[Cite as Didonato v. Didonato, 2016-Ohio-7770.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
STEPHEN J. DIDONATO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Craig R. Baldwin, J. -vs- Case No. 2016AP040022 CHRISTINA HUTH DIDONATO
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court of Common Pleas, Case No. 2013 TC 07 0288
JUDGMENT: Affirmed.
DATE OF JUDGMENT ENTRY: November 15, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
PAUL HERVEY MICHELA HUTH Fitzpatrick, Zimmerman PO Box 17 & Rose Co., L.P.A. Bolivar, Ohio 44612 P.O. Box 1014 New Philadelphia, Ohio 44663 Tuscarawas County, Case No. 2016AP040022 2
Gwin, P.J.,
{¶1} Appellant appeals the March 17, 2016 judgment entry of the Tuscarawas
County Court of Common Pleas granting appellee’s motion for definitive order of
allocation of tax exemptions.
Facts & Procedural History
{¶2} On April 8, 2014, appellant Christina DiDonato (“Mother”) and appellee
Stephen DiDonato (“Father”) were granted a divorce pursuant to an agreed judgment
entry. The parties agreed Mother would be the sole residential and legal custodian of the
children, subject to visitation and parenting rights of Father. The parties further agreed
Mother would be entitled to claim one of the parties’ children for tax purposes, and Father
would claim the other child. Once the eldest child could no longer be claimed as an
exemption, the exemption for the younger child would alternate between the parties.
{¶3} Shortly after the parties filed the agreed entry, Father filed a motion to
modify parental rights and responsibilities. On July 22, 2015, the trial court granted
Father’s motion to modify and designated Father as the residential parent and legal
custodian of the two children. The trial court also ordered Mother to pay child support.
The trial court did not mention the tax exemptions in its July 22, 2015 judgment entry.
{¶4} Mother appealed the trial court’s decision to this Court. We affirmed the
trial court’s decision on April 11, 2016 in DiDonato v. DiDonato, 5th Dist. Tuscarawas
Nos. 2015 AP 07 0042, 2015 AP 09 0051, 2016-Ohio-1511. Father did not file an appeal
or cross-appeal from the trial court’s July 22, 2015 judgment entry.
{¶5} On February 5, 2016, Father filed a motion for definitive order of allocation
of tax exemptions. Father argued that, pursuant to R.C. 3119.82, when issuing a child Tuscarawas County, Case No. 2016AP040022 3
support order as was issued in the July 22, 2015 judgment entry, the trial court was
required to designate the parent who is to claim each child for federal tax purposes. On
February 8, 2016, Mother filed an opposition to Father’s motion, arguing the parties
agreed entry governs the tax exemptions as Father failed to appeal the July 22, 2015
judgment entry.
{¶6} The trial court issued a judgment entry on March 17, 2016 granting Father’s
motion. The trial court stated that, pursuant to the language contained in R.C. 3119.82,
it should have designated which parent may claim each child for tax exemption purposes
in its July 22, 2015 judgment entry as it changed the residential parent to Father and
ordered Mother to pay child support. The trial court further found it is in the best interest
of the children for Father to claim both of the children as dependents and found Father
may claim both children for tax exemption purposes.
{¶7} Mother appeals the March 17, 2016 judgment entry of the Tuscarawas
County Court of Common Pleas and assigns the following as error:
{¶8} “I. THE COURT OF COMMON PLEAS COMMITTED REVERSIBLE
ERROR AND ABUSED ITS DISCRETION WHEN IT GRANTED APPELLEE STEPHEN
DIDONATO’S FEBRUARY 5, 2016 MOTION FOR DEFINITIVE ORDER OF
ALLOCATION OF TAX EXEMPTION.
