                                                                                  FILED
                                                                           May 19 2017, 10:32 am

                                                                                  CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Christopher T. Smith                                      C. Dennis Wegner
Smith Davis LLC                                           C. Dennis Wegner & Assoc., P.C.
Greenfield, Indiana                                       Indianapolis, Indiana
                                                          Jonathan E. Palmer
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

The Estate of George A. Henry,                            May 19, 2017
Deceased,                                                 Court of Appeals Case No.
Appellant-Defendant,                                      49A05-1604-PL-810
                                                          Appeal from the Marion Superior
        v.                                                Court
                                                          The Honorable Steven R.
Nadene Woods,                                             Eichholtz, Judge
Appellee-Plaintiff.                                       Trial Court Cause No.
                                                          49D08-1202-EU-4311
                                                          49D08-1208-PL-31442



Bailey, Judge.




Court of Appeals of Indiana | Opinion 49A05-1604-PL-810 | May 19, 2017                      Page 1 of 18
                                           Case Summary
[1]   Nadene Woods (“Woods”) filed a claim for services against the Estate of

      George Henry (“the Estate”), which was disallowed and then contested in a

      bench trial. The Marion County Superior Court, Probate Division, partially

      allowed the claim, and the Estate appealed. We affirm.



                                                    Issues
[2]   The Estate presents three issues for review, which we restate as the following:

              I.       Whether the probate court erroneously evaluated the claim
                       under a standard applicable to general creditors as opposed
                       to a standard for family members incorporating a
                       presumption that services were gratuitous;


              II.      Whether a finding of fact is clearly erroneous; and


              III.     Whether the conclusion that Woods is entitled to partial
                       recovery upon her claim is clearly erroneous.


                            Facts and Procedural History
[3]   In 1944, George Henry (“Henry”) married Phyllis Henry (“Phyllis”); she was

      subsequently diagnosed with cystic fibrosis. By 1998, Phyllis needed in-home

      assistance while Henry pursued his law practice. Henry hired a housekeeper to

      clean one day per week and paid her $90.00. He hired Woods to personally

      Court of Appeals of Indiana | Opinion 49A05-1604-PL-810 | May 19, 2017      Page 2 of 18
      assist Phyllis. Four days per week, Woods prepared lunch, emptied Phyllis’

      catheter, changed bed linens, and did some errands. Henry paid Woods

      $150.00 per week.


[4]   Phyllis died on February 4, 1998. Woods asked Henry if her services were still

      needed and he replied in the negative. However, after a week or two, Henry

      confessed to a friend that he was running out of clothing and he didn’t know

      how to do laundry. Henry invited Woods over for a home-cooked meal. He

      then asked Woods to do his laundry and she obliged.


[5]   As time went on, Woods took on other household duties. Also, she and Henry

      began to go out socially. Customarily, Henry paid for Woods’ meals when they

      dined out. At some point, Woods asked Henry about payment and he

      responded, “I feed you, don’t I?” (Tr. at 317.)


[6]   In the fall of 1998, Henry suffered a heart attack. He recovered such that he

      could continue practicing law, but as time went on he needed additional

      assistance with daily tasks. Henry asked Woods to spend more time at his

      residence. Eventually, Woods moved into Henry’s house. She kept some of

      her possessions there, but always maintained a separate residence. Henry

      continued working until his mid-eighties. At times, Woods took work

      providing in-home services for elderly clients.


[7]   Sometime in 2006, Henry began having some episodes of falling and he also

      began to need assistance to rise from a chair. In early 2010, he began

      experiencing chest pains. In December of 2010, Henry had a second heart

      Court of Appeals of Indiana | Opinion 49A05-1604-PL-810 | May 19, 2017   Page 3 of 18
      attack. Henry survived the second heart attack, but became more sedentary.

      He developed pressure sores, and Woods tended to those, after receiving

      instruction at the St. Francis Wound Care Center. Henry died on January 5,

      2012, at the age of ninety-two. His will was admitted to probate in Marion

      County.


