### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00074- CV

Tedde R. Blu nck, App ellant

v. Cathy A. Blun ck, Appellee

F ROM TH E DISTRI CT COURT O F H AY S CO UNTY, 22ND J UDICIAL DI STRICT NO. 11- 1217 , H ONO RAB LE WI LLIAM R. H ENRY, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Tedde R. Blunc k appea ls from the trial court’s final decr ee of divorce , asking this Court to reve rse the judgme nt and rema nd for a new trial. He primarily challeng es the trial court’s 1
proper ty division. Appellee Cathy A. Blunc k has filed a motion to dismiss

. For t h e fo l l o wi ng

rea sons, we g rant the motion in part and dismiss this appeal as moot.

BACK GR OUND Following a bench trial, the trial court signe d a final decr ee of divorce in October 2012. I n the dec ree , the trial cour t divided the marital estate

. As part of the di vision, the trial court awa

rded rea l a

nd persona l pr operty to Tedde but encumbe red rea l proper ty to secur e the
pay ment of debt owed by Tedde to Ca thy under the terms of the decr ee. Tedde was order ed to pay

Be cause the par

ties have the same last name , we will re fer to them by

their first name s. 1Cathy over $200,000 as part of the proper ty division and to pa

y her attorney ’s fee s. Tedde broug ht this appea l to challeng e the prop erty division, but he did not post a superse deas bond to suspend enfor ceme nt of t he monetary amounts awa rded to Cathy

. He crea ted t he Tedde R

. Blunc k L iving
Trust in Dec ember 2012 and tra nsfer red the proper

ty that was a

war ded to him in the decree to the trust. The transf

err ed proper

ty included the encumbe red rea l pr operty pursuant to the ter ms of the decr ee and persona l proper ty , including sever al vehicles. The trustee of the Tedde R. Blunc k L iving Trust is Tedde’ s curr ent wife , and Te dde is the bene ficiar y of the trust. During the pendenc y of this appea l, Cathy attempted to con d uct post-judgme nt discovery and soug ht to hold Tedde in contempt for violating the divorce decr ee and temporar y

o rd er s . T edde, howeve r, filed for Chapter 13 bankruptc y in J une 2013, just befor e a schedul ed contempt hearing

. As a re s ult of t he bankruptcy proce eding , this appea l was abated in J uly 2013. The a ppeal wa s reinstated in Apr il 2014 after T edde f iled a motion to reinstate. On the same day that Tedde filed the motion to reinstate, Cathy fi l ed a motion to dismiss

. Among her asser ted g rounds in the motion, Cathy arg ues that the appea l is moot under the

acc eptanc e of the benef

its doctrine. Cath y filed documents in support of her motion, including

2

I n her motion, Cathy also asser ted that t h e ap p ea l s h o uld be dismiss ed for want of 2 p ro s ec u t i on and for failure to comply with court order s. She alleg es that Tedde violated t h e provisions of the final de cre e by failing to transfe r retirement benefits to her that wer e aw arde d to her in the decr ee. Tedde transfe rre d the benef its to a differ ent acc ount afte r the trial court had awa rded the b en ef

its to Cathy

. After the court beca me awa re of this transfe r, the trial court appointed a re ce i v er . Cathy also alleg es that Tedde has failed to comply with the trial court’s tempora r y o r d e r s p e n d in g a

ppeal reg arding pay

ment of temporar

y support and interim attorney ’s fee s and that he has failed to cooper ate with post-judgme nt discovery

. Be cause we conclude that this appea l is mo o t u nder the acc eptanc e of the benef its doctrine, we do not addre ss these alterna tive arg uments for dismissing the a ppeal.

2aff

idavits, the transcr ipt of Tedde ’s d eposition on Fe bruar y 4, 2013, various filings in Tedde ’s Chapter 13 bankruptc y proce eding and in the trial court post-judgme nt, and filings in public

rec ords, including a copy of the trust ag ree ment for the Tedde R. Blunc k L ivi n g T rust, dated
Dec ember

24, 2012. 3 Tedde responde d and fi l ed d o cu ments in opposition to the motion to dismiss

. He
urg es that the proper

ty was leg ally transfe rre d to the trust to prese rve the proper ty and the status quo. His documents include: (i) filings by the parties in the tri al court post-judgme nt, such as filings

conce rning the appointment of a rec eiver to take possession of cer tain proper

ty awa rded i n the decr ee, ( ii) filings in his bankruptc y proce eding , (iii) an affidavit by Tedde , (iv) the tra nscript of a hear ing befor e the trial court in Fe bruar y 2013 conce rning temporar y order s pending appea l and the appointment of the rec eiver , (v) a modified copy of the trust ag ree ment, and (vi) the mediated settlement ag ree ment betwee n the parties conce rning p er s o n al proper ty

