David Robertson v. Oksana Robertson

NUMBER 13-16-00309-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
DAVID ROBERTSON, Appellant,
v.
OKSANA ROBERTSON, Appellee.
On appeal from the 148th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Contreras and Benavides
Memorandum Opinion by Justice Contreras
This is the second appeal from the underlying divorce proceeding between
appellant David Robertson and appellee Oksana Robertson. See Robertson v.
Robertson, No. 13-14-00523-CV, 2015 WL 7820814 (Tex. App.—Corpus Christi Dec. 3,
2015, no pet.) (mem. op.) (“Robertson I”). David appeals from an amended divorce
decree. David raises four issues, asserting that the trial court erred by: (1) signing the
amended decree without hearing evidence or characterizing the property which he argued
was his separate property; (2) awarding Oksana $15,000 in appellate attorney’s fees; (3)
failing to render judgment in his favor for fifty percent of the costs of the first appeal; and
(4) correcting a judicial error with a judgment nunc pro tunc. We affirm in part, reverse in
part, and remand for further proceedings.
I. BACKGROUND
We recount the necessary facts from the first appeal to place our post-remand
analysis in context.
A. Robertson I
In Robertson I, David appealed a divorce decree granted in favor of Oksana after
she presented to the trial court a marital agreement the parties had executed.1 The
marital agreement contained a partition of property and an allocation of income detailed
in four schedules: A, B, C, and D.2 David argued in Robertson I that the entire marital
agreement was invalid and unenforceable, while also alleging that the proceeds from two
lawsuits—half of which had been awarded to Oksana per Schedule D—were his separate
property. David, however, did not complain about any property listed and awarded to
Oksana under Schedule B.
After analyzing the allocation of income contemplated by Schedule C of the marital
agreement, we held that particular allocation void because the only income partitioned
1Because the trial court found the marital agreement to be valid and enforceable to dispose of the
entire marital estate, it did not hear any evidence on the characterization of any of the parties’ property.
2 Schedule A identified properties that were to be David’s separate property after the divorce.
Schedule B identified properties that were to be Oksana’s separate property after the divorce. Schedule C
contained an allocation of income. Schedule D listed properties that the parties would continue to own
jointly: (1) a coin collection and (2) the proceeds from two lawsuits regarding a work-related injury David
suffered prior to his marriage to Oksana.
2
was David’s separate property.3 Id. at *6–7. As to the to the marital agreement’s validity
and enforceability as a whole, we found that:
Though the agreement cannot function to partition or exchange property
that is already characterized as separate, we determine that it could
effectively recharacterize the remaining community property interest
between the parties, thereby creating the intended separate properties
contemplated by the marital agreement. To the extent the marital
agreement purports to partition or exchange the parties’ community
property, it is sufficient to do so, and we conclude that the portion of the
marital agreement that partitions or exchanges the Robertson's community
property into the other’s separate property is valid.[4]
Id. at *6 (citations omitted). This Court further stated that the proceeds from David’s two
lawsuits were David’s separate property, and he could not be divested of them. Id. at *9–
10. Thus, we affirmed “in part the portion of the judgment based on the agreement to
partition or exchange community property, and reverse[d] in part the trial court’s judgment
divesting David of his separate property and remand[ed] for further proceedings
consistent with [the] opinion.” Id. at *10. We also held that, for failing to object at the trial
court, David had waived any complaint as to the award of trial and appellate attorney’s
fees to Oksana. Id. Finally, we divided the appellate costs equally between the parties.
B. Proceedings After Remand
On remand, Oksana filed a “Motion for Entry of Final Decree” and attached an
amended divorce decree, which she argued complied with our opinion in Robertson I.
The amended decree was almost identical to the one entered prior to the first appeal,
except that Oksana removed all awards to her of the property which we stated was
3 The only income listed in the allocation-of-income section of the marital agreement was the
monthly compensation David receives for the work-related injury he suffered prior to his marriage to
Oksana. See Cottone v. Cottone, 122 S.W.3d 211, 213 (Tex. App.—Houston [1st Dist.] 2003, no pet.)
