author: MACK KIDD, Justice.

text:
    Randall K. FLANARY d/b/a Easyliving Homes and Easyliving Homes, Inc.; and San Angelo Easyliving Homes Inc., Appellants, v. Roy MILLS d/b/a Roy Mills Construction & Roofing, Appellee.
    No. 03-03-00184-CV.
    Court of Appeals of Texas, Austin.
    Sept. 30, 2004.
    Rehearing Overruled Oct. 28, 2004.

      S. Ancial Middlebrook, Melvin Gray & Associates, San Angelo, for Appellant.
    William Keith Davis, San Angelo, James D. Walker, Austin, for Appellee.
    Before Chief Justice LAW, Justices KIDD and PURYEAR.
   OPINION

MACK KIDD, Justice.

Randall K. Flanary, doing business as Easyliving Homes and Easyliving Homes, Inc. (“Flanary”) , and San Angelo Easyliv-mg Homes Inc. appeal a judgment favoring Roy Mills. After a trial to the court, the district court found that Flanary breached a fiduciary duty and committed fraud. The court awarded Mills $207,467.66 in damages and attorney’s fees. Although all appellants joined in the notice of appeal, Flanary alone filed the only brief by an appellant. He complains that the district court failed to file adequate findings of fact and conclusions of law. He also contends that the judgment is erroneous because he had no duty to Mills, and complains that the evidence supporting the damage award was insufficient. We will affirm the judgment.

BACKGROUND

Testimony in this case came from Mills, Flanary, Flanary’s wife, financial experts, and San Angelo-area homebuilders.

Mills testified that, although Flanary is his uncle (his mother’s brother), they grew up like brothers because Flanary is only six or seven years older. Mills testified that they have always been close; he said that he has always trusted and looked up to Flanary. After working in construction for more than a decade, Mills worked for Flanary in his oil-industry business until a fellow employee died on location; Flanary moved Mills into another, safer position to protect him, but Mills felt he was not qualified for the job and relinquished it to someone more qualified who would give his uncle more value for the money.

Mills returned to construction and built a house for Flanary. In 1995, Mills formed Roy Mills Roofing and Construction with Flanary’s financial support. Mills said that they agreed to an even split of the company, that they would pay them own expenses, and that profits would stay in the company as capital. There was not a written agreement establishing the partnership. Mills testified that Flanary provided the initial capital, but that the company repaid that money. Flanary and his wife maintained the checkbook for the company.

In 1996, Flanary gave his share of the roofing company to his son, Steve Fla-nary, and started Easyliving Homes with Mills. Mills said that he contributed $15,000 to Easyliving and that Flanary contributed $62,000; Mills brought to the company his lengthy experience in home-building. Mills testified that, like the roofing company, he and Flanary had equal ownership and were entitled to an equal share of profit and loss. Mills testified that they agreed to pay their own personal expenses — e.g., cell phone, car payments, gasoline, insurance — to accelerate the capitalization of the company. They began building them first Easyliving home in February 1996. Although the company was not incorporated, its bank accounts were opened in the name of “Easyliving Homes, Inc.” Mills’s framing company provided framing services for Easyliving. Flanary provided cabinetry services. Both held themselves out as general contractors for Easyliving.

The company was incorporated as San Angelo Easyliving Homes, Inc. in 1996, although Mills testified that it never did business under that name; he said it used Easyliving Homes or Easyliving Homes, Inc. Mills did not see the articles of incorporation until he filed this lawsuit. Mills testified that the incorporation did not change the equal sharing of the business. He testified that, as with the roofing company, he trusted Flanary to handle the company checkbook.

Mills testified that, after their first house netted a profit of $3000, they started building larger houses for bigger profit margins. Mills said that the only representation Flanary made about the business is that it was doing fine — until Mills inquired about withdrawing some of his share of the profits to help build his own house. Fla-nary then told him that the business had actually been losing money. Flanary asserted that Mills had only contributed $5000 to the company, but later acknowledged that Mills had invested $15,000. Flanary eventually gave Mills a check from Easyliving for $7,254.86 as his share of the proceeds from the four years of the company’s existence. Mills said he told Flanary he would need to see the company’s books before he would accept that amount as settling his interest; he said Flanary responded, “You’ll never see the books,” and drove away. Mills never saw the books, even after suing Flanary and making discovery requests. Flanary supplied some checks and asserted that Mills owed Easyliving various amounts, but Mills testified that Flanary never supplied supporting documentation. Mills testified that he did not use company funds for personal expenses, but that checks drawn on Easyliving’s account showed that Fla-nary had used the company’s accounts to pay personal utility bills and income tax and to provide personal loans. Mills testified that he had not heard Flanary say that Mills did not own a share of the company until Flanary’s deposition.

Mills testified that he expected Easyliv-ing to make about $20,000 profit per house. He testified that Easyliving’s profit margins should have been higher than other builders’ margins because he and Flanary were supposedly giving much of their labor to the company. Mills testified that Pres-tonwood Homes, the construction company he formed in 2000 with his son, had an average profit of $22,000 per house for the six homes they had built. He testified that these houses are comparable to the ones he built for Easyliving, that home prices are about the same, and that he uses many of the same subcontractors as before.

Tony Jones and Rocky Templin own construction companies that build houses in the same general area as Easyliving did. They testified that Mills was an equal partner in Easyliving Homes, although Templin conceded that he did not know the specifics of the corporate form or the shareholders’ contributions to the company. Templin testified that neither Mills nor Flanary told him that their Easyliving business had ended before 2000. Temp-lin’s goal was a 15 percent profit per house. Jones said he tried to make between ten and fifteen percent profit per home.

Lona Flanary testified that the roofing company was an equal partnership between Mills and Flanary from which they agreed to take profits and invest them in the new construction company, leaving the roofing company to Steve Flanary. She testified that Mills and Flanary owned equal shares of the construction company. She said that, after a dispute between Mills and Steve Flanary over the roofing company, she did not want Flanary to be partners with Mills any more. She believed that the relationship terminated, although she never spoke to Mills about business again. She testified that she and her husband did not believe that Mills continued to have any ownership interest in the corporation. No stock certificates were ever issued, nor were any minutes or resolutions kept. The corporation was dissolved effective December 27, 2000.

Lona Flanary testified regarding a large number of checks she had signed on the Easyliving account making loans to Fla-nary and her, and paying such things as their personal credit card debts, utilities, insurance, income tax, and wages for bookkeeping services. She testified, however, that their accountant sorted out their personal expenses from business expenses, and deducted from their personal capital the amounts spent on personal expenses.

Karen Coates, a certified public accountant and business appraiser, testified that she reviewed many documents to form an opinion about the size of Mills’s rightful share of the company’s profits. She reviewed Easyliving’s bank statements, deposit slips, and check stubs that were provided, the tax returns of the individuals and Easyliving, the general ledgers and financial statements, the articles of incorporation and related documentation, and depositions. She based her calculations regarding personal items on Mills’s testimony that he and Flanary had agreed not to take out personal expenditures from the corporation. She examined the checks bearing in mind Flanary’s deposition testimony that, when an expenditure related to a particular house, he wrote the address of the house on the check.

