Boolchand v. Boolchand

         [Cite as Boolchand v. Boolchand, 2020-Ohio-6951.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

AMITA RIKHY BOOLCHAND, : APPEAL NO. C-200111
TRIAL NO. DR-1802085
Plaintiff-Appellee/ :
Cross-Appellant,
: O P I N I O N.
vs.
:
PUNIT BOOLCHAND,
:
Defendant-Appellant/
Cross-Appellee. :

Appeal From: Hamilton County Court of Common Pleas, Domestic Relations
Division

Judgment Appealed From Is: Affirmed

Date of Ju

         [Cite as Boolchand v. Boolchand, 2020-Ohio-6951.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



AMITA RIKHY BOOLCHAND,                           :           APPEAL NO. C-200111
                                                             TRIAL NO. DR-1802085
        Plaintiff-Appellee/                      :
        Cross-Appellant,
                                                 :             O P I N I O N.
  vs.
                                                 :
PUNIT BOOLCHAND,
                                                 :
    Defendant-Appellant/
    Cross-Appellee.                              :




Appeal From:        Hamilton County Court of Common Pleas, Domestic Relations
                    Division

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: December 30, 2020


Wagner & Bloch and Deborah L. McPartlin, for Plaintiff-Appellee/Cross-Appellant,

Cors & Bassett, LLC, and Michael L. Gay, for Defendant-Appellant/Cross-Appellee.
                          OHIO FIRST DISTRICT COURT OF APPEALS




W INKLER , Judge.

          ¶1     This appeal arises from a judgment of divorce granted to the parties,

plaintiff-appellee/cross-appellant Amita Rikhy Boolchand (“Rikhy”)1 and defendant-

appellant/cross-appellee Punit Boolchand (“Boolchand”).                 Boolchand asserts error

related to the trial court’s division of property, challenging the determination that his

defined contribution retirement plan account was entirely marital property and that

a joint investment account contained, in part, Rikhy’s separate, inherited funds.

Rikhy argues, in her cross-appeal, that the court erred when it failed to require

Boolchand to contribute to her attorney fees. For the reasons that follow, we affirm.

                                      Background Facts

          ¶2     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.”


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                     OHIO FIRST DISTRICT COURT OF APPEALS



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



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                    OHIO FIRST DISTRICT COURT OF APPEALS



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



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                    OHIO FIRST DISTRICT COURT OF APPEALS



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.



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                      OHIO FIRST DISTRICT COURT OF APPEALS



       ¶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:




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       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



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                    OHIO FIRST DISTRICT COURT OF APPEALS



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




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                     OHIO FIRST DISTRICT COURT OF APPEALS



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 sufficiency-

and weight-of-the-evidence standards.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       ¶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



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                    OHIO FIRST DISTRICT COURT OF APPEALS



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.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



                           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. C-

090843, 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.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       ¶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.

                                      Conclusion

       ¶38 Having overruled the assignments of error, we affirm the judgment of

the trial court.

                                                                     Judgment affirmed.


MYERS, P.J., and CROUSE, J., concur.


Please note:

        The court has recorded its own entry on the date of the release of this opinion.




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