(recognizing that even when the injury occurs during marriage, recovery for personal injuries is generally
the spouse’s separate property).
4 The agreement the parties executed did not comply with the statutory conditions to validly partition
any of their separate property. See TEX. FAM. CODE ANN. § 4.203 (West, Westlaw through 2017 1st C.S.).
3
David’s separate property: (1) the proceeds from his two lawsuits and (2) David’s monthly
check listed in Schedule C’s allocation-of-income section of the marital agreement.
These items were listed as David’s separate property in the amended decree.
Furthermore, Oksana changed the language pertaining to the award of appellate
attorney’s fees from a conditional award “[i]n the event that [Oksana] shall prevail in the
appeal of this matter” to an unconditional statement that Oksana “shall have [an]
additional judgment against [David] for her reasonable and necessary appellate attorney’s
fees of $15,000.”
The trial court set a hearing on Oksana’s motion for May 31, 2016. On May 27,
2016, David filed an amended counter-petition for divorce seeking to show that some of
the property being awarded to Oksana in the amended decree was either a mixed-
character asset or his separate property.5 All of the property that David sought to contest
was listed in Schedule B. On May 30, 2016, David filed a response to Oksana’s motion
restating that the amended divorce decree could not divest him of his separate property,
which he again identified.
At the hearing, Oksana argued that the “amended final decree . . . keeps all the
language . . . that the Court of Appeals affirmed [and] deletes the language that the Court
of Appeals reversed . . . .” Oksana argued that this Court affirmed the division of property
in schedules A and B, reversing only schedule C, and “instructed [the trial court] to enter
a new Final Decree of divorce in conformity with [our] ruling.” The trial court agreed with
5 David claims that: (1) the house in Corpus Christi awarded to Oksana is a mixed-character asset;
(2) funds in a bank account awarded to Oksana are his separate property; and (3) a portion of the gold
coins awarded to Oksana are his separate property.
David also argued that funds in the registry of the court were proceeds from the lawsuits, which we
stated were his separate property in Robertson I. See Robertson v. Robertson, No. 13-14-00523-CV, 2015
WL 7820814, at *9 (Tex. App.—Corpus Christi Dec. 3, 2015, no pet.) (mem. op.) (“Robertson I”). However,
David does not raise an issue on appeal about the funds in the registry of the court.
4
Oksana and signed the amended divorce decree. The judgment read that it was
“pronounced and rendered” on July 7, 2014, but “ministerially” signed on May 31, 2016.
The trial court did not issue findings of fact or conclusions of law. David filed his notice
of appeal on the same day.
II. DISCUSSION
A. Characterization of Property
By his first issue, David asserts that the trial court erred in signing an amended
divorce decree after Robertson I without hearing evidence and characterizing the property
in dispute. In response, Oksana contends David is precluded from disputing the character
of the property because the law-of-the-case doctrine bars it and because he waived those
issues in Robertson I. We construe the issue to be whether the amended divorce decree
complied with our opinion in Robertson I.
1. Scope of Remand
“Generally, when an appellate court reverses and remands a case
for further proceedings, and the mandate is not limited by special instructions, the effect
is to remand the case to the lower court on all issues of fact, and the case is opened in
its entirety.” Simulis, L.L.C. v. Gen. Elec. Capital Corp., 392 S.W.3d 729, 734 (Tex.
App.—Houston [14th Dist.] 2011, pet. denied); see Hudson v. Wakefield, 711 S.W.2d
628, 630 (Tex. 1986); Creative Thinking Sources, Inc. v. Creative Thinking, Inc., 74
S.W.3d 504, 510–11 (Tex. App.—Corpus Christi 2002, no pet.). On the other hand, when
an appellate court “remands a case and limits a subsequent trial to a particular issue, the
trial court is restricted to a determination of that particular issue.” Hudson, 711 S.W.2d at
630; Corpus Christi Day Cruise, LLC v. Christus Spohn Health Sys. Corp., 398 S.W.3d
303, 309 (Tex. App.—Corpus Christi 2012, pet. denied); see Creative Thinking, 74
5
S.W.3d at 510. For a reversal to be limited to particular fact issues, it must be clearly
apparent from the decision that the appellate court intended to do so. Hudson, 711
S.W.2d at 630. The scope of the remand is determined by looking to both the mandate
and the opinion. Id.; Corpus Christi Day Cruise, 398 S.W.3d at 309. A trial court's failure
or refusal to comply with a court of appeals’ opinion and mandate is an abuse of
discretion. See Lee v. Downey, 842 S.W.2d 646, 648 (Tex. 1992) (orig. proceeding); see
also Dean’s Campin’ Co. v. Hardsteen, No. 13-05-00468-CV, 2008 WL 3984161, at *10
(Tex. App.—Corpus Christi Aug. 29, 2008, pet. denied) (mem. op.).
