Roger Boykin v. Betty Boykin

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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ca05-225

DIVISION II

CA05-225

December 14 , 2005

ROGER BOYKIN

APPELLANT

v.

BETTY BOYKIN

APPELLEE

APPEAL FROM DREW COUNTY CIRCUIT COURT

[NO. E-2000-313-2]

HONORABLE ROBERT C. VITTITOW, CIRCUIT JUDGE

AFFIRMED

Andree Layton Roaf, Judge

Appellee Betty Boykin filed a motion on her behalf and as Guardian of the Person and Estate of Anthony James Boykin, II, requesting an accounting of funds taken from the settlement that her grandson Anthony Jr. had received from the proceeds of a wrongful-death settlement involving his father, Anthony II. A hearing was held regarding this matter, and the trial court found that Appellant Roger Boykin had made unauthorized withdrawals from Anthony Jr.'s settlement funds, and it ordered Roger to pay back $95,814.46. The trial court also found that Roger Boykin's trucking business was a partnership between him and his late son Anthony II (Anthony Jr.'s father), and it awarded Anthony Jr. one-half of the trucking business as an inheritance. Roger now appeals the trial court's decision, arguing that the finding that Roger should pay back the money and the finding that the trucking business was a partnership were clearly erroneous. We affirm.

Roger Boykin and Betty Boykin were divorced in 1976, but they continued to live together and represented themselves as husband and wife until Roger moved out on October 1, 2000. Rogeroperated a trucking business by the name of A.R.K. Trucking that was located next door to his and Betty's home. In 1997, during the time Roger and Betty were living together after their divorce, they suffered the loss of their son Anthony II. They received a settlement from a wrongful death action in 1998 and relinquished any claim to the proceeds to their minor grandson, Anthony Jr. The total of their portion plus Anthony's portion of the settlement totaled $365,131, and the Boykins placed this money into a savings account at First Service Bank in Dermott.

This case originated when Roger filed a suit to recover his interest in all personal property and real estate held by the parties. The trial court ordered both parties to refrain from transferring, disposing of, cashing in, or any way encumbering or pledging any property or assets that were subject to its jurisdiction. The order also stated that neither party should sell or transfer property in or under the control of either party during the pendency of the action. Betty filed a motion on her behalf and as Guardian of the Person and Estate of Anthony James Boykin, II, requesting an accounting of funds taken from the settlement that Anthony Jr. had received from the proceeds of the wrongful-death settlement.

Roger explained at a hearing on March 26, 2004, that he had used approximately $45,000 of the settlement funds that he had put into a CD as collateral for a loan from First Service Bank on which he defaulted. This CD was forfeited to pay off the loan. Roger also explained that, before he and Betty separated, he also made seven withdrawals totaling $42,793.38 from the settlement proceeds on deposit and that this money was used for the benefit of him, Betty, and Anthony Jr. Roger testified that he could not remember how some of the withdrawals were spent. Both Betty and Anthony Jr. testified that they did not receive any benefit from the withdrawals and loan proceeds.

Anthony Jr. testified that Roger told him that since his father and uncle had passed away, he (Roger) would run the trucking business until Anthony Jr. and his cousin were old enough to run it. He also testified that Roger stated that the trucking business now belonged to him (Anthony Jr.). According to Anthony Jr., there are not as many trucks and trailers at the business presently as there were at the time his father passed away.

Roger testified that he might have told Anthony Jr. that the trucking business would be left to him one day but he never told Anthony Jr. that the trucking business presently belonged to him. Roger could not explain all of the withdrawals he made from the settlement funds. He withdrew a total of $10,000 on November 9, 1998, and he testified that he did not know what he used the money for except that he knows he and Betty bought central air and heat for the house around that time, and they used some money to get a room set up for Anthony Jr. When asked about a withdrawal of $3000 on April 2, 1999, Roger testified that he had "no idea" what that money was used for. He also stated that he did not sell any of the trucking assets.

Betty testified that her grandson Anthony Jr. lived with her and Roger until they separated and that he now lives with her. She stated that it was her understanding that the trucking business was a partnership. According to Betty, she never received any of the money from Roger's withdrawals from the settlement funds. She testified that she was suspicious that Roger was withdrawing funds out of Anthony Jr.'s money, and that she retained an attorney to protect Anthony's interests. She stated that she wanted to put Anthony Jr.'s money into a trust as the court had ordered her and Roger to do, but Roger would not agree to put the money into a trust.

The trial court found that Roger's use of the settlement proceeds was without court approval and that Betty and Anthony Jr. did not get any benefit from the withdrawals. It awarded Betty, as guardian of Anthony Jr., a total of $95,814.46, which represents the money Roger withdrew from the account ($42,793.38), the money that Roger forfeited for defaulting on a loan ($45,108.35), and the money Betty had to borrow from the estate to pay attorney fees ($7,912.73).

Another issue in this case was whether A.R.K. Trucking was a partnership. According to Roger, he classified the business as a partnership on his income tax returns. He testified that he did not operate the company as a partnership and that his son did not share in the profits with him. Roger stated that A.R.K. Trucking has not made a profit since his son Anthony II died. On cross-examination, Roger made the following statement: "At the time of his [Anthony II's] death we were a partnership; we were sharing profits .... We would still be partners." The trial court found thetrucking business to be a partnership between Roger and Anthony II, and it awarded Betty, as guardian of Anthony Jr., fifty percent interest in the trucking business as an inheritance from Anthony Jr.'s father, Anthony II.

Roger appeals the decision of the trial court. He argues that the trial court erred when it ordered him to pay $95,814.46 to Betty Boykin as guardian and that the trial court erred when it awarded half of the trucking business to Anthony Jr.

In a bench trial, the standard of review is whether the trial court's findings were clearly erroneous or clearly against the preponderance of the evidence. Chavers v. EPSCO, Inc., 352 Ark. 65, 98 S.W.3d 421 (2003). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been committed. Id. Disputed facts and determinations of credibility are within the province of the fact-finder. Id.

First, Roger argues that the trial court erred when it ordered him to pay $95,814.46 for the unauthorized removal of funds from the settlement account. Roger asserts that "[t]here was a strong indication that the trial judge may have been biased against [him]." The trial judge did in fact comment on Roger's credibility: "In a battle over credibility, Mr. Boykin cannot prevail. He has stated under oath [that] he misled Judge Mazzanti at the hearing on [the] 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 andthat 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.