[8]   Woods filed a claim against the Estate, seeking compensation for fourteen years

      of services. As amended, Woods’s claim sought $381,355.00 (for housekeeping

      services, nursing care, cleaning supplies, and adult diapers). The services

      described as relating to February 1998 to December 2008 (for $113,200.00)

      were:

              Basic household chores for housekeeping/maid services for 3000
              square foot home, vacuuming, dusting, mopping, cleaning,
              cooking, average two meals daily, dishwashing, bed linens,
              laundry, ironing and putting away clothes. In addition to the
              basic services, heavy cleaning twice a year, lawn mowing twice a
              week, trimming 94 bushes twice a year, landscaping, planting,
              weeding, harvesting for vegetable garden, canning all produce,
              tending flowers, washing furnace filters, cleaning flooded
              basement two times and supervising the third time,
              transportation, prescription pill monitoring, attending doctor
              visits, and all other personal services, including calling for all
              doctor appointments and service calls. This gradually became
              seven days a week, often 24 hours a day.


      (Claimant’s Ex. 18.)


[9]   Woods sought compensation for January 2009 to December 2011 in the

      amount of $262,800.00. The claim included the description:

      Court of Appeals of Indiana | Opinion 49A05-1604-PL-810 | May 19, 2017   Page 4 of 18
               Services included nursing back to health after falls, ER and
               hospital visits, dressing, bathing, assistance in walking,
               incontinent care, anus wound care, and insuring that George
               took his pills, thus allowing him to continue in his own home
               with 24 hour care and to avoid assisted living or nursing home
               care costs.


       (Claimant’s Ex. 18.) Woods requested $400.00 for cleaning Henry’s home after

       his death, $4175.00 for cleaning supplies purchased over the years, and

       reimbursement for Henry’s adult diapers in the amount of $780.00. The claim

       was substantially disallowed by the Estate executor and a bench trial ensued.


[10]   The parties presented evidence on March 17, 2015, April 21, 2015, and October

       20, 2015. On March 16, 2016, the probate court partially allowed Woods’

       claim, awarding $125,400.00. This appeal ensued.



                                  Discussion and Decision
                                         Standard of Review
[11]   An oral request for findings of fact and conclusions thereon, such as was made

       in this case, does not invoke Indiana Trial Rule 52(A). D.A.X., Inc. v. Employers

       Ins. of Wausau, 659 N.E.2d 1150, 1155 (Ind. Ct. App. 1996), trans. denied.

       Where the trial court issues findings of fact and conclusions thereon sua sponte,

       “the findings control our review and the judgment only as to the issues those

       specific findings cover. Where there are no specific findings, a general

       judgment standard applies and we may affirm on any legal theory supported by



       Court of Appeals of Indiana | Opinion 49A05-1604-PL-810 | May 19, 2017     Page 5 of 18
       the evidence adduced at trial.” Samples v. Wilson, 12 N.E.3d 946, 949-50 (Ind.

       Ct. App. 2014).


[12]   We apply a two-tier standard of review to the sua sponte findings and

       conclusions. Id. at 950. First, we determine whether the evidence supports the

       findings and second, whether the findings support the judgment. Id. We will

       set aside findings and conclusions only if they are clearly erroneous, that is,

       when the record contains no facts or inferences supporting them. Id. In

       conducting our review, we consider only the evidence favorable to the

       judgment and all reasonable inferences flowing therefrom. Id. We do not

       reweigh the evidence nor do we assess witness credibility. Id.


                                 Legal Standard for Recovery
[13]   The Estate contends that the probate court relied upon an improper legal

       standard. Per the Estate, “the trial court relied on the general rule for proving

       an implied contract, rather than the more specific rule applicable to proving an

       implied contract within a family relationship.” Appellant’s Br. at 10. The

       Estate’s position is that Woods was required to rebut a presumption that her

       services were gratuitous, and that she was unable to do so.


[14]   Recently, in Neibert v. Perdomo, 54 N.E.3d 1046 (Ind. Ct. App. 2016), a panel of

       this Court determined that a cohabitant’s claim for services performed without

       donative intent survived a motion for dismissal. The Court recognized: “A

       person who cohabits with another person without ever marrying is entitled to

       relief if he establishes an express contract, an implied contract, or unjust

       Court of Appeals of Indiana | Opinion 49A05-1604-PL-810 | May 19, 2017     Page 6 of 18
enrichment.” Id. at 1051. The Court explained the potential theories of

recovery:

        “Also referred to as quantum meruit or quasi-contract, unjust
        enrichment requires a party who has been unjustly enriched at
        another’s expense to make restitution to the aggrieved party.”
        Reid v. Reid, 980 N.E.2d 277, 296 (Ind. 2012). To recover for
        unjust enrichment, the plaintiff must show that (1) he rendered a
        measurable benefit to the defendant at the defendant’s express or
        implied request; (2) he expected payment from the defendant;
        and (3) allowing the defendant to retain the benefit without
        restitution would be unjust. Id. Equitable principles prohibit the
        unjust enrichment of a person who accepts the unrequested
        benefits provided by another despite having the opportunity to
        decline those benefits. Bright v. Kuehl, 650 N.E.2d 311, 316 (Ind.
        Ct. App. 1995).


