## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

_______ ___________

_______ __ No. 02

- 19

- 00277

- CV

__ _________________________

O n Appeal fr om the 211th District Court Den ton County, Texas Trial Court No. 16

- 09602

- 211
Before Sudderth, C.J.; Kerr and Birdwell, JJ. Memorandum Opinion by Chief Justic e Sudderth



### J.M. , Appellant

V



### . C.M. , Appellee2 MEMORANDUM OPINION
I
. Introduction Appellee C.M. , who had two chi ldren f rom a prior marria ge, and Appellant J.M. m et o n mat ch.com in 2005

. They took out a mortgage and bought a house (Kirk haven) , takin g title in both of their names , and had two children together before they married in November 2009. 1 Th ey then had two more children to gether

. During
this time, they had two vehi cles to transport the family of ei ght

. J.M . in herited $2 .25 million when his mother died in July 2013

. 2 He used so me

o f his inh er itance t o pay off the Kirkhave n mortgage i n 2014 , and he u sed some of it
to build the family ’ s new $ 9 95 ,000 dream home (Cedar ) in F ebruary 2016 , when

1 Property owned or claimed before marriage is separate property. Tex. Fam. Code Ann. § 3.00 1. W hether property is separate or commu nity is usual ly determined by i t s ch arac te r at inception, i.e., when th e p ar ty fi r s t h as a claim to the property

. Loaiz a v. Loaiza , 130 S.W.3d 894, 908 (Tex. App.

— Fort Worth 2004, no pet.) (refere n cing Barnett v. Barnet t , 67 S.W.3d 107, 111 (Tex. 2001)). With regard to the divisio n of t he comm unity estate, the trial court “ is to do co mplete equity as between the husband and wife and the children, having due regard to all obligations of the spouses and to the probable future necessities of all concerned.” Bradshaw v. Bradshaw , 555 S.W. 3 d 539, 5 43 (Tex. 2018).

2 Property acqui red after m arriage by devise or des cent is separate property. Tex. Fa m. Code Ann. § 3.001

. See also id. § § 3.002

– .003 (providing t hat all property acquired by either sp ouse during the marriage is presum ed to b e co m m unity p roperty and that clear and conv inc ing evid ence is requ ired to defeat this presumption) ; Pearson
v. Fil l ingim , 332 S.W.3d 361, 36 4 (Tex. 2011) ( stating that t he burden is placed on the party claiming separate property to prove tha t the property is n o t commu nity )

.3

neither he nor C.M. had a job

. 3 J.M. also took the fam i ly on a f e w vacati ons and to
dinner at l east once a week , and he bought a $ 46,000 time share in New York City

. H e seeded each of the children ’ s colle ge savings accounts with up to $20,000 each. And the p arties a c quired tw o more v ehicles

. In addition to travel and other purcha ses such
as h ome fu rn ishings , J.M. described the ir spending as “ just frivolous things, clo thing, just paying retail for too much. ” J.M. , who w orked in information tec hnol o gy, found
another job in September 2016. 4
In November 201 6, C.M. filed for div orce. At th at tim e , J.M. had less than $300,000 of his inher itance left. C.M. and the children 5 c ontinue d to live i n Cedar while J.M. moved back into Kirkhaven. J.M. spent more than $10,000 t o re furnish
Kirkhaven and bought the children new iPads

.

3 C.M. became a st ay

- a t

- ho me mom after she lost her jo b in 2015. J.M. was laid off in December 2015 just after having suffered a heart attack.

4 Because of the na ture of the in dustry i n which he worked , J.M . had been l ai d
o ff in 2002, 201 3, 2015, 2017 , an d 2018, but when he was em ployed, he mad e around $1 00, 000 a year. At a February 7, 2020 h ea ring, J.M. stated that he had not had a full

time j ob since December 2018 and had bee n liv ing off of “ o dd

- end jobs ” and bo r rowing money.

5 J.M. an d C .M. ’ s 11

- y ear

- old child suffered from ADHD, oppositional defiance disorder, and bipo lar disorder , and he was obse ssed with th e divorce

. A t the tim e o f the tria l , he remain ed in a residential treatment cent er a t t he State ’ s expense
.4

J.M. lost his job in M ay 2017 bu t found another one

. Afte r three years of
i ncreasin gly contentious divorc e proceedings 6 during which the parties racked up
th ousands o f dollars in attorney ’ s fees , 7 the trial court signed a final decree following a multi

- day be nch trial

. T he tr i al cour t dissolved the marriage on the ground of insupport abilit

y , an d although it appoint ed J. M. and C.M. as the children ’ s join t managing conservators , it limited J .M. ’ s p eriods of possessi on based on his “ h istory of erratic behavioral issues, including anger o u tbursts, b laming others, acting in a manner
that causes issue s for him with law enforce ment, disregard of rules set by the court,
al cohol use, and sexual acting out. ” J.M. was ordered to pay C.M. $2, 800 per month in child support , w

ith “ st e p

- down ” de c reases of $400 as each child reached 18 , graduated from high school, or other wise had disabilities removed. See Tex. Fam.
Code Ann. § 154.127.
The trial court also made several findings pe rtinent to this appeal. Among other things, the tria l c ourt f ound that J.M. had owned 57. 72% of Kirkhaven as his
separate property , that C.M. had owned 42.7 4 % of Kirkhaven as her separate

6 After the divo rce wa s f

iled, the police were called four or five tim es , and at
o ne point , both parties had criminal charges pending against them.

7 Notwithstan ding a th orough cr o ss

- examination of his expenses d uring t he first da ys of trial , J.M. continued his spend ing patte r n a nd agreed during trial that if he had not spent so much on dining out, he might have be en able to pay his court

- ordere d chi ld support. On the last day o f tria l, J.M. testified that

— n ot count

ing th e m oney tie d up in Kirk haven and Ced ar

— h e ha d only $200 lef t of hi s $2 .25 m illion inheritance

.5

property, 8 and that J.M. ’ s separate estate had contributed $205,631.0 7 to pa y off the
K irkhaven mor tgage , enti tling J. M. ’ s separa te estate to equitable reimbursement of
that amount fro m C.M. ’ s separate estate
. See id

. § 3.4 02 (b) ( “ The court shall resolve a claim for reimbursement by using equitable p rin ciples, incl uding the pri nciple that
claims for reim bursement may be offse t agai ns t each other if the co urt determines it to be appropriate. ” ) , § 7.007 (stating that in a divorc e, the trial court sha ll determine
the spouses ’ rights in a claim for reimbu rse ment an d app ly equ itable principles to (1) determine whether to recognize the cl aim after taking into account all the relative
circum stances of the spouse s and (2) order a division of the claim for r eimbursement , if appropriate, in a m ann er that the cou rt consid e rs ju st and right, having due regard for the rights of each party a nd any children of the marriage).
The trial court also f

ound tha t J.M. had intended a gift of an undi vided one

- half
interest in Cedar when he included C .M. on the deed at the tim e o f closi ng 9 a nd

tes tified that he had intende d for her to own Cedar upon hi s deat h. 10

8 We note that these percentages total 100.4 6 %

. The trial cour t ’ s judgment, in contrast , a llocated 42. 274 % to C. M

. and 57.726% to J.M. Accordingly, we conclude that the trial court ’ s findings of fact conta in a typo.

