NO. 07-99-0303-CV

	IN THE COURT OF APPEALS

	FOR THE SEVENTH DISTRICT OF TEXAS

	AT AMARILLO

	PANEL D

	MAY9 9, 2000

	______________________________

	IN THE MATTER OF THE MARRIAGE OF

	KELLY JEAN KIMBALL NAGY AND DENNIS EUGENE NAGY

	_________________________________

	FROM THE 410TH DISTRICT COURT OF MONTGOMERY COUNTY;

	NO. 98-07-02511-CV; HONORABLE K. MICHAEL MAYES, JUDGE

	_______________________________

Before BOYD, C.J., and QUINN and REAVIS, JJ.

	ON MOTION TO DISMISS	

	Appellant Kelly Kimball Nagy brings this appeal complaining of the June 3, 1999

decree of divorce dividing the marital estate.  By four issues, she contends the trial court

erred in granting the motion for partial summary judgment of appellee Dennis Eugene Nagy

asserting that the post-marital agreement was unenforceable.  In response, and in addition

to his brief, Dennis presents his motion to dismiss the appeal on the ground that Kelly has accepted the benefits of the decree of divorce and cannot now prosecute this appeal. 

Based on the rationale expressed herein, we grant the motion to dismiss the appeal.

	Following a three year relationship, Kelly and Dennis were married on January 10,

1998.  On May 8, 1998, they signed a post-marital agreement prepared by Kelly’s attorney. 

Subsequently, Kelly filed her petition for divorce on July 17, 1998.  She sought to enforce

the post-marital agreement that provided, in part, that upon divorce, Kelly would receive 

$200,000 from the sale of two lots described in a warranty deed executed simultaneously

with the post-marital agreement.  After the trial court signed its order upon Dennis’s motion

for partial summary judgment declaring the post-marital agreement unenforceable and of

no force or effect, the trial court granted Kelly’s motion for rehearing on the condition that

she file a response to the motion for partial summary judgment and pay Dennis’s attorney

$1,000 in fees.  Because Kelly failed to timely file her response and pay the attorney’s

fees, the trial court overruled Kelly’s motion for rehearing.

	Following a trial before the bench, the trial court signed the final decree of divorce

dividing the marital estate.  As material here, in addition to awarding certain personal

property to Kelly, the court also awarded $5,000 to Kelly to be paid by Dennis within 30

days of the date of the decree.  The decree does not however (1) make any reference or

mention of the partial summary judgment, (2) mention or reference the post-marital

agreement, nor (3) mention or reference the warranty deed conveying to Kelly an

“undivided interest in and to lots 6 and 7, Block 1 . . . ."

	A litigant cannot assert that a judgment is both right and wrong, and if a litigant

voluntarily accepts the benefits of a judgment, he or she cannot thereafter prosecute an

appeal therefrom.   Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002, 1004 (1950).  By his

affidavit in support of his motion to dismiss, Dennis avers that in addition to carrying out

the division of personal property per the decree of divorce, he paid the $5,000 awarded to

Kelly by two checks, one dated May 26, 1999, in the amount of $1,000, and the balance

by check dated June 29, 1999.  The copy of the check dated June 29,1999, in the amount

of $4,000, is annotated “$4,000 of 5,000 Divorce Settlement.”  Dennis contends that by

accepting the benefits of the decree that Kelly is estopped from prosecuting the appeal. 

In opposition, Kelly asserts that her acceptance was out of economic necessity and

therefore not voluntary.  Also, asserting  the exception to the general rule,1 Kelly contends she is not estopped to maintain the appeal because she was entitled to the payment of

$200,000  under the post-marital agreement, and Dennis was bound to concede her rights

to such payment. 

	Because Kelly appeals only from the order granting partial summary judgment, no

reporter’s record is included in the appellate record.  By footnote in her response to the

motion to dismiss, she asserts that “[a]t  trial, the trial court ordered a division of the parties’

personal property as had been agreed by the parties;”; however, no record is provided to support her assertions, or show the action of the trial court, if any, regarding the property

conveyed to her by the warranty deed.  Accordingly, based upon the record before us, we

conclude that the Carle exception is not applicable and Dennis’s motion to dismiss the appeal is granted.  Accordingly, the appeal is hereby dismissed.

	It is so ordered.

							Don H. Reavis

							     Justice 

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