614 S.W.2d 203

Eloise GONZALEZ v. Joe A. GONZALEZ.

No. 5579.

Court of Civil Appeals of Texas, Eastland.

March 26, 1981.

Rehearing Denied April 16, 1981.

*204Jackson Speed, San Antonio, for appellant.

James E. Monnig and Dan L. Carabin, Carabin, Monnig & Clowe, San Antonio, for appellee.

DICKENSON, Justice.

This is a divorce case in which the wife, Eloise Gonzalez, appeals the trial court’s division of property. The husband, Joe A. Gonzalez, filed a motion to dismiss her appeal because she voluntarily accepted the benefits of the decree of divorce. The motion to dismiss is overruled, and the decree of divorce is affirmed.

On the preliminary question of whether the wife’s appeal is barred by her accept-anee of benefits, the general rule was stated by Chief Justice Hickman in Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002, at 1004 (1950), as follows:

A litigant cannot treat a judgment as both right and wrong, and if he has voluntarily accepted the benefits of a judgment, he cannot afterward prosecute an appeal therefrom. (Emphasis added)

See also Garner v. Garner, 567 S.W.2d 281 (Tex.Civ.App.—Eastland 1978, no writ); Trader v. Trader, 531 S.W.2d 189 (Tex.Civ.App.—San Antonio 1975, writ dism’d).

Carle has been interpreted as meaning that if financial duress compels an involuntary acceptance of the judgment’s benefits, the appeal can nonetheless be prosecuted. See, e. g., Blaylock v. Blaylock, 603 S.W.2d 254 (Tex.Civ.App.—Houston [14th Dist.] 1980, no writ); Coplin v. Coplin, 579 S.W.2d 278 (Tex.Civ.App.—Dallas 1979, no writ); McCartney v. Mead, 541 S.W.2d 202 (Tex.Civ.App.—Houston [1st Dist.] 1976, no writ).

The wife’s affidavit dated March 19, 1981, shows that the husband has not discharged his burden of showing that her acceptance of benefits was voluntary. Rather, her affidavit discloses an involuntary acceptance of benefits because of financial duress. Omitting the formal portions, the substance of her affidavit is quoted in footnote l.1

*205Moving to the merits of the appeal, the record shows that a handwritten agreement was executed by the parties on October 4, 1979, which set forth their agreed division of property. The decree of divorce is dated October 26, 1979, and it approved the property settlement agreement and incorporated it by reference.

The wife has briefed only two points of error. Both have been considered and overruled.

Point one argues that the district court erred in entering a judgment when there was no evidence that a judgment had been previously rendered. A judgment is rendered when the decision is officially announced, either orally in open court or by a memorandum filed with the clerk. See Comet Aluminum Company v. Dibrell, 450 S.W.2d 56 (Tex.1970). The transcript contains a memorandum showing that a judgment of divorce was rendered on October 4, 1979.

Point two argues that the district court erred in entering an “agreed” decree of divorce containing provisions for property division when the wife had repudiated the settlement. In overruling this point, we hold that the judgment was based upon a binding agreement. It was not an “agreed judgment” within the rule stated by Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d 288 (1951). See 4 McDonald, Texas Civil Practice § 17.22 (Rev.1971). It was, rather, a final judgment based upon a written settlement agreement signed by the parties, and the property division was in literal compliance with that agreement, as required by the rule stated in Vickrey v. American Youth Camps, Inc., 532 S.W.2d 292 (Tex.1976).

The decree of divorce is affirmed.

Gonzalez v. Gonzalez
614 S.W.2d 203

Case Details

Name
Gonzalez v. Gonzalez
Decision Date
Mar 26, 1981
Citations

614 S.W.2d 203

Jurisdiction
Texas

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