9 A presum ption of gift arises when a spouse uses separate property consideration to pay fo r land acquired duri ng the marriage and tak es title to the la nd in th e n ame of both spouses. Coc kerha m v. Cockerham , 527 S.W.2d 162, 168 (Tex. 1 975) . How ever , this pr esumpti on can b e rebutted by evide nce clearly establish i ng that there was no intention t o make a gift. Id. A gift is a voluntary transfer of pro per ty to an oth er made gra t uit ously and witho ut consid eration , and three elem ents are r e quired to esta blish a g ift ’ s e xistence : (1) intent to ma ke a gift; (2) delive r y of the property; and (3) accep tance of the propert y. Williams v. William s

, No. 0 2

- 08

- 00 033

-6

In the divorce dec ree, the trial co urt appo inted a receiver to sell both homes

. 11
C .M. was given the right to exclusive use and possession of Cedar un til closin g, wh ile J. M. was given the right to excl usive use and possession of Kirkhaven until closi ng.

CV, 2008 W L 5194 227, at *4 (Tex. App.

— Fort Worth Dec. 11, 2008, no pet.) (mem. op.)

.
10 J. M. s tate d, “ I put [C.M.] on the dee d so in case I d ied it would be

-- ve ry q uickly be her house, but othe r than that, that ’ s the only reason . . . [ ; i]t would be a ver y easy way for he r to conduct anything. ” He elaborated, stating, “ I would like th at if I ha d di ed all of the s udden that she would be take n care of

. ” J.M. ’ s gangrenous gall bladder was removed in 2006 , and he suffered a heart a t ta c k in 2011 and an other in 2015. He also suf

fered f ro m post

- traumatic stress disorder , major dep res sion di sorder , an d al coholi sm.

11 In the decree, with regard to t he community esta te, t he tr ial court awarded to each part y the fu rniture, fu rnishings, fixtures, goods, art, collectibles, appliances, and equipment in each’s possession except as otherwise specifica lly itemiz ed. It aw ard ed to C.M. a leather secti onal sof a; half of the ch ildren’s video game consoles and vi deo games ; hal f of the Ch ristmas decorations an d lights; half of the family photos ; all iPhones, iPads, or other electronic devices for which she p aid the mo nthl y ch ar ges ; the refrigerator and fre ezer in her possession; a ll of t he children’s furniture; the be droom furni ture in her possession; iMac and MSI computers; and one bike and booster seat per child, with the excess bikes and bo oster seats goin g to J .M. The tri al
co urt also awarded to C.M. t welve bo xes containing her personal items that were l ocated at Kirkhaven a nd a 2011 T oyota Siena worth $7,8 00, in addition to funds in her possession or subj ect to her sole control. The only separate proper ty i nteres t co nfirme d f

or C.M. was 50% of the pr oceeds of Cedar and 42.274 % of the proceeds of Ki r khaven upon their even tual sale

. J .M . wa s a

warded the other half o f the children ’ s video game consoles and video g ames ; three PC Clones; the other half of th e C hristma s de corati ons and lights ; the other half o f the family photos; the excess bike s a nd booster seats; all iPhones, iPads, or oth er e lectronic devices for which he paid the monthly charges ; a 2006 Au di acquired during the m arriage ; a Nissan van ac qui red during the marri age ; the funds , clothing, jew elry, an d other personal effects in his p o ssession or subject to his sole control ; the fun ds in any re tirement or brokerage accounts related to his employ ment or in his name ; and the New York time share

. Th e trial co urt confir med the following7

D uring the pendency of this appeal, J.M. received $19 9 , 645.26 12 in
reimbu rs ement afte r the Novemb er 5, 2019 sale o f Kirkhaven , but by the time of a Febr uary 7, 202 0 trial court h earin g, he had spent most of this a mount an d testified that he was p ursuin g Social Security Insurance disability because of his mental problems.
In two issues, J.M. c omp lains that the trial court abused its discret ion by
mischar acterizi ng Cedar 13 and by holding that he made a gift of half of it to C.M.

as J.M. ’ s separate proper ty: a 2009 M e rcedes ML55 0 and all j ew elry that he had in h erit ed from his mother ; a Hyundai van ; tw o televisions , purses, furs , rugs, and various other furnis h ings tha t had bee n his mother ’ s ; a Hawaii ti mesh are; a nd his mother ’ s china

. The trial cou r t a ls o awarded $11,00 0 to J.M. in reimbu rsement for having paid off the note on the Toy ota S iena with his separate property inheritance and ordered C.M. to pay that amount to J.M. , i n addition to or deri ng C.M . to pay t o J .M. 50% of the air cond itioning an d r o of repairs expended on Cedar and 42.274 % of the air conditioning and roof repairs expended on Kirkhaven during the divorce ’ s pendency w

ithin five days of her rece ipt of any funds from the sale of either re side nce .

12 K i rkhaven ’ s closing dis closure ref le cted that the prope rty ’ s sale price was $ 385,000 ($38 6,624. 65 after property taxes and HOA d ues were paid by the s eller in advance). From this amount, $25, 190.10 was paid in closing costs ; $14,766. 4 3 was paid to the re cei ver ; $51 ,799 was pa id to J.M. ’ s at torney ; $5 4,568.46 was paid to C.M. ’ s a ttorney; $9,216.25 was paid to the children ’ s ad litem; and $31 , 4 38.95 was paid in pro perty taxes , other taxes, costs , insurance, and research fe es. After all of t hes e d educ tion s, J. M. rec eived the remaining amount
.

13 J. M. argues that the trial court mischara cterized Cedar as his separate propert y and failed to grant to the com mu nity estate and his se parate estate t he pr op ortion that each estate supplied in consi dera t io n f or i ts p ur cha se, th e re by divesting hi m of more than $370,000 of his separate property and awarding it to C .M

.8

C.M. respon ds tha t J.M. ’ s ap peal should be dismissed under the a cceptance

- of

benefits doctri ne because J.M. spe nt th e Ki rkhaven fu nds that h e recei ved as
reimbursement on things that were not economic necessities and that benefitted only
him , resulting in uncurable prejudi ce to her if there is a remand. See F.M.G.W. v.
D.S.W. , 402 S.W.3d 329, 334 (Tex. App.

— El Pas o 2013, no pet .) (e xp laining t hat the
acceptance

- of

- be nefits doctrine is a juris dictional rule , the application of which renders an appeal moot and deprives the a ppella nt of standing) ; see also Lopez v. Munoz, Hockema & Reed, L.L.P. , 22 S.W.3d 857, 864 (Te x. 2000) ( “ The doct r ine appli e s when it would be unconscionable to allow a person to maintain a position inconsistent with one to which he acquiesced, or from whi ch he accepted a benefit. ” ). J .M. re plies that dis miss ing his appeal under the a cceptance

- o f

- b enefi ts doctri ne

wo u ld be ine q uitable and contrary to Kramer v. Kastleman , 508 S.W.3d 211 (Tex. 2017),

c ontending that C.M. has failed to carry her burden to show his c le ar intent to acquiesce in th e judgmen t or evid ence of irremediable prejudic e to he r . J .M. in sis t s that without using the Kirkhav en proceeds, he would have lacked funds for this
appea l. J.M. also argues that the application of the doctrine is imp roper because C.M.

“ conceded and agreed to [his] entitl ement to the ve r y distributio n of Ki rk haven
p roceeds about which she now complains , when she signed ‘ agreed ’ to the October 25, 2019 Agreed Order Co nfirming Sale ” and is thereby estopped from taking a

contra ry position on appeal. He additionally conte nds that the r eimbursem ent a ward9

was s e verable from the remainder of the couple’s assets because it was subject to that agreed order

. J. M. further asserts tha t C

. M. offered no evidence that on remand his separ a te

es tat e would not be entitled to t he same reimbur sement ba se d on traci n g his separate

pro perty paymen t of the balance of the Kirkhaven loan or why she woul d not be bound by her trial stipulation and agreement to the payment of both parties ’

attorne y ’ s fe es and the a d lit em ’ s attorney ’ s fees from the Kirkhaven proce eds. And
he contends t hat he “ offer ed uncontradicted proof of his economic necessity ” when he received the Kirkhaven proceeds, including his unemployment since 2018. 14 Finally, J.M. also ar gue s that C .M. o ffered no ev idence of why he co uld not mak e up the “ dissipa t ed” amount if a different division were granted upon retrial

. We dismiss the appeal because J.M. ’ s accept ance and use of the benefits of the
divorce decree h as cau sed uncura ble prejud ice to C.M.

