Dawson-Austin v. Austin

Decision Date29 February 1996
Docket NumberDAWSON-AUSTI,No. 05-94-00056-CV,A,05-94-00056-CV
PartiesCynthia Leeppellant v. William Franklin AUSTIN, Appellee.
CourtTexas Court of Appeals

Jeffrey H. Kobs, Thomas M. Michel, and David L. Evans, Hooper Evans & Kobs, L.L.P., Fort Worth, for appellant.

M.J. (Ike) Vanden Eykel, Koons Fuller & Vanden Eykel, Dallas, Harry L. Tindall, Tindall & Foster, Houston, Ann Crawford McClure, McClure & McClure, El Paso, and Richard R. Orsinger, San Antonio, for appellee.

Before LAGARDE, OVARD, and CHAPMAN, JJ.

OPINION ON REHEARING

LAGARDE, Justice.

This Court's opinion of January 3, 1995 is vacated. The following is now the opinion of this Court.

Cynthia Lee Dawson-Austin (Wife) appeals from the decree of divorce entered by the trial court dissolving her marriage to William Franklin Austin (Husband). She brings twenty-one points of error contending that the trial court lacked jurisdiction over the case, mischaracterized certain stock as Husband's separate property, failed to apply the correct law, erred in proceeding to judgment in the case, and failed to fairly and justly divide the community property. We overrule the points of error and affirm the trial court's judgment.

FACTUAL BACKGROUND

The parties were married in 1980 in China while domiciled in Minnesota. Before they were married, Husband acquired stock in the Starkey Corporation. In February 1992, the couple separated. Husband moved to Texas. Wife filed for divorce in California, but she did not obtain service of process for more than six months. When Husband had resided in Texas six months, he filed for divorce. Husband obtained service of process on Wife in this action before she served him in the California case.

The trial court determined that it had jurisdiction over the parties and the property in the case. It found that the Starkey stock was Husband's separate property and that no part of it constituted community property. The court distributed approximately fifty-five percent of the community estate to Wife and approximately forty-five percent to Husband.

ESTOPPEL

Husband contends in his first reply point that Wife is estopped from appealing the trial court's judgment because she has accepted the benefits of the judgment. Specifically, Husband asserts that Wife's acceptance of temporary support, interim attorney's fees, expenses of transporting witnesses to trial in Dallas, and attorney's fees included in the divorce decree constituted acceptance of the benefits of the judgment.

A litigant cannot treat a judgment as both right and wrong by voluntarily accepting the benefits of a judgment while prosecuting an appeal from it. Carle v. Carle, 149 Tex. 469, 474, 234 S.W.2d 1002, 1004 (1950); Demler v. Demler, 836 S.W.2d 696, 697 (Tex.App.--Dallas 1992, no writ). This rule, however, is inapplicable where a reversal of the judgment on the grounds asserted by the appellant could not possibly affect those benefits received. Carle, 234 S.W.2d at 1004; Demler, 836 S.W.2d at 697. Acceptance of cash benefits has been held to be an exception to the general rule announced in Carle. Demler, 836 S.W.2d at 698; Haggard v. Haggard, 550 S.W.2d 374, 377 (Tex.Civ.App.--Dallas 1977, no writ). Acceptance of cash benefits under a judgment does not necessarily prejudice the rights of the other spouse. Upon redivision of the property, if necessary, the trial court can take into consideration the money awarded. If there is an insufficient cash award to repay the money accepted, assets can be ordered sold to meet the debt. Demler, 836 S.W.2d at 698.

The interim attorney's fees, witness-transportation expenses, 1 and temporary spousal support were not part of the final divorce decree, so Wife's acceptance of these benefits does not prejudice her ability to appeal the divorce decree. Wife's acceptance of attorney's fees included in the divorce decree was acceptance of a cash benefit. See Demler, 836 S.W.2d at 698. The divorce decree shows that Wife will have sufficient assets to cover a possible reimbursement of the attorney's fees, if necessary. The record does not show any possibility that reversal of the judgment in this case would prejudice Husband's rights to the benefits secured under the judgment. Demler, 836 S.W.2d at 698; Haggard, 550 S.W.2d at 377. We hold that Wife is not estopped from prosecuting her appeal. We overrule Husband's first reply point.

