Jane Wilks Baker Wife brought this divorce action against John Steven Baker Husband. One of the issues at trial was whether the proceeds from a $170,000 check, which Wife received from Wilks Investments, LLLP, a partnership formed by her parents, constituted a gift or a loan. Wife endorsed the check and gave it to Husband, who placed it into a stock trading account which thereafter lost most of its value. After a jury trial, the trial court entered a final divorce decree which resolved issues of child custody, child support, and equitable division of property, and which provided, in relevant part, the following: “The jury having announced its determination that the $170,000 alleged marital debt to Wilks Investments was not a loan, but a gift, neither party is ordered to pay said alleged debt.” Wife applied for a discretionary appeal, which was granted pursuant to this Court’s Pilot Project in divorce cases. Wife’s sole contention is that the record does not contain any evidence to support the jury’s finding that the $170,000 was a gift and not a loan. “A valid gift must meet the requirements of OCGA § 44-5-80 . . . .” Avera v. Avera , 268 Ga. 4, 6 4 485 SE2d 731 1997. Pursuant to that statute, “the donor must intend to give the gift, the donee must accept the gift, and the gift must be delivered. Cit.” Brock v. Brock , 279 Ga. 119, 120 2 610 SE2d 29 2005. “The delivery of personal property by a parent into the exclusive possession of a child living separate from the parent creates a presumption of a gift to the child.” OCGA § 44-5-84. This presumption is applicable here even though the check was drawn on the partnership’s account. Although the individual partners in a limited partnership do not have any interest in specific partnership property, OCGA § 14-9-701, and “a partnership is treated as a legal entity for certain purposes . . ., nevertheless, a partnership actually has no legal entity aside from that of its partners. Cits.” Emphasis in original. Lester Witte & Co. v. Rabun County , 245 Ga. 382, 385 2 265 SE2d 4 1980. See also Ford v. Uniroyal Goodrich Tire Co. , 270 Ga. 730, 732 2 514 SE2d 201 1999. Wife’s parents have transferred 98 of the limited partnership to a trust for the benefit of their children, with distribution to occur upon the deaths of both the parents, but they remain the only general partners of Wilks Investments. As such, Wife’s parents are the only individuals who are authorized to convey partnership property. OCGA § § 14-8-9, 14-9-403 a. When Wife’s father, as he was authorized to do, gave his daughter a $170,000 check drawn on the account of a firm having no separate legal existence, there clearly was a “delivery of personal property by a parent into the exclusive possession of a child living separate from the parent . . . .” OCGA § 44-5-84.
The resulting presumption of a gift was rebuttable “by evidence of an actual contract of lending or by circumstances from which such a contract may be inferred.” OCGA § 44-5-84. There was no actual written contract evidencing a loan. Instead, the evidence shows that Wife’s parents simply made partnership funds available to Wife and to each of her siblings for the purpose of paying off their mortgages. Several witnesses testified that, in every instance, the money constituted a loan, and that interest was due and paid quarterly. The amounts received by Wife and her siblings were referred to as loans in the partnership’s records. Thus, some evidence may have been presented in rebuttal of the presumption of a gift. Under Georgia law, however, a rebuttable presumption, once established, does not vanish in the face of evidence contrary to the presumed fact. Beach v. Lipham , 276 Ga. 302, 304 2 578 SE2d 402 2003; Miller v. Miller , 258 Ga. 168, 170 2, fn. 6 366 SE2d 682 1988. Regardless of ” ‘how much counter evidence the opponent has presented to rebut the presumed fact, the presumption remains alive through jury instructions and can only disappear if the jury decides to discount it.’ Cit.” Beach v. Lipham , supra. Therefore, the presumption of a gift pursuant to OCGA § 44-5-84 is itself sufficient to support the jury’s finding with respect to the $170,000. “ Whether the evidence proffered at trial is sufficient to rebut the presumption of gift is a question for the jury. Cit.” Ward v. Sebren , 242 Ga. 782, 783 1 251 SE2d 524 1979.
