant to show that her acceptance of the benefits of the

judgment fell within either of two narrow exceptions to the estoppel rule: (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 her right to the

benefits accepted.      See Richards, 371 S.W.3d at 414–15.       Appellant filed no response to

appellee’s request for dismissal of the appeal. Absent any showing that either of the two

exceptions applies to appellant’s actions, we conclude she is estopped from appealing the trial

court’s judgment.

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      Based on the foregoing, we dismiss this appeal. See id. at 417.




                                                   /Molly Francis/
                                                   MOLLY FRANCIS
                                                   JUSTICE



140856F.P05




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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

IN THE INTEREST OF C.S.B AND R.D.B                 On Appeal from the 255th Judicial District
                                                   Court, Dallas County, Texas
No. 05-14-00856-CV                                 Trial Court Cause No. DF-11-15158.
                                                   Opinion delivered by Justice Francis.
                                                   Justices Stoddart and Whitehill participating.

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

       It is ORDERED that appellee Ritchie Dean Beougher recover his costs of this appeal
from appellant Mary Davis Beougher.


Judgment entered December 12, 2016.




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