in the Matter of the Marriage of Lybby L. Baggett and Larry K. Baggett ( 2002 )

NO. 07-02-0087-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
APRIL 19, 2002
______________________________
IN THE MATTER OF THE MARRIAGE OF
LYBBY L. BAGGETT AND LARRY K. BAGGETT
_________________________________
FROM THE 286TH DISTRICT COURT OF HOCKLEY COUNTY;
NO. 01-04-18,365; HONORABLE ANDY KUPPER, JUDGE
_______________________________
Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
ON MOTION TO DISMISS
Larry K. Baggett (Larry) and Lybby L. Baggett (Lybby) have both appealed from a
divorce decree entered by the trial court on November 16, 2001. The reporter’s and clerk’s
records have been filed. We now have before us a motion filed by Lybby in which she
requests that we dismiss Larry’s appeal because he has “voluntarily accepted benefits from
the divorce decree.” She cites no authority in support of her request. We also have before
us Larry’s request for an extension of time to file his appeal brief until May 2, 2002, due to
his need to respond to the motion to dismiss and other trial commitments of his counsel.
It has been held that a litigant may not treat a judgment as both right and wrong by
voluntarily accepting benefits awarded by it and also prosecuting an appeal from it. Carle
v. Carle, 149 Tex. 469, 234 S.W.2d 1002, 1004 (1950). However, the rule does not apply
when a reversal of the judgment on the grounds asserted by the appellant could not
possibly affect the benefits received. Demler v. Demler, 836 S.W.2d 696, 697 (Tex.App.--
Dallas 1992, no writ); see also Matter of Marriage of Beavers, 648 S.W.2d 729, 732
(Tex.App.--Amarillo 1983, no writ).
In support of her motion to dismiss, Lybby references testimony by Larry at a
hearing on post-judgment motions in which he states he took some of his clothes and
some barrels, bullets, primers, and powder that he needed to compete with his target rifles,
which were allegedly awarded to him in the final divorce decree. However, Larry’s notice
of appeal does not give any indication of the issues he intends to assert on appeal and,
since he has not yet filed his brief, we have no way of knowing what those issues might be
and whether reversal of the divorce decree based on those issues could possibly have an
effect on the award of those items.
Accordingly, we overrule Lybby’s motion to dismiss at this time. Further, Larry is
hereby granted until May 2, 2002, to file his brief in this appeal.
Per Curiam
Do not publish.
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