Coates concluded that, between 1996 and 2000, Easyliving Homes realized net cash proceeds of $1.8 million from the sale of houses. She noted that Easyliving’s corporate tax return for 2000 was erroneous because the new accountant, Delbert Kleppe, failed to credit Mills with his $15,000 capital contribution ($1000 in stock and a $14,000 loan), crediting that to Fla-nary instead. She also examined the records of another bank account Flanary opened in December 1999 through which he funneled funds relating to an Easyliving construction job on a street named Avon-dale. She estimated that Flanary was paid .a $25,005 management fee for the Avondale job that never went into Easyliv-ing’s account.

When calculating Mills’s undistributed share of the profits, Coates started with the corporate income tax returns which Flanary signed. She subtracted the federal income tax, gave credit for nondeductible items that were nevertheless expenses of the corporation, added the Avondale fee, and corrected mistakes regarding characterization of certain payments. This indicated a total income of $59,749 after taxes and not considering wrongly paid personal items. Coates testified that, unlike Mills, Flanary and Lona Flanary took substantial sums from the corporation, including cell phone bills, personal credit card bills, fuel expenses, insurance premiums, loans and fee overpayments for bookkeeping and cabinet-making service, and various other expenses like medical expenses, traffic tickets, hunting and fishing licenses, boat expenses, equipment purchases, vehicle maintenance, and home utilities. These various expenses totaled $252,123. Coates calculated that income for Easyliving during its existence totaled $311,872 — the amount she also calculated in exhibit 32 as Easyliving’s income. She then subtracted $5000 based on a mischaracterization of loan proceeds she had recently learned about, leaving undistributed income of $306,872. She calculated that Mills’s half of the undistributed income was $153,437. She then added $15,000 for the return of Mills’s $1000 in stock and $14,000 loan to the company, arriving at her final-'recommended damage award of $168,437. On cross-examination, Coates admitted she did not know for certain the source of some deposits or the use of some checks, but said that she was confident that she correctly characterized the deposits and expenses based on notations on the checks and other witnesses’ testimony. .

Flanary testified that the plan from the inception of the roofing business was for him and Mills to earn enough money to start a construction company and to pass the roofing business along to Steve Fla-nary. Flanary’s testimony about the inception of the construction company essentially agreed with Mills’s version except that Flanary testified that Mills agreed Flanary would control 51 percent of the company. Flanary also testified that Mills agreed to draft house plans for him in exchange for a drafting table. He later testified that Mills had basically three plans that he would adjust slightly, but that Flanary never asked for the variations and never used them.

Flanary testified that he did not know anything about the division of Easyliving’s common stock and said that stock certificates were never issued. He admitted that the corporation had no annual meetings, minutes, or resolutions authorizing him to spend corporate funds other than one authorizing him to sell houses. He also admitted that he would on occasion withdraw cash when making a deposit from a home sale; one particular occasion he took $2500. He testified that he may have used the money to pay down a loan.

Flanary testified that, after the dispute between Mills and Steve Flanary, Mills agreed to step out of Easyliving because of Lona Flanary’s anger. Flanary said Mills understood that Lona Flanary was so angry that she would divorce Flanary if he continued to work with Mills. Thus, Fla-nary testified, Mills shared only in the proceeds of the first house.

Flanary testified that he bought a truck with funds he invested in the company and reaped a tax deduction because he used it for work purposes; however, he also testified that he felt he had bought the truck himself. He testified that Easyliving built all but two of the houses for which he built cabinets during this period; the funds from the two outside projects went into Easyliving’s account. He conceded that he used Easyliving accounts, including letters of credit, to work on his own property, but said he reimbursed those amounts with personal funds. Flanary testified that the uncredited management fee Coates estimated at $25,005 was only a $19,000 fee.

Flanary testified that Mills’s deposits to Easyliving’s account were not all capital contributions and that Mills’s withdrawals were not all for company purposes. Fla-nary testified that the first $5000 was essentially a way to finance construction at Mills’s home; Mills used about $3700 of that amount on the project. Flanary also testified that Mills bought a stove and billed it to the company as a Christmas present.

Kleppe, Easyliving’s accountant, testified that he was hired in late 1999 to help ensure that Easyliving’s books were in order for the dissolution at the end of 2000. Despite this role, Kleppe did not learn of the second company bank account that Flanary opened until trial. Kleppe disagreed with Coates’s characterization of many expenses as personal, opining that they were business expenses under Internal Revenue Service rules. Kleppe calculated that Mills’s share of the undistributed profits was $22,204.44.

The court chose to credit Mills’s version for the most part, and used Coates’s calculations with some adjustments. The court subtracted $6000 from Coates’s estimate of the undistributed profits to reflect the actual amount of the $19,000 construction management fee (instead of the $25,005 Coates estimated), leaving an award of $147,437. The court stated on the record that this amount included Mills’s $15,000 capital contribution, which further departs from Coates’s calculation that added those amounts to the undistributed profit.

Flanary requested findings of fact and conclusions of law, and the court filed some. The court did not separate the findings and conclusions, simply listing five findings and conclusions. Flanary objected to the nature and form of the findings and conclusions, contending that they were only conclusions and lacked supporting findings of fact. He requested amended or additional findings and conclusions, but the court did not file any more findings and conclusions.

DISCUSSION

Flanary raises procedural and evidentia-ry issues on appeal. He complains that the district court filed deficient findings of fact and conclusions of law, and then refused his request to amend them. He also asserts that the findings of breach of fiduciary duty and fraud were erroneous because he had no duty to Mills and did not conceal any company records from him. Flanary also contends that the evidence was not factually sufficient to support the damages awarded Mills.

Adequacy of Findings of Fact and Conclusions of Law

Flanary contends that the district court’s findings of fact and conclusions of law were deficient because the court made only conclusions that did not contain the facts on which the court based its judgment. He asserts that the district court’s findings “do not identify to whom the fraud was committed, nor do they contain the facts by which the trial court arrived at the damages in the cause.” He requests that we abate this proceeding, order additional findings and conclusions, then reverse the cause for a new trial.

Upon a party’s timely request for additional findings, the trial court “shall file any additional or amended findings and conclusions that are appropriate.” Tex.R. Civ. P. 298 (emphasis added). Additional findings are not required if the original findings of fact and conclusions of law “properly and succinctly relate the ultimate findings of fact and law necessary to apprise [the party] of adequate information for the preparation of his or her appeal.” In re Marriage of Morris, 12 S.W.3d 877, 886 (Tex.App.-Texarkana 2000, no pet.) (quoting Finch v. Finch, 825 S.W.2d 218, 221 (Tex.App.-Houston [1st Dist.] 1992, no writ)). In general, the failure to make additional findings of fact and conclusions of law after a timely request requires reversal unless the record affirmatively shows the complaining party has not suffered an injury. Tillery & Tillery v. Zurich Ins. Co., 54 S.W.3d 356, 360 (Tex.App.-Dallas 2001, pet. denied). If the record indicates that a party did not suffer injury, the failure to make additional findings does not require a reversal. Johnston v. McKinney Am., Inc., 9 S.W.3d 271, 277 (Tex.App.-Houston [14th Dist.] 1999, pet. denied). If the refusal to file additional findings does not prevent a party from adequately presenting an argument on appeal, there is no reversible error. See ASAI v. Vanco Insulation Abatement, Inc., 932 S.W.2d 118, 122 (Tex.App.-El Paso 1996, no writ). Furthermore, if the requested findings will not result in a different judgment, those findings need not be made. Johnston, 9 S.W.3d at 277.

