in the Matter of the Marriage of Allan Ray Comstock and Mindy Lee Comstock

Opinion issued September 30, 2021

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-19-00722-CV
———————————
IN THE MATTER OF THE MARRIAGE OF ALLAN RAY COMSTOCK
AND MINDY LEE COMSTOCK

On Appeal from the County Court at Law No. 1
Galveston County, Texas
Trial Court Case No. 15-FD-3019

OPINION

The trial court dissolved the marriage of appellant, Mindy Lee Comstock, and

appellee, Allan Ray Comstock, and divided their marital estate. The trial court also

named Allan as sole managing conservator over the parties’ two children, ordered

Mindy to pay monthly child support, and ordered Mindy to pay a share of Allan’s
attorney’s fees. Mindy moved for a new trial and for a modification of the divorce

decree, but the trial court denied both motions.

In four issues on appeal, Mindy contends that (1) she is entitled to a new trial

because the trial court erroneously denied her jury demand and erroneously

determined that Mindy waived a jury; (2) she is entitled to a new trial because the

trial court erroneously failed to transcribe and include in the record interviews with

the children and by failing to consider newly discovered evidence; (3) the trial court

abused its discretion in setting the amount of monthly child support payments by

considering assets of Mindy’s parents; and (4) the trial court ordered Mindy to pay

an excessive amount of Allan’s attorney’s fees. We affirm.

Background

Mindy and Allan married in 2001. They have two children together: a

daughter born in August 2001 and a son born in July 2003. At the time of the trial in

this case, both children were still minors. The children have since turned eighteen.

Allan first filed for divorce in November 2014. This proceeding was non-

suited in May 2015. Allan filed for divorce a second time in December 2015 and

alleged that the marriage had become insupportable. In this petition, Allan requested

that the parties be named joint managing conservators of their two children, but he

did not specifically request that either party be granted the exclusive right to

designate the children’s primary residence.

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 Mindy filed a counterpetition for divorce requesting that the parties be named

joint managing conservators, that the trial court grant her the exclusive right to

designate the children’s primary residence, and that the court order Allan to pay child

support. Allan amended his divorce petition in April 2016 and again in February

2017. In both amended petitions, Allan sought joint managing conservatorship, the

exclusive right to designate the children’s primary residence, and child support

payments from Mindy.

According to the clerk’s record, the case was set for trial seven times. Allan

testified that the first three settings were jury trial settings, but the third setting—

scheduled for February 14, 2017—was converted to a bench trial. That bench trial

setting was cancelled and then re-scheduled for April 11, 2017. On March 31,

Mindy’s counsel filed a motion to withdraw and for continuance, both of which the

trial court granted on April 11, 2017. The bench trial was reset to May 16, 2017.

Shortly after her attorney withdrew, on April 14, 2017, Mindy’s new attorney

filed a jury demand and paid the jury fee. Allan moved to strike this jury demand,

arguing that, under the facts of the case, the demand was unreasonable and was

solely for the purpose of delay. He also argued that the parties had previously agreed

to a bench trial and had obtained a prior bench trial setting based upon that

agreement. Allan did not attach any evidence to the motion.

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 The trial court held a hearing on the motion on May 5, 2017. At the hearing,

Allan’s counsel emphasized that Mindy had walked out of court ordered mediations,

cancelled other mediation settings, and required the trial to be reset multiple times.

He further argued that granting a jury trial would negatively affect the court’s docket.

Mindy’s counsel responded that her jury request was timely, and that the court could

not deny her a jury trial as a sanction for litigation conduct. The trial court did not

issue a written order on the motion to strike, but instead pronounced that Mindy’s

“motion for a jury is denied.” The trial court also stated on the record:

And I think just from what I’ve seen, it’s been a long list of dilatory
tactics in this case. I don’t think I’ve ever seen so much in the six years
I’ve been here or prior to that when I was in private practice. So, Motion
For a Jury is denied on that. And certainly, if we did have a Jury, it
would absolutely disrupt the Court’s docket because today’s the 5th.
It’s set for the 17th. So you’d probably be on the Jury trial docket
sometime in September at this rate.

Mindy’s counsel immediately filed a mandamus petition with this Court

requesting that we issue a writ of mandamus compelling the trial court to hold a jury

trial. We granted Mindy’s motion to stay the bench trial until the petition was

resolved. While that petition was pending, the trial court held a hearing at which the

court permitted Allan’s counsel to create a bill of review to support the denial of the

jury trial. At that hearing, Allan’s counsel asked the Court to take “judicial notice of

the November 14th, 2016, docket control order signed by both parties agreeing to a

bench trial.” The Court took judicial notice of that order, and it allowed Allan’s

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counsel to present a number of exhibits. Allan did not offer the November 14, 2016

docket control order as an exhibit.

Ultimately, a panel of this Court denied Mindy’s petition for writ of

mandamus without a substantive opinion and lifted the stay. See In re Comstock, No.

01-17-00346-CV, 2017 WL 3634066 (Tex. App.—Houston [1st Dist.] Aug. 24,

2017, orig. proceeding) (mem. op.). The trial court then held a bench trial over eleven

days in July, October, November, and December 2018. The trial court heard

extensive evidence concerning the children, who were seventeen and fifteen at the

time, their mental health, concerns about their behavior, their academic performance,

their school attendance, and the effect the prolonged divorce proceedings had had

on them.

The trial court also heard extensive evidence concerning the parties’ financial

resources and spending habits. Mindy, who had previously worked as a nurse, had

received Social Security disability payments since October 2015. At the time of trial,

she received $1,900 per month in disability benefits. Mindy’s parents, however, are

wealthy and, throughout the parties’ marriage and during the pendency of the

divorce, they repeatedly assisted the parties with their finances and made payments

for the benefit of the children. The trial court heard evidence that during 2015

through 2018, the years the divorce was pending, Mindy spent over $100,000 each

year in expenses for the children. Her parents assisted her in paying nearly all her

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bills, including extracurricular activities for the children, international vacations for

the children, and a vehicle for her daughter. Although no evidence was presented

concerning the exact amount Mindy’s parents had paid on her behalf and the

children’s behalf, Allan, Mindy, and Mindy’s mother all testified that the amounts

were substantial, totaling several hundred thousand dollars.

The trial court also heard evidence that Mindy was the beneficiary of two

trusts, including a trust created by a great aunt who died in 2017, but neither Mindy

nor her mother, the trustee of the trust, presented testimony or financial records

concerning the amount of the share to which Mindy was entitled. After the close of

trial, the trial court conferred in chambers with both children. It is undisputed that

no record was made of these interviews.

In May 2019, the trial court signed a final decree of divorce that dissolved the

parties’ marriage and divided their marital estate. In the decree, the trial court stated,

“A jury was waived, and questions of fact and of law were submitted to the Court.”

The trial court appointed Allan as sole managing conservator and Mindy as

possessory conservator of the children. The trial court granted Allan the exclusive

right to designate the primary residence of the children within Galveston County and

contiguous counties and granted Mindy a standard possession order. The trial court

also ordered Mindy to pay $1,576.86 per month in child support while both of their

children were under the age of eighteen and $1,261.49 per month in child support

6
after their daughter turned eighteen and while their son was still under eighteen. The

trial court further ordered Mindy to pay $118,282.40 in Allan’s attorney’s fees,

$20,000 in appellate attorney’s fees “conditioned on Mindy Lee Comstock’s pursuit

of an ultimately unsuccessful appeal,” and $34,600 in fees for the children’s amicus

attorney.

In its findings of fact and conclusions of law, the trial court made numerous

findings concerning Mindy’s net resources, including findings that she received

more than $100,000 in gifts from her parents each year, that she expected to continue

receiving such gifts, and that her net resources averaged more than $11,250 per

month. The trial court also found that Mindy “intentionally caused as much delay as

possible in resolving this case” and “intentionally caused the costs and expenses of

this case to increase as much as possible.” The court further found that “[t]he parties

agreed to withdraw this case from the jury docket and place it on the bench trial

docket when they agreed to a continuance and new Docket Control Order on

November 14, 2016.”