14 In Waite v. Waite , the ex

- husband argued that financial hardship compelled him to acc ept the j udgment ’s benefits because of his unemp l oyme nt and lac k of o the r sour ces of income , contra ry to t he trial court ’s findings that he had substantial earning capacity and employment opportunities ba sed on his work experience as a broker earnin g in excess of $200, 000 an nually and his service on a bo ard of dir ecto rs w he ref rom he “ receive [d] substantial com pensation. ” 150 S.W.3d 797, 806 (Tex. App.

— Houston [14th Dist.] 2004, pet. denied) . J.M. does not challenge the trial court ’s May 30, 2019 f

a ct finding , for purposes of assessing $2, 800 a month in chil d
s upp ort , tha t his month ly net resources were $8,000

.10 I I. Discussi on The accep t ance

- of

- benefits doct r ine bars an appeal if an appellant voluntarily

acce pts t he judgment ’ s benefit s and the opposing party is thereby disadvanta ged. J.F. v. J.F. , No. 02

- 19

- 00029

- C V, 2020 W L 4248 681, at *1 ( Tex. A pp.

— Fort Worth July 23, 202 0, pet. denied

) (m em. op .) (citing K

ramer , 508 S.W.3d at 217 ). It is a fact

dependent, esto ppe l

- based doctrine f ocused on preventin g unfair prejudice to the opposing party , and before denying a m erit s

- bas ed res olution to a dispu te, we must

eva luate (1) wh ether , by asse r tin g do minion over a s sets awarded in the judgment under review, the appe l lant clearly intended to acquiesce in the ju dgment, (2) whether the assets have been so dissipated as to pr e vent thei r reco very if the judgme nt is
reversed or modified, and (3 ) wheth er t he o pp os ing party will be unfairly prejud iced.
Id. ; see Kramer

, 508 S.W.3d at 226 ( “ Divorce cases involving acceptance

- of

- benefits
clai ms present myriad factual sc enarios and multi

- face te d aspects. ” ). Th e doct rine ’ s
pr emise is that a party canno t treat a j udgment as both r ight and wrong, and the appellee bea rs the bur den to prove tha t the appellant is estopped by it. Williams v. LifeCare Hosps. o

f N. Tex., L.P. , 207 S .W.3d 828, 830 (Tex. App.

— Fort Worth 2006, no pet.)

. A. Acc eptance - of

- Bene fits Factors
O v erla pping n onex cl u sive factors that inform the estoppel inquiry may include :11

• wh ether the acceptance of benefits was voluntary or was the product of f inancial
duress , where “ financial duress ” means that “ the ap pellant otherwise lacked

su ffici ent funds to pr ovid e the necessi ties of life ” ; 15

• whether the right to joint or in dividual poss ession and control preceded the judgment on appeal or exists only by vi rtue of the judg ment;

• whether the assets ha ve been s o diss ipated, wasted, o r converted as t o p revent thei r rec overy if the judgment is reversed or modified;

• whether the appealing part y is e ntitled to the benefit as a matter of right or by the
nonap pealin g party ’ s conces sion;

15 “ Necessit

ies of life ” are items such as adequat e food, cl othing, shelter, utilities, and medical attention , Marion v . Davis , 10 6 S.W.3d 860, 865

– 66 (Tex. App.

— Dallas 20 03, pet. denied) , but not a ttorney ’s fe es . See Te dder v. Gardner Aldrich, LLP , 421 S.W .3d 651, 656 (Tex. 2013) ( “ We have suggested that a spouse ’ s necessaries [under spous al support statute] are things like food, clot hing, and habitation []

— that is, sustenance

— and we have squarely r ejected t h e vi ew tha t a spouse ’ s legal fees in a divorce pro ceeding fall into this category. ”)

. However, in a div orce suit, the trial court has equitable power to award attorney ’ s fees as a part of the just and r ight division of the marital estate. Mande ll v. Man d ell , 310 S .W. 3d 531, 541 (Tex. App.

— Fort Worth 201 0, pet. denied) ; see Murff v. Murff , 615 S.W.2d 696, 699 (Tex. 1981) ( stating tha t attorney ’ s fees are among many factors courts ma y consider in maki ng a just and right division of the marital est ate ). In the d ivorc e d ecree here , the trial court state d th at to effect an equitabl e divi sion of the parties ’ estate, each party would be responsible for his or her own attorney ’ s fees, expe nses, and costs. Under the terms of that sec tion of the decree, J. M. agree d t o an or der to pay his trial counsel $ 51,799.20 from his equity share of the first house to sell , with the rem ainder (if any) paid f rom his equity share of the second , and C.M. likewise agreed to an order to pay her counsel $54,568.46 from her equity sha re o f t he fi r st house t o sell, with the remainder (if any) paid from her equity share of the second.12

• whether the appeal, if success ful, m ay result in a mo re favorab l e jud gme nt but
ther e is no r isk of a less favorable one;

• if a less favorable judgment is possible , whet her th ere is no risk the appellant could
receive an award l ess th an the value of as sets dissipated , wasted , or convert ed;

• w hether the appell ant affirma tivel y s ought enfor cemen t of rights or obligations that exist only because of the judgment;

• wheth er the issue on appeal is severable from the benef its accepted;

• the pr ese nce of actual or re asonably certain prejudice; and

• whet her any pre judice is curable

. K ram er , 508 S.W .3d a t 224, 22 8

– 2 9

. Mere de privation of p oss es sion, use, and

e n joyment of prop erty t hat had been jointly o wned is not, in and of itself, suffic ient t o constitute pre judice

. Id. at 229

– 30.
In Kramer , our si ster court dismis sed the ex

- wife ’ s a ppeal witho ut re aching its

m erits a fter she accepted $ 20,000 per month in rental proceeds from p roperty awarded to her in the decree and ref in anced the pro perty
. Kastleman v. Kastleman , No.
03

- 13

- 00133

- CV, 2014 WL 38097 59, at *3 (Tex. A pp.

— Austin July 30, 2014), rev ’

d sub
nom. Krame r

, 508 S.W.3d at 232

. The ex

- wife had argued in the intermediate court that
her acceptance of the rental proceeds 16 f ell under the cash

- benefits exception 17 to the

16 Th e s upreme court, in its review of the case ’s background, state d that the parties ’ ma rital estate was worth $30 million ( rather than $3 .2 mill

ion , as st ated in th e lower court opinion)

. Kramer , 5 08 S.W.3d at 214

. Th e ex

- wife o riginally argu ed that13

acceptance

- of

- benefits doctri ne a nd had tes tif ied that she would be abl e to make any funds she had accepted available to be divided by the court in the event o f a rem and.
Id. at *3. Our sister court noted that she did not challenge the trial court’s finding that she had accept ed sub stantial asset s a nd funds in excess of $1 million and that her testimony necessarily established that she had accepted real property in addition to cash payments (she had ref inanced the properties and took the ex

- h us band ’ s name off of the notes) , thu s depr iving her of t he cash

- ben e fits exception

. Id. & n .5

. It also
held that the ex

- wife had waived her economic nec essity argument through inadequate briefing but noted that the record reflected that she had been awarded
sub stantial assets in addition t o the re venue

- genera tin g re ntal propert ies

. Id. at * 4.
And it noted that the ex

- wife had failed to su persede the judgment. Id. she had accepted $320,000 , or 1/10 the value of th e community estate, but she changed that argument in a moti on for rehearing to 1 %, not 10%. Kastl eman v. Ka stleman , N o. 03

- 13

- 00133

- CV, 2014 WL 5420411 , at *1 & n.1 (Tex. A pp.

