Krista C. (Wilson) Williams v. Philip S. Wilson ( 2012 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
FILED
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
Aug 23 2012, 9:25 am
ATTORNEY FOR APPELLANT:
CLERK
BRYAN LEE CIYOU of the supreme court,
court of appeals and
tax court
Ciyou & Dixon, P.C.
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
KRISTA C. (WILSON) WILLIAMS, )
Appellant, )
)
vs. ) No. 41A01-1111-DR-541
)
PHILIP S. WILSON, )
Appellee. )
APPEAL FROM THE JOHNSON SUPERIOR COURT
The Honorable Cynthia S. Emkes, Judge
Cause No. 41D02-0506-DR-214
August 23, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
ROBB, Chief Judge
The marriage of Krista Williams (“Mother”) and Philip Wilson (“Father”) was
dissolved by the Johnson Superior Court. The issues presented in this appeal arise from
Mother’s refusal to allow Father parenting time with their minor child, and Mother’s
request for a child support modification. Specifically, Mother raises the following issues
in this appeal, which we restate as: 1) whether the trial court abused its discretion when it
found Mother in contempt of court; 2) whether the trial court abused its discretion when
it ordered Mother to transport the child to and from Father’s supervised visits with the
child; 3) whether the trial court abused its discretion when it ordered the parties to share
the tax exemption for the parties’ child; 4) whether the trial court abused its discretion
when it failed to retroactively modify Father’s child support obligation to the date that
Mother filed her petition for modification of child support; and 5) whether the trial court
abused its discretion when it denied Mother’s request for attorney fees.
We conclude that the trial court did not abuse its discretion in 1) finding Mother in
contempt of court, 2) ordering the parties to alternate the tax exemption for M.W. each
year, 3) declining to order a retroactive child support modification, and 4) denying
Mother’s request for attorney fees. We also conclude that if Father’s parenting time is
still under supervision, we direct the trial court to reconsider its decision to order
supervised visitation on Saturday or Sunday because Mother’s ability to transport M.W.
on weekends is limited due to her employment. Therefore, we remand this case for the
trial court to reconsider its decision regarding the timing of supervised visitation and
affirm in all other respects.
2
Facts and Procedural History
Mother and Father have one child, M.W., who was born in January 2001. The
parties’ marriage was eventually dissolved and Mother was awarded physical custody of
M.W., but the parties were ordered to share joint legal custody.
In 2005, Mother filed an emergency motion to modify parenting time and Father
filed a motion for contempt. Although the specific circumstances that lead to Mother’s
motion are not included in the record before us, it seems to have involved a situation
between M.W. and D.S., another child living in Father’s neighborhood.
In its order on those pleadings, the trial court concluded that Mother proved “by a
greater weight of the evidence that unless some restrictions are placed on” Father’s
parenting time, M.W.’s “physical health might be endangered.” Appellant’s App. at 27.
“Specifically, unless [Father] is strictly admonished to take all necessary steps to not
allow any contact between [D.S.] and [M.W.], there is a risk that [M.W.] may be
physically or emotionally harmed by the actions of [D.S.].” Id. The trial court ordered
Father to prohibit any contact between M.W. and D.S. and “must not allow the children
to be within 30 feet of one another.” Id. at 28. In its order, the trial court declined to find
Mother in contempt for withholding Father’s parenting time “based on a good faith belief
that the child was in physical and/or emotional danger if visitation were to continue
unrestricted. The court finds the basis for her belief to be credible and finds her actions
not subject to a contempt finding.” Id.
Approximately four years later, on or about April 1, 2009, Father’s fiancée’s
brother, Brian McCubbins was released from jail and moved into Father’s home. Father
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did not know the specific crimes McCubbins had been convicted of but allowed him to
reside in his home. Father did not tell Mother that McCubbins was living in his home. In
August 2009, M.W. told Father that McCubbins tucked her into bed “sometimes,” which
“freaked . . . out” Father. Transcript at 39. That same day, Father told McCubbins that
he could no longer reside in his home. Father learned that McCubbins had been arrested
shortly thereafter, but did not know what charges were pending against him.
On or about September 23, 2009, Mother received a phone call from a detective
with the Greenwood Police Department. The detective was investigating an allegation
that McCubbins had molested a child residing in Father’s neighborhood and in so doing,
he received information that M.W. had possibly been molested as well. The detective
contacted Mother and the Department of Child Services. M.W. was interviewed and law
enforcement officials ultimately determined that McCubbins had not molested M.W.
