In re Marriage of Comstock

Full title: IN THE MATTER OF THE MARRIAGE OF ALLAN RAY COMSTOCK AND MINDY LEE COMSTOCK

Court: Court of Appeals of Texas, Houston (1st Dist.).

Date published: Sep 30, 2021

639 S.W.3d 118 (Tex. App. 2021)

Opinion

NO. 01-19-00722-CV

09-30-2021

In the MATTER OF the MARRIAGE OF Allan Ray COMSTOCK and Mindy Lee Comstock

Jeff Diamant, Thomas "Tal" DeBauche, Jeff Diamant, P.C., 909 Fannin St., Ste. 2615, Houston, Texas 77010, Jason Kercheval, Price & Price, 101 Simonton, Conroe, Texas 77301, for Appellant. Greg A. Hughes, Greg A. Hughes, P.C., 217-B East Parkwood Avenue, Friendswood, Texas 77546, for Appellee.

April L. Farris, Justice

Jeff Diamant, Thomas "Tal" DeBauche, Jeff Diamant, P.C., 909 Fannin St., Ste. 2615, Houston, Texas 77010, Jason Kercheval, Price & Price, 101 Simonton, Conroe, Texas 77301, for Appellant.

Greg A. Hughes, Greg A. Hughes, P.C., 217-B East Parkwood Avenue, Friendswood, Texas 77546, for Appellee.

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

OPINION

April L. Farris, Justice 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.

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.

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 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 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 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 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 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 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. , 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 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 , 108 Tex. 570, 196 S.W. 508, 512 (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 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. 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 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 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. 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.

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.").

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.

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 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 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 , 162 Tex. 156, 345 S.W.2d 274, 276 (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, 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 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 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 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."

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.

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."

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."

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 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 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 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.

"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.

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.

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.

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. 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 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.").

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.).

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 (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.

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.

• 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 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."

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.

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 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 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.

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."

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.

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.

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

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.

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 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’ 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 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. 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. 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.

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.

Justice Goodman, dissenting.

DISSENTING OPINION

Gordon Goodman, Justice

This appeal arises from a divorce suit. Mindy requested a jury and paid the jury fee more than thirty days before the suit was set for trial at the time and more than a year before the trial actually commenced. Nonetheless, on Allan's motion, the trial court struck Mindy's jury request, and the parties tried the suit to the bench.

Mindy contends that the trial court erred in striking her timely jury request. The majority rejects Mindy's contention. The majority reasons that:

• the trial court took judicial notice of a docket control order and ruled that the order contained an agreement to try the suit to the bench;

• as the party challenging the trial court's ruling, Mindy alone was responsible for ensuring the order was part of the clerk's record; and

• Mindy failed to include the order in the clerk's record, and we therefore must assume that the order supports the trial court's ruling.

But our rules of appellate procedure do not place the sole responsibility for the clerk's record on Mindy. The rules empower us to order supplementation of the clerk's record, and we are required to do so when it is necessary to avoid disposing of important rights, like the right to a jury trial, on technicalities. The majority simply ignores the appellate rules and relevant precedent interpreting them.

And while the docket control order is not in the clerk's record, Allan included it in an appendix to his brief. On its face, the order did not bind Mindy to a bench trial if, as happened, the trial setting changed. Thus, we know the order does not support the trial court's ruling. To not order supplementation of the clerk's record on these facts amounts to a judicial sleight of hand. The majority claims it must assume the order supports the trial court's ruling but knows the order does not.

I would order supplementation of the clerk's record to include the applicable docket control order and decide Mindy's jury-trial appellate issue on the merits. An evaluation of Mindy's appellate issue on the merits shows that she was entitled to a jury trial. By refusing to evaluate whether Mindy was entitled to a jury trial on the merits, the majority abdicates this court's responsibilities. I dissent.