. I n his aff

idavit, Tedde testified that he cre ated the trust to protec t a nd prese rve his assets beca use he was unable to obta in

I n her motion, Cathy also seeks damag es for her attorney ’s fee s on appea l. We decline to award h er d am age s . See Tex. R. App. P

. 45 (allowing awa rd of damag es for frivolous appea ls in civil case s); Bake r Hughes Oilfield Operations, Inc. v. Hennig Prod. Co., Inc ., 164 S.W .3d 438, 448 (Tex. A pp.—Houston [14t h Dist.] 2005, no pet.) (noting that g ranting sanctions is discr etionary if an appe llate cour

t determines a

ppeal is fr ivolous). Although the documents attache d to the motion are not in the appellate rec ord, parties may 3 rely on aff idavits and other evidenc e to establish whether an appellate court reta ins jurisdiction over an appea l. See Tex. Gov’t Code § 22.220(c) (appe llate courts may consider aff idavits and ot h er evidenc e to deter

mine “prope r e xerc ise of its jurisdiction”); Tex. R. App. P. 10.2 (re quiring inclusion of aff idavits and other evidenc e with motions in cer tain circ umstances) ; Richards v. Richards , 371 S.W .3d 412, 414 (Tex. App.—Housto n [ 1 s t Di s t.] 2012, no pet.) (noting that appellate court may consider a ffidavits and othe r evide nce in de termining motion to di smiss). 3leg al m alpra ctice insurance and that he will revoke the t rust if this Court finds in his favor so that

the trial cour

t will have jurisdiction over a ll community proper ty in order to divide it.

ANALYSIS Unde r t he acce ptance of t he benefits doctrine, “[a] litigant cannot trea t a judgment

as both rig ht and wrong , and if he has voluntarily acc epted the benef its of a judgm en t , h e cannot afte rwa rd prosec ute an appea l there from.” Car l e v. Carle , 234 S.W .2d 1002, 1004 (Tex. 1950). “This doctrine arises often in divorce case s when one spouse acc epts cer tain benef its of the judgme nt and then tries to appea l the rema inder of the judgme nt.” W aite v. W aite , 150 S.W .3d 797, 803 (Tex. App.—Houston [14t h Dist.] 2004, p et

. d enied)

. “The burden is on the appellee to prove that the appellant is estopped by the acc eptanc e of benef its doctrine.” Id

. When the doctrine applies, an appea l is rende red moot and dismiss al is appropr iate. F.M.G.W

. v. D.S

. W

. , 402 S.W .3d 329, 332 (Tex. App.—El Paso 2013, no pet.).

Two narr ow exceptions p er m it an appellant to avoid the doctrine. Id .; W aite , 150 S.W .3d at 803–04. “The doctrine doe s not a pply when: (1) acc eptanc e of the bene fits is because 4 of financ ial duress or o t h er economic circ umstances; or (2) the reve rsal of the judgme nt on the
g rounds appea led cannot possibly aff ect an appellant’ s rig ht to the benef its acc epted under the

The acc eptanc e of the benef its doctrine also may not apply when an appellant superse des 4 the judgme nt, temporar

y order s pending appea l allow the use of funds, or the “‘be nefit acc epted’ was cash, the use of which would not prejudice the appellee .” See Sprague v. Sprague , 363 S.W .3d 788, 79 3

– 9 4 (T ex . App.—Houston [14t h Dist.] 2012, pet. denied)

. Her e, Tedde failed to post a superse deas bond, temporar y order s did not authorize the transfe r of assets to the trust, and Cathy ’s motion to dismiss focuse s on Tedde ’s transfe r of substantial rea l and persona l proper ty to the trust.

4judgme nt.” D.S.W

. , 402 S.W .3d at 332; see W aite , 1 5 0 S

. W

. 3 d at 803–04. The burden is on the appellant to show that an exception applies. D.S.W

. , 402 S.W .3d at 332; Richards v. R ichards , 371 S.W .3d 412, 415 (Tex. App.—Houston [1s t Dist.] 2012, no pet.).

I n his response to the motion to dismiss , Tedde arg ues that he “did transfe r only his interest in all of his prope rty that could be leg ally

transfe rre d to the Tedde R. Blunck L iving Tr ust for the purpose of prese rving and protec ting the proper ty , both persona l and rea l.” He states that the
purpose of the trust “wa s to maintain status quo of the proper ty in his posses sion, nothing more nothing less.” He also u rge s that the trust is revoc able so that “all assets can be immediately available .” I n a subsequent response , he further urg es that “[t] he char acte r of the assets transfe rre d to the Trust neve r cha

ng ed.” Tedde , howeve r, does not contest that he transfe rre d the control of the proper ty

awa rded to him in the final decr ee to the trust. Under the terms of the trust ag ree ment, the trustee 5 also has the power to “sell, exchang e, alter, mortg ag e, pledg e or otherwise dispose of trust proper ty .”

