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March 20, 2026 Get Citation Alerts Download PDF Add Note

Theodore Stanley Landry v. Janelle Nicole Landry

Texas Supreme Court

• Citations: None known
• Docket Number: 24-0910

• Disposition: Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment.

• Opinion

• Authorities (12)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

• PDF

Disposition

Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment.

Unanimous Opinion

Supreme Court of Texas
══════════
No. 24-0910
══════════

Theodore Stanley Landry,
Petitioner,

v.

Janelle Nicole Landry,
Respondent

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fifth District of Texas
═══════════════════════════════════════

PER CURIAM

In this divorce case, Husband offered clear and convincing
evidence, including expert testimony, that two investment accounts
were his separate property outside the marriage’s community estate.
Wife submitted no contrary evidence regarding those two accounts. The
trial court accordingly declared the accounts to be Husband’s separate
property and rendered a corresponding judgment. Wife appealed.
The court of appeals has now erred twice in overturning the trial
court’s judgment. The first time it considered this appeal, the court of
appeals misread the record. It concluded (incorrectly) that certain
evidence relating to the two investment accounts at issue was absent
from the record, and it reversed the trial court’s judgment on that basis.
We granted review, showed the court of appeals that the evidence it
claimed was missing was actually in the record all along, reversed its
judgment, and remanded for the court of appeals to perform the proper
analysis. Landry v. Landry, 687 S.W.3d 512 (Tex. 2024).
Now the court of appeals has erred on the law. On remand, it
summarily rejected Husband’s unrebutted evidence, including his
expert’s testimony and the full record of account statements, that the
trial court relied on to conclude the accounts were Husband’s separate
property. There was no lawful basis to do so. We reverse and render
judgment for Husband.
I
The full procedural history is set out in In re B.N.L., 700 S.W.3d
681 (Tex. App.—Dallas 2022), rev’d sub nom., Landry v. Landry, 687
S.W.3d 512 (Tex. 2024). As recounted there, Husband and Wife married
in January 2003. Wife filed for divorce in 2017, and after a two-day
bench trial, the trial court signed a divorce decree on March 5, 2020.
The trial court found that various assets belonged to Husband as
his separate property—including, as relevant here, two investment
accounts with Charles Schwab. Husband opened these two accounts
prior to the marriage: the first in 1992 and the second in 1995. Husband
designated Bryan Rice, a certified public accountant, to offer expert
testimony that these accounts were Husband’s separate property. Using
a “tracing” analysis, Rice concluded that the funds in the investment
accounts remained identifiable as Husband’s separate property
throughout the course of the marriage. See generally In re J.Y.O., 709

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S.W.3d 485, 499 (Tex. 2024) (explaining that litigants may trace
separate property through bank records).
To reach that conclusion, Rice traced the funds through the
accounts’ monthly statements from January 2003 to June 2019. At trial,
Rice testified that the accounts’ funds did not commingle with
community assets “except for reinvestments.” And while the accounts
earned some community income in the form of interest and dividends,
the community estate withdrew money from the accounts “as fast” as it
was earned and used it to fund community expenses—meaning the
funds in the accounts retained their separate character.
Although Rice considered sixteen years of monthly data from
2003 through 2019, he testified that he did not consider four months of
account statements from July 2018 to October 2018. Those statements
are in the trial court record, as we pointed out in our prior decision in
this case. Landry, 687 S.W.3d at 513. It is not clear why Rice did not
receive them. But what is clear is that Rice testified unequivocally,
consistent with his expertise, that those isolated account statements
would not have materially impacted his conclusions. Rice testified on
direct and cross-examination that he “had established a pattern over
15 years of money going out of this account as fast as it went in” with
the other statements. He assured the trial court that his tracing
analysis was “completely supported by sufficient documentation” and
that he was “very confident in [the] trace” despite the “missing