BACKGROUND

Allan first filed for divorce in 2014. That suit was set for trial in September 2015 but was nonsuited in May. Allan alleged that Mindy forged his signature to the joint notice of nonsuit and that he never intended to dismiss that initial suit.

Allan filed the current divorce suit in December 2015. Despite multiple settings, the trial did not begin until July 2018 and did not end until December.

The first three trial settings were on the jury docket. Mindy sought a continuance of the third trial setting, which was in February 2017. Allan objected to the continuance but withdrew his objection in exchange for an agreement to remove the suit from the jury docket and try the suit to the bench instead. The parties apparently memorialized this agreement by striking out the word "jury" by hand in an entry in the existing November 2016 docket control order that otherwise read: "Feb 14, 2017 Bench/Jury Trial Date @ 10:00 am/pm _____ days/hrs of trial."

The bench trial was continued until April 2017. But this new trial date was not memorialized in the altered November 2016 docket control order. Nor does it seem that the trial court entered a new docket control order. None is in the record.

In March 2017, Mindy moved to change counsel and for a continuance. The trial court granted both motions in April 2017. The new trial date was in May 2017. Like the previous trial setting, the May trial was set on the non-jury docket.

Three days after the trial court granted Mindy's motions, her new attorney filed a jury request and paid the jury fee. It is undisputed that Mindy's jury request was filed more than thirty days before the scheduled May 2017 trial date. See TEX. R. CIV. P. 216 (jury request must be filed reasonable time before date set for trial on non-jury docket and not less than thirty days in advance of non-jury trial date).

Allan moved to strike Mindy's jury request. He argued that she had not filed her jury request within a reasonable time. He also argued that she withdrew her previous jury request as part of an agreement to obtain a continuance. But Allan did not attach the alleged agreement or any other evidence to his motion to strike.

The trial court held a non-evidentiary hearing in May 2017. The trial court struck Mindy's jury request because of her "dilatory tactics in this case." The trial court elaborated that trying the case to a jury would cause further delay, likely until September 2017, given the time needed to put the suit back on the jury docket.

Mindy sought a writ of mandamus regarding the trial court's ruling. We stayed the trial of the divorce suit pending resolution of the mandamus proceeding, so the suit was not tried to the bench as scheduled in May 2017. But we ultimately denied the writ. In re Comstock , No. 01-17-00346-CV, 2017 WL 3634066 (Tex. App.—Houston [1st Dist.] Aug. 24, 2017, orig. proceeding) (mem. op.) (per curiam).

In May 2017, however, the trial court allowed Allan to supplement the record in support of his motion to strike. At this hearing, Allan presented documents and testimony. Though Allan did not include the November 2016 docket control order among the evidence he presented, the trial court took judicial notice of the order. But the trial court did not reconsider its prior ruling striking Mindy's jury request.

In the end, the parties tried the suit to the bench over 11 days in July, October, November, and December 2018. The trial court entered a final divorce decree in May 2019. In the final decree, the trial court stated that trial by "jury was waived."

The trial court also entered findings of fact and conclusions of law. Among other things, the trial court found that the parties agreed to withdraw the suit from the jury docket when they agreed to a continuance and new docket control order in November 2016. In addition, the trial court found that Mindy intentionally "caused as much delay as possible in resolving this case" and secured the dismissal of the 2014 divorce suit by forging Allan's signature to the joint notice of nonsuit.

DISCUSSION

The Majority Errs in Refusing to Decide This Appeal on the Merits

The majority says it has no choice but to affirm the trial court's ruling striking Mindy's jury request. The majority maintains that it must affirm because Mindy, the appellant, has not carried her burden to create an appellate record that includes the docket control order that forms the basis for the trial court's ruling that she waived her right to a jury trial. Because the order is not in the clerk's record, the majority explains, the court of appeals cannot hold that the trial court committed reversible error in ruling that Mindy waived her right to a jury. But this is by no means true.

