This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. §480A.08, subd. 3 (1996).




In Re the Marriage of:

Duncan M. Waweru, petitioner,



Susan Nduta Waweru,


Filed December 1, 1998


Anderson, Judge

Ramsey County District Court

File No. FX-95-698

John C. McIntosh, McIntosh Law Office, P.O. Box 331, 200 North Central Avenue, Buffalo, MN 55313 (for respondent)

Dale C. Nathan, Nathan & Associates, 3600 Kennebec Drive, Suite 7B, Eagan, MN 55122 (for appellant)

Considered and decided by Lansing, Presiding Judge, Harten, Judge, and Anderson, Judge.



This appeal is from the district court's denial of appellant's motion for modification of the parties' amended divorce decree. Because appellant failed to establish that the court abused its discretion, we affirm.


In 1996, the parties stipulated to a divorce agreement. In March 1998, the parties returned to district court on appellant's motion to modify the divorce decree's provisions as to (1) daycare payments and (2) respondent's dependent-tax exemption for the parties' daughter. The district court rejected appellant's request in deference to the parties' original stipulations in their divorce decree.


Unless the trial court's conclusions are "clearly erroneous" and "against logic and the facts on the record," no abuse of discretion will be found. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). Appellant asks this court to review two issues on appeal: (1) respondent's liability for daycare expenses and (2) appellant's claim to share in the federal tax dependency exemption for the parties' daughter.


The decree requires respondent to contribute $50 per month for daycare expenses when appellant provides respondent "verification" of such expense. While asking for the modification, appellant indirectly requests that this court order respondent to pay for past daycare expenses.

The district court found that appellant had not incurred an actual employment-related daycare cost because she failed to provide evidence or verification of such costs. Because appellant failed to provide direct evidence of daycare costs to the district court, the district court ruling is consistent with case law. See Taflin v. Taflin, 366 N.W.2d 315, 319 (Minn. App. 1985) (stating that if party fails to provide evidence necessary to grant party's motion, this court will not speculate about the evidence and party "will not be heard to complain" about denial of motion).

Appellant now argues that an ambiguity exists in the divorce decree. Appellant's sister, visiting this country under a student visa that prohibits employment, was trading babysitting services for reduced rent. For the first time on appeal, appellant raises the issue of ambiguity in the daycare provision because it does not address the unique circumstances experienced by appellant. Appellant's argument fails because it was not raised in the district court. This court's review is limited to issues that the record establishes were actually raised in, and decided by, the trial court. In re Estate of Magnus, 436 N.W.2d 821, 823 (Minn. App. 1989). Minnesota has long recognized that an "appellate court may not grant relief never requested in the trial court." Id.

Even if the procedural problem is bypassed, however, appellant has a more significant problem. The language of the decree is clear and unambiguous. See Anderson v. Archer, 510 N.W.2d 1, 3 (Minn. App. 1993) (whether stipulated dissolution judgment is ambiguous is legal question). The decree states that:

The [appellant] shall be responsible for the cost of daycare during the times the child is in the care of [appellant], subject up to a $50 contribution by [respondent] when the [appellant] is actually incurring a daycare expense.

(Emphasis added.) No expense was incurred and appellant admits that appellant's sister could not legally be paid for the services she rendered. No abuse of discretion occurred.


Appellant also requests that we reverse the district court's refusal to amend the respondent's dependency tax exemption rights under the divorce decree. This court has held that neither Minnesota law nor the Internal Revenue Code prevents a district court from exercising jurisdiction over the allocation of dependency exemptions. Greeler v. Greeler, 368 N.W.2d 2, 4 (Minn. App. 1985).

Respondent has an exemption right under federal law. The federal Internal Revenue Code provides that upon dissolution of a marriage 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). Not including holidays and birthdays, the parties' dissolution agreement provides that the respondent shall have custody of the daughter eight days out of every two weeks -- 57% of the time. Thus, under federal law, because respondent has custody of the daughter for a greater portion of the calendar year, respondent is entitled to claim the deduction.

Appellant argues that she is paying as much or more than respondent is for support of the child, which justifies splitting the deduction between the parties to give each the deduction in alternate years. However, the trial court, in its discretion, may allocate the exemption in a manner other than that provided by the IRS. Fudenberg v. Molstad, 390 N.W.2d 19, 21 (Minn. App. 1986); accord Wopata v. Wopata, 498 N.W.2d 478, 486 (Minn. App. 1993) (vacating dependency exemption award because custody issue was reversed and remanded to the trial court). Appellant produced no evidence that demonstrated appellant was paying as much or more than respondent in child support, thereby justifying a modification under Greeler. In addition, respondent has remained current and has continued to pay $100 per month in child support to appellant, as stipulated in the divorce decree. The trial court's allocation of the exemption is supported by the record.