The trial court need only enter findings, or additional findings, on ultimate or controlling issues, rather than on mere evidentiary issues. See Lifshutz v. Lifshutz, 61 S.W.3d 511, 515 (Tex.App.-San Antonio 2001, pet. denied). An ultimate fact issue is one that is essential to the cause of action and would have a direct effect on the judgment. Clear Lake City Water Auth. v. Winograd, 695 S.W.2d 632, 639 (Tex.App.-Houston [1st Dist.] 1985, writ ref'd n.r.e.). An evidentiary issue is one the trial court may consider in deciding the controlling issue, but is not a controlling issue itself. See id.

Although the district court did not differentiate between findings of fact and conclusions of law, some of its statements are by their nature findings on ultimate facts. The court stated in its judgment that Flanary breached a fiduciary duty and committed fraud, and stated in its findings of fact and conclusions of law that he committed fraud. The court found an amount of damages. Whether fraud occurred has long been considered a fact question. Graham v. Roder, 5 Tex. 141, 148 (1849). Likewise, the existence of a confidential relationship is a question of fact, see Crim Truck & Tractor Co. v. Navistar Intern. Transp. Corp., 823 S.W.2d 591, 594 (Tex.1992), as is whether that relationship was breached, Brewer & Pritchard, P.C. v. Johnson, 7 S.W.3d 862, 867 (Tex.App.-Houston [1st Dist.] 1999), aff'd, 73 S.W.3d 193 (2002). The amount of damages is also an issue of fact. See Murphy v. Waldrip, 692 S.W.2d 584, 587 (Tex.App.-Fort Worth 1985, writ ref'd n.r.e.). Thus, the court made findings of fact upon which it based its judgment.

The record reveals no error in or harm from the court’s failure to make an additional finding or conclusion specifying the party defrauded. The district court found that “[defendant Randall K. Fla-nary d/b/a Easyliving Homes and San Angelo Easyliving Homes, Inc. has committed fraud against plaintiff.” In response, Flanary requested an additional finding or conclusion clarifying “whether the fraud found to be committed was against the plaintiff or against San Angelo Easyliving Homes, Inc.” But the court found that fraud was committed against “plaintiff,” and the record shows that there is only one plaintiff, Roy Mills. Even in the original petition filed by “Roy Mills d/b/a Roy Mills Construction and Roofing,” Mills used the singular term “plaintiff’ because he was the sole plaintiff, albeit doing business as the construction and roofing company. More important, Mills filed the first amended petition in his own name only. As there is only one plaintiff, the court adequately identified the defrauded party by using the word “plaintiff.”

The record does not reveal harm from the court’s failure to make additional findings regarding the elements of damages. The court found that Mills was entitled to damages of $147,437. Flanary does not explain what specific findings are lacking. Even if appellant were entitled to more detailed findings, the record reveals that the court’s failure to provide them has not impaired appellant’s ability to appeal. The court plainly stated on the record that it awarded as damages the undistributed net profits described in Mills’s exhibit 32, $155,947, reduced by $2500 as conceded by Coates, who had prepared the exhibit, and less an additional $6000 as explained by the court for the difference between an estimated, but unreported fee, and the actual fee reported at trial. Although exhibit 32 added $15,000 in unreimbursed investments and loans to the profits figure, the court stated on the record that its $147,437 award included the unreimbursed investments and loans. These departures from exhibit 32 reduced Flanary’s liability. The court’s reference to exhibit 32, plus the evidence in the record, provides sufficient detail regarding the underlying facts to allow Flanary to appeal the damage award. We find no harm in the failure to make additional findings or conclusions.

Error in finding fraud and breach of fiduciary duty

Flanary contends that the court erred in finding that he breached a fiduciary duty and committed fraud against Mills. Fla-nary argues that he committed no acts as a shareholder for which Mills could recover. Alternatively, he contends that any breach or fraud was committed against the corporation and, as such, Mills could recover only his one-half share of the judgment.

Flanary’s argument regarding the existence of a duty is legally accurate, but incomplete. He contends that he had no duty to Mills, his fellow shareholder. See Hoggett v. Brown, 971 S.W.2d 472, 488 (Tex.App.-Houston [14th Dist.] 1997, pet. denied). While shareholders generally do not owe each” other a fiduciary duty, they may in some circumstances, such as when a confidential relationship exists. See id. A confidential relationship exists where influence has been acquired and confidence has been justifiably reposed. Id. “A person is justified in placing confidence in the belief that another party will act in his or her best interest only where he or she is accustomed to being guided by the judgment or advice of the other party, and there exists a long association in a business relationship, as well as personal friendship.” Id. Partners owe each other fiduciary duties as a matter of law. Insurance Co. of N. Am. v. Morris, 981 S.W.2d 667, 674 (Tex.1998). We must therefore examine the record to discern whether' a fiduciary relationship existed.

Because Flanary does not specify the level of scrutiny he wants applied to the record, we will review both the legal and factual sufficiency of the evidence supporting the judgment. In considering the legal sufficiency of the evidence, an appellate court considers only the evidence that supports the trial court’s findings and disregards all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). If any probative evidence supports the factfinder’s determination, it must be upheld. See In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). In reviewing factual sufficiency, we examine all the evidence and reverse only if the trial court’s finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. Id. In an appeal from a bench trial, findings of fact are the equivalent of jury answers to special issues. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.1991).

Ample evidence supports the finding that a fiduciary relationship existed. Flanary is Mills’s uncle. Flanary is only six or seven years older than Mills; as they grew up, Flanary was more like a big brother than an uncle. Mills testified that he had always had faith in Flanary, looked up to him, and trusted him. Mills worked for Flanary in the oil fields in the 1980s. They were partners in a roofing business before they formed Easyliving Homes. Mills depended on Flanary to handle the finances of the roofing company and, later, Easyliving Homes. The evidence shows the requisite personal and professional relationships. Flanary told him not to worry about the profitability of the business. This evidence provides factually and legally sufficient evidence to show a confidential relationship.

The record also contains sufficient evidence that Flanary breached that fiduciary relationship. Mills and Flanary agreed to share the profits of the business equally (the most unequal division alleged was the 51-49 split Flanary mentioned), and Mills entrusted Flanary with the finances of the company. Although the Fla-narys testified that Mills was only part of the business for the first house, there was competing evidence from Mills, other builders, and some documents that Mills remained an equal shareholder for the corporation’s four-year existence. Flanary spent thousands of dollars from Easyliv-ing’s account; some witnesses argued that these were business expenses, but other witnesses contended that these expendí-tures were for personal expenses that were not authorized. Although evidence showed that the company had an after-tax profit of more than $300,000, Flanary told Mills that the business was not profitable and wrote him a check for $7254.86, alleging that the amount was Mills’s $15,000 investment, less expenses Mills owed. Legally and factually sufficient evidence supports the court’s finding that Flanary violated the fiduciary duty arising from the confidential relationship he had with Mills.