        Similarly, to recover under implied contract, the plaintiff
        generally must establish that the defendant impliedly or expressly
        requested the benefits conferred. Id. at 315. “Any benefit,
        commonly the subject of pecuniary compensation, which one,
        not intending it as a gift, confers upon another who accepts it, is
        an adequate foundation for a legally implied or created promise
        to render back its value.” Id.


Neibert, 54 N.E.3d at 1051. The Neibert Court summarized the holdings of

several cases involving cohabitants’ claims for property division or value of

services, Glasgo v. Glasgo, 410 N.E.2d 1325 (Ind. Ct. App. 1980), trans. denied,

Chestnut v. Chesnut, 499 N.E.2d 783 (Ind. Ct. App. 1986), Turner v. Freed, 792

N.E.2d 947 (Ind. Ct. App. 2003), and Bright v. Kuehl, 650 N.E.2d 311 (Ind. Ct.

App. 1995): “[these] simply eroded and eventually eliminated an exclusion for

cohabitants seeking relief on theories of implied contract and unjust enrichment
Court of Appeals of Indiana | Opinion 49A05-1604-PL-810 | May 19, 2017    Page 7 of 18
       in a previously prohibited context.” Id. at 1052. The Court reviewed the facts

       of Turner, where a cohabitant had provided child care and household services

       while her partner developed a business, and then observed: “Perhaps most

       importantly, Turner illustrates that to prevail, the aggrieved party need not

       establish an expectation of monetary payment for the services rendered.” Neibert,

       54 N.E.2d at 1052.


[15]   Subsequently, in McMahel v. Deaton, 61 N.E.3d 336, 344 (Ind. Ct. App. 2016),

       the appellant requested that this Court reconsider the holding in Bright,

       “regarding the equitable remedies that may be invoked in disputes between

       formerly cohabiting couples who never married.” McMahel urged that an

       express agreement should be required before dividing property acquired by

       cohabitating couples. Upon review of the reasons for the decisions in such

       cases as Bright and Turner, the McMahel panel expressly declined the invitation

       to reconsider the holding of Bright “or other cases regarding the equitable

       remedies available to Indiana courts in addressing claims by formerly

       cohabitating persons based upon the theories of implied contract and unjust

       enrichment.” McMahel, 61 N.E.3d at 346.


[16]   Nonetheless, the Estate insists that Henry and Woods were in a familial

       relationship and thus, there arose a presumption that Woods performed services

       gratuitously. The Estate directs our attention to Estate of Prickett v. Womersley,

       905 N.E.2d 1008 (Ind. 2009). In Estate of Prickett, a woman sought

       compensation for the value of her services while caring for her mother when the

       mother was subject to a guardianship. See id. at 1009. The mother’s estate

       Court of Appeals of Indiana | Opinion 49A05-1604-PL-810 | May 19, 2017      Page 8 of 18
       sought summary judgment on the daughter’s reimbursement claim on grounds

       that the daughter had gratuitously served her mother. See id. at 1012. Our

       Indiana Supreme Court reversed the denial of summary judgment, concluding

       that the designated evidence did not as a matter of law rebut the presumption of

       gratuitousness. Id. at 1015.


[17]   In rendering its decision, the Court discussed the presumption applicable to

       family members living together:


               We recognize that in general, “[w]here one accepts valuable
               services from another the law implies a promise to pay for them.”
               Schwartz v. Schwartz, 773 N.E.2d 348, 354 (Ind. Ct. App. 2002)
               (quoting Estate of Hann v. Hann, 614 N.E.2d 973, 979 (Ind. Ct.
               App. 1993)). Indeed, this principle appropriately applies to
               general creditors. “However, where the parties are family
               members living together, and the services are rendered in the
               family context, no implication of a promise to pay by the
               recipient arises.” Id. at 355. Instead, in these circumstances, the
               rebuttable presumption is that services are gratuitous. See Hill v.
               Hill, 121 Ind. 255, 23 N.E. 87, 88-89 (1889); Cole v. Cole, 517
               N.E.2d 1248, 1250 (Ind. Ct. App. 1988) (citing Schroeder v.
               Schroeder, 117 Ind. App. 410, 70 N.E.2d 764, 765 (1947). The
               public policy advanced by this presumption is that family
               members “have reciprocal, natural, and moral duties to support
               and care for each other.” Cole, 517 N.E.2d at 1250. . . .