Mindy moved for a new trial and to modify, correct, and reform the divorce

decree. Among other contentions, Mindy argued that she was entitled to a new trial

because the trial court erroneously refused her jury demand and erroneously refused

to transcribe the interviews with the children, contrary to statutory authority

requiring that such interviews be transcribed by the court reporter if a parent so

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requests. Mindy also argued that newly discovered evidence justified a new trial,

specifically, evidence that the children, while living with Allan after the trial and

before rendition of the decree, had excessive unexcused absences and tardiness from

school. She argued that this evidence called into question whether it was in the

children’s best interests for Allan to have sole managing conservatorship.

The trial court held a hearing on Mindy’s post-decree motions and denied the

motions. This appeal followed.

Jury Demand

In her first issue, Mindy argues that the trial court erred by denying her jury

demand and by concluding, in the final divorce decree, that she waived her right to

a jury. We affirm because Mindy—the appellant in this case—has not carried her

burden to create an appellate record that includes the agreed order that is the basis

for the waiver finding. Without such a record, we cannot find reversible error.

A. Jurisdiction

Before turning to the question whether Mindy has demonstrated reversible

error on the jury demand issue, we first must examine whether we have jurisdiction

to decide that issue.

Subject-matter jurisdiction is essential to this Court’s ability to decide a case.

Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). It is

well settled that appellate courts are required to consider their jurisdiction sua

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sponte. Freedom Commc’ns, Inc. v. Coronado, 372 S.W.3d 621, 624 (Tex. 2012)

(per curiam); Malone v. PLH Grp., Inc., 570 S.W.3d 292, 296 (Tex. App.—Houston

[1st Dist.] 2018, no pet.). Appellate courts “always have jurisdiction to determine

their own jurisdiction.” Malone, 570 S.W.3d at 296; see Houston Mun. Emps.

Pension Sys. v. Ferrell, 248 S.W.3d 151, 158 (Tex. 2007).

Mootness deprives the court of jurisdiction. See Heckman v. Williamson Cty.,

369 S.W.3d 137, 162 (Tex. 2012); Harlow Land Co. v. City of Melissa, 314 S.W.3d

713, 716 (Tex. App.—Dallas 2010, no pet.) (“If a case becomes moot, the parties

lose standing to maintain their claims, depriving the appellate court of subject matter

jurisdiction.”). This Court is prohibited from deciding a moot controversy or

rendering an advisory opinion. Tesco Corp. (US) v. Steadfast Ins. Co., No. 01-13-

00091-CV, 2015 WL 456466, at *2 (Tex. App.—Houston [1st Dist.] Feb. 3, 2015,

pet. denied) (mem. op.); see Nat’l Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83,

86 (Tex. 1999) (“Appellate courts are prohibited from deciding moot

controversies.”); City of Farmers Branch v. Ramos, 235 S.W.3d 462, 469 (Tex.

App.—Dallas 2007, no pet.) (noting that court must avoid rendering advisory

opinions by only deciding issues presenting “a live controversy at the time of the

decision”).

A controversy “can become moot at any time, including on appeal,” and

“courts have an obligation to take into account intervening events” that may render

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the controversy moot. Heckman, 369 S.W.3d at 166–67. A case is moot if there

ceases to be “a justiciable controversy between the parties—that is, if the issues

presented are no longer ‘live,’ or if the parties lack a legally cognizable interest in

the outcome.” Id. at 162. “Put simply, a case is moot when the court’s action on the

merits cannot affect the parties’ rights or interests.” Id.

Here, Mindy is seeking to overturn the trial court’s denial of a jury trial on the

custody issues pertaining to the two children. Both children have now turned

eighteen, achieving the age of majority in Texas. Once the child has become an adult,

“there is no live controversy” with respect to custody, possession, and access. D.C.

v. Tex. Dep’t of Family & Protective Servs., No. 03-11-00453-CV, 2012 WL

1403333, at *1 (Tex. App.—Austin Apr. 19, 2012, no pet.) (mem. op.); Medrano v.

Zapata, No. 03-12-00131-CV, 2013 WL 6921500, at *4 (Tex. App.—Austin Dec.

31, 2013, no pet.) (mem. op.); In re J.D., No. 04-19-00239-CV, 2020 WL 4607015,

at *1 (Tex. App.—San Antonio Aug. 12, 2020, no pet.) (mem. op.) (“When a child

turns eighteen years old, issues of conservatorship become moot.”). Issues of

conservatorship of Mindy and Allan’s children are therefore moot.

That is not the end of the matter, however. When the custody determination

implicates the financial obligations imposed by the final decree that accrued prior to

the child’s emancipation—such as attorney’s fees and the amount of previously-

accrued child support—“a live controversy remains to such extent.” In re J.O.A.,

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No. 14-14-00968-CV, 2016 WL 1660288, at *4 (Tex. App.—Houston [14th Dist.]

Apr. 26, 2016, no pet.) (mem. op.); Medrano, 2013 WL 6921500, at *4. Because

Mindy has appealed the attorney’s fees award and the child support obligation

imposed by the final decree that preceded the children’s emancipation, we have

jurisdiction over this appeal. Compare Medrano, 2013 WL 6921500, at *4, and In

re J.O.A., 2016 WL 1660288, at *4, with In re E.H., No. 2-07-343-CV, 2008 WL

2404490, at *1 (Tex. App.—Fort Worth June 12, 2008, no pet.) (mem. op.) (per

curiam) (dismissing appeal from order awarding permanent managing

conservatorship to DFPS as moot because child turned eighteen during pendency of

appeal, but noting that trial court had not ordered mother to pay child support), and

D.C., 2012 WL 1403333, at *1 & n.1 (holding same and noting that appellant did

not complain on appeal about imposition of child support obligation).

B. Governing Law

With two exceptions not applicable to this case, a party to a suit affecting the

parent-child relationship (“SAPCR”) may demand a jury trial. See TEX. FAM. CODE

§ 105.002(a)–(b). A party is entitled to a jury verdict—and the trial court may not

contravene a jury verdict—on several issues, including (1) the appointment of a sole

managing conservator; (2) the appointment of joint managing conservators; (3) the

appointment of a possessory conservator; and (4) the determination of which joint

managing conservator has the exclusive right to designate the primary residence of

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the child. Id. § 105.002(c)(1); In re Reiter, 404 S.W.3d 607, 609 (Tex. App.—

Houston [1st Dist.] 2010, orig. proceeding). The trial court may not submit to a jury

questions on the issues of child support, specific terms or conditions of possession

of or access to the child, or any rights or duties of a conservator other than which

joint managing conservator has the exclusive right to designate the primary

residence of the child. TEX. FAM. CODE § 105.002(c)(2).

The Texas Constitution establishes that the “[t]he right of trial by jury shall

remain inviolate.” TEX. CONST. art. I, § 15; Gen. Motors Corp. v. Gayle, 951 S.W.2d

469, 476 (Tex. 1997) (orig. proceeding) (“The right to jury trial is one of our most

precious rights, holding ‘a sacred place in English and American history.’”) (quoting

White v. White, 196 S.W. 508, 512 (Tex. 1917)); City of Garland v. Dallas Morning

News, 969 S.W.2d 548, 558 (Tex. App.—Dallas 1998) (“Denials of the right to a

jury trial are closely scrutinized.”), aff’d, 22 S.W.3d 351 (Tex. 2000). That right is

not absolute, however. In civil cases, a party can procedurally forfeit the right to a

jury trial by failing to timely make a jury demand or by failing to pay the jury fee.

See TEX. R. CIV. P. 216; In re Wells Fargo Bank Minn. N.A., 115 S.W.3d 600, 606–

07 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding [mand. denied]).

Rule 216 is key to determining whether a party has procedurally forfeited a

jury trial by making an untimely jury demand. Rule 216 states that “[n]o jury trial

shall be had in any civil suit, unless a written request for a jury trial is filed with the

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clerk of the court a reasonable time before the date set for trial of the cause on the

non-jury docket, but not less than thirty days in advance.” TEX. R. CIV. P. 216; In re

M.M., 980 S.W.2d 699, 702 (Tex. App.—San Antonio 1998, no pet.) (“In order to

secure the right to a jury trial, the applicant must make a written request to the clerk

of the court and pay the jury fee.”).

