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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