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Date: 06-30-2022
Case Style:
AMITA RIKHY BOOLCHAND vs. PUNIT BOOLCHAND
Case Number: C-200111, C-200120
Judge:
Robert C. Winkler
Court:
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
On appeal from The Hamilton County Court of Common Pleas, Domestic Relations
Division
Plaintiff's Attorney: see below4
Defendant's Attorney:
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Description:
Cincinnati, Ohio - Divorce lawyers represented both Plaintiff-Appellee and Defendant-Appellant with appealing from a judgment of divorce granted to the parties.
Rikhy and Boolchand were married in New Delhi, India, on March 21,
1977, and had two children during the marriage, both of whom are emancipated. The
parties physically separated on July 23, 2018. Rikhy began the divorce proceedings
in November 2019. Ultimately, both parties sought a divorce.
{¶3} The matter was heard before a magistrate. Issues at trial included the
classification, valuation, and division of substantial assets and whether Rikhy was
entitled to have Boolchand contribute to her attorney fees. The magistrate set forth
comprehensive and detailed findings of fact and conclusions of law resolving the
issues. Pertinent to this appeal, the magistrate determined (1) Boolchand’s defined
contribution retirement plan account with TIAA-CREF, a retirement savings benefit
offered by his employer, the University of Cincinnati, (“UC”) was entirely marital
property, even though Boolchand began his employment with UC before the
marriage, (2) Rikhy had a separate property interest in a mutual fund account that
1 The divorce decree restored plaintiff to her former name of “Amita Rikhy.”
OHIO FIRST DISTRICT COURT OF APPEALS
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contained marital funds because she successfully traced inherited funds, and (3) each
party would be responsible for their attorney fees.
{¶4} Both parties filed objections to the magistrate’s decision. With
respect to the issues raised on appeal, the trial court overruled the parties’
objections. The court then entered a final judgment and decree of divorce.
Boolchand’s Assignments of Error
{¶5} Boolchand’s two assignments of error relate to the trial court’s
classification, valuation, and division of marital and separate property. In a divorce
proceeding, the trial court “shall * * * determine what constitutes marital property
and what constitutes separate property” and then “shall divide the marital and
separate property equitably between the spouses, in accordance with this section.”
R.C. 3105.171(B). Generally, this means that the court should award each spouse his
or her separate property and then distribute the marital estate equally, unless an
equal division would be inequitable. R.C. 3105.171(B)-(D).
{¶6} R.C. 3105.171 sets forth specific definitions of marital and separate
property to assist the trial court in achieving an equitable distribution. Of
importance here, “marital property” includes “real or personal property that
currently is owned by either or both of the spouses, including * * * retirement
benefits of the spouses, and that was acquired by either or both of the spouses during
the marriage.” R.C. 3105.171(A)(3)(a)(i)-(iv). Marital property also includes any
“currently” held “interest” in the “retirement benefits of the spouses” that was
“acquired by either or both of the spouses during the marriage.” R.C.
3105.171(A)(3)(a)(ii).
{¶7} Marital property “does not include any separate property,” see R.C.
3105.171(A)(3)(b), but it generally includes “all income and appreciation on separate
OHIO FIRST DISTRICT COURT OF APPEALS
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property, due to the labor, monetary, or in-kind contribution of either or both of the
spouses that occurred during the marriage.” R.C. 3105.171(3)(a)(iii).
{¶8} Separate property, by contrast, includes property acquired before the
marriage and certain other property, such as inheritances and gifts, acquired by one
spouse during the marriage. R.C. 3105.171(A)(6)(a). As long as it is traceable,
separate property retains its identity, even when it is commingled with marital
property. See R.C. 3105.171(A)(6)(b); Peck v. Peck, 96 Ohio App.3d 731, 734, 645
N.E.2d 1300 (12th Dist.1994). The party in a divorce action claiming that specific
property owned when the marriage terminates is not marital but separate has the
burden of proof by a preponderance-of-the-evidence standard. Dunn v. Dunn, 1st
Dist. Hamilton Nos. C-010282 and C-010292, 2002-Ohio-6247, ¶ 14, citing Peck at
734.
{¶9} This court reviews “the manner in which a domestic-relations court
executes an equitable division of property for an abuse of discretion.” McKenna v.
McKenna, 1st Dist. Hamilton No. C-180475, 2019-Ohio-3807, ¶ 9. An abuse of
discretion is more than a mere error of judgment; it implies that the court’s attitude
is arbitrary, unreasonable, or unconscionable. See, e.g., AAAA Ents., Inc. v. River
Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 553 N.E.2d 589
(1990); Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
Factual issues, however, such as those arising in the classification and valuation of
property, are reviewed under the distinct sufficiency- and weight-of-the-evidence
standards. See, e.g., McKenna at ¶ 9-10.
