in the Interest of I. C. and S. M. C., Children ( 2018 )

REVERSE and RENDER in Part, and AFFIRM in Part; Opinion Filed December 10, 2018.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-01195-CV
SHAIBAL CHAKRABARTY, Appellant
V.
DEEPA GANGULY, Appellee
On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause No. 401-51665-2011
MEMORANDUM OPINION
Before Justices Francis, Schenck, and Richter1
Opinion by Justice Schenck
Shaibal Chakrabarty appeals from an order of enforcement of property division, contractual
alimony and modification of health insurance provisions. In his first issue, Chakrabarty urges
portions of Deepa Ganguly’s motion for enforcement requested enforcement of the division of
tangible personal property, a request that he maintains was barred by limitations. In his second
issue, Chakrabarty argues the trial court erred by modifying the property division set forth in the
divorce decree between the parties. We reverse the portions of the trial court’s order awarding
funds to Ganguly as an enforcement of division of tangible personal property; render judgment
denying Ganguly’s requests for enforcement of division of tangible personal property as barred by
1
The Hon. Martin Richter, Justice, Assigned.
limitations; and otherwise affirm the trial court’s order. Because all issues are settled in law, we
issue this memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
Chakrabarty and Ganguly were married and had two children. In 2012, the trial court
signed an agreed final decree of divorce (Divorce Decree). In 2016, Ganguly filed a motion for
enforcement, seeking to enforce provisions of the Divorce Decree. She also filed an original
petition for breach of alimony contract, alleging Chakrabarty had failed to pay alimony
installments ordered in the Divorce Decree.
After conducting a bench trial, the trial court signed an order of enforcement that ordered
Chakrabarty to (1) make payments to Ganguly to satisfy the funds transfer requirements under the
Divorce Decree, (2) make payments to Ganguly for unpaid contractual alimony payments, (3)
provide health insurance for the parties’ children and reimburse Ganguly for health insurance
premiums she had paid, (4) add Ganguly’s name to the custodial accounts for the children, and (5)
pay $10,000 in attorney’s fees to Ganguly’s attorney.2 Chakrabarty timely appealed the order of
enforcement.
DISCUSSION
In his first issue, Chakrabarty urges portions of the order of enforcement are barred by the
statute of limitations set forth in section 9.003(a) of the family code. Specifically, he challenges
the portion enforcing the award to Ganguly of “funds as ordered by the Court in the Agreed Decree
of Divorce . . . .”3 Section 9.003 of the family code provides that a suit to enforce the division of
2
Chakrabarty filed an untimely request for findings of fact and conclusions of law, which the trial court did not grant, and a motion for new
trial, which was overruled by operation of law.
3
In the order of enforcement, the trial court found Chakrabarty failed to divide or deliver the following funds, and generally ordered him to
make payments to Ganguly to satisfy those amounts:
1. 223,858.50 rupees from the INC account;
2. $667.31 from the Fidelity Investments account;
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tangible personal property in existence at the time of the decree of divorce or annulment must be
filed before the second anniversary of the date the decree was signed or becomes final after appeal,
whichever date is later, or the suit is barred. See TEX. FAM. CODE ANN. § 9.003(a). The record
reflects Ganguly filed her motion for enforcement nearly four years after the Divorce Decree was
signed. In her brief, she denies her claims for the funds are time-barred because she urges that the
funds are not “tangible personal property.”4
In Long v. Long, this Court held that a claim to enforce a requirement under a divorce
decree for the husband to “deliver one-half the sums in his Ameritrade . . . and Dallas Telco Federal
Credit Union accounts as well as half the stock in Cap Rock . . .” was against tangible personal
property such that it was subject to the two-year statute of limitations under section 9.003(a). See
196 S.W.3d 460, 467–68 (Tex. App.—Dallas 2006, no pet.). We may not overrule a prior panel
decision of this Court. See MobileVision Imaging Services, L.L.C. v. LifeCare Hosps. of N. Tex.,
L.P., 260 S.W.3d 561, 566 (Tex. App.—Dallas 2008, no pet.). Thus, barring reconsideration by
the Court sitting en banc or an intervening decision by the supreme court, Long controls the
disposition of this issue. See id.; Long, 196 S.W.3d at 467–68.
We therefore sustain Chakrabarty’s first issue.
In his second issue, Chakrabarty argues the trial court erred by modifying the property
division set forth in the divorce decree between the parties. In that issue, he challenges the same
3. $27,196.00 from the Merril Lynch Online IIA account;
4. $25,525.00 from the TD Ameritrade account.
4
In a post-submission letter to this Court, Ganguly offered two more arguments why this Court should affirm the order of enforcement. First,
she urges that her motion for enforcement should be treated as a motion for turnover of property since the Divorce Decree contained the provision
that “[t]his decree shall serve as a muniment of title to transfer ownership of all property awarded to any party in this Final Decree of Divorce” and
thus immediately vested Ganguly with title of the property at issue. Second, Ganguly maintains that this case is different from other cases addressing
section 9.003 because both parties signed the Divorce Decree as “approved and consented to as both form and substance.” She argues that that
distinction means her motion for enforcement was in actuality an action seeking specific performance, damages, or both for Chakrabarty’s breach
of the parties’ agreement (the Divorce Decree), and that as such, her suit would be subject to the four-year statute of limitations applicable to breach
of contract actions. See Santander Consumer USA, Inc. v. Palisades Collection, LLC, 447 S.W.3d 902, 906 (Tex. App.—Dallas 2014, pet. denied).
However, Ganguly failed to raise either of this arguments in her initial briefing or at the trial court below. See St. John Missionary Baptist Church
v. Flakes, 547 S.W.3d 311, 313 (Tex. App.—Dallas 2018, pet. filed).
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portions of the order of enforcement that he challenged in his first issue. As we have already
sustained his first issue on limitations, we need not address his second issue. See TEX. R. APP. P.
47.4.
CONCLUSION
We reverse the portions of the trial court’s order awarding funds to Ganguly as an
enforcement of division of tangible personal property; render judgment denying Ganguly’s
requests for enforcement of division of tangible personal property as barred by limitations; and
otherwise affirm the remaining portions of the trial court’s order.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
171195F.P05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
SHAIBAL CHAKRABARTY, Appellant On Appeal from the 401st Judicial District
Court, Collin County, Texas
No. 05-17-01195-CV V. Trial Court Cause No. 401-51665-2011.
Opinion delivered by Justice Schenck,
Justices Francis and Richter participating.
DEEPA GANGULY, Appellee
In accordance with this Court’s opinion of this date, we REVERSE the portions of the
trial court’s order awarding funds to DEEPA GANGULY as an enforcement of division of
tangible personal property; RENDER judgment denying DEEPA GANGULY’S requests for
enforcement of division of tangible personal property as barred by limitations; and otherwise
AFFIRM the trial court’s order.
It is ORDERED that appellant SHAIBAL CHAKRABARTY recover his costs of this
appeal from appellee DEEPA GANGULY.
Judgment entered this 10th day of December, 2018.
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