2. Applicable Law
“[T]he characterization of property as community or separate—in other words, the
determination of to whom the property belongs—matters most when a marriage ends.”
Robertson I, 2015 WL 7820814 at *2 (quoting W. Michael Wiist, Trust Income: Separate
or Community Property?, 51 BAYLOR L. REV. 1149, 1153 (Fall 1999)); see TEX. FAM. CODE
ANN. §§ 7.001, 7.002 (West, Westlaw through 2017 1st C.S.). Typically, in the context of
a divorce, the spouses’ community property is subject to a “just and right” division by the
trial court. Pearson v. Fillingim, 332 S.W.3d 361, 364 (Tex. 2011); see Eggemeyer v.
Eggemeyer, 554 S.W.2d 137, 139 (Tex. 1997); see, e.g., TEX. FAM. CODE ANN. §§ 7.001–
7.004 (West, Westlaw through 2017 1st C.S.). However, a trial court, in performing its
just and right property division, is not authorized to divest either spouse of his or her
separate property. See Eggemeyer, 554 S.W.2d at 140; Cameron v. Cameron, 641
S.W.2d 210, 215 (Tex. 1982). Such divestment is clearly unconstitutional and in violation
of statute. See Eggemeyer, 554 S.W.2d at 139–40; Cameron, 641 S.W.2d at 214; see
also TEX. CONST. art. XVI, § 15; TEX. FAM. CODE ANN. § 7.001.
6
The character of marital property is a mixed question of law and fact. See TEX.
FAM. CODE ANN. § 6.711(a) (West, Westlaw through 2017 1st C.S.); Welder v. Welder,
794 S.W.2d 420, 432–33 (Tex. App.—Corpus Christi 1990, no writ). The Texas Family
Code creates a statutory presumption that all property possessed by either spouse during
or upon dissolution of marriage is community property. TEX. FAM. CODE ANN. § 3.003(a)
(West, Westlaw through 2017 1st C.S.). A party claiming property as their separate
property has the burden of rebutting the community-property presumption. Pearson, 332
S.W.3d at 363. If the presumption is not rebutted, the court must characterize the property
as community property, even if that characterization is ultimately incorrect. See Id.
3. Analysis
In the case at hand, there is no language in our previous opinion or mandate
providing special instructions or indicating we limited the scope of remand to any
particular issue. See Robertson I, 2015 WL 7820814, at *10. Instead, this Court affirmed
in part and reversed in part and remanded “for further proceedings consistent with [our]
opinion.” Id. Therefore, the case was reopened in its entirety on all issues of fact that
were not disposed of in the portion of the original final decree which we affirmed. See
Hudson 711 S.W.2d at 630; Simulis, 392 S.W.3d at 734. That included the
characterization of the income listed in Schedule C’s allocation of income and the
proceeds from David’s two lawsuits.6
6 We stated in Robertson I that these assets are David’s separate property. See id. at *6–7, 9.
However, the only issue in that appeal was whether the trial court erred in granting Oksana’s motion for
summary judgment. See id. at *2. David did not move for summary judgment. Therefore, by stating that
the allocation of income and lawsuit proceeds were David’s separate property, we were demonstrating only
that Oksana had not shown herself entitled to judgment as a matter of law on those issues. See TEX. R.
CIV. P. 166a(c). We could not render judgment in David’s favor on these issues because he did not move
for summary judgment. The issues therefore were remanded to the trial court to resolve, whether via
summary judgment or full trial on the merits.