Division of the Defined Contribution Account
{¶10} In his first assignment of error, Boolchand argues the trial court erred
when dividing his UC defined contribution account. Boolchand began his
OHIO FIRST DISTRICT COURT OF APPEALS
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employment with UC and “enrolled” in the retirement savings plan approximately
seven and one half years before the marriage. The value of his account and
ultimately his retirement benefit depend on how much was contributed for
investment and how well the investment performed; it was not calculated based on a
formula that took into consideration years of service. See 29 U.S.C. 1002(34); Hoyt
v. Hoyt, 53 Ohio St.3d 177, 559 N.E.2d 1292 (1990), fn. 11.
{¶11} At the time of the divorce proceedings, Boolchand was 75 years old and
still employed by UC. The defined contribution account had a value of over
$5,500,000. Although the parties agreed that Rikhy would be entitled to share only
in the marital portion of the account, which would be divided equally, the parties
disagreed with respect to the method for determining the marital portion of the
account.
{¶12} To determine the marital portion of the defined contribution account,
Boolchand relied on a “coverture formula,” based on a ratio of the number of years of
his employment at UC during the marriage to the total number of years of his
employment. Thus, he claimed 18 percent of the value of the account at the time of
divorce as his separate property and only 78 percent as marital.
{¶13} Rikhy argued that the use of the coverture fraction was inappropriate
to determine the marital and separate portions of the defined contribution account
because the retirement benefit would be based on contributions and market forces,
not a formula that would take into account years of service. Because Boolchand
failed to provide any tracing evidence, such as the value of the plan at the date of
marriage, the value of contributions made during the marriage, or the percentage of
salary contributed by him or his employer before or during the marriage, Rikhy
argued the plan was entirely marital property to be divided equally.
OHIO FIRST DISTRICT COURT OF APPEALS
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{¶14} The trial court rejected the application of the coverture fraction to
divide the defined contribution plan and additionally found the asset to be entirely
marital because Boolchand failed to establish, by a preponderance of the evidence,
the value of any claimed separate interest. The court ultimately awarded Rikhy 50
percent of the value of the account as of December 1, 2018, plus growth or losses on
her share until actual division of the asset.
{¶15} Boolchand argues the trial court’s rejection of the coverture fraction
is at odds with the Ohio Supreme Court’s decision in Hoyt v. Hoyt, 53 Ohio St.3d
177, 559 N.E.2d 1292 (1990). He contends that Hoyt requires a trial court in divorce
proceedings to use the coverture fraction to determine the marital and separate
portions of a retirement plan, if the benefit is vested but unmatured, regardless of the
characteristics of the plan. We disagree.
{¶16} In Hoyt, decided before the enactment of R.C. 3105.171, the Supreme
Court recognized the difficulty courts face when considering pension and retirement
benefits in a property division stemming from a divorce. The court set forth
“guidelines” to be used by the trial courts when resolving such issues, but, more
importantly, also recognized that “no specific rule can apply in every case.” Id. at
179. Specifically, the court held that “[w]hen considering a fair and equitable
distribution of pension or retirement benefits in a divorce, the trial court must apply
its discretion based on the circumstances of the case, the status of the parties, the
nature, terms and conditions of the pension or retirement plan, and the
reasonableness of the result.” Id. at paragraph one of the syllabus.
{¶17} To support his argument that the trial court lacked discretion in this
matter, Boolchand relies on the following passage in Hoyt:
OHIO FIRST DISTRICT COURT OF APPEALS
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In a situation involving vested but unmatured retirement benefits, the
trial court may reserve jurisdiction and either determine the parties’
proportionate shares at the time of the divorce or determine
proportionality when the benefits become vested and matured. In
determining the proportionality of the pension or retirement benefits,
the non-employed spouse, in most instances, is only entitled to share
in the actual marital asset. The value of this [marital asset] would be
determined by computing the ratio of the number of years of
employment of the employed spouse during the marriage to the total
years of his or her employment.
(Emphasis added.) Id. at 182.
{¶18} We are not persuaded that this passage evinces the Hoyt court’s
adoption of an inflexible, bright-line rule requiring the use of a coverture fraction to
value the marital and separate portions of every vested but unmatured retirement
benefit. The Hoyt court repeatedly and expressly rejected the use of a bright-line
rule, announcing that “flat rules have no place in determining a property division.”
Id. at 180; see Blaner v. Blaner, 11th Dist. Trumbull No. 94-T-5163 (June 9, 1995)
(rejecting premise that use of coverture fraction was mandatory); Ware v. Ware, 5th
Dist. Licking No. 12CA91, 2014-Ohio-2606, ¶ 25; Sowald & Morganstern, and
Treneff, Domestic Relations Law, Baldwin’s Ohio Practice, Section 12:18 (2002-
2021 Ed., Dec. 2020 update) (“[T]here is no hard and fast rule requiring the trial
court to apply a coverture factor.”).
