Chaya Kundra v. Bobby Makheja, Malka Makheja ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
CHAYA KUNDRA
MEMORANDUM OPINION *
v. Record No. 2510-97-4 PER CURIAM
APRIL 28, 1998
BOBBY MAKHEJA, MALKA MAKHEJA,
AMAR NATH MAKHEJA AND THE
BOMBAY STORE, INC.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jack B. Stevens, Judge
(William C. Dickerson; Robert N. Levin;
Levin & Tepper, on brief), for appellant.
(Kenneth R. Weiner; Weiner, Weiner & Weiner,
on brief), for appellees.
Chaya Kundra (wife) appeals the decision of the circuit
court finding that the evidence was insufficient to establish the
location and value of certain jewelry she received through her
marriage to Bobby Makheja (husband). Wife contends that the
trial court erred in (1) finding that there was insufficient
evidence to rule on the value of the jewelry; (2) finding that
there was insufficient evidence to rule on the location of the
jewelry; (3) failing to find wife owned a kundan set; and (4)
failing to award wife costs and attorney's fees. Upon reviewing
the record and briefs of the parties, we conclude that this
appeal is without merit. Accordingly, we summarily affirm the
decision of the trial court. See Rule 5A:27.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Background
The dispute in this appeal arises over the location and
value of certain pieces of jewelry which wife asserts she was
given upon her engagement to husband, as well as other pieces of
jewelry wife owned prior to the marriage. The evidence
established that, pursuant to Indian tradition, wife received
certain pieces of jewelry, including a necklace and earring set
known as a "kundan set," from the family of her husband-to-be.
The parties presented evidence over four days concerning the
value and location of the missing jewelry.
The trial court summarized the evidence presented by the
parties as to the jewelry's value and location. The court found
that the jewelry was wife's separate property, but found that
there was insufficient evidence to establish its location or
value. Wife appealed.
Sufficiency of the Evidence
Wife contends that the trial court erred by failing to find
that there was sufficient evidence to determine the value or
location of the jewelry. We disagree. The trial court is not
required to make a factual determination if it finds that neither
party has presented sufficient evidence to support its position
by a preponderance of the evidence.
Under Virginia law, the burden to prove value rests with the
parties.
Virginia's statute "mandates" that trial
courts determine the ownership and value of
all real and personal property of the
2
parties. But, consistent with established
Virginia jurisprudence, the litigants have
the burden to present evidence sufficient for
the court to discharge its duty. When the
party with the burden of proof on an issue
fails for lack of proof, he cannot prevail on
that question. "[T]he burden is always on
the parties to present sufficient evidence to
provide the basis on which a proper
determination can be made, and the trial
court in order to comply . . . must have the
evidence before it . . . to grant or deny a
monetary award."
Bowers v. Bowers, 4 Va. App. 610, 617, 359 S.E.2d 546, 550 (1987)
(citation omitted).
Both parties presented evidence concerning the jewelry and
its value. To support her claim, wife presented a proof of loss
appraisal listing twenty-two pieces of jewelry valued at
$166,675. The valuation was done based upon photographs and
wife's estimate of weight. The court found that several pieces
were described twice, reducing the total value to $154,225.
Husband also presented an appraisal, based upon photographs and
descriptions, of eighteen items. The court noted that the
"descriptions of the pieces of jewelry listed in [husband's]
Appraisals are almost identical to those in the [wife's] proof of
loss except for weight, in some cases." Husband's appraisal
valued the eighteen pieces of jewelry between $23,040 and
$24,940.
Neither appraiser saw nor held the jewelry. Wife's expert
testified that he had done "a few dozen" estimates using Indian
jewelry, that there was little call for this type of jewelry in
3
his business, and that he used "the value that a customer would
pay to have it replaced or buy it in a show case." Husband's
expert testified that he gave the fair market value, which he
defined as "a price level that is obtained between a willing
buyer and a willing seller, with neither under any compulsion to
have to buy or sell, and both buys [sic] with all pertinent
facts." Husband's expert distinguished that value from the
replacement value for an insurance client.
The trial court was entitled to determine whether either
party presented sufficient credible evidence for it to determine
the value of the missing jewelry. Based upon this record, we
cannot say that the trial court erred by refusing to assign a
value to the missing jewelry when neither party established a
specific value by a preponderance of the evidence.
Similarly, neither party established the location of the
missing jewelry. Wife testified that she discovered some pieces
of jewelry were missing between January and March 1995. She
claimed that other pieces were in the possession of husband's
family. The trial court did not accept wife's testimony that
husband's parents possessed the jewelry after she left the
marital residence. His parents testified and denied ever
possessing wife's jewelry. On review, we cannot say that the
trial court erred by finding the evidence insufficient to
establish the jewelry's whereabouts.
Ownership of Kundan Set
4
Wife also contends that the trial court erred when it ruled
that a particular kundan belonged to husband's sister. We
disagree. Wife introduced a photograph showing the sister
wearing a kundan set wife claimed was hers. The sister testified
at trial and brought the kundan set, and a receipt for its
purchase, to court. The sister testified that the set she wore
in the photograph was given to her by her husband. She denied
giving the set to wife. The trial court was able to view the
evidence and observe the witnesses. Because credible evidence
supports the trial court's finding, we will not set aside its
determination.
Attorney's Fees and Costs
An award of attorney's fees is a matter submitted to the
sound discretion of the trial court and is reviewable on appeal
only for an abuse of discretion. See Graves v. Graves, 4 Va.
App. 326, 333, 357 S.E.2d 554, 558 (1987). The key to a proper
award of counsel fees is reasonableness under all the
circumstances. See McGinnis v. McGinnis, 1 Va. App. 272, 277,
338 S.E.2d 159, 162 (1985). In this case, both parties incurred
attorney's fees through hearings which extended over three
additional days. We cannot say that the trial judge abused his
discretion by failing to make an award to wife.
Accordingly, the decision of the circuit court is summarily
affirmed.
Affirmed.
5