Shruti Parikh v. Jayesh Parikh ( 2011 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Haley, Powell and Senior Judge Willis
Argued at Alexandria, Virginia
SHRUTI PARIKH
MEMORANDUM OPINION * BY
v. Record No. 1989-10-4 JUDGE JERE M.H. WILLIS, JR.
JUNE 21, 2011
JAYESH PARIKH
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
James H. Chamblin, Judge
Mumtaz A. Wani (Sarah E. Siedentopf; Wani & Associates, P.C., on
briefs), for appellant. 1
Rachel M. Fierro (The Herndon Law Firm, P.L.C., on brief), for
appellee.
Shruti Parikh (Ms. Parikh) appeals a final decree of divorce, entered on August 19, 2010.
She initially asserted forty-two assignments of error, but withdrew seven of them. The remaining
thirty-five assignments of error are as follows 2 :
(1) the trial court erred in finding that there was no valuation
submitted for the Indian property;
(2) the trial court erred by not allowing the India government’s
documents relating to the Indian property into evidence;
(3) the trial court erred by not considering the Indian property for
purposes of dividing the marital property pursuant to Code
§ 20-107.3;
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
On March 14, 2011, Sarah E. Siedentopf moved to withdraw as counsel of record for
Shruti Parikh. We granted that motion on May 19, 2011. Mumtaz A. Wani remains
Ms. Parikh’s counsel of record.
2
We retain the original number of each assignment of error as listed in Ms. Parikh’s
brief.
(4) the trial court erred in finding that Ms. Parikh had not properly
accounted for her expenses;
(5) the trial court erred by failing to properly consider and divide the
loans and expenses of Ms. Parikh’s business pursuant to Code
§ 20-107.3;
(6) the trial court erred by failing to properly consider and divide
Ms. Parikh’s school loans pursuant to Code § 20-107.3;
(7) the trial court erred by failing to properly consider and include
Ms. Parikh’s debts for living expenses in its award pursuant to Code
§ 20-107.3;
(8) the trial court erred by failing to properly consider the expenses
from Ms. Parikh’s Bank of America business account pursuant to
Code § 20-107.3;
(9) the trial court erred by failing to properly consider the expense
from Ms. Parikh’s Bank of America checking account pursuant to
Code § 20-107.3;
(10) the trial court erred by failing to properly consider the expenses
from Ms. Parikh’s SunTrust checking account pursuant to Code
§ 20-107.3;
(11) the trial court erred by failing to properly consider the expenses
from Ms. Parikh’s 2009 tax return and her profit and loss statement
pursuant to Code § 20-107.3;
(12) withdrawn;
(13) the trial court erred by failing to properly consider Ms. Parikh’s
expenses for necessary items purchased from India through her
parents;
(14) withdrawn;
(15) the trial court erred by failing to properly consider Ms. Parikh’s
expense for the airfare of her 70 years old parents who had to come
from India to support her and her daughter during the stressful
divorce process;
(16) the trial court erred in awarding a monetary award to Jayesh
Parikh (Mr. Parikh) pursuant to Code § 20-107.3;
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(17) the trial court erred in concluding that an alternate valuation date
was appropriate for Ms. Parikh’s accounts pursuant to Code
§ 20-107.3;
(18) the trial court erred in concluding that an alternate valuation date
should not be placed on Mr. Parikh’s accounts pursuant to Code
§ 20-107.3;
(19) the trial court erred in valuing Ms. Parikh’s Bank of America
business account and Bank of America custodial account on different
dates so that the $4,443 used to set up the custodial account from the
business account was included twice in the monetary award against
Ms. Parikh;
(20) withdrawn;
(21) the trial court erred by dividing the minor child’s savings bonds
which were set up for her college fund;
(22) the trial court erred in finding that Mr. Parikh did not have a
second job at “Patel Brother’s” Indian grocery store where he was
paid only in cash;
(23) the trial court erred by failing to make a finding that Mr. Parikh
was hiding money from Ms. Parikh;
(24) the trial court erred by failing to find that Mr. Parikh was hiding
marital funds from Ms. Parikh because he gave his lottery winnings
of $14,900 to his sister until after the divorce proceedings began and
then asked for their return;
(25) the trial court erred by failing to find that Mr. Parikh violated the
court’s order dated March 5, 2010, by making a large withdrawal
from his bank account;
(26) the trial court erred by failing to find that Mr. Parikh violated the
court’s December 1, 2009 pendente lite order by dissipating marital
property by removing his name from his property in India;