{¶9} “II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN
IT ORDERED THAT APPELLEE STEPHEN DIDONATO IS ENTITLED TO CLAIM BOTH
OF THE PARTIES’ MINOR CHILDREN FOR FEDERAL INCOME TAX PURPOSES.” Tuscarawas County, Case No. 2016AP040022 4
I & II
{¶10} Because Mother’s assignments of error raise related issues, we shall
address them together.
{¶11} R.C. 3119.82 provides, in pertinent part:
Whenever a court issues, or whenever it modifies, reviews, or otherwise
reconsiders a court child support order, it shall designate which parent may
claim the children who are the subject of the court child support order as
dependents for federal income tax purposes. * * * If the parties agree on
which parent should claim the children as dependents, the court shall
designate that parent as the parent who may claim the children. If the
parties do not agree, the court, in its order, may permit the parent who is
not the residential parent and legal custodian to claim the children as
dependents for federal income tax purposes only if the court determines
that this furthers the best interest of the children and, with respect to orders
the court modifies, reviews, or reconsiders, the payments for child support
are substantially current as ordered by the court for the year in which the
children will be claimed as dependents. In cases in which the parties do not
agree which parent may claim the children as dependents, the court shall
consider, in making its determination, any net tax savings, the relative
financial circumstances and needs of the parents and children, the amount
of time the children spend with each parent, the eligibility of either or both
parents for the federal earned income tax credit or other state or federal tax Tuscarawas County, Case No. 2016AP040022 5
credit, and any other relevant factor concerning the best interest of the
children.
{¶12} Mother first contends since the income tax deduction issue was not included
in the trial court’s July 22, 2015 judgment entry and because Father did not appeal the
July 22, 2015 judgment entry, the trial court could not allocate the tax exemptions in the
March 17, 2016 judgment entry. Father did not appeal the trial court’s July 22, 2015
judgment entry, but instead brought the issue to the trial court’s attention via motion.
{¶13} This Court has previously addressed the issue of whether a trial court can
consider the issue of a tax exemption by motion of a party in order to correct an oversight
of leaving out the income tax allocation in a previous entry modifying child support in
Kager v. Kager, 5th Dist. Stark No. 2005CA00208, 2006-Ohio-2427. We stated as
follows:
R.C. 3119.82 states the court must consider the issue of the tax exemption
whenever it modifies, reviews, or otherwise considers a child support order.
Thus, even if neither party brought the issue to the trial court’s attention, it
nevertheless should have been a part of the February 15, 2005 judgment
entry. Thus, we reject appellant’s argument it was appellee’s responsibility
to raise the issue in the trial court. In the alternative, the court could have
reached the same result by treating the Civ.R. 60(B) motion as a new
motion to modify. From any perspective, the court should have considered
the income tax issue in its February order, and it was not error for the court
to correct the oversight in its July order. Tuscarawas County, Case No. 2016AP040022 6
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[Cite as Didonato v. Didonato, 2016-Ohio-7770.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
STEPHEN J. DIDONATO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Craig R. Baldwin, J. -vs- Case No. 2016AP040022 CHRISTINA HUTH DIDONATO
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court of Common Pleas, Case No. 2013 TC 07 0288
JUDGMENT: Affirmed.
DATE OF JUDGMENT ENTRY: November 15, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
PAUL HERVEY MICHELA HUTH Fitzpatrick, Zimmerman PO Box 17 & Rose Co., L.P.A. Bolivar, Ohio 44612 P.O. Box 1014 New Philadelphia, Ohio 44663 Tuscarawas County, Case No. 2016AP040022 2
Gwin, P.J.,
{¶1} Appellant appeals the March 17, 2016 judgment entry of the Tuscarawas
County Court of Common Pleas granting appellee’s motion for definitive order of
allocation of tax exemptions.