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statements” because he had reviewed the “majority of” the statements. 1
Wife left that testimony effectively unrebutted. 2
The trial court went on to credit Rice as an expert witness. It
admitted his testimony, as well as the documentary evidence underlying
it. And, as we noted previously, the trial court had before it all relevant
account statements, even those Rice did not consider. Id. Based on that
full record, the trial court determined that the two investment accounts
are Husband’s separate property.
Wife appealed, and relevant here, the court of appeals reversed
the trial court’s judgment as to the two investment accounts. B.N.L.,
700 S.W.3d at 693, 696. The court focused its analysis on the account
statements for the four months spanning July through October 2018.
Id. at 692-93. The court reasoned that because Rice did not review those
documents, he did not “adequately trace the separate-property character
of the accounts.” Id. at 693. It speculated that “any number of
transactions could have occurred affecting the amount of separate
property in those accounts” during that period and concluded that “it

1 The trace analyzed monthly statements for the years 2003 to 2017

(fifteen years), six months of statements in 2018 (January to June), and six
months of statements in 2019 (January to June). So, the trace actually
analyzed sixteen years’ worth of statements, not fifteen.
2 Wife retained an expert, Larry Settles, to testify in rebuttal and as to

“any tracing done by [Husband’s] expert.” Settles produced a “draft” report
regarding his impressions of Rice’s report and was deposed. However, the trial
court excluded Settles as untimely designated, and the court of appeals
affirmed that exclusion. B.N.L., 700 S.W.3d at 689. Wife did not raise an issue
regarding Settles’s exclusion in this Court and did not make any further
attempt to rebut Rice’s testimony. Additionally, she did not raise an issue
regarding the characterization of the accounts until after trial, in her motions
to reconsider and for a new trial.

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was Husband’s burden to prove with clear and convincing evidence that
no transactions occurred affecting the separate character of the accounts
and proving the amount of separate property in the accounts.” Id.
Because of the “missing” statements, the court continued, “the trial
court, as the trier of fact, could not have reasonably formed a firm belief
or conviction that the accounts contained only separate-property funds
as Rice testified and as the trial court found.” Id. The court of appeals
disregarded Rice’s unrebutted expert testimony, credited by the trial
court, that his tracing analysis would not be materially affected by the
four months of statements in question.
We granted Husband’s petition for review and reversed. Landry,
687 S.W.3d at 514. We ascertained that the monthly account statements
the court of appeals declared “missing” were actually present in the trial
and appellate record all along. Id. We directed the court of appeals to
“perform a new sufficiency analysis” regarding the separate character of
the accounts and to “address any challenge to the characterization of the
two investment accounts with the relevant statements under
consideration.” Id. at 513-14.
On remand, the court of appeals did not perform a new sufficiency
analysis as we instructed. Rather, it stated that “[w]hether the
statements do, in fact, support Rice’s assumptions about them and
whether the trial court would find Rice’s testimony less credible if they
do not, are not matters this Court may determine.” ___ S.W.3d ___, 2024
WL 4211330, at *3 (Tex. App.—Dallas Sept. 17, 2024) (citing Slicker v.
Slicker, 464 S.W.3d 850, 858 (Tex. App.—Dallas 2015, no pet.)). The

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court then once again reversed the trial court’s decision and remanded
for a new division of the community estate. Id. at *4.
Husband again sought our review, and again, we reverse.
II
We begin our analysis by restating the legal principles the court
of appeals failed to apply. As an initial matter, “[p]roperty possessed by
either spouse during or on dissolution of marriage is presumed to be
community property.” TEX. FAM. CODE § 3.003(a). To overcome the
community property presumption, a party must establish by clear and
convincing evidence that the property is separate. Id. § 3.003(b).
Specifically, the party must “trace and clearly identify the property in
question as separate.” Pearson v. Fillingim, 332 S.W.3d 361, 363 (Tex.
2011) (citing McKinley v. McKinley, 496 S.W.2d 540, 543 (Tex. 1973)).
“Litigants may trace separate property through documentary evidence,
including bank or business records.” J.Y.O., 709 S.W.3d at 499 (citing
McKinley, 496 S.W.2d at 543).
We afford trial courts “wide discretion in dividing the estate of the
parties.” Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981) (citing Hedtke
v. Hedtke, 248 S.W. 21, 23 (Tex. 1923)). Appellate courts may not
overturn a trial court’s decision dividing the marital estate absent an
abuse of discretion. See id.; Bell v. Bell, 513 S.W.2d 20, 22 (Tex. 1974)
(“[A trial court’s] discretion [to divide the marital estate] will not be
disturbed on appeal unless the court has clearly abused its discretion.”
(citing Hedtke, 248 S.W. at 23)). A trial court abuses its discretion when
it characterizes property as separate without legally sufficient evidence
to do so. See In re Marriage of Williams, 646 S.W.3d 542, 545 (Tex.

