This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-96-743

In Re the Matter of:

Paul Gordon Hurley,

Appellant,

vs.

Alison Lisa Warner, petitioner,

Respondent.

Filed November 5, 1996

Affirmed

Schumacher, Judge

Scott County District Court

File No. F9410447

D. Scott Klemp, Marna Wolf Orren, Orren, Klemp & Stanton, 26 East Exchange Street, Suite 400, St. Paul, MN 55101-2264 (for Appellant)

Virginia K. Ekola, Barristers Trust Building, 247 Third Avenue South, Minneapolis, MN 55415 (for Respondent)

Considered and decided by Norton, Presiding Judge, Schumacher, Judge, and Forsberg, Judge.[*]

U N P U B L I S H E D O P I N I O N

SCHUMACHER, Judge

Paul Gordon Hurley appeals from an order and judgment, arguing the district court erred in awarding the dependency tax exemption to respondent Alison Lisa Warner. We affirm.

FACTS

The parties have one minor child, although they never married. Hurley was adjudicated the father and has sole physical and legal custody of the child in Minnesota. After problems with visitation, Warner moved for enforceable visitation. Hurley then moved for child support.

The parties entered into a stipulation for visitation, but continued to argue about child support and attorney fees. The order and judgment required Warner to pay $200 per month in child support and awarded her the dependency tax exemption. The exemption clause read:

Warner shall be entitled to claim [P.H.] as a dependent for state and federal tax purposes, PROVIDED THAT she remains current with her child support obligations * * *.

Hurley appeals.

D E C I S I O N

1. Hurley argues the award of the dependency tax exemption to Warner, the noncustodial parent, violates the Internal Revenue Code's requirement that the exemption be given to the custodial parent. See 26 U.S.C. § 152(e) (1994). We disagree.

The Internal Revenue Code also provides that the noncustodial parent may receive the exemption if:

(A) the custodial parent signs a written declaration * * * that such custodial parent will not claim such child as a dependent for any taxable year beginning in such calendar year, and

(B) the noncustodial parent attaches such written declaration to the noncustodial parent's return for the taxable year beginning during such calendar year.

Id., § 152(e)(2).

This court has ruled that the district court has the discretion to allocate the exemption to the noncustodial parent by ordering the custodial parent to waive his or her right to receive the exemption. Fudenberg v. Molstad, 390 N.W.2d 19, 21 (Minn. App. 1986). The allocation must be contingent on the noncustodial parent's continued payment of child support. Id.

Here, the district court awarded Warner the tax exemption "PROVIDED THAT she remains current with her child support * * *." We conclude this language orders Hurley to waive his right to the tax exemption. If Warner is current in her child support, then she is entitled to claim the exemption. All the Internal Revenue Service then requires is a written declaration from Hurley.

2. Warner moved for attorney fees on appeal. An award of attorney fees on appeal rests within the discretion of this court. See Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 691-92 (Minn. App. 1989), review denied (Minn. June 21, 1989). Warner is entitled to attorney fees on appeal because she was required to defend on appeal, she does not have the means to pay her fees, and Hurley does. See Minn. Stat. § 518.14, subd. 1 (1994). Warner should submit an affidavit of fees incurred on appeal within 10 days of the filing date of this opinion. A further order of the court will address attorney fees.

Affirmed.

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.