This evidence also supports the finding of fraud. Breach of a fiduciary relationship can constitute fraud because the fiduciary relationship imputes higher duties, such as duties of good faith, candor, and “full disclosure respecting matters affecting the principal’s interests and a general prohibition against the fiduciary’s using the relationship to benefit his personal interest, except with the full knowledge and consent of the principal.” Chien v. Chen, 759 S.W.2d 484, 495 (Tex.App.-Austin 1988, no pet.). At common law, the term “fraud” means an act, omission, or concealment in breach of a legal duty, trust, or confidence justly imposed, when the breach causes injury to another or the taking of an undue and unconscientious advantage. Id.; Russell v. Industrial Transp. Co., 113 Tex. 441, 258 S.W. 462 (1924); Kellum v. Smith, 18 Tex. 835 (1857). Common-law fraud includes both actual and constructive fraud. “Actual fraud” usually involves dishonesty of purpose or intent to deceive. Archer v. Griffith, 390 S.W.2d 735, 740 (Tex.1964). “Constructive fraud” encompasses those breaches that the law condemns as “fraudulent” merely because they tend to deceive others, violate confidences, or cause injury to public interests, regardless of the actor’s mental state. Id. When one has a duty to speak the truth, a false representation of a past or present material fact is fraudulent when another relies thereon to his detriment. See Chien, 759 S.W.2d at 495. The evidence that showed the breach of fiduciary duty supports a finding of constructive fraud.

The record also supports a finding of actual fraud. There is evidence that Flanary deliberately deceived Mills. Flanary initially told Mills that the business was doing fine, but when Mills wanted to withdraw money from the company, Flanary told him it was losing money when it earned more than $300,000 in after-tax profits. Flanary altered the 1999 corporate tax return to delete references to Mills’s ownership interest despite the original accountant’s records showing Mills’s investment persisting into 2000. A new accountant carried Mills’s stock as Flanary’s stock. Flanary’s wife, at his direction, gave the accountant end-of-year summaries without supporting documentation to try to make the expenditure of corporate funds on personal expenses deductible. Flanary refused to let Mills examine the books before the lawsuit and refused during discovery to produce invoices and receipts documenting the personal expenses. Even accepting the Flanarys’ version of events that they considered Mills no longer part of the corporation after his 1997 falling-out with their son, they never dissolved the corporation or returned his initial investment. The testimony showed that they never told Mills that he was no longer part of the corporation. Regardless of whether the ownership was 50-50 or 51 — 49, there is no indication in the record that the Flanarys could have excluded Mills without buying him out or voting him out. Nevertheless, the record indicates that they used the corporate account as their own personal account. These actions, which are inconsistent with the agreement to share ownership, to defer distribution of profits, and to not seek reimbursement for out-of-pocket expenses, are evidence of fraud- — particularly because the Flanarys’ payment of personal expenses began early on in the company’s existence. The court was forced to choose between Mills’s evidence and Flanary’s contentions that he had terminated Mills’s interest in the corporation and did not try to conceal company records from Mills; the records from the district court do not provide a basis on which to reject the court’s choice to credit Mills’s evidence. In Mills’s version of events, Flanary made promises he did not keep, and the inception and duration of his failure indicate he never intended to keep them; these broken promises cost Mills money.

Flanary alternatively contends that any fraud could only have been committed against the corporation. There is evidence that the promises, duties, and breaches arose before the company incorporated. Although the corporation may also have been injured, we conclude that there is evidence that the injury was personal as well. Further, Flanary’s argument is that Mills is only entitled to half of the corporation’s damages. As we discuss below, the district court only awarded Mills half of the undistributed profits. Flanary’s alternative argument shows no error or harm.

There is legally and factually sufficient evidence of fraud.

Evidence of damages

Flanary contends that the evidence was insufficient to support the damage award because Mills’s expert, Karen Coates, derived the amounts she used to calculate the damages from witness testimony, such as the testimony of other builders about their average profit on houses they built. He contrasts that evidentiary support with his expert’s testimony, which he contends was more compelling because it was based on the complete records of the corporation. Kleppe calculated that Mills’s share of the profits was $22,204.44.

The record does not support Flanary’s argument. The record reflects that Coates reviewed bank statements, deposit slips, checks and check stubs that were provided, the tax returns of the individuals and Easyliving, the company’s general ledgers and financial statements, the articles of incorporation and related documentation, and depositions. The biggest difference between her testimony and Kleppe’s is that she deemed the Flanarys’ personal expenditures undistributed profits based on the agreement, asserted by Mills, that the corporation would not pay for personal expenses like cell phones and gasoline. There is no showing that Kleppe examined any documents casting a different light on these expenses, their characterization, or the existence of the agreement. The court faced a choice between two versions of the permissible uses of company funds and two experts’ opinions based on those divergent versions. Factually and legally sufficient evidence support the court’s damage award.

CONCLUSION

Having resolved all issues in favor of the judgment, we affirm the judgment.

      . Flanary’s wife, Lona, and son, Steve, also play a part in this case. We will refer to Randall K. Flanary as '‘Flanary,” and use the first and last names of the other Flanarys.

      . Mills left the roofing company in 1997 after a dispute with Flanary’s son, Steve Flanary— a dispute that made Flanaiy’s wife, Lona Fla-nary, so angry that she reportedly demanded that Flanary stop working with Mills.


source: Caselaw Access Project

author: WANDA McKEE FOWLER, Justice.

license: Public Domain

text:
    Daniel WAITE, Sr., Appellant v. Margaret Susan WAITE, Appellee.
    No. 14-02-01211-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 5, 2004.
    Rehearing Overruled Nov. 24, 2004.

      Lawrence S. Rothenberg, Houston, David E. Moody, Lubbock, for appellant.
    Richard M. Grimes, Russell S. Post, Houston, for appellee.
    Panel consists of Justices FOWLER, EDELMAN, and SEYMORE.
   OPINION

WANDA McKEE FOWLER, Justice.

Daniel Waite, Sr. appeals from an unequal property division awarded him in a divorce judgment. In response, his ex-wife, Margaret Susan Waite, has filed a motion to dismiss his appeal because he accepted substantial benefits awarded to him in the divorce decree. Because Mrs. Waite’s motion has merit, we dismiss Mr. Waite’s appeal, addressing only his thirteenth issue, which claims that the trial court lacked subject matter jurisdiction over the Waites’ Christian marriage. In granting Mrs. Waite’s motion, we conclude that the motion was timely filed, that Mr. Waite did not prove that he accepted the benefits only because of economic necessity, and that a reversal and remand could affect Mr. Waite’s rights in the property he was awarded.

I. BACKGROUND

Daniel and Margaret married in 1968, and had four children. Near the end of the marriage, the Waites sued Mr. Waite’s former employer, Dean Witter Reynolds, Inc., for defamation. The case eventually settled in 1991 for $15 million. Several years later, Mrs. Waite sued Mr. Waite for divorce.

During the bitter and protracted divorce proceeding, the parties spent the great bulk of their time litigating the nature of the money remaining from the Dean Witter settlement. Mr. Waite argued it was his separate property; Mrs. Waite argued it was community property. By summary judgment, the trial court ruled that the settlement proceeds were community assets subject to a just and right division. Ultimately the proceeds — then approximately $3 million — were placed in the registry of the court.