A jury demand filed in advance of the thirty-day deadline provided for in Rule

216 “is presumed to have been made a reasonable time before trial.” Halsell v.

Dehoyos, 810 S.W.2d 371, 371 (Tex. 1991) (per curiam); In re A.L.M.-F., 564

S.W.3d 441, 444 (Tex. App.—Waco 2017), aff’d, 593 S.W.3d 271 (Tex. 2019).

However, trial courts are not required to honor every jury request simply because it

is made more than thirty days before trial. Girdner v. Rose, 213 S.W.3d 438, 443

(Tex. App.—Eastland 2006, no pet.). The adverse party may rebut the presumption

of reasonableness by showing that granting the jury demand would operate to injure

the adverse party, disrupt the court’s docket, or impede the ordinary handling of the

court’s business. Halsell, 810 S.W.2d at 371; see In re A.L.M.-F., 564 S.W.3d at

444; Girdner, 213 S.W.3d at 443–44. Trial courts have discretion to determine what

is a “reasonable” amount of time based on the individual circumstances of each case.

Girdner, 213 S.W.3d at 443.

Separate and apart from Rule 216, parties can waive a jury trial by agreement.

See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 129–33 (Tex. 2004) (orig.

13
proceeding); see also In re Hulcher Servs., Inc., 568 S.W.3d 188, 190 (Tex. App.—

Fort Worth 2018, no pet.) (holding that Rule 11 agreement waived jury trial for

second trial but not third trial following remand); In re Wells Fargo Bank Minn., 115

S.W.3d at 606 (noting that parties can waive right to jury trial by “agreeing to a

bench trial”). Rule 11 is designed to eliminate misunderstandings and controversies

that accompany verbal assurances; as reduced to writing, the agreements therefore

“speak for themselves.” Fortis Benefits v. Cantu, 234 S.W.3d 642, 651 (Tex. 2007);

Birdwell v. Cox, 18 Tex. 535, 537 (1857). The trial court has a ministerial duty to

enforce a valid pretrial Rule 11 agreement. Fortis Benefits, 234 S.W.3d at 651.

We determine the scope of a Rule 11 agreement by examining the words used,

the surrounding circumstances from which the agreement arose, the state of and

allegations in the pleadings, and the attitude of the parties with respect to the issues.

Lesikar v. EOG Res., Inc., 236 S.W.3d 457, 458–59 (Tex. App.—Amarillo 2007, no

pet.). We must examine the entire agreement to determine the parties’ intent. Sitaram

v. Aetna U.S. Healthcare of N. Tex., Inc., 152 S.W.3d 817, 824 (Tex. App.—

Texarkana 2004, no pet.).

We review the trial court’s denial of a jury demand for an abuse of discretion.

In re A.L.M.-F., 593 S.W.3d at 282; Mercedes-Benz Credit Corp. v. Rhyne, 925

S.W.2d 664, 666 (Tex. 1996). A trial court abuses its discretion when its decision is

14
arbitrary, unreasonable, and without reference to guiding principles. In re A.L.M.-

F., 593 S.W.3d at 282.

C. Analysis

Mindy argues on appeal that the agreed docket control order signed by both

parties and the trial court on November 14, 2016, is not a qualifying Rule 11

agreement waiving her right to jury trial. Consequently, she argues that the trial

court’s finding in the divorce decree and its findings of fact and conclusions of law

that she waived her jury right are erroneous and should be overturned. Mindy further

argues that the trial court abused its discretion by denying her jury demand because

it was timely under Rule 216 and because Allan did not attach evidence to his motion

to strike Mindy’s jury demand. Assuming arguendo that Mindy’s jury demand was

made at a reasonable time, we nevertheless affirm because she has not carried her

appellate burden of demonstrating reversible error with respect to the divorce

decree’s waiver finding.

Mindy argues that the trial court abused its discretion by entering a final

decree concluding that she had waived her right to a jury trial. Significantly, Mindy

does not challenge Allan’s assertion that an agreed docket control order setting the

case for a bench trial exists. Rather, Mindy acknowledges that both parties’ counsel

submitted an agreed docket control order with a bench trial on November 14, 2016.

Further, Mindy concedes that this agreement was reached “by the parties’ counsel at

15
a hearing on one of the motions for continuance heard during this case.”

Nevertheless, Mindy makes three arguments for why the trial court’s waiver finding

was erroneous: (1) the agreed docket control order did not meet the criteria for an

enforceable Rule 11 agreement; (2) an agreed docket control order does not evince

a voluntary, knowing, and intelligent waiver of the right to a jury trial; and (3) the

agreement is not enforceable because the lawyers agreed to a bench trial at a time

before the dispute had become primarily focused on the custody of their children.

Mindy cannot demonstrate reversible error because the agreed docket control

order that she references—and challenges as an invalid waiver of her right to a jury

trial—is not in the appellate record.1 It is well settled that “[t]he appellant bears the

burden to bring forward on appeal a sufficient record to show the error committed

by the trial court.” Huston v. United Parcel Serv., Inc., 434 S.W.3d 630, 636 (Tex.

1
Allan has attached the agreed docket control order—along with three previous
docket control orders—as an appendix to his brief. None of these docket control
orders appear in the appellate record. “[D]ocuments attached to an appellate brief
which are not part of the record may generally not be considered by the appellate
court.” Robb v. Horizon Cmtys. Improvement Ass’n, Inc., 417 S.W.3d 585, 589
(Tex. App.—El Paso 2013, no pet.); WorldPeace v. Comm’n for Lawyer Discipline,
183 S.W.3d 451, 465 n.23 (Tex. App.—Houston [14th Dist.] 2005, pet. denied)
(“[W]e cannot consider documents attached as appendices to briefs and must
consider a case based solely upon the record filed.”). The appellate record consists
of the clerk’s record and, if necessary to the appeal, the reporter’s record. See TEX.
R. APP. P. 34.1; Robb, 417 S.W.3d at 589. “The attachment of documents as exhibits
or appendices to briefs is not formal inclusion in the record on appeal and, therefore,
the documents cannot be considered.” Robb, 417 S.W.3d at 589; Jackson v. Citibank
(S.D.), N.A., 345 S.W.3d 214, 214 (Tex. App.—Dallas 2011, no pet.) (“An appendix
is not a substitute for a clerk’s record nor are citations to the appendix a substitute
for citations to the record.”).
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App.—Houston [1st Dist.] 2014, pet. denied) (citing Nicholson v. Fifth Third Bank,

226 S.W.3d 581, 583 (Tex. App.—Houston [1st Dist.] 2007, no pet.)); Christiansen

v. Prezelski, 782 S.W.2d 842, 843 (Tex.1990) (per curiam). “The burden is on the

appellant to see that a sufficient record is presented to show error requiring reversal.”

Christiansen, 782 S.W.2d at 843.

Addressing her arguments in turn, Mindy has not demonstrated that the agreed

docket control order does not meet the criteria for an enforceable Rule 11 agreement.

Rule 11 states that “[u]nless otherwise provided in these rules, no agreement

between attorneys or parties touching any suit pending will be enforced unless it be

in writing, signed and filed with the papers as part of the record, or unless it be made

in open court and entered of record.” TEX. R. CIV. P. 11; see also Knapp Med. Ctr.

v. De La Garza, 238 S.W.3d 767, 768 (Tex. 2007) (per curiam); Padilla v. LaFrance,

907 S.W.2d 454, 459–60 (Tex. 1995).

Mindy does not explain exactly how the agreed docket control order fails to

comply with Rule 11. Mindy does not dispute that the agreed order was written,

signed, and part of the trial court’s record. So long as the agreement met the Rule 11

criteria, the trial court had a ministerial obligation to enforce it. See Fortis Benefits,

234 S.W.3d at 651. Mindy cites no authority to support her argument that an agreed

docket control order can never constitute a Rule 11 agreement waiving the right to a

jury trial.

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 Next, Mindy argues that the trial court’s waiver finding is an abuse of

discretion because the agreed docket control order does not evince a “voluntary,

knowing, and intelligent waiver by Mindy.” She cites Prudential to support this

argument.

