In Re the Marriage of Baker

Dept. Emp. Ind.App., & Tr. grounds N.E.2d 1020. The other of tardi glue sniffing

ness and should be treated as

surplusage.

I would affirm. Mary

In re The MARRIAGE OF Jane (Petitioner BAKER, Below), Appellant Montaperto, Appellee

Ronald N. Below).

(Respondent

No. 53A01-8910-CV-402. Indiana, Appeals

Court of

First District.

Feb. 1990.

83 Cotner, Andrews, Harrison,

Richard S. Chapman, Bloomington, appel- Mann & for lant. Mills, Berry, Berry

Thomas A. & Bloom- Jr., ington, Reidy, Gosport, David A. for appellee.

ROBERTSON, Judge. appeal This stems from an order of the which, Superior for the see- Monroe Court time, ond modified the terms of the decree Appel- parties. of dissolution between the challenges lant Baker the trial court's au- thority income tax to allocate the federal dependency exemption. also contends She failing erred in to find a the trial court support arrearage ordering an inade- quate support. amount of part. and reverse in We affirm I. original

In the decree entered June court awarded the fed- the dissolution the eldest of the exemption eral tax for permitting parties' two sons to Baker while par- Montaperto, the noncustodial appellee son, Mark, ent, younger to claim the appealed from alters dependent. The order slightly. provides It arrangement college, long enrolled so as David is exemptions parties share the tax shall sons; thereafter, right to claim their exemption Mark will alternate be- claiming Montaperto parties tween the with in 1993. year in tax and Baker trial courts Baker maintains that Indiana authority to allocate longer possess ‍​​​‌‌​​‌‌‌​​‌‌​‌​​​​‌‌‌​​‌‌​‌​‌​​‌‌​‌‌‌‌​‌‌‌​​‌​‍no exemption provided the federal income tax Relying by Congress in 26 U.S.C. § in In re Mar upon this district's decision (1989), Ind.App., 540 riage Davidson contends Baker 1984,1 amendment of 26 U.S.C. § federal law's distribution contrary parent supеrsedes to the custodial a written absent court allocations 98-369, Stat. 494. Pub.L. Amended the Deficit Reduction Act of compli waiver from the custodial Family law is a matter peculiarly local Sylva concern. De v. Ballentine ance with certain exceptions. other narrow 570, 580, 974, 979, 351 U.S. 76 S.Ct. Montaperto argues that Davidson lacks Indeed, 100 L.Ed. 1415. subject the whole binding precedential effect Baker of domestic relations between husband and would accord it because the second district belongs wife to thе laws of the states and explicitly of this court approved a similar not to the laws of the United States. Rose order entered after the 1984 amendment (1987), 619, 625, v. Rose 481 U.S. 107 S.Ct. proviso with the par that the noneustodial 2029, 2033, 599; 95 L.Ed.2d McCarty v. ent still must obtain the written waiver to (1981), 210, McCarty 221, 453 U.S. 101 eligible to claim exemption. See 2728, 2735, S.Ct. citing 69 L.Ed.2d 589 Ind.App., (1989), v. Blickenstaff Blickenstaff (1890), 586, 593-594, re Burrus 136 U.S. 10 41. 39 N.E.2d 5 850, 852-53, S.Ct. 34 L.Ed. 500. Conse conflicts with Davidson in quently, potential when the courts face a Blickenstaff sofar as holds it is not an conflict between state domestic relations Blickenstaff discretion, hence, abuse of not reversi law, law and question federal and the error, 1, post-January ble to award a 1985 Congress, arises whether empowered by dependency exemption. The decisions are Supremacy VI., Clause of Art. 2cl. of irreconcilable, totally however, not Constitution, because displace has acted to Blickenstaff, necessarily law, recognizes preemption lightly pre is not to be may Indiana trial courts sumed. consider the impact financial of an allocation of the ex The Supreme United States Court emption, also, Davidson, 540 N.E.2d at cf. instructs that review under the Supremacy 648, skirts the issue of an whether Indiana Clause is limited to a determination of trial court can its allocation of effectuate Congress "positively whether has required exemption by compelling the custodial by direct enactment" that state law be parent meeting to execute a written waiver preempted. Rose, 625, 481 U.S. at requirements 152(e)(2) of the code. § 2033; (1904), S.Ct. at Wetmore v. Mаrkoe Thus, implicitly accept, apart both decisions 68, 77, 172, 175, 196 U.S. 25 S.Ct. 49 L.Ed. from the preemption, matter of federal 390. A mere conflict words is not suffi Assembly the General has vested Indiana cient. family "major State law must do trial subject juris courts with both matter damage" to "clear and substantial" federal statutory diction and authorization to de interests before the Supremacy Clause will termine which should be entitled to demand that state law be overridden. His exemption, claim the and that Indiana trial (1979), quierdo Hisquierdo 572, v. 439 U.S. courts rеtain equitable power the inherent 582, 802, 808, 1; Rose, 99 S.Ct. 59 L.Ed.2d See, to enforce their decrees. Hoyle v. 625, 481 U.S. at Analy S.Ct. at 2033. Hoyle (1985), Ind.App., 653, 473 N.E.2d sis of the issue involves a inquiry: two-fold 656, Morphew Morphew (1981), Ind. whether the state law as asserted conflicts App., 419 N.E.2d Corbridge 770 and express with the terms of federal law and (1951), 201, Corbridge 230 Ind. 102 N.E.2d consequences whether its sufficiently in jure objectives program of the federal require nonrecognition.2 its proposition, fully agree.