McCubbins was charged with sexually battering Father’s neighbor’s child and he is
currently incarcerated.
Mother has not allowed Father to exercise his parenting time with M.W. since the
molestation investigation began, on some date in September 2009. And on October 23,
2009, she filed a petition for modification of decree of dissolution. In the petition,
Mother alleged that Father’s supervision of M.W. is “extremely lax” and “he does not
adequately restrict [M.W.’s] contact with persons who may pose a danger to her.”
Appellant’s App. at 30. Mother stated that she had restricted Father’s “access to” M.W.
and requested that his parenting time be “severely curtailed.” Id. Mother later filed an
amended petition and requested that Father’s parenting time be modified and supervised
4
by a court-appointed agency. Mother also filed a petition for modification of child
support.
On December 3, 2009, Father filed a petition for contempt against Mother arguing
that Mother should be held in contempt for refusing to allow Father to exercise his
parenting time. In the latter months of 2009, Father unsuccessfully attempted to contact
M.W. and/or exercise his parenting time on three or four occasions. Father made no such
attempts in early 2010. However, on June 14, 2010, Father filed a motion for an
emergency hearing on his petition for contempt. A hearing on Father’s emergency
petition was not held until January 19, 2011, more than seven months after filing.
Because the hearing could not be completed in one day, the trial court scheduled a
hearing for February 2, 2011. That hearing was canceled due to a weather-related issue,
and the hearing on the parties’ pleadings was not completed until June 14, 2011, one year
after Father’s petition had been filed.
On June 14, 2011, the trial court issued an order increasing Father’s child support
to $126 per week, but took the issue of retroactive modification under advisement. On
September 13, 2011, the trial court issued its order holding Mother in contempt of court,
but also granting her petition for supervised parenting time and modification of child
support. The trial court made the following finding of fact concerning contempt:
5. The Court finds Mother intentionally and willfully denied Father
parenting time far in excess of what would be a reasonable time to restrict
the same based on the issues related to Brian McCubbins. Considering the
thorough investigation by the Greenwood Police Department and the
Division of Child Services and the ultimate decision that there was not any
evidence of abuse of [M.W.], Mother should have allowed parenting time
to resume herein in early 2010. In large part because there has been a
5
substantial passage of time without parenting time, [M.W.] has been
alienated from her Father and she no longer desires to have contact with
him. The Court recognizes Mother argues to the Court that Father does not
have any interest in [M.W.], her welfare, her schooling or her activities;
however, the Court believes that what appears to be a lack of interest is
more an inability to find information out in regard to her due to the strained
communication and his inability to find out information on his own. Father
should take more initiative in finding out about [M.W.’s] schooling,
activities, and welfare as he is entitled to as the noncustodial parent, but his
failure to robustly pursue contact with [M.W.] and his frustration with the
lack of communication is understandable given the many times his attempts
at contact were ignored by Mother. The Court is finding Mother in
contempt, however, since the Court is ordering her to pay for all
transportation costs for supervised parenting time, to share the costs of the
same if supervision is still recommended after 16 weeks of therapy and to
share the costs of [M.W.’s] therapy, the Court is not imposing sanctions.
Id. at 24-25.
Mother was granted sole legal custody of M.W. Father was granted supervised
parenting time and ordered to participate in therapy with M.W. Parenting time was
ordered “to increase and become unsupervised as . . . recommended by the
therapist/counselor.” Id. at 23.
The trial court denied Mother’s motion for a retroactive support modification “due
to the numerous issues herein and the cost associated with counseling and supervised
parenting time that Father will be required to pay.” Id. Further, “based on the amount of
support Father will be paying,” Mother was ordered to “sign IRS Form 8332 (release of
right to claim exemption for dependent) during each even numbered year commencing
2012 to allow Father to [c]laim [M.W.] for state and federal income tax purposes.” Id.
Finally, the trial court denied Mother’s motion for attorney fees. Mother subsequently
6
filed a motion to correct error. The trial court denied her motion without a hearing and
Mother now appeals.
Discussion and Decision
I. Standard of Review
As an initial matter, we note that Father has not filed an appellee’s brief.
Accordingly, we apply a less stringent standard of review and may reverse if the
appellant establishes prima facie error. Aiken v. Stanley, 816 N.E.2d 427, 430 (Ind. Ct.
App. 2004). Prima facie means “‘at first sight, on first appearance, or on the face of it.’”