For example, Tedde state d during a post-judg ment hear ing be fore the trial cour t: 5
As far as transfe rring my proper ty and possessions to the living trus t , what I transfe rre d was what was awa rded to me by the Court.

. . . Ag ain, the trust is revoc able, it can be chang ed at any time. But at this point, I have no control over the assets in the trust. Tedde later testified at the hear ing: “All of my assets are in the living trust, which I have no control over.” The trust ag ree ment includes a s pendthrift provision which provides that the income or corpus of the t rust is not “subjec t to any divorce , execution, g arnishment, attachment, i nsolvency , bankruptc y , or other le g al proc eeding of any char acte r, . . . or subject, voluntar ily or involuntarily , to the pay

ment of such benef

iciary ’s debts or other obliga tions.” Tedde cre at ed and transfe rre d the proper

ty awa rded to h i m i n t he divorce decr ee sever al months befor e he filed for Chapter 13 ba

nkruptcy

. 5Given Tedde ’s transfe r of the proper ty awa rded to him to a third party who could then dispose of the
proper ty , we conclude that Tedde acc epted the benef its of the judgme nt and that, unless an exception applies, he is estopped from pursuing this appea l. See Carle , 234 S.W .2d at 1004; W aite , 150 S.W .3d at 803–04.

Turning to the exceptions stated above, T e d de has failed to establish either exception. See D.S.W

. , 402 S.W .3 d at 3 3 2 ; Richards , 371 S.W .3d at 415. He has not offe red proof that he transfe rre d the proper

ty to the trust be cause of financ ial duress. See W aite , 150 S.W .3d at 805–06 (re jecting arg ument that aff idavit established that “ec onomic circ umstances rende r[ed] his

acc eptanc e of the benefits of t he judgment i nvoluntary ” and noting that “complete absenc e of a ny
statement in his aff

idavit that he was unemploy ed or had no other source s of income”)

. Rather, his stated rea sons for transfe rring his proper ty to the trust wer e his inability to obtain leg al malprac tice insurance and his desire to protect a nd prese rve his asse ts. Tedde also h as not shown that “re versa l of the judgme nt on the g rounds appea led
cannot possibly aff

ect [hi s] rig ht to the benef it s acc epted under the judgme nt.” See D.S.W

. , 402 S.W .3d at 332. Appellant seeks reve rsal of the final decr ee and a new trial on the proper ty division. I n the event of a new trial, he may be awa rded more proper

ty but he also may be awa rded less proper

ty

. See W

aite , 150 S.W .3d at 807–08 (conc luding second exception to acc eptanc e of benef its doctrine did not apply beca use reve rsal might aff

ect appell an t ’s ri g ht to the benef its he

acc epted and noting that appellant might rec eive more but he also might rec eive less and that second exception does not apply unless appellant’ s rig ht to the acc epted proper ty is “unquestionable ”); see also Texas State Bank v

. Amaro , 87 S.W .3d 538, 544 (Tex. 2002) (desc ribing “nar row” exception

6to acc eptanc e of benef its doctrine that “as long as an appellant ‘ac cepts only that which appellee

conce des, or is bound to conce de, to be due him under the judgme nt he is not estopped to prosec ute

an appea l which involves only his rig ht to a further rec overy ’” (quoting Carle , 234 S.W .2d at 1004)).

Be cause we conclude that the acc eptanc e of the benef its doctrine applies and that Tedde has failed to establish an exception to the doctrine, this appea l is rende red moot and dismiss al is appropria te. See D .S.W

. , 402 S.W .3d at 332. 6

CONCLUSION For these re asons, we dismiss the appe al as moot.

__________________________________________ Melissa Goodwin, Jus tice
Be fore J ustices Pury ear , Rose, and Goodwin Dismissed as Moot Filed: Jul y

2, 2014

I n one of his response s, Tedde also urg es t hat hi s appea l is not m o o t beca use he has “an 6 independen t ca u s e o f action in contra ct” based on an alleg ed failure of Cathy to comply with the mediated settlement ag ree ment. T edde’s appea l, howeve r, is from the trial court’s final divorce decr ee. He states his issue in his appellant brief as to the mediated settlement ag ree ment as follows: “The trial court abused its discretion when i t re fu s ed to acknow ledg e and abide by the parties’ mediated settlement ag ree ment.” Thus, an independe nt contra ct clai m i s not befor e the Court in this appeal. 7