7
As noted, determining the character of marital property is a mixed question of law
and fact. See TEX. FAM. CODE ANN. § 6.711(a). Oksana argues that the law-of-case
doctrine bars David from challenging the character of the property he seeks to dispute in
this second appeal. We agree. Under this doctrine, the decisions made on questions of
law on appeal govern the case throughout its subsequent stages. Hudson 711 S.W.2d
at 630; see Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003). In Robertson
I, we affirmed “the portion of the judgment based on the agreement to partition or
exchange community property.” Robertson I, 2015 WL 7820814 at *6. By doing so, we
ruled as a matter of law on the characterization of the properties covered in that portion
of the judgment. In other words, to the extent we affirmed the summary judgment as to
the agreement’s characterization of property (i.e., the disposition under Schedule B),
David is now precluded from challenging that characterization.
By filing her motion to enter an amended decree—which was based on our partial
affirmance of the trial court’s summary judgment in her favor—Oksana argued to the trial
court that she was entitled as a matter of law to an amended divorce decree including the
disposition in Schedule B. See TEX. R. CIV. P. 166a(c); G & H Towing Co. v. Magee, 347
S.W.3d 293, 296–97 (Tex. 2011); see also In re Brookshire Grocery Co., 250 S.W.3d 66,
72 (Tex. 2008) (the nature of a motion is determined by its substance, not its title or
caption). In support of this, Oksana attached a copy of our opinion from Robertson I, a
copy of the original decree entered before the first appeal, a copy of the marital
agreement, and a copy of the amended divorce decree.
After our mandate in Robertson I, our judgment on the sections of the marital
agreement which we affirmed became the judgment of the trial court. Cessna Aircraft Co.
v. Aircraft Network, LLC, 345 S.W.3d 139, 144 (Tex. App.—Dallas 2011, no pet.); see
8
Cook v. Cameron, 733 S.W.2d 137, 139 (Tex. 1987). Thus, Oksana was entitled as a
matter of law to the dispositions mandated by Schedule B.
As to the income listed in Schedule C and David’s proceeds from his two lawsuits,
the trial court’s judgment had been nullified, leaving the judgment as to those issues as if
it had never been rendered. Cessna Aircraft Co., 345 S.W.3d at 145; In re S.S.G., 208
S.W.3d 1, 3 (Tex. App.—Amarillo 2006, pet. denied); see also Swank v.
Cunningham, 258 S.W.3d 647, 663 (Tex. App.—Eastland 2008, pet. denied) (reversal of
judgment returns parties to status quo). We held in Robertson I that David could not be
divested of these properties, and, accordingly, the amended divorce decree listed these
as David’s separate property. Therefore, the amended divorce decree properly disposed
of the remaining issues after Robertson I, and we conclude that the amended divorce
decree, to the extent it provided for the disposition of property, complied with our opinion
from the first appeal.
We overrule David’s first issue.
B. Appellate Attorney’s Fees
By his second issue, David contends that the trial court erred when it awarded
Oksana $15,000 in appellate attorney’s fees.
1. Applicable Law
Generally, a court may award appellate attorney's fees in a proceeding to enforce
a divorce decree. Cook, 733 S.W.2d at 141; see TEX. FAM. CODE ANN. § 9.014 (West,
Westlaw through 2017 1st C.S.). An award of appellate attorney’s fees under section
9.014 of the Texas Family Code is reviewed for an abuse of discretion. See Cook, 733
S.W.2d at 141. The test for an abuse of discretion is “whether the court acted without
reference to any guiding rules and principles.” Cire v. Cummings, 134 S.W.3d 835, 838–
9
39 (Tex. 2004) (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241
(Tex. 1985)). The trial court's ruling should be reversed only if it was arbitrary or
unreasonable. Cummings, 134 S.W.3d at 839.
An award of appellate attorney’s fees must be contingent upon the appellant’s
unsuccessful appeal. Picket v. Keen, 47 S.W.3d 67, 78 (Tex. App.—Corpus Christi 2001,
no pet.). To do otherwise would penalize a party for pursuing a meritorious appeal.