Id. (quoting Parkhurst v. Van Winkle, 786 N.E.2d 1159, 1160 (Ind. Ct. App. 2003)).
This rule is not intended to benefit the appellant, but rather to relieve this court of the
burden of developing arguments on the appellee’s behalf. State v. Moriarty, 832 N.E.2d
555, 558 (Ind. Ct. App. 2005). The burden of demonstrating trial error remains with the
appellant. State v. Combs, 921 N.E.2d 846, 850 (Ind. Ct. App. 2010).
Also, in this case, the trial court entered findings of fact sua sponte. Therefore, the
specific findings control only as to the issues they cover, while a general judgment
standard applies to any issue upon which the court has not found. Brinkmann v.
Brinkmann, 772 N.E.2d 441, 444 (Ind. Ct. App. 2002). The specific findings will not be
set aside unless they are clearly erroneous, and we will affirm the general judgment on
any legal theory supported by the evidence. Hanson v. Spolnik, 685 N.E.2d 71, 76 (Ind.
Ct. App. 1997), trans. denied. A finding is clearly erroneous when there are no facts or
inferences drawn therefrom that support it. Id. at 76-77. In reviewing the trial court’s
findings, we neither reweigh the evidence nor judge the credibility of the witnesses. Id.7
at 77. Rather, we consider only the evidence and reasonable inferences drawn therefrom
that support the findings. Id.II. Contempt
First, Mother argues that the trial court abused its discretion when it found her in
contempt for restricting Father’s parenting time. A determination of whether a party is in
contempt of court is a matter within the trial court’s sound discretion, and we reverse
only where there has been an abuse of that discretion. Richardson v. Hansrote, 883
N.E.2d 1165, 1171 (Ind. Ct. App. 2008). Our review is limited to considering the
evidence and reasonable inferences drawn therefrom that support the trial court’s
judgment. Piercey v. Piercey, 727 N.E.2d 26, 31 (Ind. Ct. App. 2000).
Contempt of court “involves disobedience of a court which undermines the court’s
authority, justice, and dignity.” Srivastava v. Indianapolis Hebrew Congregation, Inc.,
779 N.E.2d 52, 60 (Ind. Ct. App. 2002), trans. denied. There are two types of contempt:
direct and indirect. Id. Mother was found to be in indirect contempt, which involves
actions outside the trial court’s personal knowledge. See In re Contempt of Wabash
Valley Hosp., Inc., 827 N.E.2d 50, 61-62 (Ind. Ct. App. 2005). “Willful disobedience of
any lawfully entered court order of which the offender had notice is indirect contempt.”
Francies v. Francies, 759 N.E.2d 1106, 1118 (Ind. Ct. App. 2001), trans. denied; see Witt
v. Jay Petroleum, Inc., 964 N.E.2d 198, 202 (Ind. 2012) (citing In re Perrello, 260 Ind. 26,
29, 291 N.E.2d 698, 700 (1973) (“The willful disobedience of a court order can constitute
indirect . . . contempt. However, the act must be done willfully and with the intent to
show disrespect or defiance.”) (citations omitted)).
8
Mother argues that her decision to restrict Father’s parenting time in contravention
of the trial court’s order was not willful because allowing Father to exercise his parenting
time would have posed a risk to M.W.’s physical and/or emotional health. Our review of
the trial court’s finding leads us to conclude that the trial court determined that Mother’s
initial decision to restrict Father’s parenting time after she learned that McCubbins had
possibly molested M.W. was not willful. Specifically, the trial court found:
The Court finds Mother intentionally and willfully denied Father parenting
time far in excess of what would be a reasonable time to restrict the same
based on the issues related to Brian McCubbins. Considering the thorough
investigation by the Greenwood Police Department and the Division of
Child Services and the ultimate decision that there was not any evidence of
abuse of [M.W.], Mother should have allowed parenting time resume
herein in early 2010.
Appellant’s App. at 24 (emphasis added).
