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Click here for the full text of this decision FACTS:Donald R. Brown appeals the division of property made by the trial court. The trial court conducted a hearing, knowing that Donald had not received notice and was not present. The trial court heard testimony subject to the possibility that Donald might appear for a subsequent hearing once Donald had been properly notified. But the trial court took no action to have Donald brought to court. The trial court had denied Donald’s request for a bench warrant. And the trial court did not use any other procedures to allow Donald to present evidence or to otherwise participate in the hearing while Donald was incarcerated. The trial court scheduled a subsequent hearing and notified Donald, but the trial court did not expect Donald to appear or otherwise participate. Donald was in prison. The property division rendered by the trial court awarded to Donald all the personal property he was in possession of, but there was no testimony he was in possession of any personal property. He was also awarded all cash, retirement accounts, stocks and bonds, and insurance policies in his name. There was no testimony that any such items existed. HOLDING:The trial court’s division of the community property estate is reversed, and this case is remanded to the trial court for further proceedings consistent with this opinion. The court agrees with a concurring opinion in Phillips v. Phillips, 75 S.W.3d 564 (Tex. App. � Beaumont 2002, no pet.), that “a trial court should have discretion to consider proven fault” in the break-up of the marriage when making a just and right division of the community estate. Donald raises no complaint about the procedure the trial court used, so the court does not address it. The focus of the testimony was on three primary reasons justifying a disproportionate division. Those three reasons were 1. fault in causing the divorce; 2. use of community estate assets to pay for Donald’s criminal defense; and 3. Donald’s lack of need versus the general financial situation in which Donald’s criminal conduct had left spouse. With only a sketchy listing of community assets, no discussion of the net value thereof, and affirmatively considering how Donald intended to spend his portion of the community property estate, the trial court awarded all identified net assets to Darlene and nothing to Donald. The trial court was not provided adequate information about what was being divided; the value of assets, outstanding debts, and other relevant considerations like Donald’s total defense cost. Further, the trial court improperly considered the uses for which Donald was apparently going to spend his community share as opposed to how his intended uses may have reflected on his financial needs and circumstances. “Although the trial court need not divide the community property equally, a disproportionate division must be supported by some reasonable basis.” Smith v. Smith, 143 S.W.3d 206 (Tex. App. � Waco 2004, no pet.). The court finds the trial court abused its discretion in the property division. OPINION:Gray, CJ; Gray, Vance and Reyna, JJ.

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