Thakar v. Thakar

2022 Ark. App. 284

646 S.W.3d 666

Ashok THAKAR, Appellant

v.Jagruti THAKAR, Appellee

No. CV-21-203

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered June 1, 2022

Taylor & Taylor Law Firm, P.A., by: Jennifer Williams Flinn, Andrew M. Taylor, and Tasha C. Taylor, for appellant.

Wright, Lindsey & Jennings LLP, Little Rock, by: Troy A. Price and Alexander T. Jones ; and Langdon Davis, by: Demaris A. Hart, for appellee.

RITA W. GRUBER, Judge

Ashok Thakar appeals from a divorce decree entered on November 24, 2020, ending his twenty-five-year marriage to Jagruti Thakar. He presents two points on appeal: (1) the circuit court erred in its division of the marital estate—specifically by including marital property Ashok transferred to India; and (2) there was insufficient evidence to support the circuit court's valuation of the parties’ home in India.

After a de novo review, we affirm the circuit court's order.

The parties lived in Hope at the time of their separation and divorce, and they do not dispute that all their property was marital property. They raised two children and together owned and operated several businesses. They owned two different motel properties in Hempstead County: the Village Inn, an RV park, and a convenience store, which they owned and operated through Nidhi Enterprises, Inc.; and the Relax Inn, which they owned and operated through Pavan Enterprises, Inc. They also owned a home in Little Rock, two IRAs, two whole-life-insurance policies, personal vehicles, several bank accounts, and a home and an apartment in India. The only property at issue on appeal is the property in India, both the real estate and the funds that exist or existed in various accounts or with Ashok's family members. Jagruti contends that Ashok transferred marital funds from the parties’ joint accounts in the United States to India without her knowledge and consent. It was unclear exactly where all these funds went, if they remained in Ashok's individual accounts, or if Ashok's family members possessed some of the funds. The parties also dispute the value of the marital home in India.

After a hearing spanning two days, the circuit court made the following findings regarding the parties’ property:

Throughout the proceedings, on March 6, 2020, and October 7, 2020, it became clear to the Court that the parties had worked together for years to build up a marital estate which would benefit the both of them sufficiently in the future. The parties were owners of two different motel properties in Hope, Arkansas, one under the corporate name of PAVAN, Enterprises, Inc., and the other is under the corporate name of NIDHI Enterprises, Inc. The parties contributed equally in the work of the motels as well as raising two children. During the years of the motel operations, it would appear the parties were consistent in building up their marital assets. However, only after [Ashok] separated from [Jagruti] did [Jagruti] learn of a systemic process by which [Ashok] removed marital assets without the consent and knowledge of [Jagruti]. A significant amount of funds were transferred by [Ashok] to India without the consent and knowledge of [Jagruti]. With the evidence presented, the Court concludes it was the intention of [Ashok] to remove marital assets into his sole control. As a result, the Court must divide the property in accordance with ACA 9-12-315, one-half (1/2) to each party, as to do otherwise would cause [Ashok] to profit from his scheme of deceit.

In reviewing the assets, the Court finds the marital property should be divided as follows:

(1) [Ashok] shall be awarded the following:

Cash transferred to India	$280,060.12
Home in India	211,000.00
Apartment in India	30,000.00
All Interest and Payments made by Husband in PAVAN, Inc.	179,110.24
Husband's IRA	11,795.79
Husband's Life Insurance	15,528.77
Funds transferred to Husband's Family	133,141.48
Total – Husband	860,636.40
Promissory Note to Wife	-87,027.98
TOTAL	$733,608.42

(2) [Jagruti] shall be awarded the following:

House in Little Rock, Arkansas	$50,804.00-Equity
NIDHI Enterprises	511,296.00
2011 Toyota	10,523.00
2005 Toyota	3,508.00
Wife's IRA	11,443.36
Wife's Life Insurance	13,124.80
Savings	11,616.27
Trailer	100.00
612,415.43
Wife to have control exclusive of Husband in children's accounts	+74,165.00
686,580.43
Note from Husband	+87,027.98
TOTAL	$773,608.41

