PAUL ROBERTSON, APPELLANT,
v.
RAQUEL BRETTHAUER, ETC., APPELLEE
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A former non-custodial father appeals denial of his request to claim federal tax dependency exemptions for his three children. The court reversed, holding that trial courts have equitable power to require the custodial parent to transfer the exemption to the non-custodial parent through waiver, provided the non-custodial parent is current with child support payments.
The trial court has equitable power to require the custodial parent to transfer the federal tax dependency exemption to the non-custodial parent through execution of a waiver, conditioned upon the non-custodial parent being current with support payments.
[1] A trial court has the equitable power to order a custodial parent to waive the federal tax dependency exemption in favor of the non-custodial parent.
[2] The transfer of a federal tax dependency exemption to a non-custodial parent is conditioned upon that parent being current with child support payments.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The trial court, in its equitable power, can order a waiver of the dependency exemption.”
Establishes that trial courts have equitable authority to modify exemption allocation through waiver requirement.
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Join FLexlaw to unlock all legal intelligenceRobertson and Bretthauer divorced in August 1994 under a Marital Settlement Agreement providing that after 1996, only the custodial parent could claim…
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PER CURIAM.
Paul Robertson (“Robertson”), the former husband and non-custodial parent of three children, appeals the trial court’s order denying his request for use of Federal Tax Dependency Exemptions for his children. For the following reasons, we reverse.
Robertson and his former wife, Raquel Bretthauer (“Bretthauer”), entered into a Marital Settlement Agreement in August 1994. The Final Judgment of Dissolution of Marriage was entered later that month and incorporated this agreement. In 1994 and 1995, Robertson claimed the Federal Tax Dependency Exemption for all three of his children. However, according to the agreement, after 1996 only the custodial parent could claim this dependency exemption. Robertson retained custody of the eldest child and Bretthauer retained custody of the two younger children. In May 1997, the trial court denied Robertson’s petition seeking modification of the Federal Tax Dependency Exemption clause of the Marital Settlement Agreement.1
Since the dissolution in August 1994, Robertson has been paying 100% of the child support. In fact, Robertson currently contributes 40% of his net income for 100% of his children’s support as determined by the court ordered support obligation. Bret-thauer was not employed, claimed no income and produced no income tax returns. Thus, modification of the Federal Tax Dependency Exemption clause is beneficial because it is of much greater use to Robertson than Bret-thauer. The trial court, in its equitable power, can order a waiver of the dependency exemption. The majority American rule is that although the trial court does not have the absolute power to allocate the exemption directly, it can require the custodial parent to transfer the exemption to the non-eustodial parent through the execution of a waiver. See Ford v. Ford, 592 So. 2d 698 (Fla. 3d DCA 1991); Pineiro v. Pineiro, 683 So. 2d 148 (Fla. 3d DCA 1996); Fenner v. Fenner, 599 So. 2d 1343 (Fla. 4th DCA), review denied, 613 So. 2d 3 (Fla.1992).
However, the transfer of the dependency exemption to the non-custodial parent is conditioned on that parent being current with support payments. See Ford, 592 So. 2d at 704; Fenner, 599 So. 2d at 1346. The trial court shall order the transfer of the dependency exemption conditioned upon Robertson being current with his support payments.
Reversed and remanded for proceedings consistent with this opinion.
. The trial court also awarded Bretthauer arrear-ages based on unpaid support, and awarded her custody of the eldest child. Robertson claims to have paid off the remaining arrearage, and to be current in his child support payments.
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Salazar v. Orestes Salazar, 976 So. 2d 1155 (Fla. 4th DCA 2008)…dependency tax exemption directly. It can, however, require the custodial parent to execute a waiver transferring the exemptions to the noncustodial parent.” Wamsley v. Wamsley, 957 So. 2d 89, 92 (Fla. 2d DCA 2007); see also Robertson v. Bretthauer, 712 So. 2d 1140, 1141 (Fla. 3d DCA 1998) (“The majority American rule is that although the trial court does not have the absolute power to allocate the exemption directly, it can require the custodial parent to transfer the exemption to the non-custodial parent thr…
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Davies v. Turner, 802 So. 2d 1195 (Fla. 1st DCA 2002)…l court ordered the wife to execute an exemption for each even-numbered year, commencing with 2000. The trial court erred in not making the requirement conditional upon the former husband being current with support payments. Robertson v. Bretthauer, 712 So. 2d 1140 (Fla. 3d DCA 1998). We, therefore, reverse this portion of the order and remand for the trial court to address this issue. Finally, in light of the great disparity in income between the parties, we determine that the trial court erred in awarding…
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Kuntz v. Kuntz, 780 So. 2d 1022 (Fla. 4th DCA 2001)…cision denying relocation.” 744 So. 2d at 1218-19 (citations omitted). We also affirm the trial court’s allocation between the parents of the federal tax exemption for the children. See § 61.30(11)(a)8., Fla. Stat. (2000); Robertson v. Bretthauer, 712 So. 2d 1140, 1141 (Fla. 3d DCA 1998). Finally, we affirm the trial court’s finding that the former wife was “underemployed.” Imputation of income for the purpose of the child support guidelines is appropriate where the court finds that a parent is underemploy…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fenner v. Fenner, 599 So. 2d 1343 (Fla. 4th DCA 1992)
- Ford v. Ford, 592 So. 2d 698 (Fla. 3d DCA 1991)
- Pineiro v. Pineiro, 683 So. 2d 148 (Fla. 3d DCA 1996)