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Boykin v. Boykin12/14/2005
misled Judge Mazzanti at the hearing on division of wrongful death proceeds. ... It is obvious Mr. Boykin will state, under oath or otherwise, whatever he feels will serve him best at the time." The hearing on the wrongful-death proceeds was held before Judge Mazzanti in 1998.
Apparently, in a hearing held on July 15, 2003, before Judge Vittitow concerning the ownership of the wrongful death proceeds, Roger testified that he misled Judge Mazzanti by testifying that he was married in 1998 when he was not actually married. Only the 2004 hearing is abstracted, however, and this is the only hearing transcript contained in the record. In the 2004 hearing that is the subject of this appeal, Roger did admit to misleading Judge Mazzanti, and the trial court here obviously gave this statement much weight.
The trial court did not find Roger's testimony concerning his withdrawals to be credible. Not only did Roger testify under oath that he misled the trial court in a 1998 hearing, but he also testified that he was not sure how he used some of the money he received from the withdrawals and that he could not account for the use of this money.
Recognition must be given to the trial court's superior opportunity to determine a witness's credibility and the weight to be given to his or her testimony. Brown v. Blake, 86 Ark. App. 107, 161 S.W.3d 298 (2004). The trial court's order that Roger pay $95,814.46 to Betty as guardian of Anthony Jr. for the unauthorized removal of funds from the settlement account was not clearly erroneous.
For his second point on appeal, Roger argues that the trial court erred when it awarded one-half of the trucking business to Betty as Guardian of Anthony Jr. Roger asserts that his trucking business was a partnership with his late son in name only. He admitted that he reported his trucking business as a partnership on income tax returns for several years. He argues, however, that the trucking business was not operated as a partnership and that his late son only drove a truck in the operation of the business and was paid a salary according to the miles he drove.
A partnership is defined as "an association of two (2) or more persons to carry on as co-owners a business for profit." Ark. Code Ann. ยง 4-42-201(1) (Rep. 2001) [repealed January 1, 2005]. The existence of a partnership need only be proved by a preponderance of the evidence. Rigsby v. Rigsby, 346 Ark. 337, 57 S.W.3d 206 (2001). The primary test to determine whether there was a partnership between their parties is their actual intent to form and operate a partnership. Id.
The trial court found that the business was a partnership, and Roger has cited no convincing authority to support his argument that this decision was in error. Here, there is strong evidence that Roger classified the business as a partnership on his tax returns for several years. In a 1997 tax return, specifically, Roger reported that Anthony II's percentage of the partnership capital was fifty percent and that he shared in the profit and losses fifty percent. Roger admitted on cross-examination at the hearing that at the time of Anthony II's death, the business was a partnership and that they were sharing in the profits. The trial court was not clearly erroneous in finding that the business was a partnership and awarding one-half of the business to Betty as Anthony Jr.'s guardian.
Affirmed.
Crabtree and Baker, JJ., agree.
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