With this diverge Where we from Davidson is with speak The section at issue does nоt di assumption court's that the amendment rectly power of state divorce courts 152(e) necessarily leads to conclu- § order transfer of the It deduction. sion that federal law divested state courts express statutory pro contains no directive hibiting power jurisdiction the ‍​​​‌‌​​‌‌‌​​‌‌​‌​​​​‌‌‌​​‌‌​‌​‌​​‌‌​‌‌‌‌​‌‌‌​​‌​‍exercise of state or lim party to determine which may exemption. claim the iting solely the role of the states to one of fields, Supreme In most Court has refused or a direct conflict between federal and state preemption Boyle to find federal Technologies Corp. of state law in the law. v. United statutory proscription absence of either clear 487 U.S. 108 S.Ct. 101 L.Ed.2d 442. acknowledged impact expressly the act the influ- financial of the federal evaluating the ena ctment.3 Congres- substantive law. ence of state recognition power sional of state court jurisdictional distinction between The effect claims for the deduction is retained implie- and effectuation finds no evaluation 152(e)(4). The enactment continues to § a whole either. it in the section as parents prior permit noncustodial divorced Even before its amendment parent with favored the custodial January prove by 1985 to entitlement general rule. What previous method. evidentiary showing nec- changed adopt The version also does not presumption essary to rebut presumption that the custodial irrebuttable one-half of parent provided custodial over parent is entitled to the economicbenеfit of dependent support. child's Prior to its the deduction; instead, the it restricts the amendment, provided the act a non- proof means of available to the noneustodi- parent The parent custodial two avenues. parent simple al to a written waiver exe- either demonstrate that he or she could parent the cuted custodial and attached and over one- contributed at least $1200 to the return. The amendment therefore support half of the child's or the noncusto- prоcedure continues to establish the for produce judicial a decree parent dial could demonstrating entitlement. It does not entitling him or her to the deduction and purport adjudicating to alter the manner of of at least $600 establish a contribution Hence, dependent's support. toward the ques- the substantive domestic relations 152(e) year provides pertinent part: beginning ent's return for the taxable § 3. 26 U.S.C. during year. such calendar subsection, purposes For of this the term (e) Support test in case of child of divorced parent" parent "noncustodial means the who parents, etc.- parent. not the custodial is (1) gets exemption. parent Custodial -Ex- subsection, cept provided otherwise in this se # La La as # # (4) pre-1985 if- Exception for certain instru- 151(c)(3)) ments.- (A) (as in section a child defined (A) support during general parents In -A child of de- receives over half of his (1) year parents- paragraph shall be treated as from his scribed in calendar (i) during legally having support separated reсeived over half his a who are divorced or year parent separate divorce or mainte- calendar from the noncustodial under a decree of nance, if- (i) (ii) sepa- qualified pre-1985 separated under a written a instrument between who are year parents applicable to the taxable be- agreement, ration or (iii) during ginning year provides apart calendar that who live at all times such parent shall be entitled to the noncustodial the calendar and last 6 months of year, (B) any custody allowable under section 151 child is in the of one or deduction such parents more than one-half of both his for child, for such of treated, (ii) parent provides at year, the noncustodial the calendar such child shall be (a), during receiving support of such child purposes subsection least for for of year. during support calendar over half of his calendar such having custody purposes subparagraph, amounts year parent a of this For from (herein- year expended support a chil- greater portion for the of child or of the calendar from the as the dren shall be treated as received after in this subsection referred to parent parent"). to the extent that such noncustodial "custodial (2) support. parent parent provided amounts for such Exception custodial re- where (B) year.