In re the Marriage of Malpass
296 P.3d 653
Or. Ct. App.2013Background
- Marriage in 2000, two minor children; husband in the Army since 1997; trial in July 2010 with anticipated Korea deployment; dissolution judgment awarded husband tax exemptions, continued temporary child support, and divided his pension via a 50% marital share based on current pay grade E7; court retained jurisdiction for future child support calculations; Form 8332 and related IRS issues discussed.
- Court awarded husband the right to claim the children as tax dependents through 2014 and then possible alternation; wife objected to tax exemption allocation, arguing federal law precludes such an assignment; trial court proposed delaying child support calculations pending clearer income information.
- Wife argued the federal tax exemption rule prevents assigning exemptions to the noncustodial parent and that findings on child support impact were required; the court did not make those findings due to the agreed interim arrangement; invited error doctrine later applied to findings.
- On pension division, the court used a hypothetical pension value based on husband’s current pay grade rather than the actual retirement value; this violated Kiser and Stokes which require retirement-value-based, fractional division.
- Court observed deployment would affect income and temporarily postponed detailed calculations; after 2014, exemptions were to be shared with signings on IRS Form 8332; rebuttals to child support could adjust the obligation if exemptions were assigned to noncustodial parent.
- Result: reversed and remanded to calculate the marital portion of the pension as a fraction of the entire actual pension and adjust survivor benefits accordingly; otherwise affirmed on other issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Tax exemptions to noncustodial parent preserved? | Wife argues federal law precludes assignment to noncustodial parent. | Husband argues court may assign exemptions when tax effects are considered; prescribes potential Form 8332. | Unpreserved; invited error doctrine applied; not reviewed. |
| Effect of exemption on child support findings? | Wife contends court must find impact on child support from exemption award. | Court delayed calculations; rebuttals not yet addressed. | Error invited by wife; not reviewed on appeal. |
| Division of military pension | Wife argues for retirement-value-based division per Kiser and Stokes. | Court used hypothetical current pay-grade value. | Reversed and remanded to compute pension as a fraction of the entire actual pension. |
| De novo review requested | Wife seeks de novo review under ORS 19.415(3)(b). | Court declines de novo review per ORAP 5.40(8)(c). | De novo review declined. |
Key Cases Cited
- Rossi and Rossi, 128 Or App 536 (1994) (exemption can be awarded to noncustodial parent; tax considerations in child support)
- Hay and Hay, 119 Or App 372 (1993) (custodial presumption; exemptions may be allocated with tax consequences in mind)
- Ranes and Ranes, 118 Or App 264 (1993) (require findings on tax exemptions' impact in child support calculations)
- Sigler and Sigler, 133 Or App 68 (1995) (court may consider tax effects of exemption allocation in support)
- Kiser, 176 Or App 627 (2001) (retirement value, not hypothetical; importance of retirement value in pension division)
- Stokes and Stokes, 234 Or App 566 (2010) (pension division must be based on actual retirement value, not hypothetical)