Prudential addressed a jury waiver in a commercial contract. See 148 S.W.3d

at 133. It did not involve a pretrial agreement between litigants. Regardless, the

Texas Supreme Court has subsequently clarified that Prudential does not impose a

“burden on the enforcing party to produce evidence that a [jury] waiver was executed

knowingly and voluntarily.” In re Bank of Am., N.A., 278 S.W.3d 342, 344 (Tex.

2009) (orig. proceeding) (per curiam). Such a presumption is “contrary to the

longstanding Texas contract principle that parties are free to enter into contracts

without fear of retroactive nullification.” Id. Instead, a “conspicuous provision is

prima facie evidence of a knowing and voluntary waiver and shifts the burden to the

opposing party to rebut it.” Id. (quoting In re Gen. Elec. Capital Corp., 203 S.W.3d

314, 316 (Tex. 2006) (orig. proceeding) (per curiam)). Because Mindy has not

included the agreed docket control order in the record, we cannot find that the

language of the order was not conspicuous.

Third, Mindy argues that the agreed docket control order was unenforceable

because the lawyers agreed to a bench trial at a time before the dispute had become

primarily focused on the custody of their children. According to Mindy, this

18
agreement was reached “before Allan filed his Second Amended Petition for

Divorce, which substantially changed the issues involved by primarily focusing on

custody of their children.” However, the record reveals that Allan’s First Amended

Petition filed on April 11, 2016—like his Second Amended Petition filed on

February 9, 2017—sought joint conservatorship of the children and to have Allan

designated as the conservator who has the exclusive right to designate the primary

residence of the children. Custody of the children was therefore a disputed issue in

the case before the parties signed the agreed docket control order on November 14,

2016.

Finally, we note that Allan’s failure to attach evidence to his motion to strike

Mindy’s jury demand does not compel a different result. This Court has held that a

trial court abuses its discretion when it denies a jury demand as untimely under Rule

216 when the party seeking to avoid a jury trial supplies no evidence to support the

denial. See Sims v. Fitzpatrick, 288 S.W.3d 93, 103–04 (Tex. App.—Houston [1st

Dist.] 2009, no pet.) (concluding that trial court abused its discretion in denying a

timely filed jury demand when parties opposing demand pointed to no evidence that

granting jury trial would have injured them, disrupted court’s docket, or impeded

ordinary handling of court’s business); In re Webb-Goetz, No. 01-19-00139-CV,

2019 WL 3293697, at *3 (Tex. App.—Houston [1st Dist.] July 23, 2019, orig.

proceeding) (same). Those opinions do not control here because Allan also asserted

19
that Mindy waived her jury trial right by agreement. The Texas Supreme Court has

flatly rejected the notion that “Rule 216 prescribes the only way in which trial by

jury can be waived.” Prudential, 148 S.W.3d at 130. An agreement is an alternative

basis for finding a jury waiver, so these decisions are inapposite.

Because the alleged Rule 11 agreement was an agreed order, Allan had no

obligation to attach it to his motion. “It is well recognized that a trial court may take

judicial notice of its own records in a cause involving the same subject matter

between the same, or practically the same, parties.” Gardner v. Martin, 345 S.W.2d

274, 276 (Tex. 1961). “[T]he trial court is presumed to judicially know what has

previously taken place in the case tried before it, and the parties are not required to

prove facts that a trial court judicially knows.” In re J.J.C., 302 S.W.3d 436, 446

(Tex. App.—Houston [14th Dist.] 2009, pet. denied) (internal quotations omitted);

Asplundh Tree Expert Co. v. Abshire, 517 S.W.3d 320, 344 n.13 (Tex. App.—Austin

2017, no pet.) (“[A] trial court is presumed to have taken notice of its own records

in a case because [a] trial judge judicially knows what has previously taken place in

the case on trial.”) (internal quotations omitted).

As Mindy acknowledges, in seeking to strike her jury demand, Allan argued

that the agreed docket control order constituted an enforceable agreement to waive

the parties’ jury trial rights. At the May 18, 2017 bill of review hearing, Allan

expressly requested that the trial court take judicial notice of the November 14th,

20
2016 agreed docket control order. The court did so, over Mindy’s objection. Mindy

has not alleged any error in that judicial notice.

We overrule Mindy’s first issue.

Denial of Motion for New Trial

In her second issue, Mindy argues that the trial court abused its discretion by

denying her motion for new trial because the trial court erroneously failed to

(1) transcribe and include in the record interviews that it conducted in chambers with

the children and (2) consider newly discovered evidence concerning the children’s

absences from school after Allan was named sole managing conservator.

A. Standard of Review

We review a trial court’s denial of a motion for new trial for an abuse of

discretion. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009) (per

curiam). A party seeking a new trial based on newly discovered evidence must

demonstrate to the trial court that (1) the evidence has come to her knowledge since

the trial; (2) the failure to discover the evidence sooner was not due to lack of

diligence; (3) the evidence is not cumulative; and (4) the evidence is so material that

it would probably produce a different result if a new trial were granted. Waffle

House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010); Strong v. Strong, 350

S.W.3d 759, 772 (Tex. App.—Dallas 2011, pet. denied) (“[A]dmissible evidence

must be introduced at a hearing on the motion for new trial establishing such

21
essential facts as no prior knowledge on the part of the movant, the prior diligence

exercised by the movant, and the nature of the newly discovered evidence.”).

B. Analysis

1. Transcription of Interviews

Family Code section 153.009 governs a trial court’s ability to conduct an in-

chambers interview of a child involved in a SAPCR. This section provides:

(a) In a nonjury trial or at a hearing, on the application of a party, the
amicus attorney, or the attorney ad litem for the child, the court
shall interview in chambers a child 12 years of age or older and
may interview in chambers a child under 12 years of age to
determine the child’s wishes as to conservatorship or as to the
person who shall have the exclusive right to determine the child’s
primary residence. The court may also interview a child in
chambers on the court’s own motion for a purpose specified by
this subsection.
(b) In a nonjury trial or at a hearing, on the application of a party, the
amicus attorney, or the attorney ad litem for the child or on the
court’s own motion, the court may interview the child in
chambers to determine the child’s wishes as to possession,
access, or any other issue in the suit affecting the parent-child
relationship.
(c) Interviewing a child does not diminish the discretion of the court
in determining the best interests of the child.
(d) In a jury trial, the court may not interview the child in chambers
regarding an issue on which a party is entitled to a jury verdict.
(e) In any trial or hearing, the court may permit the attorney for a
party, the amicus attorney, the guardian ad litem for the child, or
the attorney ad litem for the child to be present at the interview.
(f) On the motion of a party, the amicus attorney, or the attorney ad
litem for the child, or on the court’s own motion, the court shall
cause a record of the interview to be made when the child is 12

22
 years of age or older. A record of the interview shall be part of
the record in the case.

TEX. FAM. CODE § 153.009. This statute is mandatory and requires the trial court to

interview a child on the application of any party. In re A.M., 604 S.W.3d 192, 199

(Tex. App.—Amarillo 2020, pet. denied); In re McPeak, 525 S.W.3d 310, 316 (Tex.

App.—Houston [14th Dist.] 2017, orig. proceeding) (holding that trial court abused

its discretion by denying mother’s motion for court to confer in chambers with

thirteen-year-old child). Section 153.009(f) “is quite specific in requiring a record of

the interview to be kept on the motion of any party if the child is twelve years of age

or older.” In re A.C., 387 S.W.3d 673, 676 (Tex. App.—Texarkana 2012, pet.

denied).

Here, in September 2017, Mindy filed a motion for the trial court to confer

with the parties’ daughter, who was sixteen at the time.2 Mindy stated that “[t]he

issues of conservatorship and who shall have the exclusive right to determine the

primary residence of the children in this case are contested.” She requested that the

trial court confer with her daughter in chambers, without the presence of counsel,

“[f]or the purpose of determining the best interest of the children.” Mindy also

2
In the motion to confer and in her brief on appeal, Mindy stated that her daughter
was fourteen at the time. Mindy filed her motion in September 2017. Her daughter
was born in August 2001 and was therefore sixteen years old at the time of the
motion.
23
requested “that the Court cause a record of the interview with the child . . . be made

and that the record of the interview be made a part of the record in this case.”

