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. ยง 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.