— Austin Oct. 23, 2014

) ( supp ’l op. on reh ’g) , rev’d sub nom. Kramer , 508 S.W.3d at 232. The supreme court not ed that in its supplemental o pin ion , the intermediate court had refu sed to par tial ly rei nsta te the appeal when the ex

- wife raised s anctions, attorney ’s fee s, child supp ort, and ch ild cust ody because she had failed to address the severability of those issue s i n response to the ex

- husba n d ’s motion to dismiss. Kramer , 508 S. W.3d at 21 6 . The su preme court did not reach severabi lity in i ts review

. Id. at 21 7.

17 The cash

- ben efits ex ception app lies when only cash benefits are accepted. Kas tle man , 2014 WL 3809759, at *3

. The theory is that because c ash is fungible , if it
can be res tored or otherwi se taken into consideration in re d ivision o f the marital estate, its use does no t prejud ice the non appealing party and does not bar the ap peal. K ram er , 508 S.W.3d at 224

.14

The supreme court reversed our sister court ’s jud gment and remanded the case
for consi deration of the appeal ’ s merits

. Krame r , 508 S.W.3d a t 213

– 14

. Bef or e doi ng
so, however, the supreme court set out the non e xclusive factor s listed above to b e consi dered in balanc ing the equities

. Id. at 228

– 29

. I n applying those factors, t he
court noted that the divorce decree had required th e e x
- wife to refin an ce the rent al properties under t hreat of forced sale , making her refin ancing decision and acceptance of the real property involuntary , and that the intermediate court had failed to consider preju dice to the ex

- hu sband if the $30

- mill ion ma rital estate were to be redi vided on
remand. Id. at 21 5 , 219 , 231 ( “ The decree manda ted such action upon pain of forced sale; the apartment complex e s apparentl y remain available to be returned to the marital estate; and no prejudice to Kastleman is app are nt. ” ). There wer e a lso some
part nership interest s involved, but the court stated that there was no evidence that they could not be returned and taken in to account in a new just

- and

- right division and
that the ex

- husband ’ s claim of prejudice with reg ard to those assets was “ e ntirely speculative. ” Id. at 231

. The court noted that the ex

- husband would be prejudiced by his ex

- wife ’ s

s uccessful appeal “ only if [she] receives a less er share of the estate assets on redivision
of the estate and she would be una ble to make up th e d ifferenc e through
reimburseme nt to the estate or by sale of assets award ed to her , ” and there w as no evidence or allegation that the assets had been so dissipated, wasted, or converted as to prevent a just

- and

- right division if th e j udg ment was reversed or modifie d. Id.15

After applyi ng th e factors, the supreme court held t ha t t he ex

- husband had failed to
show any prejudice and that the circumsta nces d id not reflect the ex

- wife ’s clear intent

to acquie sce in t he jud gment ’s validity

. Id. at 231

– 32. In conc lus ion, it stated that “ a merit s

- based disposition must not be denied absent disadvantage fo r the opposing party and circumstances reflecting clear intent to a cquiesce in the judgment ’ s validity. ”
Id. at 232.
In J.F. , we conside red th e applicat io n of the ac ceptance

- of

- benefits doctrin e as

set out by the supr eme court in Kramer

. 2020 WL 4248681 , at *1

– 2. 18 I n J.F. , t he pro

se ex

- wife argued that her ex

- husband should be e stopped from challenging th e di vorce decree under the a ccep tan ce

- of

- benefits doctrine on the bas is o f prejudi ce when he exercised do mini o n over community property such as in surance proceeds

a nd gol d and platinum coins, among other things. Id. But none of her re cord citations support ed most of her assertions abou t h is post

- divorce conduct

. Id. at *2.
A nd althou gh t here was evidence th at he had spent income and liquidated assets from the family business , which made up part of the community estate, there wa s no

r ealistic possibility that it would prejudice her beca use th e business w as a val uab le
asset in his han ds but essentially worthless if awarded to her, preventi ng a redi vision

18 Our other post

- Kra mer c ases in which the acceptance

- of

- bene fit s doctrine has been raised have not involve d divorces. See Sui te 900, LLC v. Vega , No. 02

- 19

- 00271

- CV, 2020 WL 2608394 , at *8 (Tex. App.

— Fort Worth May 21, 2020, pet. file d) (mem. op.) ( quiet

- title action) ; Parker v. Glasgow , No. 02

- 15

- 00378

- CV, 2017 WL 2 686474, at * 4 (Tex. App.

— Fort Worth June 22, 2017, no pet.) (me m. op.) (legal

- malpractice action ).16

of the community as sets in her favor

. Id. at *1

– 2. And she “ produced no evidence that Husband took any other sorts of actions that mig ht pre judice her. ” Id. at *2

. Accordingly, we hel d that the ex

- wife h ad failed to carry her burden to show that the
acceptance

- o f

- benefits do ctrine barre d his appe al. Id.
A s noted by commenta tors, to use the accep tance

- of

- benefits doctrine p os t

Kramer , th e a ppellee in a divorce ap peal has the burden t o show that the appellant

t ook “ acti ons su ch as a ccepting property and then disposing of it to the e xtent that
the marital estate cannot be made whole in the event of a successful appeal

. . . [ , which] wil l o nly apply t o v ery na rro w fac tual situations. ” An na K. Teller & Donald E.
Te ller, Jr. , Fami

ly Law , 4 SMU Annual Tex. Survey 161, 170 (2018)

. B. Appl ication
W e mu st determine whether C .M. carried her burden to show that the
acceptance

- of

- benefits doct r

ine ba rs our c onside rat

ion of t he merits of J.M. ’ s a p peal

. 1. Salient Facts
T he divorce decree required the sale of both Kirkhaven and C edar , and the
dist rib ution of th e sales proceeds was set out in a subsequent order issued July 8,
2019 , as follows: (1) o rd ina ry cost s of sa le ; (2 ) bro ker ’ s commissions ; (3) receiver fees ; (4) th e parties ’ a ttorney ’ s fees ; (5) separat e property reimbursement to J.M. for
Kirkhaven ; and (6) fund s d ue the part ies according to the ownership percentages in
the di vorce decre e. C .M. ’ s counsel signed “ agreed as to form ” on the order appointing a new receiver different from the one initially appointed in the divorce17

decree ; the order set out the same dist ribution above

. J.M. , representing himself pro se at the time, di d not sig n th e o rde r at all. On October 2 5, 2019, both parties signed

“ agreed ” on the trial court ’ s “ agreed order confirming sale, ” which confirmed the
receiver ’ s authority to sell Kirkhaven pursuant to the s ales contract a ttached to the
order , ord ered that Kirkhaven be sol d by the receiver pursuant to that sales contract,
and ordered that the sa les proceeds be disbursed as directed in the July 8, 2019 order. Accordingly, prior to his receipt of any funds from the Kirkhave n sale, in addition to the br oker ’ s comm i ssion an d r ecei ver fees, the Kirkhave n sales proceeds paid for $ 51,799.20 in J.M. ’ s attorn ey ’ s fees ( and for $54,568.46 in C.M

. ’ s attorney ’ s fees ) as set out in the divorce decree

. J.M. received $19 9 , 645.26 from th e Novembe r 5, 2019 K irkhaven sale. On
Novembe r 6 , 2 019, he requested a 60

- day extension to file his appellate brief , 19 stating
that he had just si gned a contract with appe llate counsel ( who filed a notice of
appearance that day

) , because h e had “ cl osed on the sale of real property, which has finally p rov

ide d [him] with funds to retain cou nsel. ” 20 J.M. paid a $25,000 retainer to his appellate counsel.