{¶19} The specific facts in Hoyt involved a spouse’s defined benefit
retirement plan. The participating spouse’s benefits were vested at the time of the
divorce proceedings, but he was still employed and his retirement benefit would be
OHIO FIRST DISTRICT COURT OF APPEALS
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determined using a formula that took into account his years of employment.
Considering this factual context, the use of the coverture fraction would be
appropriate to determine the marital and separate portions of the retirement benefit.
{¶20} In this case, the value of the defined contribution retirement benefit is
based on contributions left in the account and market forces, not years of
employment or another formula. Therefore, the use of the coverture fraction would
be an arbitrary and unnecessary method for determining the marital portion of the
account. See Gary Shulman, Qualified Domestic Relations Order Handbook, Section
11.02 (3d Ed., 2014 supplement). Ultimately, the trial court’s analysis was supported
by a sound reasoning process. We conclude the trial court did not abuse its
discretion when selecting a method for determining the marital and separate
portions of the defined contribution account. See AAAA Ents., 50 Ohio St.3d at 161,
553 N.E.2d 597.
{¶21} Moreover, to the extent that Boolchand is also challenging the trial
court’s factual determination that the account was entirely marital, he has not shown
error. At a minimum, Boolchand had the burden to prove, by a preponderance of the
evidence, that the defined contribution account contained premarital, separate
property. Dunn, 1st Dist. Hamilton Nos. C-010282 and C-010292, 2002-Ohio-6247,
at ¶ 14, citing Peck, 96 Ohio App. 3d at 734, 645 N.E.2d 1300. Boolchand did not
present evidence of the value of his account at the time of marriage. As the trial
court noted, Boolchand submitted no evidence as to contributions to the account
before the marriage. He did submit a letter showing he “enrolled” in the plan in 1969,
but this, without more, was insufficient evidence for tracing contributions.
Consequently, the trial court’s determination that the asset was entirely marital was
OHIO FIRST DISTRICT COURT OF APPEALS
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supported by sufficient evidence and was not against the manifest weight of the
evidence.
{¶22} In summary, because Boolchand claimed the retirement plan was an
asset containing both marital and separate portions, he was required to demonstrate
and trace his claimed separate property interest in the asset. Boolchand relied
entirely on the coverture fraction to establish his separate property interest. We
agree with the trial court that Boolchand’s reliance on the coverture fraction to
establish his separate property interest in his defined contribution plan was
misplaced. Thus, we conclude the trial court did not err when it determined that the
asset was entirely marital. Accordingly, we overrule Boolchand’s first assignment of
error.
Inherited Funds
{¶23} Boolchand’s second assignment of error challenges the trial court’s
finding that Rikhy traced her separate inherited funds in a mutual fund account with
TIAA-CREF. Boolchand does not dispute that Rikhy received two inheritances
during the marriage from her parents in India or that she deposited the repatriated
inherited funds in the parties’ checking account with Key Bank, in August 2013 and
April 2018. But he maintains that Rikhy presented no credible evidence from which
the trial court could have identified those funds as Rikhy’s separate property in the
TIAA-CREF mutual fund account.
{¶24} In December 2018, the challenged mutual fund account had a value of
$275,862.51, and the court determined that 74.16 percent of the value was Rikhy’s
separate, inherited property, and the remaining 25.84 percent was marital. Because
this is a factual determination, we review this assignment of error under sufficiencyand weight-of-the-evidence standards.
OHIO FIRST DISTRICT COURT OF APPEALS
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{¶25} Separate property, including an inheritance received by one spouse
during the marriage, retains its separate nature as long as it is traceable, regardless
of whether it has been commingled with other property. See R.C. 3105.171(A)(6)(b);
Dunn, 1st Dist. Hamilton Nos. C-01028 and C-010292, 2002-Ohio-6247 at ¶ 18.
Generally, the evidence of tracing must be specific, and oral testimony unsupported
by documentary evidence should not carry much weight. See Harkey v. Harkey, 11th
Dist. Lake No. 2006-L-273, 2008-Ohio-1027, ¶ 64; Dunn at ¶ 21-22.
{¶26} Here, the record contains evidence from which the court could have
determined that the funds were traceable, even though they were extensively and
repeatedly commingled. To meet her burden of tracing, Rikhy presented voluminous
documentary evidence from the parties’ relevant financial accounts as well as her
own testimony. It was undisputed that through the marriage Rikhy had taken care of
the family finances and investments. She explained the path of the inherited funds
from the Key Bank account into the mutual fund account where they were invested,
then into a newly opened TIAA-CREF annuity account, and back into the mutual
fund account, accomplished, by necessity, by transfers in and out of the Key Bank
account.