               Our state has traditionally recognized only one way to rebut the
               presumption that services were rendered gratuitously, which
               requires evidence of an express or implied contract. Schroeder,
               117 Ind. App. at 412, 70 N.E.2d at 765. Rebutting the
               presumption in this manner requires the family member to
               demonstrate two specific elements: “an intention on the part of
               recipient of the services to pay or compensate therefor, and an

       Court of Appeals of Indiana | Opinion 49A05-1604-PL-810 | May 19, 2017     Page 9 of 18
               expectation of pay or compensation on the part of the one
               rendering the services.” Grout v. Solon, 131 Ind. App. 650, 174
               N.E.2d 593, 594 (1961).


       Estate of Prickett, 905 N.E.2d at 1012-1013.


[18]   The Estate claims that the trial court factually found Woods to be Henry’s

       family member but then required proof as if she were only a general creditor.

       Paragraph 40 of the probate court’s order provides in pertinent part: “They

       operated as a family and were a family.” (App. Vol. II at 25.) Also, the

       appealed order includes language:

               Generally there is a presumption of gratuity when one is caring
               for a relative but no such presumption for a nonrelative. … a
               presumption of gratuity may arise when services are rendered
               and the parties live together in a family relationship. … Having
               been involved as a couple rather than patient and caretaker may
               create a presumption that the services were performed
               gratuitously, but that presumption can also be overcome by
               proving an express or implied contract.


       (App. Vol. II at 28-29.) Ultimately, however, there was no express finding or

       conclusion as to whether Woods rebutted a presumption.


[19]   Notwithstanding the Estate’s urging of the imposition of a presumption of

       gratuitousness, the facts of this case are not analogous to those of Estate of

       Prickett, which involved a parent and child. Here, the probate court’s reference

       to “family” describes how Woods and Henry conducted themselves socially

       after becoming a “couple.” (App. Vol. II at 25.) There is no evidence of a


       Court of Appeals of Indiana | Opinion 49A05-1604-PL-810 | May 19, 2017    Page 10 of 18
       biological, marital, or adoptive relationship. Woods and Henry were

       cohabitants, just as were those in Bright and its progeny. To the extent that the

       probate court’s language may be read to suggest that a higher burden of proof is

       imposed upon Woods as a matter of law, we reject the suggestion. Indeed, in

       McMahel, the trial court found that the cohabitants and their child “presented a

       family unit.” 61 N.E.3d at 341. This did not have the effect of creating a

       rebuttable presumption or otherwise altering the analysis as to equitable

       remedies available to former cohabitants. Here, the probate court’s omission of

       a finding or conclusion relative to whether Woods rebutted a presumption of

       gratuitousness is not error.


                                   Challenged Finding of Fact
[20]   The Estate challenges the finding of fact of Paragraph 40, which provides:


               When some of George’s friends would kid him about marrying
               Nadene, he would say he didn’t need to marry her and when the
               time came she would be well taken care of.


       (App. Vol. II at 24.) There was only testimony from one of Henry’s friends to

       this effect. Tim Green testified that Henry said he only had one wife and

       “didn’t need” to remarry, but he cared for Woods and she “would be well taken

       care of.” (Tr. at 161.) Thus, the finding is in-artfully drafted in using “some”

       and inaccurate in using the plural for “friend.” However, this does not render

       the finding unsupported by evidence.




       Court of Appeals of Indiana | Opinion 49A05-1604-PL-810 | May 19, 2017   Page 11 of 18
[21]   Nonetheless, the Estate argues: “To the extent that the trial court could have

       relied on any inference drawn from Mr. Green’s testimony to support a finding

       that George Henry had agreed in the future to compensate Nadene for her

       services, such an inference is not reasonable.” Appellee’s Br. at 14. The

       Estate’s argument provides no grounds for reversal, as we do not reweigh the

       evidence nor assess witness credibility. Samples, 12 N.E.3d at 950.


                                  Sufficiency of the Evidence
[22]   The Estate does not deny that, over fourteen years, Woods provided

       innumerable services to Henry. However, the Estate points to the absence of an

       express contract between Henry and Woods and argues that Woods was unable

       to prove the existence of an implied contract for payment of her services.