Once Mother learned that McCubbins was no longer residing with Father, that
McCubbins had in fact been incarcerated, and that McCubbins had not molested M.W.,
Mother had no justifiable reason to restrict Father’s parenting time. Mother should have
taken steps to facilitate and resume parenting time between M.W. and Father after the
Greenwood Police Department and the Department of Child Services concluded their
investigation. Mother’s continued refusal to allow Father to exercise his parenting time is
sufficient evidence to establish that she willfully disobeyed the trial court’s parenting
time order, and therefore, the trial court did not abuse its discretion when it held her in
contempt.1
1
Although we affirm the trial court’s decision to hold Mother in contempt, we also observe that the trial
court inexplicably failed to hold a hearing on Father’s December 7, 2009 petition for contempt until January 19,
2011. The chronological case summary establishes that the parties attempted to mediate the dispute, but a report
9
III. Transportation of M.W. for Supervised Parenting Time
Mother next claims that the trial court abused its discretion when it ordered her to
pay the costs associated with transporting M.W. for supervised parenting time. We
review the trial court’s decision to apportion transportation expenses associated with
parenting time for an abuse of discretion. Saalfrank v. Saalfrank, 899 N.E.2d 671, 681-
82 (Ind. Ct. App. 2008). The Parenting Time Guidelines briefly address transportation
costs and state that “[t]he cost of transportation should be shared based on consideration
of various factors, including the distance involved, the financial resources of the parents,
the reason why the distances exist, and the family situation of each parent at that time.”
Parenting Time Guideline § 1(B)(1), cmt. 2.
Although not explicitly ordered in its findings, by ordering Mother to pay the cost
of transporting M.W., the trial court impliedly ordered Mother to personally provide
transportation for M.W. so that she may participate in the court-ordered supervised
visitation. Mother reasonably observes that transporting M.W. for two hours of
supervised visitation on Saturdays or Sundays will interfere significantly with her work
was filed with the trial court in April, 2010, that mediation was unsuccessful. Father filed a petition for an
emergency hearing on his petition for contempt in June 2010, and a hearing was set for July but was continued until
August 2010 at Mother’s request. Mother filed another motion for a continuance, which was granted, and the
hearing was not reset at that time. Father filed another request for a hearing in October 2010. The trial court set the
matter for a hearing for January 19, 2011. That hearing was held, but was continued because the parties needed
additional time to present evidence. At the end of that hearing, the trial court did not order parenting time to resume,
but suggested that Mother facilitate communication between Father and M.W. via email. Due to a weather
cancellation and Mother’s motion to continue the hearing, the hearing was not completed until June 14, 2011. The
trial court then did not issue its order reestablishing Father’s parenting time, albeit supervised, until September 13,
2011, the date Father filed a “Motion for Ruling.” Father’s petition for contempt against Mother languished in the
trial court for over twenty-one months before Father’s parenting time with M.W. resumed.
10
schedule.2 On the other hand, Father indicated that his work schedule was somewhat
flexible.
At the June 14, 2011 hearing, during a discussion of the parameters of supervised
visitation, Father’s attorney indicated that Father would be available in the evenings. The
trial court then stated that evenings are more difficult to schedule, but agreed that
supervised visitation could occur on evenings due to Mother’s weekend work schedule.
Tr. at 85-86. Yet, the trial court then ordered the supervised visitation to occur on
Saturdays or Sundays for at least sixteen weeks. More than sixteen weeks have elapsed
since the trial court’s order, and there is no evidence in the record that would establish
whether supervised visitation is still occurring. On remand, we direct the trial court to
reconsider its decision to order supervised visitation on Saturday or Sunday in light of its
prior recognition that transporting M.W. on the weekends would be difficult due to
Mother’s employment.
IV. Shared Tax Exemption
Mother next argues that the trial court abused its discretion when it ordered the
parties to alternate the tax exemption for M.W. each year, modifying its prior award of
the tax exemption solely to Mother. Concerning this issue, our court has stated:
We note at the outset that 26 U.S.C. § 152(e) (2000) automatically
grants a dependency exemption to a custodial parent of a minor child but
permits an exception where the custodial parent executes a written waiver
of the exemption for a particular tax year. Moreover, we have previously
held that a trial court under certain circumstances may order the custodial
parent to sign a waiver of the dependency exemption. Furthermore, the
Commentary to the Indiana Child Support Guidelines states that the
2
Mother is a registered nurse and works only on Saturdays and Sundays.
11
Guidelines were developed without taking into consideration the award of
the dependency exemption. Instead, courts are instructed to review each
case on an individual basis.
Nonetheless, the Guidelines recommend that, at a minimum, the
following five factors be considered in determining when to order a release
of the exemptions:
(1) the value of the exemption at the marginal tax rate of each parent;
(2) the income of each parent;
(3) the age of the child(ren) and how long the exemption will be
available;
(4) the percentage of the cost of supporting the child(ren) borne by each
parent; and
(5) the financial burden assumed by each parent under the property
settlement in the case.