The parties tried the remaining issues of property division, divorce and assault to the court. It granted Mrs. Waite a divorce on the grounds of cruel treatment. It found that Mr. Waite assaulted Mrs. Waite, and ordered him to pay her $20,000. The court also ordered a just and right division of the community estate; it awarded Mr. Waite $862,997.27 of the funds in the court’s registry, and awarded Mrs. Waite the balance. In addition, Mr. Waite was awarded the family residence as well as a tax refund check due on a joint return the Waites filed.

Over the course of the next few months, Mr. Waite took possession of every significant asset the court awarded him. Immediately upon entry of the judgment, Mr. Waite requested that the court release the funds to the parties in accordance with its judgment. Mrs. Waite did not object. Mr. Waite received $862,997.27 from the court registry, and Mrs. Waite received $2,085,296.52. Not long after that, Mr. Waite asked Mrs. Waite to convey to him her interest in the home — valued during trial at more than $300,000. She did, and, immediately, Mr. Waite filed the deed in the county property records. Several months later — and again in accordance with the provisions of the divorce decree— Mr. Waite demanded that Mrs. Waite endorse to him the federal income tax refund check issued on the parties’ joint return in the amount of $5,705. At no time did Mr. Waite qualify his acceptance of the cash, the home, or the tax refund, or otherwise make his acceptance of these benefits awarded in the divorce decree subject to his right to appeal. By the time he received the tax funds, Mr. Waite had cashed or taken control of every significant asset awarded him.

Mr. Waite raises fifteen issues in this appeal; however, as we stated earlier, we will address only his thirteenth issue because the remainder of his issues are rendered moot by Mrs. Waite’s motion to dismiss.

II. MR. Waite’s Challenge to the TRIAL CouRt’s Subject Matter Jurisdiction

In the thirteenth issue in his appeal, Mr. Waite claims that the trial court, an institution of the State, had no subject matter jurisdiction to dissolve his marriage, which he claims is a purely ecclesiastical union. He claims that by exercising jurisdiction over him, the trial court violated his constitutional rights.

Subject matter jurisdiction exists by operation of law only, and “this jurisdictional prerequisite plainly cannot be conferred by consent, waiver, or estoppel at any state of a proceeding.” See Bloom v. Bloom, 935 S.W.2d 942, 948 (Tex.App.-San Antonio 1996, no writ) (citing Federal Underwriters Exch. v. Pugh, 141 Tex. 539, 541, 174 S.W.2d 598, 600 (1943); Beeson v. Beeson, 578 S.W.2d 517, 518 (Tex.Civ.App.-El Paso 1979, no writ)). If the trial court had no subject matter jurisdiction over the Waites’ marriage, the judgment is void. See Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex.1990) (per curiam) (defining a void judgment as one rendered when a court has no jurisdiction over the parties or subject matter, no jurisdiction to render judgment, or no capacity to act as a court). If the judgment is void because the trial court lacked subject matter jurisdiction, we must declare the judgment void and dismiss the appeal because an appellate court has no jurisdiction to decide the merits of an appeal from a void judgment or order. See Mellon Serv. Co. v. Touche Ross & Co., 946 S.W.2d 862, 864, 870 (Tex.App.-Houston [14th Dist.] 1997, no writ). This issue, then, must be the first we address, for if the claim is valid and the judgment is void, we can go no further.

Mr. Waite does not specifically explain how the constitutional rights he raises bar the trial court from exercising jurisdiction over his marriage and divorce. Instead, he argues generally that his marriage to Mrs. Waite is purely ecclesiastical, so that the trial court violated his Free Exercise and Establishment Clause rights under the First Amendment when it asserted jurisdiction over the Waites’ marriage. We have answered this question before, although it arrived on its first visit in a different presentation. See Waite v. Waite, 64 S.W.3d 217, 220 (Tex.App.-Houston [14th Dist.] 2001, pet. denied).

It came to us then by an appeal of an order denying Mr. Waite’s request for a temporary injunction. He had requested the trial court to forbid Mrs. Waite from relying upon certain Family Code statutes governing the dissolution of marriage. The trial court denied Mr. Waite the requested relief. In overruling Mr. Waite’s issues, we described them in this way:

Accordingly, we overrule appellant’s assertion that section 6.001 violates, 1) the Establishment Clause of the U.S. Constitution because it entangles the judiciary in religious issues; and 2) the Free Exercise Clause of the U.S. Constitution and the “rights of conscience” guarantee under the Texas Constitution, because it requires the judiciary to interfere in a religious dispute.

Id. at 221-22. Although he does not mention Family Code section 6.001 — the “no-fault” divorce statute — and although he is appealing the denial of his plea to the jurisdiction rather than the denial of the temporary injunction, the underlying issues arguably are the same. Did the trial court impermissibly interfere with religious issues? Is marriage a religious covenant and not a civil status regulated by law?

In our first opinion, a majority of the court rejected the argument that section 6.001 of the Family Code impermissibly interfered with affairs that are solely religious in nature. Today we reaffirm the principles underlying that decision.

Mr. Waite is mistaken that the marriage he entered into with Mrs. Waite — the license for which was obtained through a county clerk’s office and the record of which is in county records in Texas — is a wholly religious union. From the beginning of our nation, the marital relationship was recognized as a most important union that the state had an interest in regulating. Maynard v. Hill, 125 U.S. 190, 205-06, 8 S.Ct. 723, 31 L.Ed. 654 (1888).

Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature. That body prescribes the age at which parties may contract to marry, the procedure or form essential to constitute marriage, the duties and obligations it creates, its effects upon the property rights of both, present and prospective, and the acts which may constitute grounds for its dissolution.

Id. at 205. Our own legislature has enacted these types of regulations. See Tex. Fam.Code §§ 1.101-.108, 2.001-.012, 2.101-.103, 2.201-.209 & 2.501.

For many couples, the wedding ceremony is religious and their religious beliefs inform and mold the ceremony and their union; for other couples, presumably those having no strong religious bond, the wedding ceremony is completely unconnected with any religion or religious belief. Regardless of how the couple views their union — whether they see it primarily as religious or secular — the State governs all legal aspects of the union.

“When the contracting parties have entered into the married state, they have not so much entered into a contract as into a new relation, the rights, duties, and obligations of which rest not upon their agreement, but upon the general law of the state, statutory or common, which defines and prescribes those rights, duties, and obligations. They are of law, not of contract. It was a contract that the relation should be established, but, being established, the power of the parties as to its extent or duration is at an end. Them rights under it are determined by the will of the sovereign, as evidenced by law.... It is not then a contract within the meaning of the clause of the constitution which prohibits the impairing the obligation of contracts. It is rather a social relation like that of parent and child, the obligations of which arise not from the consent of concurring minds, but are the creation of the law itself, a relation the most important, as affecting the happiness of individuals, the first step from barbarism to incipient civilization, the purest tie of social life, and the true basis of human progress.”

Maynard, 125 U.S. at 211-12, 8 S.Ct. 723 (quoting Adams v. Palmer, 51 Me. 480, 483 (Me.1863)).

Our own legislature has empowered the family district court in this case to grant divorces and divide marital property. See Tex. Gov’t Code §§ 24.001, 24.619; Tex. Fam.Code §§ 6.001-.007. Thus, the court was authorized to hear this case and clothed with full authority to adjudicate the parties’ rights. The court did not err in denying Mr. Waite’s plea to the jurisdiction. We overrule Mr. Waite’s thirteenth point of error.