-A pre-1985 Qualified instrument.-For claim to for the leases (1) "quali- paragraph, paragraph purposes this the term parents of child of described any having pre-1985 means decree fied instrument" treated as received over half shall be separate written during year maintenance or a calendar from of divorce or of his agreement- parent if-- the noncustodial (i) January (A) parent signs is executed before a written dec- which the custodial (in and form as the laration such manner (ii) provi- regulations prescribe) such date contains the Secretary may by that which on (A)(i), subparagraph parent such sion described in custodial will not claim such (iii) any year not modified on or after such dependent which is taxable child as pro- expressly year, date in a modification beginning calendar in such paragraph apply (B) shall not parent attaches such vides the noncustodial agreement. decree or such par- the noncustodial written declaration to legislative background of the 1984 amend sanctity accorded state tion. Given 98-482, II, sup- H.R.Rep. No. Part authority the issue of child ments. See court over Sess., Cong., reprinted in alloсat- 2d in 1984 port experience and state court 98th Cong. & Ad.News 1189- divorce, U.S.Code surely following ing resources explicit Congress Again, would have been more the need to resolve the issue displace a state court's eligibility had it intended to without involvement IRS power equitable enforce its own decrees. factfinding motivates the committee to ree- Accordingly, appear it does not from the provision ommend a which will reduce sub uncertainty and minimize ad jectivity Congress text or structure required by dirеct enact "positively has expended time on the matter. ministrative law ment" state substantive legislative in the Id. at 1189. Nowhere preempted. in history provision do we find an personal tent to confer a financial benefit Nonetheless, in the absence of even purpose one the other or a on over statutory proscription, explicit implicit, Congress designate on may preempted still be law arbiter of the economic IRS exclusive actually federal law. extent it confliсts with sum, provision. legis benefit of the Pipeline & Schneidewind v. ANP Co. significant history lative fails to evince a 1145, 293, (1988), 108 S.Ct. ANP. 485 U.S. pol an federal conflict between identifiable 1150, 316; Paper 99 L.Ed.2d ‍​​​‌‌​​‌‌‌​​‌‌​‌​​​​‌‌‌​​‌‌​‌​‌​​‌‌​‌‌‌‌​‌‌‌​​‌​‍International icy operation of state or interest and the 481, 491, (1987) 479 U.S. Co. v. Ouellette law. 811, 805, 107 93 L.Ed.2d 883. Such S.Ct. impossible found when it is conflict will be reasons, perceive it For these more law, comply state and federal likely Congress, enacting in amended to with both that an or where state law stands as obstacle 152(e), supersede not intend to state did purposes full accomplishment the of the Supe- domestic relations law. The Monroe objectives Congress. of Schneide did not abuse its dis- rior Court therefore wind, 1150; at Feder 108 S.Ct. California cretion or commit a reversible error of law (1988), v. Savings al & Loan Ass'n Guerra allocating exemption Montaperto. by the 683, 272, 281, 689, 107 S.Ct. 93 U.S. L .Ed.2d 613. IL appeal on con- Baker's second contention