Harris v. Harris, 800 N.E.2d 930, 940-41 (Ind. Ct. App. 2003) (citations omitted), trans.
denied.
In its consideration of the above factors, 3 a “trial court’s equitable discretion
should be guided primarily by the goal of making the maximum amount of support
available for the child.” Id. at 941 (quoting Lamon v. Lamon, 611 N.E.2d 154, 159 (Ind.
Ct. App. 1993)). The noncustodial parent bears the burden of demonstrating the tax
consequences to each parent of transferring the exemption and how such a transfer would
benefit the child. Id.All evidence critical to resolution of this issue is included in the record. 4 The
Income Shares Model, upon which the Child Support Guidelines are based, is “predicated
on the concept that the child should receive the same proportion of parental income that
3
The General Assembly recently codified these factors in Indiana Code section 31-16-6-1.5.
4
While specific evidence of the tax consequences to the parties as to allocation of the exemption might be
lacking, such evidence is not essential. See Skinner v. Skinner, 644 N.E.2d 141 (Ind. Ct. App. 1994) (noting that no
evidence was presented demonstrating the tax consequences of allocating the tax exemption of one parent, and
focusing the inquiry on “the effect, if any, of divesting” the other parent of the exemption).
12
he or she would have received if the parents lived together.” Ind. Child Support
Guideline 1. And while the primary purpose of child support and allocation of the tax
exemption is appropriately providing for the child, such provision for M.W. is not at
issue here because ordering the parties to alternate – or allocating the tax exemption to
one parent or the other – will not meaningfully alter the support available to M.W. In
other words, the first and primary factor is a wash and should not affect the court’s
decision, so it is irrelevant that precise evidence might be lacking.
Evidence regarding the second, third, and fourth considerations suggest that
alternating the exemption would be best for M.W. and be fairest to the parties.
Specifically, the income of each parent is included in the record.
The fact that their incomes are about the same (a $115 disparity in the parties’
weekly gross income) suggests that alternating the exemption each year would allow each
parent to continue to pay his or her share – almost the same – and M.W. would continue
to receive the maximum benefit. The third factor, the number of years the child could be
claimed as a dependent, is included in the record in the form of the child’s age, and
because the number of years for the exemption is relatively high, the financial break that
both parties can repeatedly receive if the exemption were to alternate further ensures that
both parties will be able to continue to financially support M.W., in the form of child
support payments and other visitation expenses by Father, and the usual expenses
associated with sole custody by Mother.
Again, the fact that both parents’ incomes are about the same means that each
parent’s percentage of the cost of supporting M.W. is about the same, which is the fourth
13
consideration. As a result, it makes sense to have the parents take turns benefiting from
the tax exemption.5
As Mother’s appellate brief suggests, when providing for the child is not at issue,
the trial court must then evaluate a variety of factors which essentially seek the fairest
solution to the parents. Here, where the parents’ incomes are not significantly different,
Mother has sole physical custody, and Father is ordered to pay child support and a variety
of expenses related to visitation, alternating the exemption would lead to relatively equal
financial support of the child for the long-term. The trial court did not abuse its
discretion in ordering the parties to alternate the tax exemption each year.
IV. Retroactive Modification of Child Support
Mother next argues that the trial court abused its discretion when it refused to
award retroactive modification of child support back to January 19, 2011, the date
Mother filed her child support modification petition. Decisions concerning child support
generally rest within the sound discretion of the trial court. Billings v. Odle, 891 N.E.2d
106, 108 (Ind. Ct. App. 2008). And a “trial court has discretion to make a modification
of child support relate back to the date the petition to modify is filed, or any date
thereafter.” Becker v. Becker, 902 N.E.2d 818, 820 (Ind. 2009) (emphasis added).
The trial court specifically declined to order a retroactive support modification
because of “the cost associated with counseling and supervised parenting time that Father
will be required to pay.” Appellant’s App. at 23. Although there is no evidence in the
5
Mother concedes the fifth factor, financial burden assumed by each parent under the property settlement,
“do[es] not appear to have application in this case.” Appellant’s Brief at 20.
14
record specifically stating the amount of the fees for counseling and supervised parenting
time, there is testimony from which an inference can be made that those fees can be quite
costly. Moreover, child support modifications “normally speak only prospectively.”
Quinn v. Threlkel, 858 N.E.2d 665, 674 (Ind. Ct. App. 2006). Given these circumstances,
we cannot say that the trial court abused its discretion when it declined to order a
retroactive child support modification.