The trial court conferred with both children—who were seventeen and fifteen

at the time—after the close of trial in December 2018. It is unclear when the

interviews with the children occurred, but the parties agree on appeal that the trial

court did speak with the children.3 It is undisputed that no record was made of these

interviews. In its findings of fact and conclusions of law, the trial court found that

Mindy “did not request the court reporter be present for interviews with the children

at the time that the interviews commenced” and that Mindy “did not object to the

lack of a reporter for the interviews with the children at the time of the

commencement of the interviews.”

On appeal, Mindy argues that the trial court incorrectly found that she did not

request that the court reporter record the interviews with the children, pointing to the

request that she filed in September 2017. She further argues that she could not have

objected to the lack of a court reporter at the time of the interviews “because the

interviews were not done in the presence of any of the parties or their counsel” and

3
After the close of trial, the trial court and counsel for the parties discussed when the
children could be available to confer with the court. The trial court proposed
meeting with the children a week after the end of trial, “in the afternoon because I
don’t want it to interfere with their schooling.”
24
therefore she “was not in a position to see whether a court reporter was present as

she requested.”

In September 2017, Mindy filed a pretrial written motion requesting that the

trial court confer with her daughter, who was over the age of twelve. This motion

specifically requested that the court reporter record the interview and make the

record “part of the record in this case.” Under Family Code section 153.009(a) and

(f), the trial court was required to interview the child in chambers “to determine the

child’s wishes as to conservatorship or as to the person who shall have the exclusive

right to determine the child’s primary residence,” and the court was also required to

“cause a record of the interview to be made,” which “shall be part of the record in

the case.” TEX. FAM. CODE § 153.009(a), (f). The trial court interviewed both

children after trial, but no record was made. We conclude that the failure to record

the interviews was erroneous. See id.; In re A.C., 387 S.W.3d at 677; see also In re

Lau, 89 S.W.3d 757, 761 (Tex. App.—Houston [1st Dist.] 2002, orig. proceeding)

(concluding that failure to make record of in-chambers interviews of sixteen- and

seventeen-year-old children made record incomplete).

To the extent Allan argues that Mindy failed to preserve this contention for

appellate review because, in September 2017, she requested that a court reporter

record the trial court’s interview with her daughter, but she did not object to the lack

of a court reporter at the time the court finally interviewed both children after trial

25
in December 2018, we disagree. As the Texarkana Court of Appeals noted in In re

A.C., the failure of a court reporter to record an in-chambers interview between a

trial court and a child is “demonstrably different from the failure of a court reporter

to record proceedings in open court,” which requires an objection by the

complaining party to preserve the error for appellate review. See 387 S.W.3d at 677.

The trial court may permit the attorney for a party or the amicus attorney to be

present for the in-chambers interview, but it is not required to do so. Id.; TEX. FAM.

CODE § 153.009(e). The Texarkana Court stated:

There is no indication that the trial judge invited counsel for either
litigant to observe the court’s interview in chambers with the child, the
record is silent as to whether the court reporter was physically present
when the interview took place, and neither brief addresses this. It may
be that [the father] assumed that a record of the interview was being
made as it was taking place, raising the possibility that he would have
had no opportunity to call it to the attention of the trial court until a
post-interview discovery of the failure to make a record.

In re A.C., 387 S.W.3d at 677. Because the Texarkana Court could not determine

whether the father had been “afforded a genuine opportunity to object to the failure

to make a record of the interview,” the court assumed “that the failure to make a

record of the interview was error and there was no opportunity provided [to the

father] to complain of this omission before the interview took place.” Id.

Similarly, here, the record is silent concerning the circumstances under which

the trial court interviewed the children in chambers, including whether the parties or

their counsel were aware of the presence—or lack thereof—of a court reporter
26
during the interviews. As in In re A.C., it is possible that Mindy assumed the court

reporter was making a record of the interviews—as she had requested in her pretrial

motion—but did not learn of the failure to record the interviews until later and

therefore had no opportunity to call the problem to the trial court’s attention before

the interviews occurred. See id. Under these circumstances, we conclude that Mindy

preserved this complaint for appellate review.

Ultimately, however, we conclude that the trial court’s error in failing to

ensure that the interviews were recorded by the court reporter was harmless.

Interviewing a child is designed to aid the court in making conservatorship and

possession determinations, but it “does not diminish the discretion of the court in

determining the best interests of the child.” TEX. FAM. CODE § 153.009(c); In re

A.C., 387 S.W.3d at 677 (noting that “the information obtained by the trial court in

such an interview is strictly supplemental to the evidence taken in court, the purpose

of the interview being to aid the court in making its determination”); In re K.R.P.,

80 S.W.3d 669, 677 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (“Although

such interview statements may be informative to a trial court in making its custody

decision, they in no way diminish the discretion of the trial court.”). As noted in In

re A.C., the Family Code does not contain any requirements that the child in an in-

chambers interview be sworn or that the Rules of Evidence should apply during the

interview. See 387 S.W.3d at 677.

27
 “Presumably, information gleaned in such an interview can be placed in the

storehouse of other information the trial court can use in exercising its discretion in

matters of this type pertaining to children.” Id.; see Syed v. Masihuddin, 521 S.W.3d

840, 847 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (“In determining the issues

of conservatorship and possession of a child, the trial court is given wide latitude in

determining the best interest of the child and will be reversed only for an abuse of

discretion.”). The trial court has broad discretion in making conservatorship and

possession determinations, and the court “may choose to either take into account the

information learned at such an interview [under section 153.009] or ignore it in its

entirety.” In re A.C., 387 S.W.3d at 678. It is therefore “difficult to imagine that a

failure to cause the interview to be recorded would cause a different outcome or

result.” See id.; TEX. R. APP. P. 44.1(a) (providing that judgment may not be reversed

on appeal unless error complained of probably caused rendition of improper

judgment or probably prevented appellant from properly presenting case to court of

appeals).

We conclude that although the trial court erred by failing to ensure that its

interviews with the children were recorded by the court reporter and made a part of

the record of the case, this error was harmless and did not cause a different outcome

or result. See In re A.C., 387 S.W.3d at 678.

28
 2. Newly Discovered Evidence

Mindy further argues that the trial court erred by denying her motion for new

trial based on newly discovered evidence. Mindy argues that she presented her

declaration, her testimony, and school records reflecting that during the semester

after trial concluded, when the children were living with Allan, they both had a

significant number of unexcused absences and tardiness from their classes. Mindy

argues that this evidence “is extreme with respect to the welfare of the children” and

demonstrates “a steep decline in [the children’s academic] performance.”

At the motion for new trial hearing, the trial court admitted school records for

both children demonstrating their unexcused absences and tardiness during the

2018–2019 academic year, the spring semester of which occurred after the trial had

ended and the children were living with Allan. The trial court also admitted a

summary of the absences and tardiness that Mindy prepared based on the school

records. In this document, Mindy represented that their daughter had been tardy

sixteen times and had missed twelve total school days since the date the trial ended,

and their son had been tardy thirteen times and had missed eight total school days.

At the hearing, Mindy acknowledged that their daughter graduated from high school,

even though, at the time of trial, there was a serious question whether she would be

able to graduate. She also acknowledged that their son had passed to the next grade

and would be starting his junior year of high school in the fall.

29
 Throughout the trial, the trial court heard extensive evidence concerning the

children’s academic performance, including their propensity to miss classes while

living both with Mindy and with Allan. The trial court also heard evidence at trial

that, during the fall semester of 2018, after the children had been placed in Allan’s

custody pursuant to temporary orders, their grades had somewhat improved.

Mindy’s new evidence reflected that, although the children continued missing

classes while living with Allan, both children ultimately passed their grade levels,

and their daughter graduated high school. We conclude that this evidence is not “so

material it would probably produce a different result if a new trial were granted.”