Schlueter v. Schlueter, 975 S.W.2d 584, 590 (Tex. 1998); Picket, 47 S.W.3d at 78. Thus,
“[a]n appellee may not recover attorney’s fees for work performed on any issue of the
appeal where the appellant was successful.” Lynch v. Lynch, No. 01-16-00573-CV, 2017
WL 4054167, at *21 (Tex. App.—Houston [1st Dist.] Sept. 14, 2017, pet. filed) (quoting
Jacks v. G.A. Bobo, No. 12-10-00163-CV, 2011 WL 2638751, at *5 (Tex. App.—Tyler
June 30, 2011, pet. denied) (mem. op.)); Pickett, 47 S.W.3d at 78. However, an appellee
may still recover attorney’s fees for work performed on any issue of the appeal where the
appellant was unsuccessful. Smith v. Smith, 757 S.W.2d 422, 426 (Tex. App.—Dallas
1988, writ denied). If a party is entitled to attorney’s fees from the adverse party on one
claim but not another, the party claiming attorney fees must segregate the recoverable
fees from the unrecoverable fees. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299,
313 (Tex. 2006). Thus, an appellee must segregate her appellate attorney’s fees when
the appellant is partially successful in an appeal. See Smith, 757 S.W.2d at 426.
2. Analysis
Here, the initial divorce decree awarded Oksana $15,000 for appellate attorney’s
fees on the condition that she prevail on the first appeal. However, although Oksana
prevailed on some of the issues in Robertson I, David also prevailed on the issues
regarding the validity of the allocation of income and the separate character of the
10
proceeds from his two lawsuits. Yet, the language in Oksana’s amended divorce decree
granted her an unqualified judgment for the entire $15,000. Given that Oksana’s
appellate attorney spent time addressing an issue on which David was successful, the
attorney’s fees award should have been reconsidered in light of that success. See
Prudential Ins. v. Durante, 443 S.W.3d 449, 515 (Tex. App.—El Paso 2015, pet. denied).
The attorney’s fees for time spent on addressing the issues on which David prevailed
should have been segregated from the recoverable fees on the issues on which Oksana
prevailed, but they were not. See Tony Gullo Motors, 212 S.W.3d 299 at 311. Therefore,
the trial court erred when it granted Oksana $15,000 for appellate attorney’s fees.
Accordingly, we reverse the award of all appellate attorney’s fees and remand to
the trial court for a determination of the reasonable amount of appellate attorney’s fees to
be awarded to Oksana in view of the fact that David was partially successful in the first
appeal. On remand, Oksana must segregate the recoverable fees from the
unrecoverable fees. See Tony Gullo Motors, 212 S.W.3d at 313.
We sustain David’s second issue.
C. Appellate Costs
By his third issue, David contends that the trial court erred by failing to render
judgment in his favor for fifty percent of the costs of the first appeal.
1. Applicable Law
Once the appellate court renders judgment and issues its mandate, the trial court
has a ministerial duty to comply with the mandate. See TEX. R. APP. P. 51.1(b); Seger v.
Yorkshire Ins., 503 S.W.3d 388, 408 (Tex. 2016). The trial court has no discretion to
review or interpret the mandate. In re Marriage of Grossnickle, 115 S.W.3d 238, 243
(Tex. App.—Texarkana 2003, no pet.); see Cessna Aircraft Co., 345 S.W.3d at 144.
11
When the judgment of an appellate court becomes final, the statute contemplates
immediate execution for costs on appeal. City of Garland v. Long, 722 S.W.2d 49, 50
(Tex. App.—Dallas 1986, orig. proceeding) (discussing former TEX. R. APP. P. 88, now
TEX. R. APP. 51.1). And, if the appellate court reverses and remands, the trial court will
need to enter further orders to enforce the appellate court’s judgment. See TEX. R. APP.
P. 51.1(b).
2. Analysis
Here, the bill of costs from Robertson I shows a total of $2,897.61, and our
mandate specified that the appellate costs were to be divided equally among the parties.