(27) withdrawn;
(28) the trial court erred by failing to award the statutorily correct
child support pursuant to Code §§ 20-107.2, -108.1, and -108.2;
(29) withdrawn;
(30) the trial court erred by not awarding any spousal support
pursuant to Code § 20-107.1 and -108.1;
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(31) the trial court erred in its visitation decreed under Code
§ 20-107.2 by not giving each parent the opportunity to take the
minor child to India during her summer vacation for a full three
months;
(32) the trial court erred by failing to make a finding that the
custodial parent is entitled to include the minor child as a dependent
for tax purposes;
(33) withdrawn;
(34) the trial court erred in its finding of fact that the value of
Mr. Parikh’s car was $4,575;
(35) the trial court erred in its finding of fact that the value of
Ms. Parikh’s car was $10,700;
(36) the trial court erred by failing to properly consider and include
the outstanding loan balance of $6,075 on Ms. Parikh’s car in its
valuation and equitable distribution pursuant to Code § 20-107.3;
(37) the trial court erred in finding that Ms. Parikh’s business was
marital property pursuant to Code § 20-107.3;
(38) the trial court erred by valuing the marital property above the tax
valuation of the property;
(39) the trial court erred by classifying the entirety of a bank account
as marital property pursuant to Code § 20-107.3 when it was owned
jointly by Ms. Parikh and her parents;
(40) withdrawn;
(41) the trial court erred by failing to find that funds in CD *2122
were a gift from Ms. Parikh’s parents and thus not marital property to
be divided pursuant to Code § 20-107.3; and
(42) the trial court erred by failing to award Ms. Parikh attorney’s
fees for the unnecessary and expensive litigation and motions to
inspect and compel which Mr. Parikh filed.
We affirm the judgment of the trial court.
BACKGROUND
The parties, natives of India, were married on July 14, 1999. They have one daughter,
who was born in May 2000. After the marriage, Mr. Parikh lived in the United States, while
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Ms. Parikh and the child remained in India. Ms. Parikh and the child joined Mr. Parikh in the
United States several years later.
At the time of trial, Mr. Parikh worked at Perot Systems, earning approximately $33,000
per year. 3 Ms. Parikh ran a beauty salon out of her home. Perot Systems was later purchased by
Dell.
The parties separated on December 29, 2008. In the following month, Ms. Parikh
withdrew large sums of money from the parties’ bank accounts. 4
The trial court heard testimony and argument over the course of a two-day trial. The
parties submitted stipulations. On July 27, 2010, the trial court issued its ruling orally from the
bench. It directed counsel to prepare the final decree, which it entered on August 19, 2010. No
exceptions were noted at the July 27, 2010 oral ruling, and none were noted in the body of the
final decree. Counsel for Ms. Parikh noted written exceptions at the end of the decree. On
September 2, 2010, Ms. Parikh timely filed a motion for reconsideration, but she did not present
or secure the entry of an order suspending the finality of the August 19, 2010 decree, which
became final on September 9, 2010. Rule 1.1. Noting this, on September 15, 2010, the trial
court entered an order denying the motion for reconsideration. That ruling is not appealed.
Therefore, we consider the case on the pre-decree record, the August 19, 2010 final decree, and
the exceptions noted at the end of that decree.
ANALYSIS
India Property – Assignments 1 – 3
Ms. Parikh argues that Mr. Parikh owned property in India with his brother, but removed
his name from the ownership documents during the separation. She contends the trial court erred
3
Mr. Parikh’s income is one of the issues in the case.
4
Ms. Parikh’s withdrawal of funds is another issue in the case.
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in finding that no valuation for the India property was submitted and in not including that
property in equitable distribution. During the trial, Ms. Parikh tendered documents from the
Indian government purporting to show that Mr. Parikh had removed his name from property that
he previously owned with his brother. The trial court asked Ms. Parikh’s counsel, “[A]re you
going to have any evidence as to the value of this property?” Ms. Parikh’s counsel responded,
“No.”
“The burden is on the parties to provide the trial court sufficient evidence from which it
can value their property.” Bosserman v. Bosserman, 9 Va. App. 1, 5, 384 S.E.2d 104, 107
(1989) (citing Taylor v. Taylor, 5 Va. App. 436, 443, 364 S.E.2d 244, 248 (1988)).