19 We noti f ied J.M. on O ctober 8, 2019, that his appellate brief would be due on Novemb er 6.

20 J.M. has as ked us to take judicial notice of his pro se filings i n this c ou rt, includ ing his unopposed m oti on for exten sion of t ime to file his brief, in which he re ference d Kirkhaven ’ s sale as providing him with funds to retain counsel.18

J.M. su bsequent ly paid $181.50, $106, and $55 for pre paration of supplem ental

c le rk’s record s, and three $10 motion fees. In total, not counting his a ppe lla te attorney’s fees, J.M. has paid $4,870.2 5 in pursuit of this appeal , although he paid the
bulk of this amount ($4,497.7 5) before receiving the Kirkhav en funds

. 21 He also paid $2, 000 to his attorney to request suspen sion o f enforcement of the judgme nt on Jan uary 10, 2020 , but decided against pursuing that at the February 7, 2020 h earing on the motion , seeking instead to have the p r oceeds of Cedar ’ s eventual sale put into t he

court ’ s registry

. O n February 6, 2020, J. M

. filed a n uns worn net wo rth decl ara tio n before the hearing on his supersedeas motion th e next day

. In his unsworn declaration of negative net wort h, J.M. stated that he had le ss than $25 ,000 in his bank account , was performing contract packing

- and

- shipping work for $10.50 an hour for 4 to 5 h ours a day , and owed $12 5, 900.92, not counting foreclosure proceedin gs and u npaid taxes on the $800, 000 in stock withdrawals in cu rred when he liquida ted the stock he had
inher ited from his mother.

21 J.M. filed a pro s e notice of appeal on July 23, 2019, and on August 9, 2019,
we notified him th at i f he did not pay the $205 filing f ee, we wo uld dismiss the appeal

. On Augus t 21 , 2019, we received a request for an extension of tim e from the court report er, stating that s he had not received a deposit for payment until August 20, 201 9, at 8 p. m. We al s o received that day a notice from the trial court clerk, informin g us that J .M. had not paid the $147 he owed for preparation of the clerk’ s record. J.M. p aid for the clerk’ s record on August 27, 2019. He paid the appeal’s filing fee on August 30, 20 19. And he paid $4,145.75 for the mul ti

- volume reporter’s record on October 7, 2019

.19

At the February 7, 2020 hearing, J. M. replied, “ Yes , Yo ur Honor, ” when

— with regard to the $199,645.26 he had received from the Kirkhave n sale

— t he tr i al court

a sked, “ Is the testimony of your client that the only thing that he has left from that distribution of funds is $2 5,000 ? ” [Emphasis added.] Based on his te stimony at the February 7, 2020 hearing and his initial unsworn net worth declarati on , then, J .M. had
spent $174, 645.26 of the $199,645.26 from the K irk haven distribution allocated to
him via the judgment. See Kramer , 508 S.W.3d at 218 ( noting that the ac ceptance

- of

benefits doctrine ’ s “ equitable objective of precluding an appe al when a litigant ’ s actions are inconsistent with a claim of error further s finality, preserves scarce judicial resources, and guards against gamesmanship ” ). What did J.M. spe nd the money on? S ome of J. M. ’ s liabilities were dis cussed at

t h e hearing. O ne of them was the $5 0 ,691 that he owed to C.M. in back child
support , but he st ated at the hearing, “ I c annot prove that I have paid child support , ”
and he a gre ed tha t he had no t u sed any of the $199,645. 26 to pay child suppor t th rough the Attor ney General ’ s disbursement unit , even though the divorce decree specifically required his chil d support payments to be made through the disbursement
unit and specifically stated that no cr edi t w ou ld be given for inf ormal payments. 22

22 The decree stated,
N o Credit f

or Informal Payments
I T IS ORDERED that th e c hild support as prescribed in this dec ree s hall be exc lusively discharge d in the manner ordere d a nd that20

J.M. al so failed to pay his share of the taxes on Ceda r ( according to the decree,
100% of the taxes accrued pri or to July 23, 2018, and 50% of those accrued thereafter)

. C.M. testified that t he taxes had no t b een pa id on Cedar s ince 2016 , that foreclosure suits were pending against the property , and that if the foreclosures went forward, s he would receive no money from the sale of the home

. J.M. testified that he gave his gi rlf riend a $35,000 certifie d check f ro m t he
Kir khave n proceeds to repay loans that she had made to him. And he purch a sed a

u sed 2010 BMW, m aking a down payment of $6,700 in cash o n the $9,000 ve hicle and
announci ng t he BMW ’ s purchase in a celebra tory Fa cebook po st on Novem ber 20,
2019 , eve n t hou gh t he record ref l ects t hat the divorce decree had awarded to him a 2006 Audi and a Nissan van from the community est ate , in addition to confirming a 2 009 Mercedes ML550 as h is separate property. J.M. did not mention during the hearing whether he wa s s til l in possession of these other vehicles

. Nine days after the February 6, 2020 hearing, J.M. signed his firs t amended
unsworn de clar ation of net wort h in which he declared that he actually had $156,149
in assets

— n ot includ ing Cedar ’ s val ue , $9,000 tha t C .M. owed to h im under the

any direct payments m a de b y [J.M.] to [C.M .] or any expen di tures inc urre d by [

J.M.] during [J.M. ’ s] period s of possession of or access to the childr en as p rescribed i n this decree, for food, clo thing , gifts, travel, shelter , or entertainm ent are de emed in ad dition to and not i n lie u of the support orde red in thi s decree.21

divorce decree , the New York and Hawaii t im eshares ( upon which he owed b ack
fees ) , a nd his mo ther ’ s jewe lry, which he alleged that C.M . had refused to give to
him

— and $152,956.52 in debts, not including any unpaid taxes on the sto ck liquid ation. Included in his amended declaration was his apology for having failed to disclose all of his assets prior to the February 7, 2020 hearing : “Betwe en my mental illness and ADHD I sometimes have difficulty complying with my attorney’s requ est fo r information and documents.”
In his amended unsworn declaration o f net w orth, J.M . list ed th e following assets to reach the $156,149 amount: $ 5,000 (BMW car resale value); 23 $33,000 (401k); $20,000 (CD); $10,000 (Credit Building Account) ; $30,000 ( Cre dit Building
Acco unt); $20,000 (Credit Building Acc ount); $5,000 (Credi t Buil ding Acco unt); $19,0 00 (Cash Management Account); $987 ( prepaid card ) ; $ 4,161 (

prepaid card ) ; $9,001 ( Money Maker

) ”

. O ther than the BMW, noth ing in the record directly ties J

. M. ’ s listed assets to
the $199,645.26 from the Kirkhaven sale

. I n his reply brief, how ever, J.M. argues t hat after his receipt of the Kirkhaven proceeds, his first amended net worth declaration

— which he filed a fter the February 2020 hearing

— e videnced ass e ts of approximately $142,000 , listing in his brief the fol lowing as sets : BMW ($ 5,000 ) ; 401k ($ 33,000 ) ; CD ( $ 2 0,000 ) ; Credit building account ($10,000); Credit building accou nt ($30,000); Credit

23 J.M

. did not list any vehicle other than the BMW as an asset.22

building account ($20,000); Credit building account ($5,000), and c ash management

account ($19,000). Miss ing from th is recital are the $987 prepaid card ; the $4,161 prepaid card ; and the $9,001 “ Money Maker ” , for a total amount of $14 , 149

