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Click here for the full text of this decision FACTS:Sherrie and Thomas Graham Prague were married in 1976. At the time of the marriage, Sherrie had worked for nine years as a teacher in the Irving school system. During that time, and during the course of the marriage, Sherrie participated in the Teachers Retirement System (TRS). She had withdrawn seven of the nine years’ worth of creditable service from TRS before the marriage; shortly after the marriage, she withdrew the final two years of what she earned pre-marriage. In 1980, the couple separated. During the separation, Sherrie reinstated the prior nine years of creditable service by paying TRS approximately $5,000. The couple reconciled shortly thereafter. The couple then divorced in May 2002. By that time, Sherrie had retired from the school system with 33 years of service; Thomas was retired from his accounting practice and was receiving social security benefits. At trial, the judge divided the community estate and listed each party’s separate property. At Thomas’ request, the trial court filed findings of fact and conclusions of law, which listed the community property and the separate property of both parties. The trial court found that a portion of the lump sum payout from TRS ($55,515) was Sherrie’s separate property, as was a portion of the $88,577 TRS annuity. The trial court also found that: 1. the value of a trust account Sherrie had with her siblings was unknown; 2. the couple’s children from prior marriages were supported and helped by the couple into the children’s adulthood; 3. that benefits available at the time of retirement for TRS were not totally generated during the marriage; 4. that the testimony only evidence of the valuation of the retirement benefits was offered by an expert named John Boyd; and 5. that money borrowed from TRS was paid back with Sherrie’s separate property. Thomas’ request for additional findings and conclusions was denied. Thomas now appeals, challenging the findings and conclusions, as well as the division of property. HOLDING:Affirmed. This court issued a ruling on April 27, 2005, which the court now vacates and substitutes this opinion in its stead. The court also denies Thomas’ motion for rehearing. The court finds the evidence supports the finding that portions of the lump sum payout and annuity were Sherrie’s separate property, and that those funds were generated before the marriage began. The court also finds that the valuation of the trust was unknown, as the testimony from Sherrie was that she thought it was valued at approximately $125,000 but she didn’t know for sure. The court finds, too, that both Sherrie and Thomas testified that they supported their children into adulthood. Finally, John Boyd was the only one to testify about the specific values for the separate and community portions of the TRS benefits. These findings of fact were supported by the evidence, the court concludes. As for the finding about the money Sherrie used to pay back TRS, the court notes that Sherrie testified that she used either money from a separate bank account or money she inherited. In his deposition, Thomas admitted that Sherrie had inherited money, and he acknowledged that he and Sherrie were separated at the time she paid TRS back. Later, he testified that he believed the payment was made from a community fund. The court rules that, in the face of this conflicting evidence, the trial court was entitled to believe one witness over another . The court adds, however, that even if Sherrie did not meet her burden of establishing that separate funds were used to repay TRS, the fact remains that the underlying property was still her separate property. Separate property retains its character provided that the money can be traced back to before the marriage, which it was in this case. The court acknowledges that in such an instance where community funds were possibly used to reinstate Sherrie’s creditable service, Thomas could have a claim for reimbursement. He has not made such a claim, though, the court points out. Instead, he attacks the characterization of the property, which is unquestionable Sherrie’s own property. The court then addresses Thomas’ attack on the valuation of the lump-sum payout and the annuity. The court notes that TRS is a defined benefit plan, which is based on the recipient’s age, salary history and number of years of service. For these kinds of plans, the court finds that the Texas Supreme Court has applied a formula for valuation found in Taggart v. Taggart, 552 S.W.2d 945 (Tex. 1983), to determine the extent of the community’s interest when the employee spouse’s retirement is fully matured at the time of divorce. For instance, in Taggart, the husband had 360 months of active retired naval service, 246 of which were during the marriage; consequently, the wife was entitled to a portion of rights that had matured at the time of the divorce, i.e., one-half of value of 246 of the 360 months of benefits. Here, Sherrie had 33 years of service with the school district at the time of the divorce, 24 of which were during her marriage to Thomas (nine of which were before her marriage). Those benefits had matured at the time of divorce. The trial court was, therefore, correct in applying the Taggart formula, awarding Thomas a portion of the 24 months of service Sherrie had with the schools during their marriage. Finally, the court upholds the property division, which Thomas calls disproportionate. The court notes that Thomas’ social security benefits are greater than Sherrie’s and that Thomas continues to receive compensation from the sale of his accounting business. The trial court did not abuse its discretion in the way it divvied up the community property. OPINION:Wright, J.; Wright, Moseley and Lang, JJ.

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