                     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


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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.




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