See Waffle House, 313 S.W.3d at 813. We hold that the trial court did not abuse its

discretion in denying Mindy’s motion for new trial. See id. (“Denial of a motion for

new trial is reviewed for abuse of discretion.”); Dolgencorp of Tex., 288 S.W.3d at

926.

We overrule Mindy’s second issue.

Child Support Award

In her third issue, Mindy argues that the trial court erred in calculating her

monthly child support payments because the court impermissibly looked beyond

Mindy’s net resources and considered the assets of her parents.

30
A. Standard of Review and Governing Law

A trial court has discretion to set child support within the parameters provided

by the Texas Family Code, and we will not disturb a court’s child support order on

appeal unless the complaining party can show a clear abuse of discretion. Iliff v. Iliff,

339 S.W.3d 74, 78 (Tex. 2011) (quoting Worford v. Stamper, 801 S.W.2d 108, 109

(Tex. 1990) (per curiam)); Trumbull v. Trumbull, 397 S.W.3d 317, 319 (Tex. App.—

Houston [14th Dist.] 2013, no pet.). The trial court abuses its discretion if its decision

is arbitrary, unreasonable, or without reference to any guiding rules or principles.

Trumbull, 397 S.W.3d at 319 (citing Downer v. Aquamarine Operators, Inc., 701

S.W.2d 238, 241–42 (Tex. 1985)). The trial court also abuses its discretion if it fails

to analyze or apply the law correctly. Iliff, 339 S.W.3d at 78.

Under this standard, legal and factual sufficiency of the evidence are not

independent grounds of error but are instead relevant factors in assessing whether

the trial court abused its discretion. Trumbull, 397 S.W.3d at 319. We review the

evidence in the light most favorable to, and indulge every legal presumption in favor

of, the trial court’s ruling. In re K.M.B., 606 S.W.3d 889, 894 (Tex. App.—Dallas

2020, no pet.); Villalpando v. Villalpando, 480 S.W.3d 801, 811 (Tex. App.—

Houston [14th Dist.] 2015, no pet.). The trial court does not abuse its discretion when

some evidence of a substantive and probative character supports its decision.

31
Trumbull, 397 S.W.3d at 319–20; Marquez v. Moncada, 388 S.W.3d 736, 739 (Tex.

App.—Houston [1st Dist.] 2012, no pet.).

In determining child support liability, the trial court must calculate the

obligor’s net resources. TEX. FAM. CODE § 154.062(a); In re K.M.B., 606 S.W.3d at

894 (“The starting point for assessing child support liability under the Texas Family

Code is to calculate the child support obligor’s monthly ‘net resources’ and apply

statutory guidelines to that amount.”). The statutory child support guidelines

presumptively set the amount of support for two children at 25 percent of the

obligor’s monthly net resources up to $8,550.4 See Act of May 22, 2007, 80th Leg.,

R.S., ch. 620, § 2, 2007 Tex. Gen. Laws 1188, 1189 (amended 2021) (current version

at TEX. FAM. CODE § 154.125(a), (a-1), (b)); TEX. FAM. CODE § 154.126(a) (“If the

obligor’s net resources exceed the amount provided by Section 154.125(a), the court

shall presumptively apply the percentage guidelines to the portion of the obligor’s

4
The Texas Legislature amended Family Code section 154.125(a) in the 2021
legislative session. The version of this statute in effect at the time the trial court
imposed the support obligation at issue provided, “The guidelines for the support of
a child in this section are specifically designed to apply to situations in which the
obligor’s monthly net resources are not greater than $7,500 or the adjusted amount
determined under Subsection (a-1), whichever is greater.” Act of May 22, 2007,
80th Leg., R.S., ch. 620, § 2, 2007 Tex. Gen. Laws 1188, 1189 (amended 2021)
(current version at TEX. FAM. CODE § 154.125(a)). Subsection 154.125(a-1)
requires the Title IV-D agency, the Texas Office of the Attorney General, to adjust
the amount provided for in subsection (a) “every six years as necessary to reflect
inflation.” TEX. FAM. CODE § 154.125(a-1). Effective September 1, 2013, the Texas
Attorney General raised the amount from $7,500 to $8,550. See 39 Tex. Reg. 4647,
4647 (2013) (Off. of the Att’y Gen.).
32
net resources that does not exceed that amount.”). The presumptive amount of

support for one child is 20 percent of the obligor’s monthly net resources. TEX. FAM.

CODE § 154.125(b); see also id. § 154.127(a) (“A child support order for more than

one child shall provide that, on the termination of support for a child, the level of

support for the remaining child or children is in accordance with the child support

guidelines.”).

Family Code section 154.062(b) provides that “resources” include:

(1) 100 percent of all wage and salary income and other
compensation for personal services (including commissions,
overtime pay, tips, and bonuses);
(2) interest, dividends, and royalty income;
(3) self-employment income;
(4) net rental income . . . ; and
(5) all other income actually being received, including severance
pay, retirement benefits, pensions, trust income, annuities,
capital gains, social security benefits other than supplemental
security income, United States Department of Veterans Affairs
disability benefits . . . , unemployment benefits, disability and
workers’ compensation benefits, interest income from notes
regardless of the source, gifts and prizes, spousal maintenance,
and alimony.

Id. § 154.062(b); In re K.M.B., 606 S.W.3d at 894 (“Section 154.062 of the family

code provides an all-inclusive definition of ‘net resources’ and then specifies certain

sums which are not considered ‘resources’ as well as certain sums the court must

deduct from its calculation of net resources.”); In re A.M.P., 368 S.W.3d 842, 849

33
(Tex. App.—Houston [14th Dist.] 2012, no pet.) (“Under the plain meaning of

section 154.062, gifts are included in the calculation of net resources.”). Section

154.062(c) specifically excludes from the definition of “resources”: return of

principal or capital; accounts receivable; benefits paid in accordance with federal

public assistance programs; and payments for foster care of a child. TEX. FAM. CODE

§ 154.062(c); see also id. § 154.062(d) (requiring deduction of certain items from

“resources,” including social security taxes, federal income tax, and expenses for

court-ordered health and dental insurance for obligor’s child).

“The language of section 154.062(b)(5) indicates the legislature intended that

‘all receipts of money that are not specifically excluded by the statute (section

154.062(c)), whether nonrecurring or periodic, whether derived from the obligor’s

capital or labor or from that of others, must be included in the definition of

resources.’” In re K.M.B., 606 S.W.3d at 895 (quoting In re P.C.S., 320 S.W.3d 525,

537 (Tex. App.—Dallas 2010, pet. denied)). As the Dallas Court of Appeals has

stated, “The wording of section 154.062(b) is broad and nonrestrictive to encompass

any compensation, regardless of what it is called, and nothing in the section indicates

the list of resources is exclusive.” Id. at 897. The obligor has a duty to pay child

support and that duty “is not limited to an obligor’s ability to pay from earnings but

also includes the obligor’s ability to pay from any and all available sources.” Id.

34
B. Analysis

In the final divorce decree, the trial court ordered Mindy to pay child support

to Allan in the amount of $1,576.86 per month until their daughter reaches the age

of eighteen or graduates from high school; thereafter, the decree ordered Mindy to

pay $1,261.49 in child support per month until their son reaches the age of eighteen

or graduates from high school. In its findings of fact and conclusions of law, the trial

court made several findings relevant to Mindy’s finances, including:

• Mindy regularly received gifts from her parents in excess of
$100,000.00 each year for many years.
• Mindy expects to continue receiving such gifts from her parents for
the years that child support will be due and payable.
• Mindy has stated that she has the ability to live anywhere in the
world when she inherits her trust fund.
• Mindy received a large inheritance from a deceased aunt in 2017.
• Mindy refused to produce financial records from trusts in which she
was a beneficiary despite court orders to do so.
• Mindy refused to reveal the amount of money that she inherited
during the litigation in her testimony.
• Mindy inherited several hundred thousand dollars during the
litigation.
• Mindy stands to inherit from additional family trusts in the future.
• Mindy has admitted that her monthly expenses exceed $11,000.00
per month.
• For the years 2015–2017, Mindy made written demands averaging
over $125,000.00 per year for reimbursement of funds that she said
that she spent from her net resources on the children’s needs.

