This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-01-1611

 

Annette LaVoie Jensen, petitioner,
Appellant,

vs.

Steven Michael Jensen,
Respondent.

 

Filed March 19, 2002

Affirmed

Crippen, Judge

 

Hennepin County District Court

File No. DC211922

 

 

William Christopher Penwell, Robert F. Rode, Brenna E. Nelson, Siegel, Brill, Greupner, Duffy & Foster, P.A., Suite 1300, 100 Washington Avenue South, Minneapolis, MN 55401 (for appellant)

 

Paul M. Nesvig, 1757 Wellesley Avenue, St. Paul, MN 55105 (for respondent)

 

            Considered and decided by Crippen, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D  O P I N I O N

CRIPPEN, Judge

            Five years after the parties divorced, the court first addressed the subject of federal dependency exemptions for the children of the parties and determined that respondent Steven Jensen, the child support obligor, was entitled to claim the exemptions.  The court found that this award “makes sense” because respondent is the only parent who has income.  Because appellant Annette Jensen has failed to show that the trial court abused its discretion in awarding the dependency exemptions to respondent, we affirm.

 

FACTS

 

            The parties married in 1984 and have three minor children.  In 1995, the parties divorced and the judgment placed sole physical custody of the children with appellant.  The judgment ordered respondent to pay $864.50 per month for child support but was silent on which party would claim the federal dependency exemptions for the three minor children.  At the time of the divorce, respondent earned approximately $2,170 per month, and appellant was a full-time homemaker who received public assistance. 

            From 1995 through 1999, respondent claimed the children as dependents on his tax return.  In 1999, appellant remarried and claimed the children as dependents on her joint tax return for that year.  In May 2000, respondent moved for a court order entitling him to the dependency exemptions, asserting that the parties orally agreed that respondent would claim the exemptions and citing his undisputed practice to claim them from 1995 through 1998.  Respondent also reported to the court that appellant amended her state tax returns for 1997 and 1998 to claim the tax exemptions for the three children.

The trial court granted respondent the dependency exemptions for the three children effective for 1997.  The court found that, because appellant has no income and no prospects for income, “it makes sense to the Court that Father should be able to claim the three minor children as tax dependents.”  In its findings, the court noted that respondent has income and appellant has none, but appellant wants the tax exemptions because she files joint tax returns with her current husband.  The court found that it was not equitable for appellant’s husband, a third party, to derive a tax benefit from the minor children and found that, even though appellant was the custodial parent, it was “fair, just, and equitable” that respondent claim the three children as dependents.  The order also acknowledged respondent’s payment of $725 per month for spousal maintenance until October 1999. 

D E C I S I O N

 

The allocation of federal tax exemptions is within the discretion of the trial court.  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999).  The Internal Revenue Code states that the custodial parent of a minor child is entitled to claim that child as a dependent unless he or she signs a waiver of the exemption and the noncustodial parent attaches the waiver to his or her return.  I.R.C. § 152(e)(1), (2) (2000);[1] Gerardy v. Gerardy, 406 N.W.2d 10, 14 (Minn. App. 1987).  Appellant’s sole argument before the trial court dwelled on her right as declared in § 152(e)(1) and the absence of any written declaration by appellant to waive this right.   Appellant has furnished this court with no transcript and we have no record of any other assertions appellant made to the trial court outside of § 152(e)(1).  In appellant’s memorandum to the trial court, she asserts that “[t]his is a cut and dried issue of law which Respondent and his counsel obviously failed to research.” 

            On appeal, appellant acknowledges the established matter of law that the trial court, notwithstanding the provisions of section 152(e), may allocate the tax exemptions to a noncustodial parent incident to the determination of child support.  Crosby, 622 N.W.2d at 298.  As appellant recognizes, the Minnesota Supreme Court has affirmed this rule in Rogers v. Rogers, 622 N.W.2d 813, 823 (Minn. 2001), a holding that occurred after appellant presented his argument on this issue to the trial court.  Because respondent has not asserted that we should confine our discussion to what appellant argued to the trial court, we reluctantly look at appellant’s new claims.  But see Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (this court will generally not consider matters not argued and considered in the court below); cf Minn. R. Civ. App. 103.04 (defining appellate discretion to address an issue in the interests of justice)Respondent addressed the question of this appeal’s timeliness, but we find no merit in this assertion.[2]

Appellant claims that the trial court abused its discretion in failing to consider whether the children’s needs would be better met by adding income in appellant’s household, which would be an expected outcome of permitting exemption claims on her joint return.  See Rogers, 622 N.W.2d at 823 (confirming that the district court is empowered to allocate tax exemptions to the noncustodial parent; affirming a district court’s exemption decision premised on the finding that the relative resources of the parties dictate that it would be in the best interests for the children for the noncustodial parent to claim the exemption).  But the record here does not contain any showing by appellant that her husband’s income is used to meet the needs of the children; in fact, the record does not show the amount of the husband’s income.  See Taflin v. Taflin, 366 N.W.2d 315, 319 (Minn. App. 1985) (holding that a party who fails to document income properly at the trial court “will not be heard to complain” about the issue on appeal.).

            Appellant next argues that her husband’s income should be attributed to her for the court’s determination in awarding the dependency exemptions.  Appellant asserts that under a 1973 revenue ruling, which predates the current statute on federal dependency exemptions, “remarried custodial parents may claim the child’s support furnished by the new spouse.” See Rev. Rul. 73-175, 1973-1 C.B. 58.  Thus appellant argues that the trial court abused its discretion by failing to consider the child support contributions of appellant’s husband.  But again, we have no evidence on the record of appellant’s husband’s income or his contributions of child support.  Moreover, appellant conceded to the trial court that respondent “actually provides over half of the child support during the year” for the three minor children.[3] 

Because appellant’s contentions fail to show that the trial court abused its discretion, we affirm.

            Affirmed.

 

 



[1] The code provides two other exceptions when the noncustodial parent is entitled to the dependency exemptions: (1) there is a multiple-support agreement; and (2) a pre-1985 divorce or separation instrument exists between the parents.  I.R.C. § 152(e)(3)-(4) (2000).   Neither applies here.

[2] Respondent contends that the appeal is not timely because the clerk mailed the parties a copy of the order on August 24, 2000, and this constituted legal notice.  “Unless a different time is provided by statute, an appeal may be taken from * * * an appealable order within 60 days after service by any party of written notice of its filing.”  Minn. R. App. P. 104.01.  The 60-day time limit to appeal is triggered by either party serving written notice of the order’s filing on the other party, not the clerk’s mailing of the order to the parties.  Because there is nothing in the record to indicate that either party served notice on the other until respondent served notice on appellant on July 24, 2001, this appeal is timely.

[3] At oral argument, appellant argued that respondent has an obligation to show that he is eligible to claim the exemptions under I.R.C. § 152(e) (2000). Even without appellant’s concession that respondent does provide more than one half of the children’s support, appellant has identified no authority that respondent’s burden extended to proof of a negative, that no one other than respondent was entitled to the exemptions.  See State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (stating that assignment of error in brief based on “mere assertion” and not supported by argument or authority is waived unless prejudicial error is obvious on mere inspection) (quotation omitted).