Compliance and a with § failure to find a order of allocation is not a cerns the trial court's state court arrearage. clerk's docket and physical support court orders The impossibility. State Montaperto's testimony es- appellee can drafted to own allocating the that from the time his eldest son tablished section, conform with the dictates of the giving objective proof the it de IRS attending college, Montaperto began obligated pay of that became one-half spouse's failure to exe sires. A custodial cute the IRS form can be enforced with an including expenses, son's baсcalaureate board, Montaperto tendered to adjustment support the amount of room and in contempt. approximately the clerk of the court threat of civil per month one-half of the amount or about Likewise, adjudica state court continued expressly required by the most recent or- underlying tion of the substantive issue argues der of the court. Baker transgress goals policies will not of Montaperto improperly trial court credited 152(e). enacting in Congress modified § nоnconforming payments; Montaperto Congress created the of 1967 amendment merely the court resolved am- maintains objective relieving of the section with the in of him. We biguity in its order favor in difficulties involved administrative agree Baker. parent the former determining which meets See, 488, arrearage was be S.Rep. When the matter of requirements. section's Sess., the court in the trial court found Cong., reprinted 1st fore 90th regular Montaperto did reduce Cong. & U.S.Code Ad.News goal in the apparent Pursuit of the same is his monthly support payments when son of alternative method out an and carried Arizona. University of at enrolled substantially complies with payment which that with However, found court also part of (8) the latter decree, made in where payments spirit of the and the payments, by agreement with support obligated parent modified Montaperto expenses, into college taken the children payments of has custodial obligation them, parental home, custody in his current assumed his or her Thus, аppear it does necessities, children. support his and has them with provided Montaperto for ex over their activi parental control court credited exercised did not conform penditures time period extended for such an ties decree,4 rath the modified requirements of change custody has permanent that a pro rata reduction that a than determine er O'Neil, 585 N.E.2d 528. occurred. effect obligation support monthly regular in the modification of the The trial court's the eldest enrollment of was intended effective, on prospectively, became decree college. son date, the court Prior to that June long the rule of has been It Mortaperto only for credit properly could parent may not that a noncustodial established the evidence amounts which sup proportionately unilaterally reduce directly to Baker since Montaperto paid children but gross for several port order in ‍​​​‌‌​​‌‌‌​​‌‌​‌​​​​‌‌‌​​‌‌​‌​‌​​‌‌​‌‌‌‌​‌‌‌​​‌​‍the record is no indication there suppоrt in the payments of make must method of agreed to an alternative parties required by manner, at times amount and in that We find no error payment. order, until such order at least implicitly finding which court's the trial or set aside. Stitle modified has been Baker medical costs. to uninsured refers 168, 182, 245 Ind. Stitle documentary testimony but no offered her (1988), Ind.App., 517 174; O'Neil O'Neil medical expended for of amounts evidence 433, incorporated by reference, N.E.2d by Montaperto other care not reimbursed presumed that N.E.2d 523. It is Montaperto and with correspondence than an contemplates support on court's order summary produced. she typewritten a This is true ongoing basis. annualized receipts testi no but Montaperto produced speaks terms though the order even Baker of what paid had most fied he payment. v. periodic Castro some form of proof The burden he owed. claimed 366, (1982), N.E.2d Ind.App., 436 Castro Baker. with rested Therefore, support installments after 367. the corre- testified and Montaperto also accrued, power to court is without have directly paid to that he spondence indicates reduce, support a order annul or vacate to he failed payments for 182, Baker $1080 Stitle, at 245 Ind. retrospectively; support in for Mark's to the clerk make parent will 