However, the amended decree of divorce ordered that the costs of the appeal be borne
by the party who incurred them. Therefore, the trial court erred by not dividing the costs
of the first appeal between the parties. See TEX. R. APP. P. 51.1(b); Seger, 503 S.W.3d
at 408; In re Marriage of Grossnickle, 115 S.W.3d at 243; City of Garland, 722 S.W.2d at
50.
Oksana cites Texas Rule of Appellate Procedure 51.1(b) to assert that the trial
court did not have to make any further order in the case, but the rule is inapplicable when,
as here, an appellate court remands for further proceedings. See TEX. R. APP. P. 51.1(b).
We sustain David’s third Issue.
D. Judgment Nunc Pro Tunc
By his fourth issue, David contends that the trial court’s judgment is void because
it is a judgment nunc pro tunc.
1. Applicable Law and Standard of Review
After a trial court loses its plenary power over a judgment, it can correct only clerical
errors in the judgment by a judgment nunc pro tunc. Escobar v. Escobar, 711 S.W.2d
12
230, 231 (Tex. 1986); see TEX. R. Civ. P. 316, 329b(f); In re Dryden, 52 S.W.3d 257, 262
(Tex. App.—Corpus Christi 2001, no pet.). A clerical error is a discrepancy between the
entry of a judgment in the record and the judgment that was actually rendered. See
Andrews v. Koch, 702 S.W.2d 584, 585 (Tex. 1986); In re Dryden, 52 S.W.3d at 262. A
clerical error does not result from judicial reasoning or determination. Andrews, 702
S.W.2d at 585. Conversely, a judicial error arises from a mistake of law or fact that
requires judicial reasoning to correct. Butler v. Cont’l Airlines, Inc., 31 S.W.3d 642, 647
(Tex. App.—Houston [1st Dist.] 2000, pet. denied). “A judicial error occurs in
the rendering as opposed to the entering of judgment.” Escobar, 711 S.W.2d at 231
(emphasis in original); see In re Daredia, 317 S.W.3d 247, 249 (Tex. 2010).
If the trial court signs a corrected judgment while it still has plenary power, it is a
modified judgment, not a judgment nunc pro tunc. See Alford v. Whaley, 794 S.W.2d
920, 922 (Tex. App.—Houston [1st Dist.] 1990, no writ). And, if the trial court attempts to
correct a judicial error by signing a judgment nunc pro tunc after its plenary power expires,
the judgment is void. Morris v. O’Neal, 464 S.W.3d 801, 808 (Tex. App.—Houston [14th
Dist.] 2015, no pet.); see Dikeman v. Snell, 490 S.W.2d 183, 186 (Tex.1973); Wood v.
Griffin & Brand, 671 S.W.2d 125, 132 (Tex. App.—Corpus Christi 1984, no writ). Whether
an error is clerical or judicial is a matter of law; therefore, we review this question de novo.
Tex. Dep’t of Pub. Safety v. Moore, 51 S.W.3d 355, 358 (Tex. App.—Tyler 2001, no pet.);
see In re Dryden, 52 S.W.3d at 262.
2. Analysis
Here, on remand, jurisdiction was reinstated in the trial court to conduct
proceedings consistent with our Robertson I opinion. See TEX. R. APP. P. 43.2, 43.3,
51.1(b); see, e.g., Cessna Aircraft Co., 345 S.W.3d at 144 (“On remand, the filing of the
13
mandate with the trial court vests the trial court with limited jurisdiction, as defined by the
parameters of the mandate, to decide those issues specified in the mandate.”). Rule
51.1(b) states that the “trial court need not make any further order in the case” when the
court of appeals affirms, modifies and affirms as modified, or renders. TEX. R. APP. P.
51.1(b). Implicit in the Rule is the necessary procedural fact that if the appellate court
disposes of the case in another manner—such as here, affirming in part and reversing in
part—a new order must be entered by the trial court. See id.
As discussed earlier, a trial court must comply with an appellate court’s mandate,
looking to the court of appeals’ judgment for guidance on how to proceed. Hudson, 711
S.W.2d at 630; Corpus Christi Day Cruise, 398 S.W.3d at 309; Cessna Aircraft Co., 345
S.W.3d at 144. In this case, that required the entry of a new judgment that included those
parts of the original judgment which were affirmed on appeal and disposed of the issues
that were not affirmed on appeal, and the amended divorce decree did just that.
