In re Marriage of Comstock

Decision Date30 September 2021
Docket Number01-19-00722-CV
CourtCourt of Appeals of Texas

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



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.


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 nonsuited 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 5 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...

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