174, obligated an and June, July, August and April, February, not payments allowed credit not be that Mon- admits 1988. Baker September, support order but conforming with the this amount. to credit for taperto is entitled (1) proof when three narrow situаtions: Montaperto However, that contends the trier of Baker to convince is sufficient offered sup- David's payment toward never made support required judicially fact that shows, in addition by the docket actually port; made the clerk's have been payments above, payments cited omitted to the even person entitled party to the obligated approximately $217 monthly payments technically non payments are though the 1987; and, beginning October made agreed to were (2) pаrties have conforming; 4. decree to pay Monroe ue to be month visitation minor children not through provide that child County, the trial required during the two months of extended in the summer. support are in the care of their ... court modified the only Said Montaperto Office of the support the ten months sum of shall $425 Clerk of original mother contin- per ified to responsible for laureate cree of other include contribute IT IS FURTHER expenses related thereto ^[*] provide Dissolution of room and education of one-half # providing for the ^[*] board, books, thereof. ORDERED the minor Marriage be ... mod- parties shall # ... and That children, tuition ... bacca- be we jointly shall De- to intentionally changed of a substantial and circumstances Montaperto concedes that he continuing warranting nature a modifica- clerk monthly payment to the reduced the campus. support, weigh do not evidence David had moved to tion we because judge credibility but rath- nor of witnesses paid claim that he Montaperto makеs no only consider the evidence most favor- er anything he views as Baker for what judgment, together to the with the able noth- support. The evidence shows David's inferences can be drawn reasonable which credit, Montaperto's asser- ing despite to viewpoint, If from that there is therefrom. he owed. paid tion that he had what finding of evidence to substantial Therefore, allowing the trial court erred court, finding not dis- the trial will be did him for amounts he admitted he credit though might we have reached turbed even рay. not a different conclusion had we been requiring acknowledge that the rule We Lepper Lepper triers of fact. obligated parent pay in accordance Ind., 509 N.E.2d support order until the terms of a with really dispute there There is no by the provisions have been modified those change affect has been a of circumstances may always equitable not seem court support. At ing the need and amount of parent. But we considered the obligated hearing, the modificatiоn one the time of inequity expressly in possibility of such an boy begun college, living had at the univer upon the 1980 when we reflected benefits sity, graduating and the other was from concerned, noting of the rule for all how- anticipating enrollment at high school and could, ever, obligated that an Indeed, can university. the same there certainty, or her ac- conform his behavior dispute college-related expenses per no See, cordingly. Whitman Whitman roughly per year, as child amount (1980), Ind.App., 405 N.E.2d figure by the trial аdopted which was reasons, the trial For these we reverse Hence, proposed court was Baker.5 judgment it holds Monta- court's insofar as dispute must center the trial court's perto arrearage. no the extent owes Given per child was a determination that $1200 litigated this matter has been Montaperto to sufficient contribution from resources, judicial in an effort to conserve medical, dental, clothing, ward uninsured order, authority pursuant vested expenses, optometric and orthodontic 15(N), Appellate in court Ind. Rule this expenses. household miscellaneous findings judgment that the trial court's and budget containing a Baker offered support arrearage reflect a be corrected to boys' monthly expenses estimated hun- in the amount of four thousand three clothing, telephone, uninsured medical ex seventy-one fifty and cents dred dollars food, vacation, insurance, gasoline, penses, ($4371.50). incorporates a credit This sum boys' housing share of her costs.6 and paid parties аgree which the $1080 boys If that the would the court assumed by