The circuit court is given broad powers to distribute both marital and nonmarital property to achieve an equitable division, and the overriding purpose of the property-division statute is to enable the court to make a division that is fair and equitable. Steeland v. Steeland , 2018 Ark. App. 551, at 8, 562 S.W.3d 269, 274. We review division-of-marital-property cases de novo, but we will not reverse the circuit court's findings of fact unless they are clearly erroneous or against the preponderance of the evidence. Perser v. Perser , 2019 Ark. App. 467, at 5, 588 S.W.3d 395, 401. A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id. We also give due deference to the circuit court's determination of the credibility of the witnesses and the weight to be given to their testimony. Norwood v. Norwood , 2020 Ark. App. 345, at 5–6, 604 S.W.3d 252, 256. This court will not substitute its judgment for that of the circuit court, which observes witnesses firsthand. Id.

I. Division of Marital Estate

For his first point on appeal, Ashok argues that the circuit court erred in dividing the parties’ marital property by attributing $413,201.60—$280,060.12 in cash transferred to India and $133,141.48 in funds to Ashok's family—to his half of the marital estate. He claims that the court penalized him for transferring these funds without Jagruti's consent and knowledge and that the court's division violates Arkansas law. He claims that Jagruti must prove he transferred these funds with the intent to defraud her before the court may reimburse her. He argues that the circuit court did not find "fraud" but found only that he transferred sums to India without Jagruti's knowledge and consent. Thus, he claims the court's inclusion of the transferred amounts in the marital estate was clear error.

Parties in a divorce action are not required to account for every sum spent in a marriage. Chism v. Chism , 2018 Ark. App. 310, at 6, 551 S.W.3d 394, 398. However, a spouse may recover his or her interest in marital property that the other spouse has transferred if the latter made the transfer for the purpose of defrauding the former of his or her interest in the property. Skokos v. Skokos , 332 Ark. 520, 535, 968 S.W.2d 26, 34 (1998). The supreme court's most recent opinion on this issue appears to confirm the fraud requirement from Skokos , but it also recognized its holding in Ramsey v. Ramsey , 259 Ark. 16, 531 S.W.2d 28 (1975), that a court should consider the "wrongful disposition" of property by one spouse in ordering the division of marital property. Chekuri v. Nekkalapudi , 2020 Ark. 74, at 12 n.2, 593 S.W.3d 467, 474 n.2. We do not read the cases so narrowly that the requirement of fraud does not also include "scheme of deceit," as the circuit court found here.

Testimony at the hearing established that Ashok handled the finances for the parties and their businesses during the marriage. Jagruti's brother, Bhavesh Trivedi, testified that women do not handle the money in India, that the male is the head of the household and manages all financial aspects, and that Jagruti was unaware of the parties’ finances. Trivedi testified that, after the parties separated, he and his brother helped Jagruti review her bank statements, obtain bank statements from the accounts in India, and trace the funds. Jagruti introduced documentary evidence that Ashok had transferred $280,060.12 to accounts in India. Ashok does not dispute that he transferred these amounts from the parties’ joint accounts in the United States, but he does dispute that he still has those funds. He testified that those sums were transferred to joint accounts in India over a ten-year period and then were transferred to fixed-deposit accounts to earn a better interest rate, akin to a certificate of deposit in a U.S. bank. The documents introduced by Jagruti indicate that these fixed deposits were in Ashok's name only, although Ashok testified that the fixed-deposit accounts were jointly owned. He testified that he had transferred the balance of these accounts to his father after the parties’ separated, denying however that the accounts contained the entire $280,000 at the time of the transfer. He said that the parties spent most of the funds while they were in India, but he produced no documentation to show this.

Jagruti also testified that she discovered after the parties separated that Ashok had been giving money to various members of his extended family...