Rule 34.5(c) of the Texas Rules of Appellate Procedure governs supplementation of the clerk's record. The rule provides: "If a relevant item has been omitted from the clerk's record, the trial court, the appellate court, or any party may by letter direct the trial court clerk to prepare, certify, and file in the appellate court a supplement containing the omitted item." TEX. R. APP. P. 34.5(c)(1). Once done, the supplement "will be part of the appellate record." TEX. R. APP. P. 34.5(c)(3). In short, Rule 34.5(c) means exactly what it says: any item in the trial court's file that is omitted from the appellate record may be added to the appellate record by supplementation. Lance v. Robinson , 543 S.W.3d 723, 733 (Tex. 2018).

Contrary to the majority's assertion, Mindy is not solely responsible for the clerk's record. As we have recognized, Rule 34.5(c)(1) states that the appellate court may direct the trial court clerk to supplement the clerk's record. Paske v. Fitzgerald , 499 S.W.3d 465, 470 (Tex. App.—Houston [1st Dist.] 2016, no pet.). As our sister court has correctly noted, Rule 34.5 departs from past appellate procedure. In re Est. of Nunu , 542 S.W.3d 67, 74 (Tex. App.—Houston [14th Dist.] 2017, pet. denied). Unlike the prior version of the appellate rules, the current rules no longer place the burden on any party to designate items for inclusion in the clerk's record. Id.

In contrast, Rule 50(d) of the former Texas Rules of Appellate Procedure expressly stated that it was the appellant's burden "to see that a sufficient record is presented to show error requiring reversal." See Feldman v. Marks , 960 S.W.2d 613, 614 (Tex. 1996) (per curiam) (quoting Rule 50(d)). But this former rule, "regarding the burden to file a complete record, [wa]s repealed." TEX. R. APP. P. 34, Notes and Comments. The current appellate rules "do not assign the burden to either party." Rowell v. State , 66 S.W.3d 279, 281 n.5 (Tex. Crim. App. 2001) (discussing 1997 revision of appellate rules in which Rule 50(d) was replaced by Rule 34). So when the majority asserts that Mindy alone bore the burden of presenting a sufficient clerk's record to show error but did not do so, the majority applies defunct law. To be clear, I am not suggesting that parties have no responsibility for the clerk's record. Like all litigation, appellate litigation is party-driven. Hence, regardless of the appellate rules, it behooves parties to ensure that the record contains the documents they need to secure meaningful appellate review. See W & F Transp. v. Wilhelm , 208 S.W.3d 32, 37 n.5 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (suggesting that common-law presumption that documents omitted from appellate record support trial court's judgment may survive repeal of Rule 50(d)). But the burden to secure an adequate clerk's record does not rest on the appellant alone. And even when no clerk's record whatsoever is filed due to the appellant's fault, we must give the appellant a reasonable opportunity to cure. TEX. R. APP. P. 37.3(b). When, as here, a single, one-page document is missing from the record, an appellate court should not dispose of an important constitutional right, like the right to a jury trial, by claiming it cannot do anything other than affirm the trial court's ruling due to the document's absence from the record. The appellate rules allow an appellate court to order supplementation of the clerk's record to avoid this very result.

The Supreme Court of Texas has characterized the omission of a relevant document from the clerk's record as a technical deficiency. Worthy v. Collagen Corp. , 967 S.W.2d 360, 366 (Tex. 1998). The Court has opined that the interests of justice and fair play require that cases be decided on the merits when a technical deficiency of this nature can be easily corrected by supplementation. Id. In other words, the Court has counseled appellate courts against doing exactly what the majority is doing here: deciding an appellate issue based on a technical deficiency in the clerk's record that it could cure simply by directing supplementation. Doing so, offends the spirit of the rules. See Crown Life Ins. Co. v. Est. of Gonzalez , 820 S.W.2d 121, 122 (Tex. 1991) (per curiam) (saying so with respect to prior version of appellate procedural rule on supplementation, which was more restrictive).

