KATHRYN F. SUMNER F/K/A KATHRYN F. TART, APPELLANT,
v.
JOE FRANK TART, APPELLEE
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Wife's appeal of a child support modification order is partially successful: the trial court's award of a $25 monthly increase is upheld as not an abuse of discretion, but the court erred in awarding the federal income tax deduction to husband and in denying wife's attorney's fees.
A trial court abuses its discretion by awarding a federal income tax deduction to the husband in a modification order and by denying the wife attorney's fees when she demonstrates need and the husband demonstrates ability to pay.
[1] Federal income tax deductions in child support matters are governed by the Internal Revenue Code and Regulations, not by state court modification orders.
[2] Attorney's fees in a modification proceeding are warranted when the requesting party demonstrates financial need and the other party demonstrates ability to pay.
Previewing 2 of 2 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“federal tax matters must be resolved according to the Internal Revenue Code and Regulations, not the provisions of a state court order modifying a final judgment of dissolution”
The court explained why it disagreed with awarding the federal income tax deduction to the husband based on the modification order.
In a dissolution proceeding, the trial court modified the final judgment by awarding the wife only a $25 per month child support increase, granting th…
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PER CURIAM.
Wife appeals an order modifying a final judgment of dissolution. She claims first that the trial court abused its discretion in awarding her only a $25 per month child support increase. While we may have awarded more had we been sitting in the trial court’s position, we cannot say on this record that the trial court abused its discretion in the amount awarded. We do find merit' in wife’s second and third points, however. She validly contests the part of the modification order in which the trial court awarded the federal income tax deduction for the child to the husband. We agree with the court in Lang v. Lang, 252 So. 2d 809 (Fla. 4th DCA 1971), that federal tax matters must be resolved according to the Internal Revenue Code and Regulations, not the provisions of a state court order modifying a final judgment of dissolution. That part of the order granting husband the income tax deduction for the parties’ child will therefore be stricken from the judgment.
Finally, wife contends that the court erred in denying her attorney’s fees for the modification proceeding. We agree. The record reveals that husband currently has an income while wife does not. Neither party has substantial assets. We think the proof is ample to show her need and his ability to pay the fees.
The judgment is therefore affirmed in part and reversed in part, and the case remanded for the entry of an order not inconsistent with the above opinion.
McCORD, C. J., and MILLS and ERVIN, JJ., concur.
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Helene Cutler v. Cutler, 421 So. 2d 585 (Fla. 3d DCA 1982)…Cutler alleges as error the trial court’s order to pay, on Mrs. Cutler’s behalf, any federal income tax for which she might become liable as a result of the alimony award. In view of our remand, we do not address this issue. But see Sumner v. Tart, 362 So. 2d 344 (Fla. 1st DCA 1978); Tsavaris v. Tsavaris, 307 So. 2d 845 (Fla. 2d DCA 1975); Lang v. Lang, 252 So. 2d 809 (Fla. 4th DCA 1971). . Dr. Cutler also complains that the trial court erred in assessing an accountant’s fee as part of the wife’s costs. We…
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McKENZIE v. Kinsey, 532 So. 2d 98 (Fla. 1st DCA 1988)…essary (including, but not limited to Form 8332) to entitle the Ex-Husband to claim the minor children as dependents for income tax purposes. In Florida, it has been held that trial courts have no authority to make such an award. In Sumner v. Tart, 362 So. 2d 344 (Fla. 1st DCA 1978), the wife appealed an order modifying the final judgment of dissolution, in which the trial court had awarded to the husband the federal income tax dependency exemption for the parties’ child. This court held that federal tax mat…
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Curt F. Fried v. Fried, 390 So. 2d 392 (Fla. 2d DCA 1980)…hand, had assets in excess of one million dollars and a substantial income. Consequently, the trial court abused its discretion in denying the husband’s motion for attorney’s fees. Peters v. Peters, 366 So. 2d 512 (Fla. 2d DCA 1979); Sumner v. Tart, 362 So. 2d 344 (Fla. 1st DCA 1978). Accordingly, we reverse that part of the judgment denying the husband’s request for attorney’s fees. We remand with directions that the trial court enter an order awarding the husband reasonable attorney’s fees both for the se…
Authorities Cited
- Lang v. Lang, 252 So. 2d 809 (Fla. 4th DCA 1971)