Phillips v. Phillips

James Drew Phillips appeals the final decree of divorce rendered by the trial court. Before us, James contends that the trial court abused its discretion in its division of the community estate of the parties, and that there was legally and factually insufficient evidence to support the trial court’s division of the community estate. The record indicates that in her first amended petition for divorce, Nancy alleged insupportability as the only ground for divorce. See Tex. Fam. Code Ann. � 6.001 (Vernon 1998). Immediately after alleging insupportability, the following sentence appears: “The conduct of the Respondent has amounted to fault causing the break-up of the marriage, and therefore Petitioner is entitled to a disproportionate part of the community property.” We are faced with what appears to be an issue of first impression: May “fault causing the break-up of the marriage” be considered by the trial court in its “just and right” division of the estate of the parties, when the petitioner sought divorce only on grounds of insupportability? Trial was to the court without a jury. Following rendition of the decree of divorce, James filed a request for findings of fact and conclusions of law. Among the written findings of fact by the trial court, the following appears as finding number six: “The fault of Respondent James Drew Phillips caused the breakup of the marriage.” James characterizes the testimony regarding his “fault” for the breakup of the marriage as “insignificant” so as to render the trial court’s disproportionate award of the community estate to Nancy an abuse of discretion.

In a divorce proceeding, a trial court “shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party. . . .” Tex. Fam. Code Ann. � 7.001 (Vernon 1998). It is error for a trial court to sever the issue of divorce from the issue of property division, and until the property of the parties has been disposed of, no final divorce judgment exists. See Dawson-Austin v. Austin, 968 S.W.2d 319, 324 (Tex. 1998); Vautrain v. Vautrain, 646 S.W.2d 309, 316 (Tex. App.–Fort Worth 1983, writ dism’d). A trial court has broad discretion in making the division. Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998); Murff v. Murff, 615 S.W.2d 696, 698-99 (Tex. 1981). A division of the community estate need not be equal, and the trial court may weigh many factors in reaching its decision. Id. Among these many factors is the “fault” of either of the parties for the breakup of the marriage, if pleaded. Twyman v. Twyman, 855 S.W.2d 619, 625 (Tex. 1993). However, even where “fault” is properly pleaded and proved, an unequal division of the community estate may not be awarded to punish the party at “fault.” See Young v. Young, 609 S.W.2d 758, 762 (Tex. 1980); In re Marriage of DeVine, 869 S.W.2d 415, 428 (Tex. App.–Amarillo 1993, writ denied); Smith v. Smith, 836 S.W.2d 688, 693 (Tex. App.–Houston [1st Dist.] 1992, no writ). As the reviewing court, we must presume that the trial court properly exercised its discretion, and we may not disturb the trial court’s property division unless it clearly abused its discretion. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex. 1987); Bell v. Bell, 513 S.W.2d 20, 22 (Tex. 1974). A court abuses its discretion when it acts without reference to any guiding rules or principles, in other words, when the act is arbitrary or unreasonable. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). Under an abuse of discretion standard, legal and factual insufficiency are not independent, reversible grounds of error but are relevant factors in assessing whether the trial court abused its discretion. See Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991).