Chakrabarty v. Ganguly

• Decision Date: 07 March 2019
• Docket Number: No. 05-17-01195-CV,05-17-01195-CV
• Citation: 573 S.W.3d 413
• Parties: Shaibal CHAKRABARTY, Appellant v. Deepa GANGULY, Appellee
• Court: Texas Court of Appeals

573 S.W.3d 413

Shaibal CHAKRABARTY, Appellant

v.Deepa GANGULY, Appellee

No. 05-17-01195-CV

Court of Appeals of Texas, Dallas.

Opinion Filed March 7, 2019

James F. Newth, Tammy Cummings, Attorney at Law, Dallas, TX, for Appellant.

Chad M. Ruback, Collin County Courthouse, McKinney, TX, Jennifer Grinke, Laura B. Roach, Albin Roach, PLLC, Frisco, TX, for Appellee.

Before the Court en Banc¹

EN BANC OPINION

Opinion by Justice Schenck

On appellee’s motion for rehearing en banc, we withdraw our opinion dated December 10, 2018, and vacate the judgment of that date. This is now the opinion of the Court.

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 affirm the trial court’s judgment.

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 (Enforcement Order) 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 Enforcement Order.

On appeal before a panel of this Court, Chakrabarty raised two issues. First, he argued portions of the Enforcement Order were barred by the statute of limitations set forth in section 9.003(a) of the family code, specifically the portions awarding funds to Ganguly.³ Section 9.003 of the family code provides that a suit to enforce the division of 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, Ganguly denied her claims for the funds are time-barred, citing us to decisions of other courts of appeals and a much earlier Texas Supreme Court decision holding that money is not "tangible personal property" so as to trigger the two-year time bar in section 9.003. However, as noted at oral argument, a prior panel opinion from this Court had already held to the contrary. Long v. Long , 196 S.W.3d 460, 467–68 (Tex. App.—Dallas 2006, no pet.). Once a panel of this Court has spoken, subsequent panels are powerless to contradict that decision, barring reconsideration by the Court sitting en banc or an intervening decision by the supreme court. See MobileVision Imaging Servs., L.L.C. v. LifeCare Hosps. of N. Tex., L.P. , 260 S.W.3d 561, 566 (Tex. App.—Dallas 2008, no pet.). Accordingly, the panel in this case found Long controlled the disposition and sustained Chakrabarty’s first issue. We therefore reversed the portions of the trial court’s order awarding funds to Ganguly as an enforcement of division of tangible personal property; rendered judgment denying Ganguly’s requests for enforcement of division of tangible personal property as barred by limitations; and otherwise affirmed the remaining portions of the trial court’s order.

Ganguly has moved for en banc reconsideration, arguing our decision in Long is inconsistent with a prior decision of the Texas Supreme Court and with decisions of other Texas courts of appeals.

DISCUSSION

We will rehear a case en banc where it is necessary to secure uniformity of the Court’s decisions and in other extraordinary circumstances, as we deem necessary. TEX. R. APP. P. 41.2(c).⁴

Our conclusion with respect to the characterization of funds as tangible in Long v. Long was necessary to resolve one of many issues brought forward in that case. Unfortunately, the briefs in Long appear to have failed to direct the Court to any authority governing the question of whether such funds should be considered "tangible personal property" in the context of section 9.003(a). Presumably, had the issue been briefed more comprehensively, the Long panel would have considered the opinions of the supreme court and a sister court of appeals available at that time.

We will begin with the supreme court’s holding in Great South Life Insurance Co. v. City of Austin . That decision involved the treatment of money and shares of stock in private corporations for the purpose of taxation under an earlier legislative enactment, both of which were held to constitute "intangible" personal property. See Great S. Life Ins. Co. v. City of Austin , 112 Tex. 1, 243 S.W. 778, 781 (1922). While not directly controlling on the proper interpretation of the term "tangible personal property" in the later enacted section 9.003(a), we presume as a general matter that the Legislature intends to adopt a meaning in concert with its own previous use of the same or logically parallel terms in prior enactments. TEX. GOV'T CODE ANN. §§ 311.011(b) & 311.203(4). We also presume that the Legislature is aware of, and intends a meaning in accord with, prior judicial interpretations of the same terms, particularly where, as here, those constructions are uniform, include a decisive reading from a terminal court, and cover a vast expanse of time. Kennedy v. Hyde , 682 S.W.2d 525, 529 (Tex. 1984).

In Ford v. Ford , the Fourteenth Court of Appeals addressed whether money could be considered "tangible personal property" under section 9.003(a), first noting that the term was not defined in the family code, but going on to use definitions from the tax code, supreme court opinions, and Black’s Law Dictionary to conclude that "money is not a ‘tangible chattel’ or ‘goods’ but is instead a currency of exchange that enables the holder to acquire goods." No. 14-99-00246-CV, 2000 WL 1262469, at *2 (Tex. App.—Houston [14th Dist.] Sept. 7, 2000, no pet.) (not designated for publication).

Since our decision in Long , two other courts of appeals addressed the definition of "tangible personal property" in section 9.003(a) and concluded that money is not "tangible personal property." See Wilke v. Phillips , No. 04-12-00604-CV, 2013 WL 6022245, at *2 (Tex. App.—San Antonio Nov. 13, 2013, no pet.) (mem. op.) (citing TEX. TAX CODE ANN. § 151.009 (defining "tangible personal property"); TEX. FIN. CODE ANN. § 371.003 (defining "goods" as "tangible personal property"); Riverside Nat'l Bank v. Lewis , 603 S.W.2d 169, 174 (Tex. 1980) (holding money is not a "good" under DTPA) ); Gentile v. Gentile , No. 13-04-167-CV, 2007 WL 271144, at *1 (Tex. App.—Corpus Christi–Edinburg Feb. 1, 2007, pet. denied) (mem. op.) (citing same authorities). Indeed, the conclusion that money and shares of stock are not within the normal understanding of the term "tangible personal property" is hardly confined to this State or its Legislature. See, e.g. , In re Estate of Bennett , 789 P.2d 446, 448 (Colo. App. 1989) ; In re Estate of Larson , 196 Wis.2d 231, 538 N.W.2d 802, 804 (Wis. Ct. App. 1995).⁵

In view of this long and unbroken line of authority to the contrary, we now hold that money and shares of stock are not tangible personal property for the purposes of section 9.003. Thus, we overrule Long to the extent that it holds that money or shares of stock constitute tangible personal property.

We overrule 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.

Subchapter "A" of Chapter 9 of the Texas Family Code is titled "Suit to Enforce Decree." See FAM. §§ 9.001–.014. Pursuant to that subchapter, a party affected by a decree of divorce providing for a division of property may request enforcement of that decree by filing a suit to enforce in the court that rendered the decree. Id. § 9.001. Generally, the court that rendered the decree of divorce retains the power to enforce the property division contained therein. Id. § 9.002. Specifically, the court may render further orders to enforce the division of property made in the decree of divorce to assist in the implementation of or to clarify the prior order. In re Marriage of Pyrtle , 433 S.W.3d 152, 160 (Tex. App.—Dallas 2014, pet. denied) (citing FAM. § 9.006(a) ). The trial court may specify more precisely the manner of effecting the property division previously made or approved if the substantive division of property is not altered or changed. FAM. § 9.006(b). However, once the trial court’s plenary power has expired, the trial court may not amend, modify, alter, or change the division of property made or approved in the decree of divorce or annulment. Id. § 9.007(a). An...