III. Mrs. Waite’s Motion to Dismiss Based on Mr. Waite’s Acceptance op Benefits

A. Mrs. Waite’s Motion is Not Untimely

We now turn to Mrs. Waite’s motion to dismiss. But, before we reach its merits, Mr. Waite argues we cannot consider it because it was not filed timely under Texas Rule of Appellate Procedure 10.5(a). Rule 10 governs motions in the appellate courts. Rule 10.5(a), entitled “Motions Relating to Informalities in the Record,” provides as follows:

A motion relating to informalities in the manner of bringing a case into court must be filed within 30 days after the record is filed in the court of appeals. The objection, if waivable, will otherwise be deemed waived.

Tex.R.App. P. 10.5(a). As we discuss below, the acceptance of benefits doctrine is a substantive rule grounded in estoppel; it has nothing to do with informalities in an appellate record, which involve procedural defects in the form of the record. See Bloom, 935 S.W.2d at 946 (rejecting application of rule to acceptance of benefits motion); Aycock v. Pannill, 853 S.W.2d 161, 163-64 (Tex.App.-Eastland 1993, writ denied) (same). As a result, any timetable contained in Rule 10.5 does not apply to Mrs. Waite’s motion to dismiss.

B. The Acceptance of Benefits Doctrine

We now turn to the substance of Mrs. Waite’s motion to dismiss Mr. Waite’s appeal based on the acceptance of benefits doctrine. Generally, under this doctrine, a party who accepts the benefits of a judgment is estopped from appealing that judgment. Mr. Waite does not dispute that he accepted benefits that were awarded to him in the divorce decree. Instead, he argues that the doctrine does not apply because he falls within the following two exceptions:

• His acceptance of the benefits was involuntary due to economic necessity; and
• A reversal of the judgment will not affect his rights to the benefits he has received.

For the reasons explained below, we hold that Mr. Waite does not satisfy either exception he raises.

1. The Applicable Law

As we noted earlier, generally, a party who accepts the benefits of a judgment is estopped from challenging the judgment by appeal. See Texas State Bank v. Amaro, 87 S.W.3d 538, 544 (Tex.2002); Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002, 1004 (1950); Kline v. O’Quinn, 874 S.W.2d 776, 780 (Tex.App-Houston [14th Dist.] 1994, writ denied). The Texas Supreme Court explained in Carle v. Carle, also a divorce ease, “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.” Carle, 234 S.W.2d at 1004. This doctrine arises often in divorce cases when one spouse accepts certain benefits of the judgment and then tries to appeal the remainder of the judgment. See, e.g., Bloom, 935 S.W.2d at 946-48; Blaylock v. Blaylock, 603 S.W.2d 254, 255 (Tex.Civ.App.-Houston [14th Dist.] 1980, no writ); Swearingen v. Swearingen, 487 S.W.2d 784, 788 (Tex.Civ.App.-San Antonio 1972, writ dism’d); Nixon v. Nixon, 348 S.W.2d 438, 440-41 (Tex.Civ.App.-Houston [1st Dist.] 1961, writ dism’d). The burden is on the appellee to prove that the appellant is estopped by the acceptance of benefits doctrine. See Gonzalez v. Gonzalez, 614 S.W.2d 203, 204 (Tex.Civ.App.-Eastland 1981, writ dism’d).

There are, however, exceptions to the acceptance of benefits doctrine. For example, one exception is based on economic necessity, and it applies when the acceptance of benefits is not voluntary because of financial duress or other economic circumstances. See McAlister v. McAlister, 75 S.W.3d 481, 483 (Tex.App.San Antonio 2002, pet. denied); Cooper v. Bushong, 10 S.W.3d 20, 23 (Tex.App.-Austin 1999, pet. denied); Gonzalez, 614 S.W.2d at 204. Another exception applies when a reversal of the judgment could not possibly affect an appellant’s right to the benefit accepted. See Amaro, 87 S.W.3d at 544; Carle, 234 S.W.2d at 1004; Blaylock, 603 S.W.2d at 255. Stated another way, when the appellant accepts only that part of the judgment that the appellee concedes is due to the appellant, the appellant is not estopped from appealing. Carle, 234 S.W.2d at 1004; Bloom, 935 5.W.2d at 944. These exceptions are narrow. See Carle, 234 S.W.2d at 1004; Kline, 874 S.W.2d at 780.

2. Mr. Waite’s Actions that Invoke the Acceptance of Benefits Doctrine

Mrs. Waite points to three specific actions she contends constitute Mr. Waite’s voluntary acceptance of the benefits of the judgment. First, immediately after the judgment was entered, Mr. Waite demanded his entire share of the Dean Witter community funds, totaling $862,997.27. Second, Mr. Waite asserted his right to sole ownership of the family residence, worth more than $300,000 at the time of trial. In connection with this, he demanded that Mrs. Waite execute a warranty deed transferring all her ownership interest in the property to him, and he filed the deed with the county clerk. Third, Mr. Waite accepted the benefit of a $5,705 federal income tax refund issued on the parties’ joint tax return, requiring Mrs. Waite to endorse it over to him. In each instance, Mrs. Waite argues, Mr. Waite has affirmatively relied on the validity of the judgment in asserting his rights against her, and therefore he is estopped to challenge it.

The evidence confirms that Mr. Waite took the actions of which Mrs. Waite complains. Therefore, unless Mr. Waite satisfies an exception to the acceptance of benefits doctrine or otherwise shows that it does not apply, we must agree with Mrs. Waite that Mr. Waite’s actions in accepting a substantial portion of the judgment bars him from appealing that same judgment he now attacks.

3. Mr. Waite Claims He Falls Within One of Two Exceptions to the Acceptance of Benefits Doctrine

Mr. Waite does not deny he accepted these benefits. However, he contends that the acceptance of benefits doctrine does not bar his appeal because (1) he accepted the benefits out of economic necessity; and (2) a reversal of the judgment will not affect his rights to the benefits he has received. We address each argument in turn.

a. The evidence does not show that economic necessity compelled Mr. Waite to accept the benefits.

Mr. Waite first argues that he accepted the identified benefits of the judgment out of economic necessity. In support of this, Mr. Waite relies upon (i) his affidavit, and (ii) an argument that this exception should be liberally applied. We disagree that Mr. Waite’s affidavit evidences economic necessity, and we find the authorities he cites in support of his argument for a liberal application of the economic necessity exception distinguishable on these facts.

(i) Mr. Waite’s affidavit

In his affidavit in support of his economic necessity argument, Mr. Waite states that he needed the money he received from the court’s registry

• to pay his daily living expenses and the costs of his appeal, and
• to complete repairs on the family home awarded to him as his separate property.

He also states that the tax refund involved the return of money he advanced as the result of an accounting error by his CPA, and so he received no benefit from its return. Finally, he states that he has not sold or refinanced the house, or taken a loan against it.

Mr. Waite argues that his affidavit unequivocally establishes the economic circumstances rendering his acceptance of the benefits of the judgment involuntary. We disagree. The affidavit is largely eon-clusory; it contains almost no factual support for Mr. Waite’s assertion of economic necessity.

