Krista Miller v. Frederick Miller

• Court: Court of Appeals of Tennessee
• Decided: May 21, 1999
• Docket: 02A01-9809-CH-00271
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE, AT JACKSON

_______________________________________________________

) KRISTA B. MILLER (SANDERS), ) Henry County Chancery Court No. 16074 ) Plaintiff/Appellant. )

VS. ) ) FILED C.A. No. 02A01-9809-CH-00271 ) FREDERICK H. MILLER, ) May 21, 1999 ) Defendant/Appellee. ) Cecil Crowson, Jr. ) Appellate Court Clerk ______________________________________________________________________________

From the Chancery Court of Henry County at Paris. Honorable Walton West, Chancellor

Richard L. Dunlap, III, THE DUNLAP LAW FIRM, Paris, Tennessee Attorney for Plaintiff/Appellant.

W. Brown Hawley, II, Paris, Tennessee Attorney for Defendant/Appellee.

OPINION FILED:

AFFIRMED AND REMANDED

FARMER, J.

CRAWFORD, P.J., W.S.: (Concurs) LILLARD, J.: (Concurs)

1 Judgment was entered dissolving the marriage of these parties on November 22, 1995. A

marital dissolution agreement entered into by the parties was incorporated into the decree. The

MDA provided that Ms. Sanders would have custody of the parties’ minor child with Mr. Miller to

pay child support. No provision was made regarding which party would be entitled to claim the

child as a dependent for federal income tax purposes. The judgment provided reasonable visitation

privileges to Mr. Miller.

Subsequent to the entry of the judgment granting the

divorce, various motions were filed by the parties concerning visitation and child support. On

November 24, 1997, Mr. Miller filed a motion asking the court to establish specific visitation and

also to allow him to claim the child as a dependent for federal income tax purposes. Ms. Sanders

filed a motion in December 1997 seeking to increase child support.

An order was entered in the trial court on September

2, 1998, disposing of several pending motions. The order included an increase in child support due

to Mr. Miller’s additional income, addressed visitation, and further provided that the parties shall

alternate claiming their minor child as a dependent for income tax purposes with Mr. Miller having

the right to claim the child on his 1998 income tax return and Ms. Sanders the year thereafter with

subsequent years to be alternated.

Ms. Sanders presents the following issue in this appeal:

Wheth

er the

Trial

Court

erred in

determ

ining

o r

2 orderin

g “that

t h e

parties

shall

alternat

e

claimin

g the

parties’

minor

child,

Brittan

y

Miller,

as a

depend

ent for

income

t a x

purpos

es, with

defend

a n t

having

right to

claim

3 child as

a

ent on

h i s

return

and the

plaintif

f

child as

h e r

for the

y e a r

thereaf

t e r ,

w i t h

4 succee

d i n g

years

ter to

b e

ed.”

Ms. Sanders contends that the trial court lacked

jurisdiction to modify the final decree absent the movant, Mr. Miller, showing a substantial and

material change of circumstances. A judgment, unless appealed, becomes final once thirty days has

elapsed. A final judgment is barred from further consideration under the doctrine of res judicata.

This means that a final judgment rendered by a court of competent jurisdiction on the merits is

conclusive as to the rights of the parties and their privies and, as to them, constitutes an absolute bar

to a subsequent action involving the same claim, demand, or cause of action. The doctrine applies

to all issues which were or could have been litigated in the former suit. Richardson v. Tennessee

Bd. of Dentistry, 913 S.W.2d 446, 459 (Tenn. 1995).

Mr. Miller takes the position before this court that the

trial court had jurisdiction to rule on the tax exemption since that matter had not been dealt with

previously, and that the filing of Ms. Sanders’ motion for an increase in child support gave the trial

court an opportunity to consider all issues involving child support.

Pursuant to the Tax Reform Act of 1984, the Internal

Revenue Code allocates the deduction to the custodial parent. See 26 U.S.C.S. § 152(e)(1) (1998).

This rule is subject to three exceptions, one being where the custodial parent has released his or her

claim for the exemption. Under this exception, the noncustodial parent may be entitled to the

5 exemption if the custodial parent signs a written declaration that the custodial parent will not claim

the child as a dependent and the noncustodial parent attaches such written declaration to his or her

tax return. See 26 U.S.C.S. § 152(e)(2) (1998). The divorce court may order the custodial parent

to sign a declaration that he or she will not claim the child as a dependent in order to allow the

noncustodial parent to claim the exemption. W. Walton Garrett, Tennessee Divorce, Alimony and

Child Custody § 27-5 (1998).

The order of September 2, 1998, sets forth several

stipulations announced in open court by counsel for the respective parties. The parties stipulated that

Mr. Miller has enjoyed an increased wage rate since the previous order entered in this cause

establishing child support. He has enjoyed an hourly wage rate of $11.25 since December 8, 1997,

and $11.75 since May 1, 1998. Mr. Miller initially was ordered to pay child support in the amount

of $273 per month. We are of the opinion that the filing by Ms. Sanders of a request to increase

child support gave the trial court jurisdiction to reexamine that issue. The parties stipulated as to Mr.

Miller’s increase in income, and the trial court increased the amount of child support Mr. Miller was

required to pay. Decisions of the trial court regarding the allocation of exemptions for minor

children are discretionary. Barabas v. Rogers, 868 S.W.2d 283, 289 (Tenn. App. 1993); Thompson

v. Thompson, 1990 WL 16312, at *6 (Tenn. App. Feb. 23, 1990). The courts should consider the

tax consequences of child support orders. Barabas, 868 S.W.2d at 289. We do not find that the

trial court abused its discretion in allowing the parties to claim the exemption on alternate years.

We are mindful of the fact that the General Assembly

amended Tennessee Code Annotated section 36-5-101(a)(1) in 1994. Prior to that amendment, an

increase in income was a substantial and material change of circumstances sufficient to allow a

modification of child support. See Ragan v. Ragan, 858 S.W.2d 332, 333 (Tenn. App. 1993). The

statute now provides in pertinent part that:

I n cases involvi n g child

6 support , upon applica tion of either p a r t y, t h e court shall decree a n increas e or decreas e of such allowa n c e when there is found to be a signific a n t varianc e, as defined in the child support guideli n e s establis hed by subsect ion (e), betwee n the guideli nes and t h e amount o f support current l y ordered unle ss t h e varianc e has resulte d from a previo u s l y court- ordered deviati

7 o n from t h e guideli nes and t h e circum stances which caused t h e deviati o n have n o t change d.

T.C.A. § 36-5-101(a)(1) (Supp. 1998). A “significant variance” is fifteen percent. See Tenn. Comp.

R. & Regs. 1240-2-4-.02(3) (as revised in Dec. 1994); see also Dwight v. Dwight, 936 S.W.2d 945,

948 (Tenn. App. 1996); Turner v. Turner, 919 S.W.2d 340, 343 (Tenn. App. 1995). The record

before us does not reveal Mr. Miller’s income at the time of the previous order setting child support;

however, the record does reveal that his child support payments were increased from $273 per month

to $345 per month. Neither party has appealed the amount of child support awarded. After

announcing the stipulation, counsel for both parties agreed that the sole issue left to be determined

by the trial court was which party could claim the child for the tax exemption.

It results that the judgment of the trial court is affirmed,

and this cause is remanded to the trial court for further proceedings consistent with this opinion.

Costs of this appeal are taxed to Appellant, for which execution may issue if necessary

____________________________________ FARMER, J.

______________________________ CRAWFORD, P.J., W.S. (Concurs)

8 ______________________________ LILLARD, J. (Concurs)