David complains that the judgment is a judgment nunc pro tunc because it states
that it was “pronounced and rendered” on July 7, 2014, but “ministerially signed” on May
31, 2016. We disagree. David overlooks the fact that a trial court’s judgment goes
through a “metamorphosis . . . following review of that judgment on appeal.” Cessna
Aircraft Co., 345 S.W.3d at 145. “When an appellate court affirms a trial court’s
judgment . . . , that judgment becomes the judgment of both courts.” Id. (citing Cook 733
S.W.2d at 139). As noted, the original divorce decree was not reversed in its entirety,
and the trial court’s amended divorce decree resolved the only issues remaining after
Robertson I; the amended divorce decree was a proper modified judgment of the one
rendered in 2014. We conclude that the trial court’s amended divorce decree was not a
judgment nunc pro tunc.
14
We overrule David’s fourth issue.
III. OKSANA’S MOTION TO DISMISS
During the pendency of this appeal, Oksana filed a motion to dismiss the appeal,
arguing that David had acquiesced to, and accepted benefits from, the original and the
amended judgment. In support, Oksana points to the following actions that have taken
place since the signing of the original divorce decree: (1) David deeded the house in
Corpus Christi to Oksana; (2) Oksana refinanced the mortgage on the Corpus Christi
house under her name alone; (3) David cooperated in the refinancing of the Corpus Christi
home; (4) David sold lots of real property in Corpus Christi which had been awarded to
him; and (5) David paid off a line of credit that had been secured by the house in Corpus
Christi.
A. Applicable Law
“The acceptance-of-benefits doctrine is . . . anchored in equity and bars an appeal
if the appellant voluntarily accepts the judgment’s benefits and the opposing party is
thereby [irremediably] disadvantaged.” Kramer v. Kastleman, 508 S.W.3d 211, 217 (Tex.
2017) (emphasis added). It “is a fact-dependent, estoppel-based doctrine focused on
preventing unfair prejudice to the opposing party.” Id. at 214. “[M]erely using, holding,
controlling, or securing possession of community property awarded in a divorce decree
does not constitute clear intent to acquiesce in the judgment and will not preclude an
appeal absent prejudice to the nonappealing party.” Id. at 228. “Whether estoppel of the
right to appeal is warranted involves a fact-dependent inquiry entrusted to the courts’
discretion.” Id. “The burden of proving an estoppel rests on the party asserting it, and
the failure to prove all essential elements is fatal.” Id. at 217.
15
The Texas Supreme Court noted that the acceptance-of-benefit doctrine presents
unique concerns in the context of divorce and emphasized the importance of the presence
of prejudice to the opposing party in applying the doctrine. See id. 218–19. In Kramer,
the Texas Supreme Court elaborated that:
before denying a merits-based resolution to a dispute, courts must evaluate
whether, by asserting dominion over assets awarded in the judgment under
review, the appealing party clearly intended to acquiesce in the judgment;
whether the assets have been so dissipated as to prevent their recovery if
the judgment is reversed or modified; and whether the opposing party will
be unfairly prejudiced.
Id. at 227.
In determining if the acceptance-of-benefit doctrine applies, appellate courts look
to a nonexclusive list of factors. See id. at 229. They include:
1) whether acceptance of benefits was voluntary or was the product of
financial distress;
2) whether the right to joint or individual possession and control preceded
the judgment on appeal or exists only by virtue of the judgment;
3) whether the assets have been so dissipated, wasted, or converted as to
prevent their recovery if the judgment is reversed or modified;
4) whether the appealing party is entitled to the benefit as a matter of right
or by the nonappealing party's concession;
5) whether the appeal, if successful, may result in a more favorable
judgment but there is no risk of a less favorable one;
6) if a less favorable judgment is possible, whether there is no risk the
appellant could receive an award less than the value of the assets
dissipated, wasted, or converted;
7) whether the appellant affirmatively sought enforcement of rights or
obligations that exist only because of the judgment;
8) whether the issue on appeal is severable from the benefits accepted;
9) the presence of actual or reasonably certain prejudice; and
10) whether any prejudice is curable.