Montaperto. year, of the then be at school nine months remaining three their total cost for the IIL estimate, months, according to the wife's trial court's Baker also contends the $4,992, roughly approximately would be inadequate. focus- award of is She per boy. $2500 primarily upon es the increased costs asso- expressly noted that its The trial court boys rearing college-age and ciated with per of child was based award Montapertо's salary. in the increase credible. the evidence which it found to be in- reveal her husband's the trial Baker refused to determining In whether finding court its discretion in come, abused had no indicating under oath that she mortgage, of her 6. Baker allocated two-thirds hous- $6,000 tuition, 5. Baker's estimate includes boys. pre- costs to the We electric and water ing, books, food, utilities, a tutor and miscella- monthly represent total sume these amounts spending. neous costs. admitting younger dependents," she two as but children idea what his inсome was found no entry and others basis to hold the modification personally deleted that Hence, the order to be an of joint tax return. abuse discretion. 539 from their However, Judge the N.E.2d at 45. only partial picture had a Sullivan trial court residing clearly correctly long lifestyle enjoyed by boys while observed "[slo requirements meets the of the circum- [husband] with their mother. Under these stances, nothing inappropriate in Internal Revenue we find Code, his claim of the roughly dependency exemptions appropriate one- is the trial court's allocation [cita Further, monthly by Baker tions in footnote 2 half the cost estimated Id. omitted]." Blickenstaff, in the court stated: "suffice Montaperto. say right party it to of either part, in in Judgment affirmed reversed in dependent claim child children as a is part, instructions that a and remanded with governed by the Internal Revenue Code." judgment entered in conformance with Thus, conflicting Id. far from with David opinion. majority suggests, son as Blickenstaff supports our decision in Davidson. STATON, J., concurs. not, The trial court could under David- RATLIFFE, C.J., part concurs in depend- son and LR.C. allocate the part separate opinion. dissents in with ency exemptions. Nor could it do indirect- RATLIFF, concurring in Judge, Chief Therefore, ly directly. what it could do not dissenting part. majority's the trial court view indirectly accomplish could it is not what agree majority opinion I cannot permitted by compelling to do the execu- handling of the income tax its by adjustment tion of a waiver or of the Marriage decision in In re issue. Our sаnctioning support order to that end is (1989), Ind.App., 540 N.E.2d Davidson subterfuge and an evasion of both the hold- Davidson, compels opposite result. ing provisions Davidson and the prior January recognized federal statute. Federal Internal Revenue Code clearly authorized state courts to allocate indicated, I For the reasons heretofore dependency exemption for income tax majority opinion from the as to the dissent purposes parent. and the non-custodial remaining I first issue. concur as 152(e)automatically grants the ex I.R.C. § issues. emption to the custodial unless

parent by specific waiver for ‍​​​‌‌​​‌‌‌​​‌‌​‌​​​​‌‌‌​​‌‌​‌​‌​​‌‌​‌‌‌‌​‌‌‌​​‌​‍the written year question

particular tax waives "Thus,

exemption. courts no Id.

longer possess authority to allocate the

exemption parent." to the non-custodial Id. omitted.]

[citations BROOKE, Appellant Lonnie (Defendant Below), Although previous allocating order proper quali as a the tax was 152(e), pre-1985 fied instrument under § Indiana, Appellee STATE that order in when the trial court modified (Plaintiff Below). longer qualified pre- there no No. 75A03-8907-CR-293. Further, majority's 1985 instrument. reliance Indiana, Appeals Court Blickenstaff Blickenstaff is mis Ind.App., 539 Third District. Sullivan, placed. Blickenstoff, Judge Feb. court, considered the trial writing for the upon the that "based eco court's statement parties, of the

nomic circumstances right have the to claim

husband should

Case Details

Case Name: In Re the Marriage of Baker

Court Name: Indiana Court of Appeals

Date Published: Feb 12, 1990

Citation: 550 N.E.2d 82

Docket Number: 53A01-8910-CV-402

Court Abbreviation: Ind. Ct. App.