For example, Mr. Waite offers few specifics to support his initial contention that he needed the entire award of over $800,000 to pay his daily living expenses. He states generally that he had to pay for such things as food, clothing, rent, and insurance, but does not specify how much these items cost or list specific bills. Mr. Waite also states that he had to pay various expenses related to his appeal, but lists only a specific amount for past due attorney’s fees of $144,000. Similarly, he states in conclusory fashion that he needed the money to complete repairs to the house he was awarded and to “pursue [his] employment as a remodeler.” But, he does not identify any costs associated with these enterprises, nor does he aver that the repairs to the house were necessary or that he risked economic hardship if the money was not made available to him for these purposes.

Mr. Waite’s claim of financial hardship is further undercut by the complete absence of any statement in his affidavit that he was unemployed or had no other sources of income. Mrs. Waite points out that the trial court found that Mr. Waite had substantial earning capacity and employment opportunities. The court’s finding was expressly based on two facts: (1) Mr. Waite’s work experience as a broker for Dean Witter Reynolds, for which he earned a yearly salary in excess of $200,000 per year; and (2) Mr. Waite’s service on the board of directors for the Harvest Foundation, for which he “receives substantial compensation.” The trial court also found that “Mr. Waite has received income from a charitable fund, known as the Harvest Foundation, during the life of this litigation, and he is entitled to continue receiving substantial income from the Harvest Foundation.” Mr. Waite complains that these fact findings relate to irrelevant past circumstances. We disagree with this characterization. We also note that Mr. Waite does not deny the statements or direct us to any controverting evidence in the record.

Mr. Waite’s affidavit also contains no assertions of economic necessity requiring him to accept the benefit of the judgment awarding him the tax refund. Merely because the tax refund reimbursed him for an earlier advance of funds does not make its return an economic necessity.

Similarly, Mr. Waite identifies no economic necessity requiring him to demand that Mrs. Waite execute a warranty deed transferring the house to him. And Mr. Waite’s assertion that he has not sold, refinanced, or taken a loan against the house cuts against his economic necessity argument, because if Mr. Waite was truly suffering financial duress he would do — or at least consider doing — one of these things.

For these reasons, we conclude Mr. Waite’s affidavit does not prove that he accepted the benefits because of economic necessity.

(ii) Mr. Waite’s argument against strict application of the exception

Although we have already concluded that Mr. Waite did not accept the benefits because of economic necessity, we briefly want to respond to Mr. Waite’s emphatic claim that he does not deserve such a result and that, in any event, the doctrine should not be strictly applied.

First, the cases Mr. Waite primarily relies on to argue that the doctrine should not be strictly applied—Haggard v. Haggard and Trevino v. Trevino—are distinguishable from this case. See Trevino v. Trevino, 555 S.W.2d 792 (Tex.Civ.App.-Corpus Christi 1977, no writ); Haggard v. Haggard, 550 S.W.2d 374 (Tex.Civ.App.-Dallas 1977, no writ). In Haggard, the former wife accepted four $100 checks, and in Trevino, the former wife accepted $5,000, which was only part of the amount awarded to her. See Trevino, 555 S.W.2d at 795; Haggard, 550 S.W.2d at 376. Here, Mr. Waite did not accept the reía-tive equal of four $100 cheeks or $5,000. Mr. Waite took close to one hundred percent of the total community property he was awarded and all of the community cash he was awarded. We have not found a case like this in which a court has refused to apply the doctrine, and he has cited none.

Second, although we mentioned this earlier, it bears repeating. Mr. Waite’s affidavit is bereft of details. An individual who truly needs an award of money can obtain it and still appeal simply by filing a comprehensive affidavit.

b. A reversal may affect Mr. Waite’s rights to the benefits he accepted

Mr. Waite also contends he falls within the second exception to the acceptance of benefits doctrine. That exception applies when a reversal of the judgment being appealed could not possibly affect an appellant’s right to the benefits already accepted. See Carle, 234 S.W.2d at 1004. In essence, Mr. Waite argues that he received such a paltry portion of the estate that he could not possibly be awarded less than he has already received. As a result, the argument continues, his rights to the benefits he has already accepted will not be affected. Again, we disagree.

(i) The exception is narrow

This exception was discussed extensively in Carle v. Carle, 234 S.W.2d at 1004. The Texas Supreme Court explained that a party who accepts benefits that are undeniably his — so much that the opposing party would concede upon another trial that the benefits are his — does not waive the right to appeal. The doctrine also would not apply if, for some other reason, the appellant’s rights in the awarded property could not be affected on retrial. As the Carle court noted, this exception is applied stingily.

The exception is narrow. Whether or not this case falls within it must be determined from answers to these questions: Could a reversal of the portions of the judgment referred to in these two certified questions possibly affect appellant’s right to the benefits secured by him under the judgment? And would appellee be compelled to concede upon another trial that appellant has the right to retain those benefits regardless of the outcome of the litigation?

Id In other words, the exception does not tolerate chance or uncertainty. The appellant’s right to the property must be unquestionable.

(ii) Mr. Waite’s case does not fit within the very narrow exception

With this framework in mind, we turn to Mr. Waite’s claim. It is, simply, this. The cash in the registry of the court was not community property, but separate property. Thus, if we were to hold that the property was his separate property, he would keep all the cash already awarded to him and it is “inconceivable” that he would be awarded less than the “paltry percentages” he has already received. The record does not substantiate Mr. Waite’s claims.

If we were to reverse because the trial court erred in characterizing the cash as community, the trial court would almost certainly re-divide the community property. Mr. Waite fails to recognize that the court divided the community property unevenly in part because of Mr. Waite’s abusive behavior toward Mrs. Waite during their marriage. Having made a just and right division based on the cash being community, the trial court would have to redivide the assets to reach a new “just and right” division of the community estate. See Tex. Fam.Code § 7.001. If we reversed, we find it highly unlikely on the record before us that Mr. Waite would keep all of the property he was awarded. In the words of another appellate court, “While [Mr. Waite] might receive more, [h]e might also receive less.” See Bloom, 935 S.W.2d at 948.

In addition, if we were to hold that the cash was Mr. Waite’s separate property and reverse the case, the chances are almost certain that Mrs. Waite would dispute his right to all the funds. In the trial court, Mrs. Waite had pleaded alternatively that the funds be declared community or that, in the event they were declared separate, she recover a portion of the funds as gifts or reimbursement. See Carle, 234 S.W.2d at 1004.

Thus, Mrs. Waite is not conceding an inch and, on remand, we think it highly probable that the court would redivide the estates. These facts do not qualify for the narrow exception.

IV. Conclusion

In summary, we overrule Mr. Waite’s contention that the trial court’s exercise of jurisdiction over the divorce violated his constitutional guarantees of religious freedom. Mrs. Waite’s motion to dismiss is not untimely because Texas Rule of Appellate Procedure 10.5(a) is a procedural rule that does not apply to a motion to dismiss on the basis of the acceptance of benefits doctrine. We grant Mrs. Waite’s motion to dismiss the appeal on the basis of the acceptance of benefits doctrine because Mr. Waite accepted substantial benefits of the judgment he now seeks to attack. Also, the evidence does not show that Mr. Waite falls within the economic necessity exception to the acceptance of benefits doctrine, or that a reversal of the judgment would not affect his rights to the property.