Facts & Procedural History
{¶2} On April 8, 2014, appellant Christina DiDonato (“Mother”) and appellee
Stephen DiDonato (“Father”) were granted a divorce pursuant to an agreed judgment
entry. The parties agreed Mother would be the sole residential and legal custodian of the
children, subject to visitation and parenting rights of Father. The parties further agreed
Mother would be entitled to claim one of the parties’ children for tax purposes, and Father
would claim the other child. Once the eldest child could no longer be claimed as an
exemption, the exemption for the younger child would alternate between the parties.
{¶3} Shortly after the parties filed the agreed entry, Father filed a motion to
modify parental rights and responsibilities. On July 22, 2015, the trial court granted
Father’s motion to modify and designated Father as the residential parent and legal
custodian of the two children. The trial court also ordered Mother to pay child support.
The trial court did not mention the tax exemptions in its July 22, 2015 judgment entry.
{¶4} Mother appealed the trial court’s decision to this Court. We affirmed the
trial court’s decision on April 11, 2016 in DiDonato v. DiDonato, 5th Dist. Tuscarawas
Nos. 2015 AP 07 0042, 2015 AP 09 0051, 2016-Ohio-1511. Father did not file an appeal
or cross-appeal from the trial court’s July 22, 2015 judgment entry.
{¶5} On February 5, 2016, Father filed a motion for definitive order of allocation
of tax exemptions. Father argued that, pursuant to R.C. 3119.82, when issuing a child Tuscarawas County, Case No. 2016AP040022 3
support order as was issued in the July 22, 2015 judgment entry, the trial court was
required to designate the parent who is to claim each child for federal tax purposes. On
February 8, 2016, Mother filed an opposition to Father’s motion, arguing the parties
agreed entry governs the tax exemptions as Father failed to appeal the July 22, 2015
judgment entry.
{¶6} The trial court issued a judgment entry on March 17, 2016 granting Father’s
motion. The trial court stated that, pursuant to the language contained in R.C. 3119.82,
it should have designated which parent may claim each child for tax exemption purposes
in its July 22, 2015 judgment entry as it changed the residential parent to Father and
ordered Mother to pay child support. The trial court further found it is in the best interest
of the children for Father to claim both of the children as dependents and found Father
may claim both children for tax exemption purposes.
{¶7} Mother appeals the March 17, 2016 judgment entry of the Tuscarawas
County Court of Common Pleas and assigns the following as error:
{¶8} “I. THE COURT OF COMMON PLEAS COMMITTED REVERSIBLE
ERROR AND ABUSED ITS DISCRETION WHEN IT GRANTED APPELLEE STEPHEN
DIDONATO’S FEBRUARY 5, 2016 MOTION FOR DEFINITIVE ORDER OF
ALLOCATION OF TAX EXEMPTION.
{¶9} “II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN
IT ORDERED THAT APPELLEE STEPHEN DIDONATO IS ENTITLED TO CLAIM BOTH
OF THE PARTIES’ MINOR CHILDREN FOR FEDERAL INCOME TAX PURPOSES.” Tuscarawas County, Case No. 2016AP040022 4
I & II
{¶10} Because Mother’s assignments of error raise related issues, we shall
address them together.
{¶11} R.C. 3119.82 provides, in pertinent part:
Whenever a court issues, or whenever it modifies, reviews, or otherwise
reconsiders a court child support order, it shall designate which parent may
claim the children who are the subject of the court child support order as
dependents for federal income tax purposes. * * * If the parties agree on
which parent should claim the children as dependents, the court shall
designate that parent as the parent who may claim the children. If the
parties do not agree, the court, in its order, may permit the parent who is
not the residential parent and legal custodian to claim the children as
dependents for federal income tax purposes only if the court determines
that this furthers the best interest of the children and, with respect to orders
the court modifies, reviews, or reconsiders, the payments for child support
are substantially current as ordered by the court for the year in which the
children will be claimed as dependents. In cases in which the parties do not
agree which parent may claim the children as dependents, the court shall
consider, in making its determination, any net tax savings, the relative
financial circumstances and needs of the parents and children, the amount
of time the children spend with each parent, the eligibility of either or both
parents for the federal earned income tax credit or other state or federal tax Tuscarawas County, Case No. 2016AP040022 5
credit, and any other relevant factor concerning the best interest of the
children.