Consequently, appellate courts routinely direct supplementation of the clerk's record. E.g., Guniganti v. Kalvakuntla , 346 S.W.3d 242, 247 n.6 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (appellate court directed supplementation of clerk's record to add documents included in appendix to brief that were absent from appellate record); Lara v. State , 962 S.W.2d 148, 149–50 (Tex. App.—San Antonio 1998, no pet.) (appellate court directed supplementation of clerk's record to include stipulations considered but not admitted into evidence by trial court). The majority's refusal to do so here is a departure from ordinary appellate practice.

The majority's departure from ordinary appellate practice is especially remarkable in this case. Because Allan included the November 2016 docket control order as an exhibit to his brief, the majority is aware of the order's contents. A cursory examination of the order shows that it does not support the trial court's ruling that Mindy waived her right to a jury trial under the present circumstances. On its face, the docket control order does not memorialize an agreement by Mindy to try the suit to the bench in exchange for Allan's agreement to a continuance. The order merely reflects that the word "jury" was stricken out by hand in an entry that otherwise read: "Feb 14, 2017 Bench/Jury Trial Date @ 10:00 am/pm _____ days/hrs of trial." Assuming that we can interpret this handwritten notation as an agreement to try the suit to the bench on a particular date, it is not a commitment to try the case to the bench if, as was the case, trial was delayed beyond the agreed trial date. See Dean v. Sweeney , 51 Tex. 242, 243 (1879) (waiver of jury in preceding term does not control right to request jury if trial of suit does not occur until succeeding term); In re Hulcher , 568 S.W.3d 188, 191 (Tex. App.—Fort Worth 2018, orig. proceeding) (citing Dean with approval in analysis concluding that party that waived jury before original trial could nevertheless request jury on retrial of issues remanded by appellate court); see also Shamrock Psych. Clinic v. Tex. Dep't of Health & Human Servs. , 540 S.W.3d 553, 560–61 (Tex. 2018) (per curiam) ( Rule 11 agreement is contract, which must contain all material terms of agreement to be enforceable and cannot be given greater effect by court than parties intended agreement to have).

Thus, even if one assumes, as the majority does, that Mindy generally bore the burden to provide a clerk's record sufficient to show error, the majority's refusal to order supplementation is improper under the particular facts of this appeal. It is one thing to assume that absent documents about which we have no knowledge support a trial court's ruling; it is quite another to assume this is so when we have seen the document in question and know that it does not support the ruling.

The majority says that we cannot consider documents attached to an appellate brief that are not in the record and thus cannot consider the docket control order. I have no quarrel with the rule that we cannot consider documents attached to an appellate brief that are not in the record, but the application of this rule is generally confined to two situations. First, we apply this rule when a party attaches documents to its brief that are not on file with the trial court and thus cannot be made part of the appellate record via supplementation of the clerk's record. E.g., Tex. Windstorm Ins. Ass'n v. Jones , 512 S.W.3d 545, 552 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (appellate court could not consider documents from an entirely different lawsuit that appellee included in appendix to his appellate brief). Second, we apply this rule when the attached documents should not be made part of the appellate record via supplementation for a legitimate reason even though they could be. E.g., Williams v. Chisolm , 111 S.W.3d 811, 816 n.4 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (appellate court declined to consider documents appellant attached to his brief, even though they were filed in trial court, because these documents were not before trial court when it ruled and thus had no bearing on propriety of challenged ruling).

What the majority does here is quite different. The majority both refuses to consider the docket control order attached to Allan's brief and also refuses to direct the trial court clerk to supplement the clerk's record to include the order. Then the majority says it must assume the absent docket control order supports the trial court's ruling striking Mindy's jury request, even though the majority knows the order does not support the trial court's ruling. In doing so, the majority deploys the rules of appellate procedure like a bag of tricks to thwart review in contravention of the Supreme Court's directive that we should resolve appellate issues on the merits and avoid disposing of them based on procedural defects when it is reasonably possible to do so. See Horton v. Stovall , 591 S.W.3d 567, 570 (Tex. 2019) (per curiam).