. J.M. argues that his first amended net worth declaration showed that he had only dissipated $57, 000 of the $199,6 45 .26

. He states that he had the $142,000 in assets

“ after receipt of the $199,6 45.26 , and payment of the aforement ioned expe nditures. ” J.M. re lies on the $142,0 00 amount to assert that he has “ assets to offset al l b ut the $5 7,000 of the K

irkhav en proceeds that were distributed to him. ”
2. Right to Benefits J.M. ha d a right to joint pos session and control of Kirkha ven , a property titled
in both parties ’ names, prio r to the judg ment . However, b ut for the judg men t

ent itl ing hi s sep arate e sta te to equitable reimbursement and the trial court ’ s subsequent order on the dis tribution of the proce eds , J .M. would not have had a n

e xclusive right to th e $19 9 , 645.26 in cash

. S ee Kramer , 50 8 S. W.3d at 228

– 29

. And , as pointe d out by C.M., the record ref lec ts that after Kirkhaven was sold, J.M. instructed
his bank to contact the ti tle company for the wi re transfer of the funds to him. And
then he proce eded t o use those fund s . Acc ord ingly, this f a ctor weighs in C. M. ’ s favor

. See id. at 22 9 (

listing as a facto r “ whether the appellant affirmatively sought enforcement of rights or obligat ions that ex ist only b ecause of the judgment ” ) ; c f.
Robertson v. Robertso n , No. 13

- 16

- 003 09

- CV, 2017 WL 65 46005, at *9 (Tex. App.

— Corpus Christi Dec . 2 1, 201 7, no pet.) (me m. op. ) (holding acceptance

- of

- benefits23

doctrine did not apply when ex

- husband ’ s actions were n ot voluntary with regard to deeding home to ex

- wife and paying line of credit secured by the ho me

— both actions

we re req uired in the divor ce decree ).
3. Type of Acce ptance The acceptance of bene fits may be rendered involuntary because of financial
duress or o ther eco nomic circumstanc es. Waite , 150 S.W.3d at 803

. Likewise, the
person to be estopped by the d o ctrine must have had knowledge of a ll materi al facts
in mak ing the decision to accept the be nefits

. Little v. Delta Steel, Inc. , 409 S.W.3d 704, 713 (Tex . App.

— Fort Worth 2013, no pet.)

. “[A]nticipating future expenses months
in a dvance cannot be said to constit ute economic necessity that wo uld re nder the
accept ance of benefits under a disputed divorce decree involuntary.” In re Marriage of Stegall , 519 S.W.3d 668, 673 n.2 (Tex. App.

— Amarillo 2017, no pet.). Regardi ng w

hether J. M. ’ s accepta nce and use o f any of the $199,645.26 wa s volunta ry or the product of fin ancial duress, in February 2020, J.M. fi rst c laimed that
h is net worth was $2 5 ,000 and then that it wa s $15 6,149 but also that

— under either
calculat ion

— his net wor th was essentiall y negative becaus e , not coun ting the pending
foreclo sur e proc e e dings on his Haw aii and New York timeshares , he had a lmos t $126, 000 in liabil ities , and h ad lost his well

- paying job in December 2018

. 24 H e anticipated being able t o save the ti meshares fr om foreclosure with money from th e

24 J.M. had been employed d uri ng the 2018 trial makin g $ 66 .18 an hour ( mo re with overt ime) , for a round $100 ,000 a yea r.24

sale of Cedar

. J.M. d id not in clude h is separ ate

- property stake in Cedar in his net
worth calculati on. J.M

. claimed at the hearing that he had spent s o me of the Kirkhav e n money on food and to live on

— funds “ provid [ing] the necessities of life , ” see Kramer , 50 8 S.W.3d

at 224

— b ut he ack nowledged that he had bee n criti cized during trial for spending a
lot of mon ey in a short am ount of time , and the record reflects that ma ny of the item s upon wh ich he spent m oney during trial were not necessities. 25 O f t he $2.25 mill i on that J.M. inh er ite d afte r his moth er ’ s death in July 2013, only around $ 600 ,000
remained by the time th e trial began in February 2 018

— no t c ounting the two houses

a nd not ac counting for th e taxes that he owe d the IRS from the sale of his mother ’ s invest ments

— and two yea rs lat er, h e first cl aimed that he h ad only $2 5 ,000 to his

name and then tha t he had only $156,149

. Notwithstandi ng J.M. ’ s a rgument in his reply brief, the Kirkhav en disbursement is not specifi cally id entified in the latter tally

. A ssuming that the K

i rkh aven d isbursement was included in these tallies, though, t hey

25 During trial, J.M. ackn o wledg ed th at h e had spent $450,000 in the preceding 14 m onths , of which $150,000 had been cashed out of a co mmunity 401 ( k) , e ven thoug h the o nly items he had been or dered to pay w ere utilities, homeowners ’
a ssociation fees, tax es on the two houses, the va n leas e, an d $4 6 5 a month in preschool tuition for t he pa rties ’ youngest child

. C.M. charac ter ized his spending as
“ bl[ owing] through hundreds of thousands of dollars on ne edle ss stuff , ” and tes tif

ied that b etween Nov ember 2016 , when t he parties separated, and the first two days of the trial (February 15 a nd 1 6 , 2018) , J.M. had s pent $50 ,000 at retail stores, $11,000 on dining out , $1 ,300 at bars and clubs , $3,300 o n vacations , and $12,0 00 on entertainment an d luxu ry ( movies, na il salons, video games, and massag es) , cont in uing to spend in t his manner even a fter he lost h is job

.25

reflect that J. M. managed to spend bet ween $ 43,496.26 and $ 175,645 .26 of th e $199 ,645.26 from November 2019 to February 2020

. 26
The record reflects that after J.M. obt ained the $199,645.26 , he ga ve his girlfriend a $ 3 5,000 certified che ck to repay loans that she h ad ma d e to h im , and none of his testimony explaine d how such repayment amounted to an economic necessit y

or why it had to be done w hile his appeal was pending

. He also spent some of t he

m oney on att orney ’ s f

ees a nd some of it on purchasing a vehicle. N ot hing in the
record explains how the ve hicle pur chase was a necessity when J.M. was awarded an
Audi and a van in the divorce decree, which also confirmed a Mercedes as his s eparate
prop ert y . Ev en if J.M. ’ s tr ial testi mo ny th a t the Au di was not dri vable me ant he could
not use it for tran sportation, nothing in the record ind icated that the van and the
Mercedes were not in a drivable condition or why purchasing the BMW with t he proceeds of th e Kirk have n sale was a necessity (or why th ese assets, if he still had them, were not listed in his de clarations of net worth).
The record reflects that J. M. rec eived $19 9 , 645.26 in equi table reimbu rsement from C. M. ’ s s eparate estate p ursuant to the j udg men t a fte r the Novemb e r 5, 2019 sale

26 Historically, pre

- Kramer

, t he acceptance

- of

- bene fits doctrine did not apply if a party sought te mp or ary orders pending appeal to al low him to take act i ons such as pay ing attorney ’s fees , using m oney in his possession for reasonable and necessary li ving expenses, and managing financial assets to pre serve capital

. Sprague v. Sprague , 363 S.W.3d 788, 79 4 (Tex. App.

— Houston [14th Dist.] 2012, pe t. denied) ( citing McAlister v. McAlister

, 7 5 S.W.3d 48 1, 483

– 84 (Tex. App.