       According to the Estate, Woods’ claim fails due to a lack of evidence that

       Henry intended to compensate Woods.


[23]   “To recover under the theory of implied contract, the plaintiff is usually

       required to establish that the defendant impliedly or expressly requested the

       benefits conferred.” Bright, 650 N.E.2d at 315. A benefit that is commonly the

       subject of pecuniary compensation which one, not intending a gift, confers

       upon another who accepts it, is an adequate foundation for a legally implied or

       created promise to render back the value of benefit. Id. Also, “[t]o prevail on a

       claim for unjust enrichment, a plaintiff must establish that a measurable benefit

       has been conferred on the defendant under such circumstances that the

       defendant’s retention of the benefit without payment would be unjust.” Id. at


       Court of Appeals of Indiana | Opinion 49A05-1604-PL-810 | May 19, 2017   Page 12 of 18
       316. Equitable principles prohibit the unjust enrichment of a party who accepts

       unrequested benefits another provides despite having the opportunity to decline

       those benefits. Id.


[24]   Here, the trial court entered sua sponte findings and conclusions as to implied

       contract but did not specifically address unjust enrichment. However, a general

       judgment standard of review pertains to any legal theory supported by the

       evidence adduced at trial. Samples, 12 N.E.3d at 950. Our review of the

       testimony and exhibits discloses sufficient evidence for recovery under either

       implied contract or unjust enrichment principles.


[25]   As to implied contract, Woods established that Henry requested the benefits

       conferred upon him. The trial testimony reveals that his request was sometimes

       expressed and, at other times, his request was implied. Woods testified that she

       did not intend a gift of fourteen years of housekeeping, maintenance, gardening,

       and nursing services; indeed, both she and her daughter had questioned Henry

       about the lack of payment. Henry protested that he was providing a reciprocal

       benefit of food but also suggested that something would be done to take care of

       Woods’ needs in the future. Henry’s neighbor testified that Woods had cried

       about “doing all this without pay.” (Tr. at 39.) When pressed on whether she

       should just leave, Woods responded that she could not “turn her back on”

       Henry. (Tr. at 40.)


[26]   As for unjust enrichment, it is abundantly clear that Woods provided valuable

       services. She attended to the needs of an elderly man who, despite two heart


       Court of Appeals of Indiana | Opinion 49A05-1604-PL-810 | May 19, 2017   Page 13 of 18
       attacks, obesity, incontinence, and bed sores, was never admitted to an assisted

       living or skilled nursing facility. Henry’s children testified to a lack of full

       knowledge of his medical conditions but never contended that the medical

       records were fabricated or exaggerated. They made no arrangements for

       alternate care and thus incurred no expense depleting potential estate assets. It

       would be unjust to permit the Estate to retain all the assets preserved without

       making payment to Woods. There is evidentiary support for the trial court’s

       partial allowance of Woods’ claim on equitable grounds.



                                                Conclusion
[27]   The probate court was not required to evaluate Woods’ claim in a manner that

       presumed the services to be gratuitous. There is not a complete lack of

       evidentiary support for the challenged finding as to Henry’s expression of

       intent. Finally, Woods put forth sufficient evidence to establish that partial

       allowance of her claim – in the amount of $125,400.00 – was supportable under

       either implied contract or unjust enrichment.


[28]   Affirmed.


       Robb, J., concurs.
       Vaidik, C.J., concurs in result with separate opinion.




       Court of Appeals of Indiana | Opinion 49A05-1604-PL-810 | May 19, 2017      Page 14 of 18
       ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
       Christopher T. Smith                                      C. Dennis Wegner
       Smith Davis LLC                                           C. Dennis Wegner & Assoc., P.C.
       Greenfield, Indiana                                       Indianapolis, Indiana

                                                                 Jonathan E. Palmer
                                                                 Indianapolis, Indiana


                                                  IN THE
           COURT OF APPEALS OF INDIANA

       The Estate of George A. Henry,                            May 19, 2017
       Deceased,                                                 Court of Appeals Case No.
       Appellant-Defendant,                                      49A05-1604-PL-810
                                                                 Appeal from the Marion Superior
               v.                                                Court
                                                                 The Honorable Steven R.
       Nadene Woods,                                             Eichholtz, Judge
       Appellee-Plaintiff.                                       Trial Court Cause No.
                                                                 49D08-1202-EU-4311
                                                                 49D08-1208-PL-31442



       Vaidik, Chief Judge, concurring in result.


