Weinig v. Weinig

• Decision Date: 20 December 1996
• Docket Number: No. 46A03-9510-CV-357,46A03-9510-CV-357
• Citation: 674 N.E.2d 991
• Parties: Mike A. WEINIG, Appellant-Respondent, v. Dana L. WEINIG, Appellee-Petitioner.
• Court: Indiana Appellate Court

Page 991

674 N.E.2d 991

Mike A. WEINIG, Appellant-Respondent, v. Dana L. WEINIG, Appellee-Petitioner.

No. 46A03-9510-CV-357.

Court of Appeals of Indiana.

Dec. 20, 1996.

Tom A. Black, Plymouth, for Appellant-Respondent.

Craig V. Braje, Michelle A. Blackwell, Braje & Nelson, Michigan City, for Appellee-Petitioner.

OPINION

STATON, Judge.

Mike A. Weinig ("Michael") appeals the trial court's distribution of marital property in its judgment dissolving his marriage with Dana L. Weinig ("Dana"). Michael presents three issues on appeal, which we restate:

I. Whether the trial court erred in ruling that lottery proceeds in the marital estate were earned income resulting from a partnership and not a gift from Michael's mother.

II. Whether Dana should be equitably estopped from receiving any of the lottery money due to her verbal representations that she would make no claim to the money in the event of a divorce.

III. Whether the trial court's division of 60% of the lottery proceeds to Michael and 40% of the lottery proceeds to Dana is unjust and unreasonable.

We affirm.

The facts and inferences most favorable to the judgment are that Michael and Dana married on August 14, 1993. Some time prior to the marriage, Michael, his mother, and his four siblings, orally agreed that they would all play the lottery and that if any one of them should purchase a lottery ticket which would win a substantial prize, all of them would share the money equally. The sole winning ticket for the Saturday, August 27, 1994, six million dollar Hoosier Lottery prize was purchased by Michael's mother. She informed the lottery commission that, per the family agreement, a six person partnership had won the prize. Each of the six family members took an equal one sixth share of the lottery proceeds. Michael reported the income as earned income for tax purposes, and no gift tax was paid. After discovering that she possessed the winning ticket, and before disbursement of the funds by the lottery commission, Michael's mother demanded that Dana sign a post-nuptial agreement stating that she would make no claim to the lottery proceeds in the event of a divorce. Dana assented, stating that she would sign such an agreement as soon as it could be prepared. Michael and Michael's attorney suggested that Dana seek independent legal counsel before executing a post-nuptial agreement. After disbursement of the money by the Lottery Commission, and after Michael had received his one sixth share, Dana consulted with an attorney. Following her consultation with an attorney, Dana recanted her earlier statements and refused to sign a post-nuptial agreement. No post-nuptial agreement was ever executed. On or about October 16, 1994, Michael and Dana separated, and Dana filed for dissolution of the marriage on October 20, 1994.

I. Partnership

The first issue is whether the trial court erred in ruling that the lottery proceeds were earned income resulting from a partnership and not a gift from Michael's mother. Michael and Dana both agree that the lottery proceeds are marital property subject to distribution by the trial court. They disagree only on the proper distribution under our statutory guidelines. IND. C ODE § 31-1-11.5-11 sets forth legislative guides for division of marital property in a dissolution of marriage, providing in relevant part:

(c) The court shall presume that an equal division of the marital property between the parties is just and reasonable. However, this presumption may be rebutted by a party who presents relevant evidence, including evidence concerning the following factors, that an equal division would not be just and reasonable:

* * * * * *

(2) The extent to which the property was acquired by each spouse prior to the marriage or through inheritance or gift.

The trial court ruled that Michael received a one sixth share of the lottery proceeds not as a gift from his mother, but as a result of his participation in a partnership with his family members to play the lottery. Michael assigns this finding, and the resultant failure of the trial court to deviate from an equal division of property by assigning all of the lottery proceeds to him as a gift from his mother, as error.

Michael contends that there is insufficient evidence to support the trial court's finding that he received the lottery proceeds as the result of a partnership instead of as a gift. Rather, Michael argues that the oral agreement amounted to nothing more than a promise to make a gift in the future, which was unsupported by consideration, and so unenforceable.

