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Chatterjee v. Banerjea

Court of Appeals of Texas, Fifth District, Dallas

August 19, 2019


          On Appeal from the 469th Judicial District Court Collin County, Texas Trial Court Cause No. 469-52424-2016

          Before Justices Burns, Richter[1], and Rosenberg [2]



         Rejina Chatterjee appeals the trial court's property division in her divorce from Subrata Banerjea. Finding several of Rejina's complaints waived for inadequate briefing or failure to raise them in the trial court, and finding no reversible error in the remainder, we affirm the trial court's judgment.


         The parties were married for 24 years and have one child. Both Rejina and Subrata are from India and although they were Texas residents for many years, each maintained close contact with family and others in India, travelled frequently to India, and borrowed from or invested with persons in India.

         Subrata was highly educated and successful in his employment and had worked for several large well-known companies providing consulting assistance to global banks with respect to their growth, efficiency, and risk management. While employed by KPMG India, Subrata's income was deposited in an account at a bank in India. Subrata's annual salary exceeded $500, 000. Rejina asserted that during the marriage, Subrata controlled virtually all of their assets.

         During the marriage, Rejina earned an MBA. For a few years she worked for a large accounting firm, and a later, a bank. The parties owned two Duncan Donut franchises (the donut franchises) for which Rejina "kept the books." Rejina also managed the day-to-day operations of each store, although the parties disagreed about the length of time she managed the franchises. Rejina purchased a signature stamp and sometimes allowed the parties' bookkeeper to use the signature stamp for the donut franchises' payroll when she travelled. For at least some period of time, Rejina received a $60, 000 salary for managing the donut franchises, but later was allowed to withdraw only a few thousand dollars each month from the donut franchises' accounts to use at her discretion. Rejina also obtained her real estate license, but had no earnings attributable to her licensure.

         In her petition, at a contempt hearing discussed below, and during trial, Rejina alleged Subrata fraudulently depleted the marital estate and breached his fiduciary duty to Rejina as his spouse and business partner. Specifically, she alleged Subrata had encumbered the parties' home and businesses without her knowledge (ownership of the parties' marital residence was in Subrata's name only), purchased stocks and other investments without her knowledge, transferred and failed to disclose the extent and value of the community estate, and used the businesses' accounts to pay personal, nonbusiness expenses.

         Both parties were represented by counsel throughout the proceedings below and Subrata changed lawyers at least four times. The trial court entered standard temporary orders. Because Subrata failed to produce documents and information regarding certain bank accounts and assets, Rejina issued more than 18 third-party subpoenas seeking financial information about the parties' bank accounts, assets, and Subrata's earnings.

         Rejina also filed a motion to compel and four separate motions to enforce the Temporary Orders, including one motion filed after trial. After an evidentiary hearing, the trial court found Subrata in contempt and ordered him to return funds transferred in violation of the Temporary Orders, reverse certain transactions by which he had encumbered community property or converted liquid assets to illiquid, disclose all property removed from a Bank of America safe deposit box, compelled him to produce monthly bank statements for certain accounts, and fined him. Following Subrata's motion to reconsider or clarify, the trial court suspended its order requiring Subrata's commitment "until further order of the court." The trial court made no further ruling regarding Subrata's contempt, and neither the Final Decree nor the findings of fact and conclusions of law reference the contempt. At trial, Subrata's compliance with the order compelling production was disputed.

         After Subrata filed his own motion for enforcement, the trial court also ordered Rejina to identify property removed from a different safe deposit box and provide the current location of that property. Rejina also filed a motion to equalize attorney's fees, which the trial court carried through trial. Both parties and at least one expert were deposed.

         The case was tried to the court shortly after the hearing on Rejina's motion to enforce and for contempt. At trial, both parties and Rejina's forensic accounting and hand-writing experts testified. After the court overruled a motion to exclude the forensic accountant's testimony, the expert testified that a large amount was "missing" from the community estate, and that Subrata had failed to produce, among other items, approximately two years' of bank statements for one primary account he controlled, year-end pay stubs for three years, and information about a large bonus expected within days of the trial's expected conclusion. Many of the financial expert's assumptions and conclusions, however, were challenged on cross-examination. The handwriting expert testified that both Rejina's signature and printed name on a power of attorney purportedly signed in India were likely made by a stamp or some other cut and paste method. The handwriting expert's testimony was challenged through Rejina's cross-examination, during which she admitted that the signature stamp purportedly used to add Rejina's signature to the power of attorney was in her possession at the time the document was signed and notarized. Each party was also examined about alleged infidelity.

         Six months after trial, the trial court entered a memorandum opinion, granting the divorce on the "grounds of insupportability," dividing community assets and liabilities, but also requiring the parties to submit a final order. Three months later, the court heard arguments on a motion to enter a final decree. After arguments each party submitted affidavits providing additional and current information about the assets and liabilities of the parties' businesses. After hearing a second motion to enter and following the court's ruling on Rejina's request for clarification of three items in the memorandum opinion, the trial court entered the final decree of divorce (the Final Decree).

         The Final Decree divided the parties' assets and liabilities, and provided that all requested relief not expressly granted was denied. Pursuant to Rejina's request, the court subsequently entered findings of fact and conclusions of law in which it stated it had "carefully listened to and evaluated testimony from witnesses," including Rejina, Subrata, and experts; valued the specific assets and liabilities in the estate; and as with the memorandum opinion, granted the divorce on grounds of insupportability only. The court did not find any fraud, nor did it find any aggregate value for the estate or assign percentages to either party. The findings of fact and conclusions of law, however, included an itemized list of the community property assets and debts, valuations of most assets and liabilities, and bank names or account numbers for many. Each party was awarded one of the donut franchises. Rejina did not request any amended, supplemental or additional findings of fact or conclusions of law.

         Pro-se following the hearing on the motion to enter, Rejina appealed[3] and asks this Court to reconstitute the estate and modify the asset division. She contends the trial court abused its discretion[4] by (1) excluding evidence regarding assets Rejina claimed were missing from the estate; (2) including certain jewelry in the property division although Rejina claimed no evidence demonstrated the existence of those assets; (3) including a Rolex watch in the property division, although Rejina also asserted no evidence except Subrata's testimony demonstrated the existence of the watch; (4) failing to require Subrata to pay Rejina's attorney's and expert fees; (5) inequitably dividing the community estate as a result of excluding from the property division certain assets Rejina contends were fraudulently transferred in breach of Subrata's fiduciary duties; (6) including assets located in India in the division; (7) failing to "follow through" and enter orders of commitment after finding Subrata in contempt of court for violations of certain Temporary Orders; and, (8) denying Rejina the opportunity for appellate representation by not ruling on Rejina's motions for temporary relief. We address each in turn.


         A. The Standard Of Review In ...

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