SPECIAL APPEARANCE

After being served in this case, Wife filed on October 30, 1992, in one instrument, a special appearance, a motion to quash service of citation, a plea to the jurisdiction of the court, a plea in abatement, and subject to these, a general denial. On November 10, 1992, the day of the hearing, Wife's attorney filed a motion for continuance. The trial court denied the continuance. The court then denied the facially defective special appearance and proceeded to consider and deny the motion to quash service of citation. The court did not rule on the plea to the jurisdiction or the plea in abatement. On November 11, 1992, Wife filed an amended special appearance and a motion for reconsideration of the special appearance, motion to quash service of citation, plea to the jurisdiction, and plea in abatement. After an evidentiary hearing on November 16, 1992, the trial court denied the motion to reconsider.

Continuance

In her first point of error, Wife contends that the trial court erred in denying her motion for continuance. The only mention of the motion for continuance in Wife's brief is the factual statement that Wife filed the motion and the trial court denied it and the legal conclusion that the trial court abused its discretion in refusing to continue the hearing. The brief contains no argument or authorities on this point of error. Rule 74(f) of the Texas Rules of Appellate Procedure requires that an appellant's brief include "such discussion of the facts and authorities relied upon as may be requisite to maintain the point at issue." TEX.R.APP.P. 74(f). Points of error asserted on appeal but not briefed are waived. See Texaco, Inc. v. Pennzoil, Co., 729 S.W.2d 768, 810 (Tex.App.--Houston [1st Dist.] 1987, writ ref'd n.r.e.), cert. dism'd, 485 U.S. 994, 108 S.Ct. 1305, 99 L.Ed.2d 686 (1988); Charter Builders v. Durham, 683 S.W.2d 487, 489 (Tex.App.--Dallas 1984, writ ref'd n.r.e.). By not making any argument or citing any authorities in support of this point of error, Wife has waived it. We overrule Wife's first point of error.

Defective Special Appearance

In her second point of error, Wife contends that the trial court erred in overruling her special appearance on November 10, 1992. 2 The special appearance was included in an instrument also containing a motion to quash service of citation, a plea to the jurisdiction of the court, a plea in abatement, and Wife's original answer. Wife's verification attached to the instrument, however, failed to swear to her personal knowledge and to the truth of the special appearance. 3 Thus, the special appearance was unverified.

Rule 120a of the Texas Rules of Civil Procedure governs special appearances. See TEX.R.CIV.P. 120a. That rule provides, "Such special appearance shall be made by sworn motion...." TEX.R.CIV.P. 120a(1) (emphasis added). The trial court does not err in denying an unsworn special appearance. See Villalpando v. De La Garza, 793 S.W.2d 274, 276 (Tex.App.--Corpus Christi 1990, no writ). The special appearance before the trial court on November 10, 1992 was unsworn and, therefore, defective. Accordingly, the trial court did not err in denying the special appearance on November 10, 1992. We overrule Wife's second point of error.

Amended Special Appearance

In her third point of error, Wife contends that on November 16, 1992, the trial court erred in denying her motion to reconsider the denial of her special appearance. After the trial court denied her first special appearance, Wife filed an amended special appearance, motion to quash service of citation, plea to the jurisdiction, plea in abatement, and, subject to all these, a general denial. This document is nearly identical to the original instrument, and "special appearance" is added to the list of items in the verification.

A defective special appearance may be amended to cure the defects. TEX.R.CIV.P. 120a(1); see Stegall & Stegall v. Cohn, 592 S.W.2d 427, 428 (Tex.Civ.App.--Fort Worth 1979, no writ). However, the special appearance must be heard and determined before any other plea or motion may be heard. TEX.R.CIV.P. 120a(2). Any appearance not in compliance with rule 120a constitutes a general appearance. TEX.R.CIV.P. 120a(1).

At the hearing on November 10, 1992, after the trial court denied the special appearance, the court proceeded to consider the motion to quash service of citation. Wife made no objection to the trial court's consideration of this motion on November 10. Her attorney argued the motion to the trial court. The trial court signed an order that day stating that Wife appeared through her attorney, that the court considered the special appearance and the motion to quash service of citation, and that it denied them.

Husband argues that Wife's failure to amend the special appearance before the trial court heard and ruled on other motions resulted in Wife making a general appearance. Wife argues that the amendment of the special appearance after the trial court had heard and ruled on the motion to quash service of citation did not affect the validity of the special appearance because the rules provide for amendment of special appearances and because Husband set the motion to quash service of citation for a hearing at the same time as the special appearance.

Wife cites cases holding that a special appearance can be amended after the hearing on the special appearance and even after the judgment. See Koch Graphics, Inc. v. Avantech, Inc., 803 S.W.2d 432, 433 (Tex.App.--Dallas 1991, no writ); Stegall & Stegall, 592 S.W.2d at 429; Dennett v....

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  • Dawson-Austin v. Austin
    • United States
    • Texas Supreme Court
    • July 3, 1998
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