{¶27} After Rikhy deposited her first inheritance into the mutual fund
account in August of 2013, the $222,227.43 account balance was 32.50 percent
marital and 67.50 percent separate. The balance decreased to $208,925.25, but
none of the inherited funds were withdrawn. Applying the percentages to the
reduced balance, the marital portion was valued at $67,900.71 and Rikhy’s separate
portion decreased to $141,024.54.
{¶28} When $75,000 from Rikhy’s second inheritance was transferred into
the mutual fund account in April 2018, the account became 23.77 percent marital
OHIO FIRST DISTRICT COURT OF APPEALS
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and 76.23 percent separate. After that deposit, just $34,300 of the mutual fund
account shares were redeemed. Rikhy claimed that all of those withdrawn funds
were used for marital purposes, but the trial court found Rikhy had not met her
burden of proof with respect to $20,000 of those funds. Thus, the trial court made
the appropriate adjustments to the percentages of marital and separate property and
concluded that Rikhy was entitled to receive 74.16 percent of the account’s value as
her nonmarital, separate property.
{¶29} Admittedly, the inherited funds were extensively commingled with
marital funds. But Rikhy also explained that martial expenses were routinely paid
out of the Key Bank account, and not the mutual fund account, and never from her
inherited funds. She was cross-examined on the tracing issues, including on gifts
made to the parties’ youngest child. For instance, Boolchand took the position at
trial that gifts to the parties’ youngest child, including a gift of almost $100,000
before Rikhy received the August 2013 inherited funds, were unilateral and should be
considered from her inherited funds, or were the result of financial misconduct. The
court resolved this factual issue against Boolchand because he had signed off on the
gift tax return.
{¶30} Ultimately, we conclude that the trial court’s determination that Rikhy
had traced her inherited funds in the TIAA-CREF mutual fund account was
supported by sufficient evidence and was not against the manifest weight of the
evidence. In weighing the evidence, the court of appeals must always be mindful of
the presumption in favor of the finder of fact. See Eastley v. Volkman, 132 Ohio
St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 21. Accordingly, we overrule
Boolchand’s second assignment of error.
OHIO FIRST DISTRICT COURT OF APPEALS
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Cross-Assignment of Error
{¶31} In her sole cross-assignment of error, Rikhy contends the trial court
erred by not ordering Boolchand to contribute to her attorney fees, which were
approximately $ 25,000 at the time of trial.
{¶32} The court in a divorce action may award all or part of reasonable
attorney’s fees to a party if the court finds the award “equitable.” R.C. 3105.73(A). In
making this determination, the court “may consider” the marital assets and income
of the parties, any award of temporary spousal support, the parties’ conduct, and
other relevant factors the court deems appropriate. Id.
{¶33} This court reviews the trial court’s decision on attorney fees under the
deferential abuse-of-discretion standard. Cwik v. Cwik, 1st Dist. Hamilton No. C090843, 2011-Ohio-463, ¶ 102. To be an abuse of discretion, the decision must be
unreasonable, arbitrary, or unconscionable. Blakemore, 5 Ohio St.3d at 219, 450
N.E.2d 1140.
{¶34} In this case, the trial court adopted the magistrate’s findings on the
issue of fees and ordered each party to pay their own fees. When reviewing Rikhy’s
request for fees, the magistrate found that that the parties had an equal ability to pay
their own fees, “the issues involved were significantly complex in nature[,] and
neither party took ‘frivolous’ positions.”
{¶35} Rikhy maintains she did not have an equal ability to pay her fees
because there was disparity in income and expenses. This conclusory claim is belied
by the record. Of note, she was awarded temporary spousal support of $6,250,
which amounted to 50 percent of Boolchand’s income, and then spousal support of
$5,355 until Boolchand’s retirement. In addition, at the conclusion of this matter,
she will receive assets worth approximately $3,000,000.
OHIO FIRST DISTRICT COURT OF APPEALS
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{¶36} Rikhy further maintains that Boolchand’s positions in the case,
including a claim of financial misconduct, were frivolous and led to unnecessary
expenses. The claim of financial misconduct, however, was not frivolous and was tied
to the litigation of the complex tracing of Rikhy’s claimed inherited funds.
{¶37} Ultimately, Rikhy’s arguments do not convince us that the trial court
abused its broad discretion when it refused to order Boolchand to contribute to
Rikhy’s fees. Accordingly, we overrule Rikhy’s sole assignment of error.
Outcome: Having overruled the assignments of error, we affirm the judgment of
the trial court.
Judgment affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: