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. 
 2 

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 
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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 
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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
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 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.