35
 • Mindy’s Financial Information Statement shows that she spends
$3,255.00 per month in children’s expenses alone.
• The money spent by Mindy for the years 2015 to 2017 shows that
she has net resources in excess of $135,000.00 per year for each of
those years.
• Mindy has net resources averaging over $11,250.00 per month.
• Mindy will likely continue to have resources in excess of
$135,000.00 per year for the years that child support will be payable
for their son, who will be a junior in high school.
• There is no expectation of a reduction in net resources for Mindy
before the youngest child reaches 18 years of age.
• Mindy’s net resources for child support calculation should include
unemployment benefits, disability income, gifts, trust income,
interest, and dividends pursuant to Section 154.062 of the Family
Code.

At trial, Mindy testified that she is disabled, she is not employed, and she does

not have an income. She received long-term disability benefits beginning in October

2015, but those payments, which totaled $3,900 per month, stopped in March 2018.

At the time of trial, she received $1,900 per month from the Social Security

Administration. Mindy argues that this is the amount that the trial court should have

considered when calculating her net resources and determining her child support

obligations.

Allan, Mindy, and Bonnie Manley, Mindy’s mother, all testified that Mindy’s

parents had a history of helping the couple financially during their marriage,

including sharing bank accounts and credit cards, paying bills, and paying expenses

for the children. This behavior continued through the pendency of the underlying
36
proceedings. Allan testified that Mindy’s parents “constantly” transferred large sums

of money into bank accounts in his and Mindy’s name. Allan was unable to

determine what money was Mindy’s and what money belonged to her parents,5 but

he estimated that her parents gave her around $100,000 per year. Mindy testified,

“[M]y mom controls the checkbook and pays the bills out of it. And she uses when

she can. When I run out, I guess she uses her own.” Mindy testified that she “honestly

[does not] have any idea” how much her parents give her on a monthly basis and

that, since her long-term disability payments ended, her mother has “paid for a

hundred percent of [her] bills,” but she does not “have any idea what that adds up

to.”

During the pendency of the divorce proceedings, from 2015 through 2018,

Mindy spent well over $100,000 each year on expenses for the children, including

extracurricular activities, international vacations, and a vehicle for their daughter.

Each month, Mindy made mortgage payments on a house in Friendswood, lease

payments on an apartment in Dallas, and for one year during the pendency of the

divorce, she rented a house in The Woodlands and paid over $3,000 per month in

rent. Mindy agreed that any money she received from her mother for the children’s

benefit and for her own expenses should be considered a gift. Manley did not know

5
Mindy testified that her mother would sometimes give her “credit cards to use and
then she pays those bills” and sometimes her mother would put money in a joint
account to cover expenses, but her mother would not give her cash.
37
how much she and her husband had paid Mindy throughout her marriage and the

divorce proceedings, but she agreed that she was not asking to be paid back. She also

testified that she would continue to take care of her grandchildren financially.

The trial court also had evidence before it that Mindy was a beneficiary of at

least two trusts. One trust, called the Cassidy Trust, was created by Mindy’s great

aunt, who died in May 2017. The total value of the trust—as well as the value of the

distribution to which Mindy was entitled upon her great aunt’s death—was unclear

because Mindy had never provided complete records concerning this trust. But based

on statements Mindy had made in the past, Allan estimated that the value of that

trust was at least $2 million. Mindy testified that she had not received any money

after her great aunt’s death, stating, “My mother handles all that.” She testified that

she was not sure of the value of the trust. When asked if the money from this trust

was being used to fund her lifestyle and her children’s lifestyles, Mindy responded,

“I don’t know. I don’t ask her,” referring to her mother. She testified, “I don’t have

anything to do with the finances.” Mindy also testified that she was an authorized

user on two of her great aunt’s credit cards, that she continued to use those credit

cards, and that her mother pays the bill for those cards.

Manley testified that the Cassidy Trust named several beneficiaries in addition

to her and Mindy. Manley had distributed the shares to the other beneficiaries within

six to nine months after her aunt’s death, but she had not made the distribution to

38
Mindy. Manley testified that she did not distribute Mindy’s share to her “[b]ecause

[Mindy] doesn’t spend money well, and [Manley] would rather distribute and use

that money to pay necessary bills.” Manley could not recall how much each

beneficiary’s share was,6 but she stated that she had already spent Mindy’s share.

Manley did not know the total value of this trust, but she disagreed that it was worth

millions of dollars.

Mindy was also the beneficiary of the Manley Family Trust, a revocable trust

administered by her parents. Mindy testified that she did not have a right to withdraw

money from that trust, but instead any distributions from the trust are discretionary

with the trustee. Manley agreed that she had discretion in determining whether to

make a distribution from the trust assets to Mindy and that she would not do so while

Mindy was going through the divorce.

On appeal, Mindy argues that the trial court impermissibly considered the

assets of her parents when determining that she had net resources in excess of $8,550

per month. She argues that she has no control over her parents’ assets and no ability

to give herself distributions from their assets, and therefore the trial court should not

have considered the “periodic, discretionary, and charitable gifts to Mindy and her

children” as part of her net resources.

6
At one point, Manley stated that each distribution “was like 150,000 perhaps per
person,” but she then immediately stated, “But I’m not sure.”
39
 We disagree that, in calculating Mindy’s net resources, the trial court was not

allowed to consider the evidence that Mindy’s parents had, for years, including

during the pendency of the divorce proceedings, paid substantial amounts of

Mindy’s and the children’s expenses. Family Code section 154.062(b)(5)

specifically provides that a party’s resources include “all other income actually being

received,” including “gifts.” TEX. FAM. CODE § 154.062(b)(5); In re K.M.B., 606

S.W.3d at 895 (“The language of section 154.062(b)(5) indicates the legislature

intended that ‘all receipts of money that are not specifically excluded by the statute

(section 154.062(c)), whether nonrecurring or periodic, whether derived from the

obligor’s capital or labor or from that of others, must be included in the definition of

resources.’”); In re P.C.S., 320 S.W.3d at 537. Both Mindy and Manley

characterized the amounts that Manley paid on Mindy’s and the children’s behalf as

gifts, and Manley testified that she spent the money with no expectation of being

repaid. The trial court had evidence before it that, despite receiving limited amounts

from the Social Security Administration in disability benefits during the pendency

of the divorce, Mindy spent in excess of $100,000 each year the divorce was

pending. Mindy testified that Manley was ultimately responsible for paying all her

bills, and Mindy, Manley, and Allan all agreed that Manley and her husband spent

large amounts of money on Mindy’s and the children’s behalf.

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 We conclude that, in calculating Mindy’s net resources, the trial court

appropriately considered the evidence that, over the course of the parties’ marriage

and the divorce proceedings, Mindy’s parents essentially gave her hundreds of

thousands of dollars to be used to pay her bills and for the children’s expenses.

Sufficient evidence supports the trial court’s findings that Mindy had net resources

in excess of $8,550 per month, the maximum amount of monthly net resources used

under the child support guidelines to calculate child support payments. See TEX.

FAM. CODE § 154.125–.126; Marquez, 388 S.W.3d at 739 (stating that trial court

does not abuse its discretion in setting child support amount if some evidence of

substantive and probative character supports decision). We hold that the trial court

did not abuse its discretion in setting Mindy’s child support amount at $1,576.86

while both of her children were under eighteen and at $1,261.49 while her younger

child was under eighteen.7

We overrule Mindy’s third issue.

Attorney’s Fees Award

Finally, in her fourth issue, Mindy argues that the trial court erred by ordering

her to pay a total of $172,882 in attorney’s fees—representing 80 percent of Allan’s

7
We note, as Allan points out, that 25% of $8,550 (the amount of child support the
guidelines in the Family Code sets as appropriate for two children) is $2,137.50 and
20% of $8,550 (the amount for one child) is $1,710. The trial court, therefore, did
not award the maximum amount of child support permissible under the child support
guidelines.
41
trial-level attorney’s fees, $20,000 in appellate fees, and $34,600 in amicus

attorney’s fees—because the size of the parties’ community estate does not support

this award.