That directive is also embodied in Rule 44.3 of the Texas Rules of Appellate Procedure, which provides that we "must not affirm or reverse a judgment or dismiss an appeal for formal defects or irregularities in appellate procedure without allowing reasonable time to correct or amend the defects or irregularities." It prohibits deciding an appeal on the basis that the record is inadequate when the inadequacy can be cured by supplementation. E.g., In re J.W. , 52 S.W.3d 730, 733 (Tex. 2001) (per curiam) ( Rule 44.3 required that litigants have opportunity to amend affidavits of indigency before their suit was dismissed due to incompleteness of affidavits); Crais v. Haynes , 867 S.W.2d 412, 413 (Tex. App.—Waco 1993, no writ) (per curiam) (treating omission of documents required for appeal as defect of appellate procedure and ordering supplementation based on predecessor rule). Thus, we should order supplementation when an ostensibly dispositive document is missing from the clerk's record, rather than disposing of the appeal based on its absence. E.g., Cardenas v. State , 403 S.W.3d 377, 382–85 (Tex. App.—Houston [1st Dist.] 2013) (citing Rules 34.5(c) and 44.3, appellate court ordered supplementation of record to include bill of costs rather than disposing of evidentiary sufficiency issue based on its absence), judgm't aff'd , 423 S.W.3d 396, (Tex. Crim. App. 2014).

For these reasons, I would order supplementation of the record to include the docket control order and decide Mindy's appellate issue on the merits. The rules of appellate procedure do not require us to affirm without doing so. On the contrary, they empower us to order supplementation of clerk's record to avoid affirming on the basis of technical deficiencies. Even if Mindy bore the burden of submitting a clerk's record sufficient to warrant reversal under the current appellate rules, ordering supplementation would be necessary here. As appellate judges, we should never put ourselves in the position of deciding an appeal based on assumptions that we know to be untrue. But that is exactly what the majority does. The November 2016 docket control order does not support the trial court's ruling that Mindy waived her right to a jury trial by agreement. We should not pretend otherwise.

The Trial Court Reversibly Erred in Striking Mindy's Jury Request

Given that the November 2016 docket control order does not support the trial court's striking of Mindy's jury request, we must assess whether we can affirm the trial court's ruling on some other ground. The record shows we cannot do so.

We review a trial court's denial of a jury request for abuse of discretion. In re A.L.M.-F. , 593 S.W.3d 271, 282 (Tex. 2019). The trial court abuses its discretion if its ruling is arbitrary, unreasonable, and unmoored from guiding principles. Id.

Our Constitution generally guarantees the right to a jury trial. TEX. CONST. art. I, § 15. The Family Code also provides a right to have a jury decide certain issues in suits affecting the parent-child relationship. TEX. FAM. CODE § 105.002(a) – (b).

In a civil suit, a party must invoke her right to a jury by filing a request "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," and paying the jury fee. TEX. R. CIV. P. 216. If she files her request in advance of the thirty-day deadline, it is presumptively made a reasonable time before the date set for trial on the non-jury docket. Halsell v. Dehoyos , 810 S.W.2d 371, 371 (Tex. 1991) (per curiam). A party who opposes the request may rebut this presumption by showing that a jury trial would injure him, disrupt the court's docket, or impede the court's business. Id. The opposing party's showing must be supported by evidence. In re A.L.M.-F. , 593 S.W.3d at 283 ; In re J.N.F. , 116 S.W.3d 426, 436 (Tex. App.—Houston [14th Dist.] 2003, no pet.).

Thus, when the presumption applies and no evidence rebuts it, the trial court abuses its discretion in denying a party's jury request. Weng Enters. v. Embassy World Travel , 837 S.W.2d 217, 222 (Tex. App.—Houston [1st Dist.] 1992, no writ). The trial court's erroneous denial of a party's jury request is harmless only if the record shows an absence of disputed material fact issues such that the trial court could have granted a motion for instructed verdict. Halsell , 810 S.W.2d at 372.

