# Phillips v. Phillips

> Texas Court of Appeals, 9th District (Beaumont) · May 2, 2002 · 75 S.W.3d 564

URL: https://www.frixlaw.com/law-library/cases/9755332

## Case

- **Full name:** James Drew PHILLIPS, Appellant, v. Nancy Jane PHILLIPS, Appellee
- **Court:** Texas Court of Appeals, 9th District (Beaumont)
- **Decided:** May 2, 2002
- **Citations:** 75 S.W.3d 564; 2002 Tex. App. LEXIS 3100; 2002 WL 832548
- **Precedential status:** Published
- **Opinion:** Concurrence by Gaultney
- **Judges:** Walker, Burgess, Gaultney
- **Cited by:** 38 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9755332

## How later opinions describe it (automated extraction)

- concluding in plurality opinion that trial court may not consider fault in division of marital estate when “dissolution of marriage is sought solely on the ground of insupportability”
- affirming trial court’s disproportionate division of property in favor of wife based, in part, on evidence that wife’s parents retained some rights to property, including income, when parents deeded real property to husband and wife
- finding that it was legislature's intent to make decree of no-fault divorce mandatory if party alleges insupportability and establishes statutory elements
- finding no abuse of discretion where trial court used appraisal done eight months before trial

## Opinion text

DAVID B. GAULTNEY, Justice.
CONCURRING OPINION
I concur in the affirmance of the trial court’s judgment. My disagreement is with the assertion that a trial judge has no discretion — under any circumstances, not just those at issue here — -to consider conduct causing the divorce in making a just and right division of the property when a divorce is granted under section 6.001 of the Family Code. See Tex. Fam.Code Ann. § 6.001 (Vernon 1998). I write separately because I believe a trial court should have discretion to consider proven fault.
Appellee pleaded fault as a basis for unequal division of the community property. Trial courts have wide discretion to consider a variety of factors in determining what is just and right in dividing community property. See Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex.1998); see Barbara Anne Kazen, Division of Property at the Time of Divorce, 49 Bay-LOR L.Rev. 417, 424-28 (1997). For example, in affirming a 72.9% award of community property to a wife one court noted “[a] key factor was [the husband’s] abusive and *576 violent nature, which ultimately contributed to the divorce.” Faram v. Gervitz-Faram, 8 95 S.W.2d 839 , 844 (Tex.App.Fort Worth 1995, no writ). Similarly, in a divorce granted on grounds of insupporta-bility, another court upheld the trial court’s consideration of the fact that one spouse “was at fault in rendering the marriage insupportable.” Roberts v. Roberts, 663 S.W.2d 75, 77 (Tex.App.-Waco 1983, no writ); see prior case, Roberts v. Roberts, 621 S.W.2d 835, 836 (Tex.App.-Waco 1981, no writ) (divorce granted on the ground the marriage was insupportable). See also Vautrain v. Vautrain, 646 S.W.2d 309, 312 (Tex.App.-Fort Worth 1983, writ dism’d) (trial court may consider evidence of fault even if divorce granted on no fault grounds); Clay v. Clay, 550 S.W.2d 730, 734 (Tex.Civ.App.-Houston [1st Dist.] 1977, no writ) (cruelty considered in dividing property, even when the trial court granted divorce on insupportability).
What is “just and right” in dividing the property should not depend on the ground on which the divorce is granted; the just and right division of property is separate from the dissolution issue. If one spouse’s conduct causes the destruction of the financial benefits of a particular marriage, benefits on which the other spouse relied, a trial court should have discretion to consider that factor in dividing the community estate — regardless of the basis for granting the divorce.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9755332. Public record. Not legal advice.