This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


Erik Jon Martensen,


Teresa Lynn Babcock,

Filed November 16, 1999
Shumaker, Judge

Ramsey County District Court
File No. F69650413

Rodney H. Jensen, 1100 Northland Plaza, 3800 West 80th Street, Bloomington, MN 55431 (for respondent)

William C. Michelson, Marso, Michelson & Harrigan, P.A., 3101 Irving Avenue South, Minneapolis, MN 55408 (for appellant)

Considered and decided by Shumaker, Presiding Judge, Davies, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant Teresa Lynn Babcock contends the trial court abused its discretion by (1) denying her motion for an award of the income tax exemption for the parties' minor child, and (2) denying her request for attorney fees. We affirm.


Appellant mother is the noncustodial parent of the parties' minor child. She moved for an order allowing her to claim the child as an income tax exemption in alternating years. She also moved for an award of attorney fees.

Respondent father opposed the motions. He is the custodial parent of the child, pays more than half the child's support, and has not waived his right to claim the exemption. He also moved for attorney fees.

A family division referee denied all motions after an evidentiary hearing. At the end of the hearing, the referee stated:

This is the Court's ruling. The Internal Revenue Service ruling establishes the custodial parent is entitled to the tax exemption dependency exemption. That is what I go by.

The referee's written order provided:

It is in the discretion of this Court to award the income tax dependency exemption for a minor child pursuant to Internal Revenue rules and regulations.

The referee tied his denial of appellant's motion for fees to the IRS rules as well, saying that appellant is not entitled to fees because she is not entitled to the exemption.

Appellant contends that the referee abused his discretion by allowing the Internal Revenue Service rules to control his decision as to the exemption and the attorney fees. She further argues that, because of the disparity between her low income and respondent's higher income, she is entitled to attorney fees.


A trial court is given broad discretion in setting child support. Joneja v. Joneja, 422 N.W.2d 306, 308 (Minn. App. 1988). Decisions on modification of child support are subject to an abuse of discretion standard. Hennessey v. Stelton, 302 Minn. 550, 550, 224 N.W.2d 926, 927 (1974). Because dependency exemptions are "aligned with child support," they are modified in a similar fashion. Biscoe v. Biscoe, 443 N.W.2d 221, 224 (Minn. App. 1989) ("Dependency exemptions * * * may be modified upon a showing of a substantial change of circumstances pursuant to section 518.64"). Only in cases where the trial court comes to a "clearly erroneous conclusion that is against logic and the facts on the record" will an appellate court find an abuse of discretion. Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986) (quoting Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984)).

Appellant claims that the referee's reliance on IRS rules "supplants the court's discretion" and replaces it with "arbitrary IRS rules and regulations." However, the record reveals that, even though the referee relied on IRS rules, he did not view himself as controlled by them. Rather, as demonstrated by the language in the referee's final order, he treated the IRS rules as a guideline in determining which parent was entitled to the exemption. He expressly acknowledged his discretion in that order.

Furthermore, the record supports the referee's award of the tax exemption to respondent. For income tax purposes, a child is dependent if the parent has paid more than one-half the child's support during the calendar year. 26 U.S.C. § 152(a) (1994). Respondent currently pays approximately 57% of the child's support. The parent who has custody of a child for the greater portion of the calendar year is entitled to the dependency exemption. 26 U.S.C. § 152 (e)(1) (1994). Respondent has sole physical custody of the child. A custodial parent may waive his right to claim the exemption. 26 U.S.C. § 152(e)(2)(A), (B) (1994). Absent such a waiver, this court may reverse a trial court's award of the exemption to a noncustodial parent. Biscoe, 443 N.W.2d at 225. Respondent has not waived his right to claim the exemption. The referee did not abuse his discretion by refusing to allocate the exemption to appellant in alternate years. See Joneja, 422 N.W.2d at 310 (decision to award exemption within trial court's discretion).

Appellant also contends that the referee erred by failing to award attorney fees to her. Appellant did not specify whether she sought need-based or conduct-based attorney fees. See Minn. Stat. § 518.14, subd. 1 (1998) (allowing awards of two types of fees). We assume appellant sought need-based fees. The decision to award attorney fees "rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion." Jensen v. Jensen, 409 N.W.2d 60, 63 (Minn. App. 1987). Although there is a disparity in the parties’ incomes, that alone is not a sufficient basis for an award of attorney fees. See Minn. Stat. § 518.14, subd. 1 (listing requirements for award of need-based fees).

The referee did not abuse his discretion in declining to award attorney fees to either party.