Mindy requested a jury and paid the jury fee more than thirty days before the suit was set for trial at the time. Thus, her request presumptively was made a reasonable time before the trial date. Did Allan rebut the presumption? No, he did not. Allan filed a perfunctory motion to strike Mindy's jury request. He did not include evidence with his motion. Nor did Allan present evidence at the hearing on his motion to strike. So, when the trial court granted Allan's motion and struck Mindy's jury request, no evidence rebutted the presumption. Under these circumstances, the trial court abused its discretion in striking the jury request.

The trial court held a subsequent hearing at which the court allowed Allan to supplement the record with evidence in support of his motion to strike Mindy's jury request. But the trial court did not reconsider its previous ruling striking her jury request or make a new ruling based on the evidence Allan introduced at the hearing. Thus, this evidence cannot support the trial court's ruling, because the evidence was not before the trial court when it struck Mindy's jury request. See Fryday v. Michaelski , 541 S.W.3d 345, 352 (Tex. App.—Houston [14th Dist.] 2017, pet. denied) (appellate courts do not consider evidence that was not before trial court when trial court ruled); Methodist Hosps. of Dallas v. Tall , 972 S.W.2d 894, 898 (Tex. App.—Corpus Christi 1998, no pet.) (appellate courts review trial court ruling based solely on evidence that was before trial court when trial court ruled).

Moreover, the trial court's stated rationale for striking Mindy's jury request—her dilatory tactics and the added delay a jury trial would entail—cannot support the trial court's ruling. In the end, the parties did not try the suit for more than a year after Mindy requested a jury. Given that delay, honoring her jury request would not have injured Allan, disrupted the court's docket, or impeded the court's business.

Allan was not entitled to an instructed verdict. Therefore, the trial court's error in striking Mindy's jury request was not harmless and requires us to reverse.

CONCLUSION

I would resolve Mindy's jury-trial issue on the merits. The right to a jury is an important one, and we should not refuse meaningful appellate review of important rights based on technical deficiencies unless we must do so. Here, the lone obstacle to review on the merits is the absence of a one-page order from the clerk's record. The appellate rules allow us to order supplementation to ensure review.

On the merits, Mindy must prevail. She did not waive her right to a jury trial by agreement on the facts of this case. Her jury request was presumptively filed a reasonable time before trial, and Allan did not submit evidence rebutting this presumption. Thus, the trial court erred in striking Mindy's jury request, and the trial court's error was harmful given that disputed issues of material fact existed.

The majority does not explain why it instead opts to avoid the merits by refusing to order supplementation of the clerk's record. Reading between the lines, the majority presumably thinks Mindy unsympathetic due to her misbehavior. This is understandable, given the trial court's findings of fact and conclusions of law, which catalogue substantial litigation misconduct by Mindy. But two wrongs do not make a right. Mindy's misbehavior and her right to a jury are separate issues.

Moreover, the majority's attempt to avoid deciding this appeal on the merits likely is a futile one. A party may direct the trial court clerk to supplement the clerk's record without our leave. TEX. R. APP. P. 34.5(c)(1) ; Roventini v. Ocular Scis. , 111 S.W.3d 719, 725–26 (Tex. App.—Houston [1st Dist.] 2003, no pet.). A party sometimes may do so even as late as rehearing when an appellate court has not decided an appeal on the merits due to the omission of a document from the clerk's record. See In re K.C.B. , 251 S.W.3d 514, 515–17 (Tex. 2008) (per curiam) (court of appeals erred in denying request to supplement clerk's record on rehearing).

Mindy is entitled to have her jury-trial issue decided on the merits, and an evaluation of the merits shows that she is entitled to a jury trial. I therefore dissent.