We dismiss the appeal.

      . In the divorce decree, Peggy’s last name was changed from Waite to Allen; however, for consistency, the parties' names appear as they did below.

      . Tex. Fam.Code § 7.001.

      . During the course of this litigation, Mr. Waite also filed an interlocutory appeal to challenge the trial court’s appointment of a receiver, which this court dismissed as moot when the receivership was dissolved. See Waite v. Waite, 76 S.W.3d 222 (Tex.App.Houston [14th Dist.] 2002, no pet.). As discussed in more detail below, Mr. Waite also appealed the trial court's denial of his request for a temporary injunction on the basis that the no-fault divorce statute is unconstitutional; this court affirmed that ruling. See Waite v. Waite, 64 S.W.3d 217 (Tex.App.-Houston [14th Dist] 2001, no pet.). Mr. Waite has also filed five mandamus petitions. See In re Daniel Waite, No. 14-02-00116-CV; In re Daniel Waite, 14-02-00119-CV; In re Daniel Waite, 14-02-00122-CV; In re Daniel Waite, 14-02-00564-CV; In re Daniel Waite, 14-02-00711-CV.

      . In two other issues, Mr. Waite challenges the trial court’s exclusion of evidence he contends shows that an Alabama divorce Mrs. Waite obtained in 1960 before marrying Mr. Waite was fraudulently obtained and therefore void. Mr. Waite does not challenge the trial court’s denial of his plea to the jurisdiction on this basis. However, to the extent Mr. Waite may argue the trial court lacked jurisdiction because the earlier divorce is void, we find that contention without merit. Mrs. Waite placed in evidence her Alabama divorce decree. During the divorce proceedings, Mr. Waite filed suit in Alabama to collaterally attack the Alabama decree, but the Alabama Supreme Court upheld the lower court’s dismissal of his action. See Waite v. Waite,-So.2d-, No. 2030017, 2004 WL 758394, at *1 (Ala.Civ.App.2004). Undaunted, Mr. Waite filed a second action in Alabama to again challenge the decree. The lower court again dismissed the action on Mrs. Waite's motion. Although he has indicated that he will appeal if the trial court does not vacate its order, Mr. Waite has not demonstrated that his second action in any way affects the original decree of divorce or the dismissal of his collateral attack. See id..; see also Alabama Power Co. v. Thompson, 250 Ala. 7, 32 So.2d 795, 800 (1947) (noting that, under Alabama law, a judgment will operate as res judicata or as estoppel notwithstanding an appeal when the appellate court action is based on a review of the record made below).

      . For example, even if a couple chose to be married, but did not need or desire legal recognition of their marriage, the couple still would not be able to avoid entanglement with the law. See Tex. Fam.Code §§ 2.401-.405. If one of the couple should die before the other, the law would prescribe how the remaining spouse would prove their marriage so the spouse could claim ownership of their property. See id § 2.401. If the couple had children and the father died, the law would govern how the children would prove heirship. Only if the couple chose to have no connection with society and achieved that goal, might they avoid the laws applied by the State.

      . Mr. Waite also argues the trial court had to disburse the cash that was in the court registry or else it would be required to monitor the parties’ finances throughout the appeal and after its plenary power had expired. In making this argument, Mr. Waite distinguishes this case from one in which the appellant recovers funds from an opposing parly pursuant to a judgment. However, Mr. Waite cites no authority for making an exception to the acceptance of benefits doctrine because the funds were in the court registry rather than under the control of the parties. Indeed, at least one court determined that a party to a divorce was estopped to appeal after moving the trial court to order the payment of funds from the court registry. See Nixon, 348 S.W.2d at 440-41.

      . The substantive portion of Mr. Waite's affidavit consists of the following:
      "I have reviewed the Appellee's Motion To Dismiss filed in this case. The funds I received from the registry of the Court pursuant to the final judgment were needed by me to pay my daily living expenses, including, but not limited to, food, utilities, clothing, rent, taxes, gasoline, auto and homeowners insurance, health insurance and other miscellaneous day to day living expenses. In addition, I needed the funds to pay the costs of my appeal including attorney’s fees, court courts [sic], and the appeal bond, including the su-percedeas bond. I have posted a supercedeas bond in the amount of $440,000.00 (nearly half the amount received). Without the use of these funds, I could not have paid all of the financial obligations set forth above and I could not have posted my supercedeas bond. I paid $144,000.00 for past due attorney's fees and appellant [sic] attorney’s fees which were due and owing which I could not previously pay due to the restrictive orders of the Court. I also needed the funds to effectuate and complete repairs on the house and to pursue my employment as a remodeler. For these reasons the use of the funds I received from the registry of the Court was not voluntary.
      In addition, the funds I received from the IRS as set fort in Appellee’s Motion To Dismiss were due to any [sic] accounting error by my CPA. I advanced the money that was returned. I received no 'benefit' from this return of funds.
      Finally, I have not sold or refinanced the subject property, nor have I taken a loan against it.”

      . Although Mr. Waite states that he posted a bond for his appeal in the amount of $440,000, he does not state whether he put up the full amount in cash or only paid a percentage of it.

      . In his Appellant's Brief, Mr. Waite does not challenge the legal and factual sufficiency of these findings of fact. In his reply brief, Mr. Waite complains about Mrs. Waite’s characterization of the record and states generally that he “challenges” numerous findings of fact, including these two, but does not individually address them or cite to any contrary evidence in the record.

      . We find Mr. Waite's affidavit to be in stark contrast to that in Gonzalez, v. Gonzalez, in which the court found that the former wife supported her claim of financial duress with an affidavit in which she stated that she was destitute and had no income, had lost her job, had to sell her car for a specified amount, used her property as collateral to borrow money, and provided a detailed list of the amounts of her debts and expenses. See Gonzalez, 614 S.W.2d at 204 n. 1.

      .The other divorce cases he cited were similarly distinguishable. See Hands v. Holland, 867 S.W.2d 86, 87 n. 1 (Tex.App.-Texarkana 1993, no writ) (holding appellant not es-topped when at least some of cash was accepted because of economic necessity and a redivision of the property would not affect her right to the cash received); Gonzalez, 614 S.W.2d at 204 (holding appellant not es-topped when affidavit disclosed acceptance of benefits was involuntary due to financial duress).

      . The money the court awarded Mr. Waite constituted 90% of the estate.

      . Mr. Waite also could have left the money in the registry of the court and obtained money during the appeal by requesting temporary support payments. See Tex. Fam.Code § 6.709; McAlister, 75 S.W.3d at 483 (noting that accepting payments under temporary support orders does not constitute acceptance of benefits).

      . Mr. Waite contends he received only 13% of the community estate, while Mrs. Waite contends he received approximately 45%.

      . Mr. Waite relied primarily on Kline v. O'Quinn to argue that he fits within the second exception. That case contains a completely different set of facts than we have here. See Kline, 874 S.W.2d at 781. There, O’Quinn moved to dismiss Kline’s appeal because Kline accepted compensatory damages that O’Quinn paid under the judgment. However, Kline did not appeal the award of compensatory damages; she appealed only the punitive damages and attorney's fees the trial court deleted from an arbitration award. A reversal on appeal would not change the compensatory damages already awarded; it would only add the punitive damages or attorney’s fees or both. See id.