Here, Ms. Parikh submitted no evidence of the value of the India property. Thus, the trial
court could not value it.
The trial court ruled,
Based upon the evidence that was admitted, I can’t make a finding
that Mr. Parikh has any interest in the property in India that was
mentioned during the hearing as being say the place where they
stayed when they were in India together or her brother’s place or
whatever it might be. Without any evidence of value, without any
evidence of how it was acquired or anything, I can’t really make a
determination. I can’t even classify it. So it’s not a part of
equitable distribution.
Ms. Parikh’s counsel having stated that Ms. Parikh had no evidence to prove the value of
the India property, and no such evidence being presented, the trial court did not err in concluding
that no valuation for the property was submitted.
Likewise, Ms. Parikh failed to prove that Mr. Parikh had an interest in the Indian
property. She argues that the trial court should have accepted her tendered Indian documents
pursuant to Code § 8.01-390, which provides, “Copies of records . . . of another country, . . .
shall be received as prima facie evidence provided that such copies are authenticated to be true
copies either by the custodian thereof or by the person to whom the custodian reports, if they are
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different.” The tendered documents were stamped by a notary and certified to be a “true and
correct translation.” However, the national stamp and the certification do not meet the
requirements of Code § 8.01-390 because the documents were not authenticated as true copies by
their custodian or by a person to whom the custodian reports. See also Taylor v. Maritime
Overseas Corp., 224 Va. 562, 299 S.E.2d 340 (1983). The trial court did not err in rejecting
those documents.
Without competent evidence of the character of the property, its ownership, and its value,
the trial court could not classify or divide it. See Code § 20-107.3.
Ms. Parikh’s Expenses and Bank Accounts – Assignments 4 - 15 5
Ms. Parikh contends the trial court erred in finding (4) she had not properly accounted for
her expenses; in failing to properly consider and divide (5) her business loans and expenses,
(6) her school loans, (7) her living expense debts; and in failing to properly consider (8) her Bank
of America business account, (9) her Bank of America checking account, (10) her SunTrust
checking account, (11) her 2009 tax return and profit and loss statement, (13) her expense for
purchases from India, and (15) her parents’ airfare expenses.
On appeal, “decisions concerning equitable distribution rest within the sound discretion
of the trial court and will not be reversed on appeal unless plainly wrong or unsupported by the
evidence.” McDavid v. McDavid, 19 Va. App. 406, 407-08, 451 S.E.2d 713, 715 (1994) (citing
Srinivasan v. Srinivasan, 10 Va. App. 728, 732, 396 S.E.2d 675, 678 (1990)).
Ms. Parikh’s only exception relating to issues 4 through 15 is found at the end of the final
decree and simply states, “failure to consider all of wife’s debts.” This exception can be read to
apply to assignments 4 through 7. However, the trial court considered these items, including her
business expenses, equipment, back taxes, school loans, and living expenses. It stated several
5
Assignments 12 and 14 were withdrawn.
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times in its ruling that Ms. Parikh had not explained her expenses and what she did with her
money. It stated that it had reservations as to her credibility. It found that she had dissipated
assets. These holdings are supported by the evidence and reflect no abuse of discretion.
Ms. Parikh did not preserve for appeal the issues contained in assignments 8 through 15.
She stated no specific objection relating to these issues. “No ruling of the trial court . . . will be
considered as a basis for reversal unless an objection was stated with reasonable certainty at the
time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the
ends of justice.” Rule 5A:18. Accordingly, we will not consider her arguments in assignments 8
through 11, 13, and 15.
Monetary Award – Assignment 16
Ms. Parikh argues that the trial court erred in ordering that she pay Mr. Parikh a monetary
award for equitable distribution because she takes care of the child and earns less money than he
does. The trial court ordered Ms. Parikh to pay, on or before September 27, 2010, $37,000 to
Mr. Parikh’s law firm, which was to hold the money in trust. 6 Ms. Parikh’s exception, noted on
the final decree, states only, “Equitable award to Plaintiff.” She provided no further reason or
explanation, none of the argument that she now asserts. Thus, she did not preserve this issue
pursuant to Rule 5A:18. “The purpose of Rule 5A:18 is to allow the trial court to correct in the
trial court any error that is called to its attention.” Lee v. Lee, 12 Va. App. 512, 514, 404 S.E.2d
736, 737 (1991) (en banc). Therefore, we will not consider this argument.