Existence of a partnership is generally a question of fact. Soley v. VanKeppel, 656 N.E.2d 508, 513 (Ind.Ct.App.1995), J.M. Schultz Seed Company v. Robertson, 451 N.E.2d 62, 64 (Ind.Ct.App.1983), In re Zeits, 108 Ind.App. 617, 31 N.E.2d 209, 216 (1941). The standard for reviewing the sufficiency of evidence establishing a partnership is well settled:

In reviewing the evidence to determine its sufficiency, we may only look to that evidence and the reasonable inferences to be drawn therefrom most favorable to the appellee. Butler v. Forker (1966), 139 Ind.App. 602, 221 N.E.2d 570. This Court will neither weigh the evidence nor judge the credibility of the witnesses. Butler, supra. It is the province of the trial court to determine which witness to believe when it hears the evidence. Jackman v. Jackman (1973), 156 Ind.App. 27, 294 N.E.2d 620, 625. We cannot reverse upon the basis of conflicting evidence. Franks v. Franks (1975), 163 Ind.App. 346, 323 N.E.2d 678, 680. In order to reverse the finding of the trial court, the evidence must lead solely to a conclusion which is contrary to that reached by the lower court. Butler, supra; Puzich [v. Pappas (1974), 161 Ind.App. 191, 314 N.E.2d 795], supra.

Endsley v. Game-Show Placements, Ltd., 401 N.E.2d 768, 771 (Ind.Ct.App.1980); Vohland v. Sweet, 433 N.E.2d 860, 865 (Ind.Ct.App.1982), reh. denied; J.M. Schultz Seed Company, supra at 65.

"The requisites of a partnership are that the parties must have joined together to carry on a trade or adventure for their common benefit, each contributing property or services, and having a community of interest in the profits." Kopka v. Yockey, 76 Ind.App. 218, 131 N.E. 828, 829 (1921). To establish a partnership relation between parties, there must be: (1) a voluntary contract of association for the purpose of sharing profits and losses which may arise from the use of capital, labor, or skill in a common enterprise; and (2) an intention on the part of the parties to form a partnership. Watson v. Watson, 231 Ind. 385, 108 N.E.2d 893, 895 (1952); Isaacs v. Fletcher American National Bank, 103 Ind.App. 246, 198 N.E. 829, 832 (1935), reh. denied, 103 Ind.App. 246, 200 N.E. 440 (1936). Further:

[I]t must be borne in mind ... that the intent, the existence of which is deemed essential, is an intent to do those things which constitute a partnership. Hence, if such an intent exists, the parties will be partners, notwithstanding that they proposed to avoid the liability attaching to partners ... It is the substance, and not the name, of the arrangement between them which determines their legal relation toward each other, and if, from a consideration of all the facts and circumstances, it appears that the parties intended, between themselves, that there should be a community of interests of both the property and profits of a common business or venture, the law treats it as their intention to become partners, in the absence of other controlling facts.

Driscoll v. Sullivan, 186 Ind. 178, 115 N.E. 331, 332-333 (1917) (citations omitted).

Finally, "[t]he intention which controls in determining the existence of a relation is the legal intention deducible from the acts of the parties." Kamm & Schellinger Co. v. Likes, 93 Ind.App. 598, 179 N.E. 23, 25 (1931). The intention to form a partnership must be determined by examining all the facts of the case, and the conduct of the parties reveals their true intentions and the construction they placed upon their own agreement. Breinig v. Sparrow, 39 Ind.App. 455, 80 N.E. 37, 38-39 (1907). "This conduct is an exposition of the contract by the parties themselves, and they best knew what their intention was, and what they believed their contract to mean." Albright v. Hughes, 107 Ind.App. 651, 26 N.E.2d 576, 580 (1940) (citations omitted).

The first requirement for establishing a partnership, that there be a voluntary contract of association for the purpose of sharing profits which may arise from use of capital, labor, or skill in a common venture, is established by the family's oral agreement. The six family members agreed that they would continue to play the lottery, and would evenly divide any major winnings. The agreement is a voluntary joining together to share winnings that may result from expenditures of money on lottery tickets. The agreement to share any large winnings created a community of interest in any large lottery prize among all six parties to the agreement. The trial court could reasonably conclude that the family's oral agreement to evenly divide any major lottery winnings was a voluntary contract of association for the purpose of sharing profits arising from expenditures on lottery tickets, satisfying the first element essential to finding a partnership.

The second element essential to establishing a partnership, that there be an intention on the part of the parties to form a partnership, was established by the parties conduct subsequent to forming the oral agreement. There was evidence from which the trial court could conclude that Michael continued to play the lottery regularly, along with the other parties to the oral agreement. After Michael's mother discovered that she possessed the winning ticket, the family stated to the Lottery Commission and federal taxing authorities that the Lottery was won by a six person partnership. No gift tax was paid on the lottery proceeds...