[29]   I concur in the result reached by the majority. I write separately to express my

       view that the rebuttable presumption that services are gratuitous should apply to

       this case because although Woods and Henry were not married, they lived

       together as a couple and operated as a family for fourteen years.

       Court of Appeals of Indiana | Opinion 49A05-1604-PL-810 | May 19, 2017                Page 15 of 18
[30]   The record shows that shortly after Phyllis’s death in February 1998, Woods

       started doing Henry’s laundry. As time went on, Woods’s jobs progressed to

       cleaning Henry’s house, to mowing his lawn, to eventually becoming his

       caregiver. Since Henry had paid Woods for taking care of Phyllis, she expected

       to be paid for this work as well, but Henry never paid her. After Henry suffered

       a heart attack in September 1998, Woods moved in with Henry to help with his

       recovery. This resulted in them spending more time together, which they both

       enjoyed. They started going on vacations together, went out socially as a

       couple, entertained in Henry’s home as a couple, attended church as a couple,

       went to funerals together, and sent Christmas cards signed in both of their

       names. Many of their friends thought of them as boyfriend and girlfriend, and

       Henry sometimes referred to Woods as his girlfriend. Henry’s family included

       Woods in celebrating the holidays. According to one of Henry’s friends,

       although Henry said he was not going to marry Woods, he said she would be

       well taken care of. As Henry’s health declined (he had a second heart attack in

       2010), Woods did more for Henry, especially in the last two years of his life.

       She accompanied him to his doctor appointments, monitored his medications,

       and took care of his sores. Henry died in 2012. Woods was listed in his

       obituary as his “loving companion.” Appellant’s App. Vol. II p. 41.


[31]   Thereafter, Woods filed a claim against Henry’s estate for fourteen years of

       services and supplies she provided to Henry. The probate court partially

       granted Woods’s claim, awarding her $125,400.




       Court of Appeals of Indiana | Opinion 49A05-1604-PL-810 | May 19, 2017   Page 16 of 18
[32]   In general, where one accepts valuable services from another, the law implies a

       promise to pay for them. Estate of Prickett v. Womersley, 905 N.E.2d 1008, 1012

       (Ind. 2009). But where the parties are family members living together and the

       services are rendered in the family context, no implication of a promise to pay

       by the recipient arises. Id. Instead, the rebuttable presumption is that the

       services are gratuitous. Id. In order to rebut the presumption, there must be

       evidence of an express or implied contract. Id.


[33]   The probate court recognized this general rule. It found that although Woods

       was not Henry’s relative, the presumption nevertheless applied because “the

       parties live[d] together in a family relationship.” Appellant’s App. Vol. II p. 29.

       The court noted that although “[c]aregivers and clients often grow fond of each

       other,” “this relationship was more than caregiver and client”; “it was more like

       girlfriend and boyfriend.” Id. I believe that the probate court correctly applied

       the rebuttable presumption to this set of facts, because Woods and Henry lived

       together and “operated as a family” for fourteen years. Id. at 25. The fact that

       they were not married does not change the fact that they lived together as a

       family for an extended period of time. See Kitch v. Moslander, 114 Ind. App. 74,

       50 N.E.2d 933, 938 (1943) (finding that ex-husband and ex-wife who lived

       together after living apart were family and that there was an implied contract

       for services ex-wife provided to ex-husband for over thirty years). Accordingly,

       I respectfully disagree with the majority that the presumption that services are

       gratuitous does not apply here because there is “no evidence of a biological,

       marital, or adoptive relationship.” Slip op. at 10-11.


       Court of Appeals of Indiana | Opinion 49A05-1604-PL-810 | May 19, 2017   Page 17 of 18
[34]   Further, I agree with the probate court that Woods rebutted this presumption.

       The court explained that the presumption could be overcome by proving an

       implied contract. Appellant’s App. Vol. II p. 29 (“Having been involved as a

       couple rather than patient and caretaker may create a presumption that the

       services were performed gratuitously, but that presumption can also be

       overcome by proving an express or implied contract.”). By then finding an

       implied contract in the amount of $125,400, the court found this presumption to

       be rebutted. Because the majority affirms the $125,400 claim for Woods, I

       concur in the result reached by the majority.




       Court of Appeals of Indiana | Opinion 49A05-1604-PL-810 | May 19, 2017   Page 18 of 18