Alternate Valuation Date – Assignments 17 - 19
Ms. Parikh argues that the trial court erred in using an alternate valuation date for her
accounts, but not for Mr. Parikh’s accounts. Mr. Parikh filed a motion for an alternate valuation
date for Ms. Parikh’s accounts because shortly after the parties’ separation, Ms. Parikh withdrew
6
Neither party indicated whether she made this payment.
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large sums of money from the parties’ accounts. 7 Ms. Parikh did not file a motion for an
alternate valuation date.
The court shall determine the value of any such property as of the
date of the evidentiary hearing on the evaluation issue. Upon
motion of either party made no less than 21 days before the
evidentiary hearing the court may, for good cause shown, in order
to attain the ends of justice, order that a different valuation date be
used.
Code § 20-107.3(A).
The trial court granted Mr. Parikh’s motion for an alternate valuation date for
Ms. Parikh’s accounts. Ms. Parikh could not adequately explain where the money went after she
withdrew it. The trial court explained in detail its reasons for assigning valuation dates. The
reasons were cogent and proper.
We find no abuse of discretion in the trial court’s granting Mr. Parikh’s motion for an
alternate valuation date for Ms. Parikh’s accounts and its failure to order another alternate
valuation date for which Ms. Parikh had not moved.
Child’s Bonds – Assignment 21
Ms. Parikh argues that the trial court erred in dividing the child’s savings bonds;
however, she noted no objection to this ruling. See Rule 5A:18. Therefore, we will not consider
this issue.
Mr. Parikh’s Second Job – Assignment 22
Ms. Parikh argues that the trial court erred in holding that Mr. Parikh did not work a
second job at the Patel Brothers grocery store. The trial court ruled,
The evidence about Patel Brothers, I can’t make a finding
that Mr. Parikh worked for Patel Brothers, but I tell you, it sure is
suspicious, both as to the things that he allegedly did for Patel
Brothers, like some spreadsheets, plus the time he was spending
7
The parties stipulated that wife withdrew approximately $61,000 from certificates of
deposit and bank accounts within approximately one month of the separation.
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there and the testimony of not one, but several witnesses about
seeing him there.
“It is well established that the trier of fact ascertains a witness’ credibility, determines the
weight to be given to their testimony, and has the discretion to accept or reject any of the
witness’ testimony.” Street v. Street, 25 Va. App. 380, 387, 488 S.E.2d 665, 668 (1997) (en
banc).
Here, the trial court saw and heard the witnesses. Although the trial court found the
evidence was “suspicious,” it held that the evidence was insufficient to prove that Mr. Parikh
worked at the store. The evidence supports this ruling.
Hiding Money – Assignments 23 - 25
Ms. Parikh argues that Mr. Parikh was hiding money, including his lottery winnings, and
that the trial court erred in not finding that Mr. Parikh violated the pendente lite order and
withdrew money from his bank account. Ms. Parikh made no timely objection to the trial court’s
rulings. Rule 5A:18 prevents our considering her arguments.
Violation of Pendente Lite Order – Assignment 26
Ms. Parikh argues that Mr. Parikh violated the pendente lite order by removing his name
from the property in India. This issue was not preserved, as there was no timely objection to the
trial court’s ruling. Rule 5A:18.
Child and Spousal Support – Assignments 28 and 30
Ms. Parikh argues that the trial court incorrectly calculated Mr. Parikh’s income for child
support purposes because it did not include his stock bonus and overtime. Ms. Parikh also
contends the trial court erred in not awarding her spousal support. These issues were not
preserved, as Ms. Parikh failed to make timely objections to the trial court’s rulings.
Rule 5A:18.
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Visitation – Assignment 31
The trial court ruled that the parties should determine visitation for the holidays and the
summer. The final decree presented by the parties provides that a parent, father in odd years and
mother in even years, may take the child to India for three weeks in the summer. Ms. Parikh
argues that the trial court erred in not setting these visits to extend for three months. She argues
that it is in the child’s best interests to visit with her extended family and learn about her heritage
in India. However, Ms. Parikh did not make this argument to the trial court. She merely noted,
as her objection, “Limiting visits to India to 3 weeks.” She stated no basis for the objection. She
asserted no reference to the child’s best interests or to how those interests might be affected by
any particular length of visitation. She asserted no error in the trial court’s ruling. Under those
circumstances, we find no abuse of discretion in the trial court’s ruling.