{¶12} Mother first contends since the income tax deduction issue was not included
in the trial court’s July 22, 2015 judgment entry and because Father did not appeal the
July 22, 2015 judgment entry, the trial court could not allocate the tax exemptions in the
March 17, 2016 judgment entry. Father did not appeal the trial court’s July 22, 2015
judgment entry, but instead brought the issue to the trial court’s attention via motion.
{¶13} This Court has previously addressed the issue of whether a trial court can
consider the issue of a tax exemption by motion of a party in order to correct an oversight
of leaving out the income tax allocation in a previous entry modifying child support in
Kager v. Kager, 5th Dist. Stark No. 2005CA00208, 2006-Ohio-2427. We stated as
follows:
R.C. 3119.82 states the court must consider the issue of the tax exemption
whenever it modifies, reviews, or otherwise considers a child support order.
Thus, even if neither party brought the issue to the trial court’s attention, it
nevertheless should have been a part of the February 15, 2005 judgment
entry. Thus, we reject appellant’s argument it was appellee’s responsibility
to raise the issue in the trial court. In the alternative, the court could have
reached the same result by treating the Civ.R. 60(B) motion as a new
motion to modify. From any perspective, the court should have considered
the income tax issue in its February order, and it was not error for the court
to correct the oversight in its July order. Tuscarawas County, Case No. 2016AP040022 6
{¶14} Like in the Kager case, in this case, in its July 22, 2015 judgment entry, the
trial court modified child support. Thus, pursuant to the mandatory word “shall” contained
in R.C. 3119.82, the trial court was required to designate which parent would receive the
tax exemptions. Id.; Fisher v. Fisher, 3rd Dist. Henry No. 7-05-03, 2005-Ohio-5615. It is
clear that the trial court did not allocate the tax exemptions in the July 22, 2015 entry
pursuant to R.C. 3119.82. Therefore, the trial court did not exceed its discretion in
correcting its oversight in its March 17, 2016 order after a motion was filed by Father. In
the alternative, the trial court could have treated Father’s motion as a new motion to
modify.
{¶15} Further, as to Mother’s argument that the prior agreement controls, R.C.
3119.82 requires the trial court to designate which parent receives the exemptions when
it modified the child support order from the previous agreement, which it did via the July
22, 2015 judgment entry when it changed the child support order and appointed Father
the residential parent. Additionally, we have previously held, with regards to R.C.
3119.82, that the determination of the best interest of the child is not to be limited by a
prior agreement or previous allocation. Piciacchia v. Piciacchia, 5th Dist. Stark No.
2006CA00286, 2007-Ohio-2328.
{¶16} Mother also argues the trial court erred in allocating the tax exemptions for
the minor children to Father because the evidence does not support the trial court’s
determination.
{¶17} We review a trial court’s decision allocating tax exemptions for dependents
under an abuse of discretion standard. Hughes v. Hughes, 35 Ohio St.3d 15, 518 N.E.2d
1213 (1988). Thus, pursuant to Blakemore v. Blakemore, we must determine whether Tuscarawas County, Case No. 2016AP040022 7
the trial court’s decision in awarding the tax exemptions to Father was arbitrary,
unconscionable, or unreasonable, and not merely an error of law or judgment. 5 Ohio
St.3d 217, 450 N.E.2d 1140 (1989). However, this discretion is both limited and guided
by R.C. 3119.82. Thus, if the trial court allocates the tax exemptions to the non-custodial
parent, it must find the interest of the child has been furthered and must consider any
relevant factor concerning the best interest of the child in making such a decision. Doyle
v. Metzer, 5th Dist. Stark No. 2015CA00002, 2015-Ohio-3738.