— San Antonio 2002 , pet. denied), a nd Waite , 150 S.W.3d at 807 n.13) ; see Tex. Fam. Co de Ann. § 6.709. The record do es not reflect that J.M. sought any such orders.26

of Ki rkhaven and th at , by the time of the Febr uary 7, 202 0 hearing s ought by J .M. to request suspension of enfor cement of the judgment, alm ost none of those funds
remained

. Further, it refl ect s that for the most par t, over t h e course of th e divorce
proce ed ings and the r eafter, J.M. created many of the circumstances that might
otherwise have made his acceptance of some of the benefi ts involuntary

. Cf. Waite , 150 S.W.3d at 803 (noting that an exc eptio n to the ac ceptanc e

- o f

- bene f its doctrin e i s when the acceptanc e is invo l untary because of financial duress or other economic
circumstances )

. W

ithout counting his trial attorney ’ s fees, his p ost

- trial attorney ’ s fees , or the $4, 870.2 5 that he has spen t on the appeal , the re cor d refl e cts th at J. M. voluntarily spent at least $ 4 1,700 of the $199, 645.26 on i tems tha t were not economic
necessities , and the record does not reflect what portion of the remain der was spent
on economic nec essiti es versus the typ e s of purchases he made pr ior to and during

t he divorce proceeding s , which are amply reflected in the re c ord

. Cf. G arza v. Garza , 155 S.W.3d 471, 475 (Tex. App.

— San Antonio 2004, no pet.) (holding that e x
- w ife ’ s appeal was not precl uded by the acceptance

- of

- benefits doctrine be cau se her

uncon trover ted testimony e stablis hed that her expenses far exceed ed her income and
that she had no other assets that she c ould use to pay for basic living expenses)

. Acc ordingly, t his fac tor we ighs i n C.M. ’ s favor. See Kr amer , 50 8 S.W.3d at 228

. 4. D issipa t ion
A s set out above, at least $41,700 of J.M. ’ s spe nding of his recove r y under the judgment was voluntary , and much

— if not all

— o f the $199,645.26 granted to J.M. as27

equitable reim bursement to his sep arate estat e had been d issipated by the time o f t he
tri a l court ’ s F ebr uary 2020 hearing

. G ranting an equitable reimbursement c l aim is
withi n the trial court ’ s discretion

. P enick v. Penick , 783 S.W.2d 194, 198 (Te x. 1988) ( “ The discret

ion to be exercised in evaluati ng a claim f or reimbursement is equ al l y as b r oad as that di scretion subsequently exercised by the trial court in mak i ng a ‘ just a nd right ’ division of the communit y property. ” )

. Based on both of his declarations of net worth, J.M. has debts th at either
exceed his as sets or that wil l soon e cl ipse a n y of his re mai ning assets
. N otwit hstanding the awar d ’ s fu ngibility as cas h, because the record reflects J.M. ’ s longstanding pattern of prof li gate spending , unsound financi al decisions , and
unemp loyment, th e eq uitable reimburse m ent f unds t hat he has alrea dy expe nded are unlikely to be reco vered if t he judgm ent i s reversed and th en modified on remand in reevaluating th e equitable division of the mar ital estate and the parties ’ reimbursem ent claims

. See id. at 197

– 98 (comparing claim for re imbursem ent to an action for quantum merui t) ; see also Kramer , 508 S.W. 3 d at 228

– 29 ; c

f. Demler v. Demler

, 836 S.W.2d 696, 698 (Tex. App.

—

Dallas 1992, no writ) (noting that when e x
- wife accepted a ca sh award and it appeared from the property settlement th at she wo ul d have suffic ient

assets to cove r a possible reimbursement o f th ose funds, acceptance

- of

- benefits
doct rine did not prevent her appeal because there w as no possibility that a reversal of
the judgment would affect t he ex

- husband ’ s rights to the be nefits se cu r ed und er the28

judgment) , disappr

oved of on other grounds by D a llas Mkt. Ctr. Dev. Co. v. Liedeker , 958 S.W.2d 382 (Tex. 1997)

. Accordingly, t his factor w eighs in C.M. ’ s favor.
5. Judgment Risk Factors , Severabilit y , and Concession J.M. broug h t th is appe al se e king a re distribution of $370, 000 t hat he c laims the

t r i al court awarded to C.M. b ased on Cedar ’ s mi scharacterization

. He does not challenge the trial court ’ s child custody o r suppor t provisions or the decisi on to grant the couple ’ s div or ce. J .M. ins tea d pray s for the di vorce

- and ch i ld

- rel a ted provisions

t o be severed from the property d ivision and for a remand for a just a nd right property division based on Cedar ’ s correct ch aracterization , seeking an award to him
of a s ep ar ate pr opert

y interes t i n Ced ar or reimbursement of that amo unt in
propo r tion to the cont ributions his separate estate made to its purchase , or an order granting him the right to retain Ced ar and t o “ buy out [C.M. ’ s] Commu nity interest, suspend the sa le [,] and dis charge th e r eceive r. ”
Dur ing trial, J.M. ’ s foren si c financial expert cal culated the interests in Cedar using both a pro rat a approach and a separate

- out

- first approach. One of the approaches showed that J.M. had a 91.049% sep arate property interest in Cedar and
that the com muni t

y estate had a n 8.591% int erest in it. I n his first amended inven tor y and apprais ement during trial , J.M. asserted that 91.04 9% of Cedar

— $8 23,3 62

— h ad
been contribut ed from his separa te property while o nly 8.951% of Cedar

— $ 7 3,696.04

— h ad be longed to th e c omm u nity.29

T he expert ’ s othe r cal culation showed that J.M. had a n 89.248 % separate property interest and that the commun ity estate had a 10.752% interest

. On appeal, J.M. claims that the community portion was 10.752% and his separate property portio n w as 89. 248%, that “[i]t is undis puted that the Community estate ultimately made at least $105,000 in combined paym ents toward the purchase price,” and

— assumi ng a $950,000 value of the home

— that his “separate property share should be $847, 856” and the “un div

ided C ommunity interest should be $102,144.” J.M. ’ s expert also testified tha t the tota l am ount of pos s ible reimbursement c l ai ms for t he court to consider was $892,680.30.
C.M. testified at trial that she had sold her father ’s home , which she inherit ed,
and h ad given J.M. a $100,000 check from that sale after Cedar was purchased

. T h e check, dated July 6, 20 16, and endorsed b y J.M., was admitte d into evidence. C.M.
asked the trial court to reimburse her that amo unt if it did not find that Cedar was
h alf her s eparate property. As to severa bility, “ [o ] nce reversible error aff ecting the ‘ just a nd right ’ division
of the community estate is found, the court of appeals must remand the entire community est ate for a new division. ” Jacobs v. Jacobs , 687 S.W .2d 731, 733 (Tex. 1985) ; see Cutl

er v. Cutler , No. 04

- 15

- 00693

- CV, 2016 WL 4 444418, at *4 (Tex . App.