6
2022); Fuentes v. Zaragoza, 555 S.W.3d 141, 162 (Tex. App.—Houston
[1st Dist.] 2018, no pet.) (“A trial court abuses its discretion in dividing
the community estate if insufficient evidence supports the division.”).
Where, as here, the standard of proof is clear and convincing
evidence, appellate review of “the legal sufficiency of the evidence
considers ‘all evidence in the light most favorable to the finding to
determine whether a reasonable trier of fact could have formed a firm
belief or conviction that its finding was true.’” In re C.E., 687 S.W.3d
304, 308 (Tex. 2024) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex.
2002)). In a legal-sufficiency review, appellate courts must be mindful
that the fact-finder is “the sole judge[] of the credibility of the witnesses
and the weight to give their testimony.” City of Keller v. Wilson, 168
S.W.3d 802, 819 (Tex. 2005). Indeed, “a core function of the [fact-finder]
under any standard of proof—including clear and convincing evidence—
is to resolve conflicts in testimony, weigh evidence, and draw reasonable
inferences from basic facts to ultimate facts.” C.E., 687 S.W.3d at 308
(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
Here, the trial court heard extensive, unrebutted expert
testimony regarding the separate character of the two investment
accounts at issue. Rice was duly qualified and accepted as an expert.
He “trace[d] and clearly identif[ied]” the accounts’ funds as separate
through sixteen years’ worth of bank statements. See Pearson, 332
S.W.3d at 363; supra n.1. Wife did not challenge Rice’s qualifications.
The trial court was free to credit Rice’s expert testimony as the basis for
its findings of fact and conclusions of law. See TEX. R. EVID. 702; State
v. Petropoulos, 346 S.W.3d 525, 529 (Tex. 2011). And the four months of

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statements Rice did not consider—a mere two percent of the total
number of account statements—were in the record and available to the
trial court as fact-finder.
The court of appeals erred when it “substitute[d] its judgment for
that of the” trial court. C.E., 687 S.W.3d at 309 (citing City of Keller,
168 S.W.3d at 819). It did not carry out our prior instruction to “perform
a new sufficiency analysis” including the four months of account
statements that were before the trial court as fact-finder. Landry, 687
S.W.3d at 513. It instead treated those statements it believed were
missing as dispositive, even though they were in fact before the trial
court, and even though Rice testified that they would not have altered
his expert conclusions. This exemplifies the type of appellate
second-guessing our precedents forbid. See C.E., 687 S.W.3d at 309.
We now choose to make our Court “the final stop for this
litigation.” See Ammonite Oil & Gas Corp. v. R.R. Comm’n of Tex., 698
S.W.3d 198, 208 n.35 (Tex. 2024); TEX. R. APP. P. 60.2(c). Reviewing the
above evidence in the light most favorable to the trial court’s decision,
as we must, we conclude that the trial court could have reasonably
formed a firm belief or conviction that the two investment accounts at
issue are properly characterized as separate property. Accordingly,
there is no basis to disturb its judgment.
III
Without hearing oral argument, see TEX. R. APP. P. 59.1, we grant
the petition for review, reverse the court of appeals’ judgment, and
render judgment reinstating the trial court’s judgment.

OPINION DELIVERED: March 20, 2026

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