Tax Dependency Exemption – Assignment 32
Ms. Parikh argues that the trial court erred in ordering that the parties shall alternate the
child dependency exemption because the trial court cannot force her to sign the IRS form to
allow Mr. Parikh to claim the child.
No argument preserving this question is presented to us on appeal. Ms. Parikh simply
objected on the final decree, “Alternating Child Exemption.” This objection is not sufficient to
preserve her argument on appeal, as it was not stated with “reasonable certainty at the time of the
ruling.” Rule 5A:18.
Value of Cars – Assignments 34 - 36
Ms. Parikh argues that the trial court erred in valuing the parties’ cars. The trial court
valued Ms. Parikh’s car at $10,700 and Mr. Parikh’s car at $4,575. Ms. Parikh also argues that
the trial court erred by not considering her car loan balance of $6,075 during equitable
distribution.
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These issues were not preserved, as Ms. Parikh made no timely objection to these rulings.
Rule 5A:18.
Ms. Parikh’s Business – Assignment 37
Ms. Parikh argues that the trial court erred in finding that her business was marital
property.
This issue was not preserved. Ms. Parikh made no timely objection to this ruling. Rule
5A:18.
Values Above Tax Valuation – Assignment 38
Ms. Parikh argues that the trial court erred in valuing the home above the tax valuation.
The parties stipulated as follows: “The marital home is valued at $152,245.00. The parties owe
$71,888.99 as of March 26, 2010.”
This issue was not preserved. Ms. Parikh made no timely objection to this ruling.
Rule 5A:18.
Ms. Parikh’s Parents – Assignments 39 and 41
Ms. Parikh argues that the trial court erred in dividing a bank account that she owns with
her parents. However, the parties stipulated that “[a]ll of the accounts and funds before the Court
are marital funds.” “According to Black’s Law Dictionary, 3rd Ed., a stipulation contemplates
‘an agreement between counsel respecting business before a court’. If the stipulation was agreed
to there can be no objection to it.” Burke v. Gale, 193 Va. 130, 137, 67 S.E.2d 917, 920 (1951).
Ms. Parikh also argues that funds in a certificate of deposit were a gift from her parents.
This issue was not preserved. Ms. Parikh made no timely objection to this ruling. Rule 5A:18.
Attorney’s Fees – Assignment 42
Ms. Parikh argues that the trial court erred in not awarding her attorney’s fees. The trial
court declined to award either party attorney’s fees because
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[I]n this case, I just come to the conclusion that the good old
American rule ought to apply and let everybody pay their own
attorney’s fees. And this is . . . mainly because the one person who
I feel who might be entitled to an attorney fee award is Mr. Parikh,
but he’s in a much better economic situation right now than
Ms. Parikh is, given the decision of this Court.
* * * * * * *
I know that Ms. Parikh wants an attorney fee award, but I just
think the parties ought to just bear their own attorney’s fees in this
case.
“‘[A]n award of attorney’s fees is a matter submitted to the trial court’s sound discretion
and is reviewable on appeal only for an abuse of discretion.’” Richardson v. Richardson, 30
Va. App. 341, 351, 516 S.E.2d 726, 731 (1999) (quoting Graves v. Graves, 4 Va. App. 326, 333,
357 S.E.2d 554, 558 (1987)).
Considering the circumstances of this case, the trial court did not abuse its discretion in
deciding that the parties should be responsible for their respective attorney’s fees.
Attorney’s fees and costs incurred on appeal
Mr. Parikh requested an award of attorney’s fees incurred on appeal, whereas Ms. Parikh
requested an award of attorney’s fees and costs incurred on appeal. See O’Loughlin v.
O’Loughlin, 23 Va. App. 690, 695, 479 S.E.2d 98, 100 (1996). Because Mr. Parikh has largely
prevailed in this appeal, we deny Ms. Parikh’s request for attorney’s fees and costs. Rogers v.
Rogers, 51 Va. App. 261, 274, 656 S.E.2d 436, 442 (2008). Considering the entire record in this
case and the nature of this appeal, we hold that Mr. Parikh is entitled to a reasonable award of
attorney’s fees, and we remand the case to the trial court to set that award.
CONCLUSION
The trial court’s judgment is affirmed. We remand this case to the trial court for
determination and award of appropriate appellate attorney’s fees to Mr. Parikh.
Affirmed and remanded.
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