A. Trial-Level Attorney’s Fees and Amicus Fees

In a divorce proceeding, the trial court may award reasonable attorney’s fees

and expenses. TEX. FAM. CODE § 6.708(c); Fuentes v. Zaragoza, 555 S.W.3d 141,

172 (Tex. App.—Houston [1st Dist.] 2018, no pet.); see also TEX. FAM. CODE

§ 106.002(a) (providing that in SAPCR, trial court “may render judgment for

reasonable attorney’s fees and expenses”); Id. § 107.023(a)–(b) (providing that

attorney appointed as amicus attorney in SAPCR is entitled to reasonable fees and

expenses). The trial court has broad discretion in deciding whether to award

reasonable attorney’s fees in a divorce action. Seitz v. Seitz, 608 S.W.3d 272, 279

(Tex. App.—Houston [1st Dist.] 2020, no pet.).

The reasonableness of the fees is a fact question and must be supported by the

evidence. Fuentes, 555 S.W.3d at 172; Russell v. Russell, 478 S.W.3d 36, 48 (Tex.

App.—Houston [14th Dist.] 2015, no pet.) (“The reasonableness of attorney’s fees

is ordinarily left to the factfinder, and a reviewing court may not substitute its

judgment for the fact finder’s.”). “To support an award of attorney’s fees, evidence

should be presented on the ‘hours spent on the case, the nature of preparation,

complexity of the case, experience of the attorney, and the prevailing hourly rates’

42
in the community.” Fuentes, 555 S.W.3d at 172 (quoting Hardin v. Hardin, 161

S.W.3d 14, 24 (Tex. App.—Houston [14th Dist.] 2004, no pet.)).

Mindy argues that the value of the community estate as proved at trial does

not support the attorney’s fees award against her, citing a Fourteenth Court of

Appeals case for the proposition that if there is not a sufficient community estate,

there is no basis for awarding attorney’s fees. See Chiles v. Chiles, 779 S.W.2d 127,

129 (Tex. App.—Houston [14th Dist.] 1989, writ denied), disapproved of on other

grounds by Twyman v. Twyman, 855 S.W.2d 619 (Tex. 1993); see also Capellen v.

Capellen, 888 S.W.2d 539, 544 (Tex. App.—El Paso 1994, writ denied) (stating that

award of attorney’s fees is factor to be considered by trial court in making equitable

division of community estate). In Chiles, the Fourteenth Court noted that a trial court

does not have the inherent authority to award attorney’s fees in a divorce action and

no statute permitted the award of attorney’s fees in a divorce, but the court could

award either spouse their attorney’s fees as part of the court’s power to make a just

and right division of the marital estate. 779 S.W.2d at 129. The court stated, “Other

than the court’s equitable power to divide the community property, we can find no

other authority for a trial court to award attorney’s fees to one party in a divorce

action.” Id. Because, in Chiles, the parties had executed a premarital agreement

providing that the parties would not have a community estate, and therefore no

marital estate existed for the trial court to divide, the Fourteenth Court concluded

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that the trial court’s award of the wife’s attorney’s fees was erroneous. Id. at 128,

129.

Chiles was decided in 1989. In 2013, the Texas Legislature amended Family

Code section 6.708 to expressly provide that, in a suit for dissolution of a marriage,

“the court may award reasonable attorney’s fees and expenses.” See TEX. FAM. CODE

§ 6.708(c). Section 6.708(c) contains no requirement that, in setting the amount of

an attorney’s fees award in a divorce proceeding, the trial court must take into

account the value of the community estate and may not award attorney’s fees in an

amount that exceeds the value of the community estate. Instead, the only qualifier

on the award contained in the statutory language is that the attorney’s fees awarded

must be “reasonable.” Id. The trial court has “broad discretion in deciding whether

to award reasonable attorney’s fees” in a divorce. Seitz, 608 S.W.3d at 279.

Here, Allan’s counsel, Greg Hughes, testified that Allan had incurred a total

of $157,709.87 in attorney’s fees through trial. He testified that the amount was so

high in part because the case had been pending for approximately three years, there

had been numerous hearings before the trial court prior to the trial itself, Mindy had

filed a mandamus action with this Court during the pendency of the case, and the

case had involved several novel issues. The trial court admitted, over Mindy’s

objection, approximately 50 pages of billing records that reflected the actions

performed, the number of hours spent on the particular matter, and the hourly rate.

44
The trial court also admitted billing records from the amicus attorney reflecting that

she had received $34,462 in payments throughout the pendency of the proceedings

and that $34,600 remained outstanding.

Mindy objected to Hughes’s invoice on the basis that Hughes had not provided

the invoices to her counsel until trial and, thus, allowing this exhibit would

essentially condone trial by ambush. She also argued that, at prior hearings, the trial

court had ordered her to pay certain amounts of Allan’s attorney’s fees, but the

invoices did not take these prior orders into account and therefore awarding those

fees constituted a double recovery. Hughes responded that he had provided interim

fee statements during the pendency of the case and Mindy’s counsel was aware of

his hourly rate. Hughes also acknowledged that the trial court had ordered Mindy to

pay some interim fees, but she had not paid those fees. He stated, “And I would

certainly expect a credit against what is owed if and when she does actually make

any of those payments.”

In the divorce decree, the trial court found that Allan had incurred

$157,709.87 in reasonable attorney’s fees, expenses, and costs. The court ordered

Mindy to pay $118,282.40 in Allan’s attorney’s fees and $34,600 in amicus

attorney’s fees.

We conclude that the trial court acted within its discretion when it assessed

Allan’s attorney’s fees and the amicus attorney’s fees against Mindy. See TEX. FAM.

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CODE §§ 6.708(c), 107.023(a)–(b); Seitz, 608 S.W.3d at 279. Furthermore, the trial

court had before it billing records to support the attorneys’ testimony concerning

their fees. We therefore hold that the trial court’s attorney’s fees award was

supported by sufficient evidence. See Seitz, 608 S.W.3d at 279; Fuentes, 555 S.W.3d

at 172.

B. Appellate Attorney’s Fees

Mindy also argues that the trial court erred by awarding Allan $20,000 in

appellate attorney’s fees that were not properly conditioned on Allan prevailing on

appeal. The divorce decree stated:

Attorney’s Fees on Appeal
IT IS FURTHER ORDERED AND DECREED that Allan
Ray Comstock is awarded a judgment of twenty thousand dollars
($20,000.00) against Mindy Lee Comstock for attorney’s fees on
appeal for the benefit of Allan Ray Comstock’s attorney, Greg A.
Hughes. The judgment shall bear interest at 5 percent per year
compounded annually from the date the award is made final by the
appropriate appellate court’s judgment, for which let execution issue.
Greg A. Hughes may enforce this judgment for fees, expenses, and
costs in Greg A. Hughes’s own name by any means available for the
enforcement of a judgment for debt.
IT IS FURTHER ORDERED AND DECREED that the
judgment of attorney’s fees on appeal rendered against Mindy Lee
Comstock is conditioned on Mindy Lee Comstock’s pursuit of an
ultimately unsuccessful appeal.
IT IS ORDERED AND DECREED that Mindy Lee Comstock
shall be entitled to a remittitur of the twenty thousand dollars
($20,000.00) if an appeal is not filed with the Court of Appeals.

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 A trial court may not penalize a party for taking a successful appeal. Keith v.

Keith, 221 S.W.3d 156, 171 (Tex. App.—Houston [1st Dist.] 2006, no pet.). To that

end, the trial court must condition an award of appellate attorney’s fees upon the

appellant’s unsuccessful appeal. Id. The divorce decree here specifically provides

that the judgment of appellate attorney’s fees against Mindy “is conditioned on

[Mindy’s] pursuit of an ultimately unsuccessful appeal.” We conclude that the trial

court properly conditioned the award of appellate attorney’s fees upon Mindy’s

unsuccessful appeal.

We overrule Mindy’s fourth issue.

Conclusion

We affirm the judgment of the trial court.

April L. Farris
Justice

Panel consists of Chief Justice Radack and Justices Goodman and Farris.

Justice Goodman, dissenting.

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