V. Attorney Fees
Finally, Mother argues that the trial court abused its discretion when it declined to
award her attorney fees.
In post-dissolution proceedings, the trial court may order a party to pay a
reasonable amount for attorney’s fees. The trial court has broad discretion
in awarding attorney’s fees. Reversal is proper only where the trial court’s
award is clearly against the logic and effect of the facts and circumstances
before the court. In assessing attorney’s fees, the trial court may consider
such factors as the resources of the parties, the relative earning ability of the
parties, and other factors bearing on the reasonableness of the award. In
addition, any misconduct on the part of a party that directly results in the
other party incurring additional fees may be taken into consideration.
Julie C. v. Andrew C., 924 N.E.2d 1249, 1261 (Ind. Ct. App. 2010) (citations omitted).
Mother instituted these proceedings by filing an emergency motion to modify
parenting time. Her decision to restrict Father’s parenting time was initially reasonable
under the circumstances. However, her continued refusal to allow parenting time and
facilitate interaction between Father and M.W. became contemptuous after McCubbins
was removed from Father’s household and jailed, and the molestation investigation was
closed.
15
Moreover, the parties’ resources and earning ability appear to be relatively equal.
Finally, Father was ordered to bear the significant cost of supervised parenting time fees
and therapy for himself and M.W. For all of these reasons, we conclude that the trial
court did not abuse its discretion when it denied Mother’s request for attorney fees.
Conclusion
The trial court’s decision to hold Mother in contempt is supported by the evidence.
Also, the trial court did not abuse its discretion when it declined to order a retroactive
child support modification, denied Mother’s request for attorney fees, and ordered the
parties to alternate the tax exemption for M.W. each year. However, if Father’s parenting
time is still under supervision, we direct the trial court to reconsider its decision to order
supervised visitation on Saturday or Sunday because Mother’s ability to transport M.W.
on weekends is limited due to her employment. Therefore, we remand this case for the
trial court to reconsider its decision regarding the timing of supervised visitation and
affirm in all other respects.
Affirmed and remanded.
BAILEY, J., concurs.
MATHIAS, J., dissents with opinion.
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IN THE
COURT OF APPEALS OF INDIANA
KRISTA C. (WILSON) WILLIAMS, )
)
Appellant )
)
vs. ) No. 41A01-1111-DR-541
)
PHILIP S. WILSON, )
)
Appellee )
MATHIAS, J., dissents with opinion
I respectfully dissent from my colleagues’ conclusion that the trial court properly
ordered the parties to alternate the tax exemption for M.W. each year, which modified the
court’s prior award of the tax exemption solely to Mother. Although the Child Support
Guidelines are worded in permissive terms, our decisions make clear that a trial court
should consider the five factors if a party raises the issue of tax exemptions and that this
court will assess these factors when determining whether the trial court abused its
discretion. See Carpenter v. Carpenter, 891 N.E.2d 587, 596 (Ind. Ct. App. 2008); Quinn
v. Threlkel, 858 N.E.2d 665, 675 (Ind. Ct. App. 2006). It bears repeating that the
noncustodial parent, Father in the case before us, bears the burden of demonstrating the
tax consequences to each parent of transferring the exemption and how such a transfer
would benefit the child. Although Father briefly requested that the parties alternate the
17
tax dependency exemption for M.W., Father failed to present any evidence addressing the
tax consequences to each parent of transferring the exemption. And Father failed to
argue either to the trial court or on appeal (given his failure to file a brief) how
transferring the tax exemption would benefit M.W.
The trial court ordered Mother to sign a release of her right to claim the
dependency exemption simply because of the increase in Father’s child support payment.
There is nothing in the trial court’s order to suggest that it considered the five factors
enumerated in the guidelines. The record does establish that the exemption will remain
available to the parties for several years and that there is a $115.00 disparity in the
parties’ weekly gross incomes. Ex. Vol., Pet. Ex. 11.
But there is no evidence in the record from which the court could determine the
tax consequences to each parent of transferring the exemption, and therefore, how the
transfer would benefit M.W. Mother’s gross income is approximately ten percent more
than Father’s. Therefore, the tax exemption may be more beneficial to her, but without
more evidence of the parties’ relative tax burdens, this is simply speculation. Moreover,
without such evidence in the record, it is not possible to determine whether ordering the
parties to alternate the exemption will maximize the amount of support available for M.W.
I would therefore conclude that Mother has established prima facie error on this issue and
reverse the trial court’s decision to order the parties to alternate the tax exemption for
M.W.
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