— San Antonio Au g. 24, 2016, no pet.) (mem. op.) (ho lding that when the trial court ’ s error materially af

fected its division of the community estate, the co urt of ap peals had
to reverse the equi table reimburs ement award and remand th e en tir e community30

estate for a new ju st

- and

- right division of the property ) ; c f. Tex. R. App. P. 44.1(b) (noting that if erro r a ffects part but not all of the matter in controve rsy and th at part is separable wit hout unfairness to the parties, the judgme nt must be reverse d and a
new trial o rd ered only as to the part affected by the error)

. I f we were to evaluate the merits of thi s appea l and confirm the erro r asserted by J.M. in t he d ivisio n o f the marital estate, we would have to remand the cas e for the
trial c ourt to re

- evaluate its just a nd right division of the marit al estate and its decision
to award reimbursement , presenting a r isk to J.M. that he could receive a less
fa vorab le j udgmen t overall than that from which he appeals because the is sue is not

severa ble from th e benefits that he ac cepted

. See Kramer , 508 S.W .3d at 229

. That is,
the trial court took the equities into consideration in making its previous allocation (inc ludi ng att o rney ’ s fees paid from t he sale of Kirkhav en ) , and J.M. a sks us to assume
that Cedar ’ s sale price will meet his expec tatio ns and that the house will not be lost to foreclosure before remand. We think it more likely, under the unique circumstance s
pr esente d by the se parties , that th e re might not e ven be an asset subject to

re al location by the time of remand. Assuming a ny asset s might remain on remand , J.M. ’ s risk likewise could result in a n award of less valu e than the assets that he has
alr e a d y a c c e p t e d a n d d i s s i p a t e d from the K irkhave n sale , whi ch were allocate d to him

as an equitable r eimbursement from C.M

. ’ s separate estate
. See id. With regard to J.M. ’ s concession argument, we acknowledge that u nder the
acceptance

- of

- benefits doctrine, when the a ppellan t ac ce pts only th e part of the31

judg ment that the ap pellee concedes is owed to the appellant, the a pp ellant is not estopped from appealing. Waite , 150 S.W.3d at 804 ; see Kramer , 508 S.W.3d at 218 (explaining that acqui escen ce in the final j udg ment ’ s validi ty can not be infe rred if the litiga nt ’ s entitlement to the benefit is undispu ted and unaffected by the appeal ’ s
outcome; “ [i]n such circumsta nces, the benefit accepted is not actually at issue on appeal, cannot be affected by reversal beca use the op posing party does not de ny the appellant ’ s right to retain the benefit, a nd dissipat ion by the appealing party thus could not prejudice the opposin g party ” ).
But that exception is narrow and is subject t o the answer of the following questions: ( 1) Could a reve rsal o f that port ion of the judgmen t possibly affect the appellant ’ s right to the benefits secured by him under the judgment? (2) And would the ap pellee be comp elled to conc e de u pon another trial that the appellant has the right to retain tho se ben efits r egardl ess of the litigation ’ s outco me? Wait e , 150 S.W.3d
at 807 ( ci ting Car

le v. Carle , 234 S.W.2d 1002, 1004 (Tex. 1950) ). “ The app ellant ’ s right to the property must be unquestionable. ” Id.
The record reflects that while J .M. paid the remain der of the K irkhaven

mor tgage with his sep arate property inheritan ce, hi s reimburse ment came out of
C.M. ’ s separate property interest in the sales proceeds, an amount that could shift on
remand in a new contest regarding the equities and the mini m al commun ity property
left. See id. at 8 07

– 0 8 (hol ding that ex

- husband ’ s a rgumen t failed to recognize that the
court had divided community prope rty unevenly because of his behavior during the32

marriage and would have to re

- divide the assets to reach a new “ ju st and right ”
divi sion if it e rred by characteri zing the ex

- husband ’ s cl aimed cash as com munity property) ; see also K

ramer , 508 S.W.3 d at 216 ( “ This, of course, is always the case when remand is required based on a material error affecting the trial co urt ’ s just

- and

- right
p roperty divi sion; a party coul d a lways get more, less, or di fferent. ” ). Further, the argument that C.M. agreed to J.M. ’ s reimbursement award by signing t he October 25, 2019 “ Agreed Order Confirming Sa le , ” is a nonstar ter because that orde r was a confirmati on pursuant to the d ivorce dec ree ’ s requirement
that a recei

ver sell Ki rkhaven , and it was made for the benefit and security of the
property ’ s buyers

. Further more , whether C.M. agreed to the reimbursement a ppears

to go to the overall mer its of J.M. ’ s ap peal, not his right to a merit s

- base d disposition
thereof. See K

ramer , 508 S.W.3 d at 232 ( stating that whether the ex

- wife was estopped from appealing when she agreed to the property division by executing a property settlement agreement we nt t o th e mer its of the ap peal and not the ex

- w ife ’ s right to a
merit s

- based dis positi on of it). W e conclude that t h e risk fa ctor s weigh i n C.M. ’ s favor.
6. Prejudice
Final l y, w e must consider the prese nce of a ctual or reas onably certain pr ejudice
to C.M. a nd w

he ther th at prejudice is curable.

“ The p rejud ice inquiry considers whe ther th e benefit s themselves

— or the proceeds from their sale

— remain available for redistribution or have been so33

dissipated, wasted, or otherwise converted as to prevent their rec over y. ” Kram er

, 508
S .W.3d at 221

– 22. As argue d by C. M. , on re m and , the commu nity estate “ will be substantiall y differ ent f rom the one that was before the tria l court originally ” beca u se Kirkh aven is no longer among the pa rties ’ assets and “ almost all of the ne t proce eds from its sale
were awarded to [J.M. ] as ei th e r his separate p roper ty or as pa rt of an equitabl e reimbu rsement claim, and he has received an d sp ent subst antially all of those fu nds he received solely as a re sult of the trial court ’ s judgmen t. ” C .M. als o notes that only
afte r J

. M

. had s pent the p rocee ds from the Kirkhaven sale d id he se ek to suspend
enforcement of the t r ial co urt ’ s judgment , 27 when he c ould hav e done so before spending that money to avoid actual prejudice t o her. And any rem and wo uld for ce C.M. to in c ur a ttorney ’ s f ees b ey ond th ose which she has alr eady in curred in defending against J.M. ’ s ap peal of the trial court ’ s judg ment , an d her te stimony at the
Februar y 2020 hearing reflected that her annual income was “ about 15,000 a year ”
because she had b een lai d off from o ne of h er two job s. Fina lly, as C.M. points out , because J .M . h a s dis sip ated the be nefits h e accepted
and because his net worth i s ne gative and he remain s un employed or under employed,
the prejudice to her i s no lo nger c urab le , no t wi th standing hi s contention s a bout
Cedar ’ s antici pated net proceeds

. Thus, t he p reju dice factors also wei gh in C. M. ’ s

27 Histo ri cally, t he re is no a cceptance of benefits when a n appe aling par ty posts a supersedeas bond to suspen d the judgment. Sprague , 363 S.W.3d at 793

– 94

.34

favor. Cf. Kramer

, 508 S .W.3d a t 229 (

noting that the absence of prejudice should prevent the doctrine ’ s applica tio n i n mos t cases )

. 7. Conclusion
Based on the weigh t o f the factors a bove and the record be fore u s , we conclude that C.M. has met her burden and that th e a cceptanc e

- of

- benefits doctrine should ap p ly here. The level of overall dissi pation combined with act ual pre judi ce to
C.M . and J.M. ’ s i nabil ity to cure tha t preju dice forces us to co nclude that even if s ome of J.M. ’ s acceptan ce of the benefits of the trial cour t ’ s judgment may have been compelled by econom ic n ecessity and even if he might receive a more f avorabl e ju dg ment on re mand , enough of his accepta n ce of the judgment ’ s benefits was voluntary to sustai n C.M. ’ s argument that the appeal should be dismissed. Cf. Kramer , 508 S.W.3d at 232 ( “ Based on the record befo re th e Court, we conclude p rejudic e is
l acking and th e circ u mstance s do not ref lect Kramer ’ s c lear intent to acquiesce in the judgment ’ s validity. The court of appeals th erefore erred in dismis sing Kramer ’ s appeal. ” )

. III. Conc lusion
Based on our analysi s abo ve and without reachin g the m erits of J.M. ’ s t wo issue s , we di smiss the ap peal. /s/ Bonnie Sudderth Bonn i e S u dderth Chief Justice
Delivered: March 4, 2021