{¶18} In this case, the trial court specifically found in its judgment entry that Father
is now the residential parent and legal custodian of the children and thus is entitled to
claim the child for tax purposes. Further, that allocating the tax exemptions to Father was
in the best interest of the children. Pursuant to R.C. 3119.82, the custodial parent is
presumed to be entitled to claim the minor children for income tax purposes. In this case,
the trial court concluded Father was entitled to the tax exemptions because he was both
the residential parent and because it was in the best interest of the children. Our review
of the record indicates the trial court’s conclusion was not arbitrary, unconscionable, or
unreasonable. Accordingly, we find the trial court did not abuse its discretion in allocating
the tax exemptions to Father. See Schaefer v. Schaefer, 5th Dist. Stark No.
2007CA00283, 2008-Ohio-3960. Tuscarawas County, Case No. 2016AP040022 8
{¶19} Based on the foregoing, we overrule Mother’s assignments of error. The
March 17, 2016 judgment entry of the Tuscarawas County Court of Common Pleas is
affirmed.
By: Gwin, P.J. and
Baldwin, J. concur;
Hoffman, J., concurs in part;
dissents in part
___________________________________ HON. W. SCOTT GWIN
___________________________________ HON. WILLIAM B. HOFFMAN
___________________________________ HON. CRAIG R. BALDWIN Tuscarawas County, Case No. 2016AP040022 9
Hoffman, J., concurring in part and dissenting in part
{¶20} As it pertains to Mother’s second assignment of error, I agree with the
majority the trial court’s award of the tax exemptions to Father would not have been an
abuse of discretion [had it done so in its July 22, 2015 judgment]. However, I respectfully
disagree with the majority’s decision to overrule Mother’s first assignment of error.
{¶21} The majority relies primarily on this Court’s prior opinion in Kager v. Kager,
5th Dist. Stark No. 2005CA00208, 2006-Ohio-2427.1 I find Kager significantly different
procedurally.
{¶22} In Kager, the appellee filed a Civ.R. 60(B) motion to vacate the trial court’s
decision and, if granted, add a designation for allocation of tax exemptions which was
absent from its earlier order modifying child support. I find a distinct conceptual difference
between a motion to vacate a judgment and a post-judgment motion to correct an error
in that judgment. The latter motion does not vacate the original judgment. The original
judgment remains law of the case unless changed on appeal or vacated. Neither
occurred in this case.
{¶23} The majority finds, in the alternative, the trial court could have reached the
same result by treating Father’s motion as a new motion to modify, similar to the
reasoning of the Kager Court. However, the statute requires a new motion to modify child
support, not merely a motion to modify the allocation of tax exemptions. Father’s motion
herein was not a motion to modify child support.
{¶24} Given the fact the trial court modified the existing child support order in its
July 22, 2015 Judgment Entry, it had not only the authority, but also the duty to designate
1 I did not participate in the Kager decision. Tuscarawas County, Case No. 2016AP040022 10
the allocation of tax exemptions for the children. It committed error in failing to do so [and
acknowledged its error in the March 17, 2016 Judgment Entry].2
{¶25} The trial court’s failure to fulfil its duty under the statue constituted reversible
error. While Mother appealed the trial court’s July 22, 2015 Judgment Entry, Father did
not. Having failed to do so, I find the principle of law of the case and/or res judicata
precludes the trial court from reallocating the tax exemption unless and until it modifies,
reviews, or otherwise reconsiders a child support order in this case in the future.
{¶26} I would sustain Mother’s first assignment of error and reverse the judgment
of the trial court.
2While not argued in his brief, an argument could be made based upon the presumption of regularity. The trial court was aware it had the authority under R.C. 3119.82 to modify the Agreed Entry relative to the allocation of the tax exemption, but decided, at that time [July 22, 2015], not to do so. Under the presumption of regularity, by not expressly changing the preexisting designation, it would be presumed it intended to keep them the same.