16
Id. The doctrine “applies ‘when it would be unconscionable to allow a person to maintain
a position inconsistent with one to which he acquiesced, or from which he accepted a
benefit.’” Id. at 219 (quoting Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857,
864 (Tex. 2000)).
B. Analysis
To prevail on her motion to dismiss based on the acceptance-of-benefits doctrine,
Oksana must prove that David’s actions were voluntary and that she will be prejudiced if
the case is remanded. See id. at 217, 227–28; In re Marriage of Stegall, 519 S.W.3d 668,
672–73 (Tex. App.—Amarillo 2017, no pet.).
We find voluntariness lacking on David’s part as it relates to: (1) David deeding
the house in Corpus Christi to Oksana; (2) Oksana refinancing the mortgage on the
Corpus Christi house under her name alone; (3) David cooperating in the refinancing of
the Corpus Christi home; and (4) David paying off the line of credit secured by the Corpus
Christi home.
David was ordered by the original divorce decree to deed the house in Corpus
Christi to Oksana and to give her all documents necessary to have “full and complete
access to both mortgages . . . .” Additionally, the amended divorce decree ordered David
to pay the line of credit secured by the Corpus Christi home, and it ordered Oksana to
make the payments on the mortgage for the house. However, the amended decree did
not order Oksana to refinance the mortgage secured by the Corpus Christi home.
First, given that it was mandated by the divorce decrees, we cannot conclude that
David’s deeding of the house to Oksana,7 or his payment of the line of credit secured by
7Oksana also filed a motion to compel David to execute the deed. David deeded the house to
Oksana before the trial court could rule on that motion.
17
it, was voluntary on his part. See Kramer, 508 S.W.3d at 231. Second, in regard to the
mortgage refinance, this was pursued by Oksana and she makes no argument, nor is
there evidence in the record, that David pushed for or initiated the transaction. Instead,
the record and Oksana’s motion reflect the opposite: David “had to cooperate” with
Oksana as she pursued the refinance. In doing so, David executed a power of attorney
permitting Oksana to negotiate checks for the balance of an escrow account, but only
after she chose to refinance the property during the appeal and filed a motion to compel
him to do so.8 Because these actions were not voluntary on David’s part, the acceptance-
of-benefits doctrine does not bar him from this appeal. Further, the only prejudice to
Oksana that is apparent in all of this are the costs she incurred from the refinance,
something she did not have to pursue and was not voluntary on David’s part.
Finally, Oksana’s other complaint—that David sold the other lots awarded to him
in the divorce decree—is also not meritorious. The benefit accepted by David (i.e. the
lots) is not at issue on appeal and cannot be affected by reversal; Oksana does not deny
his right to retain these properties, and our opinion in Robertson I controls the disposition
of the parties’ community property. See Robertson I, 2015 WL 7820814 at *6. Therefore,
even though David’s sale of the lots was voluntary, Oksana is unable to show that she
would be prejudiced upon remand by this, and David’s appeal is not barred by this action.
See Kramer, 508 S.W.3d at 218; Carle v. Carle, 243 S.W.2d 1002, 1004 (Tex. 1950)
(“Where an appellant accepts only that which appellee concedes, or is bound to concede,
to be due him under the judgment he is not estopped to prosecute an appeal which
involves only his right to a further recovery.”).
8 Like the motion filed to compel David to deed the house to Oksana, David executed the power of
attorney before the trial court could rule on that motion.
18
Based on the record before us, we conclude the circumstances do not reflect
David’s clear intent to acquiesce in the judgment’s validity. See Kramer, 508 S.W.3d at
229–30.
We deny Oksana’s motion to dismiss.
IV. CONCLUSION
We reverse the trial court’s judgment to the extent it awards attorney’s fees and
costs. We affirm the remainder of the judgment. The cause is remanded for further
proceedings consistent with this opinion.
DORI CONTRERAS
Justice
Delivered and filed the
21st day of December, 2017.
19