Wife appeals a judgment dissolving the parties’ marriage, raising two assignments of error.
Wife requests that we exercise our discretion under ORS 19.415(3)(b) to review this case de novo. We decline to do so. See ORAP 5.40(8)(c) (providing that we exercise de novo review “only in exceptional cases”). Accordingly, we are bound by the trial court’s findings of historical fact as long as they are supported by any evidence in the record, and we review the trial court’s legal conclusions for errors of law. Bock and Bock,
Wife and husband married in April 2000 and have two minor children. Husband has been in the Army since 1997. At the time of trial, in July 2010, husband was scheduled to leave approximately one month later to begin a tour of duty in South Korea. Following trial, the court entered a dissolution judgment that, as relevant to this appeal, (1) awarded husband, the noncustodial parent, the right to claim tax exemptions for both children until 2014;
Wife first contends that the trial court erred as a matter of law in awarding the right to claim the tax exemptions to husband, the noncustodial parent.
“As a matter of federal income tax law, the custodial parent holds the legal right to claim the child dependent tax exemption for a qualifying child. [A federal statute] sets forth the controlling law and procedural requirements for determining which parent qualifies and has the legal right to claim the child dependent tax exemption and, more importantly, which one does not. The determination resulting from the application of [the federal statute] may not be changed by command of a state court judge. There is no availability under federal law for a state court judge to order otherwise. Here, mother clearly is the custodial parent and the only parent entitled to the exemptions under federal law.”
(Emphasis added.)
“[HUSBAND’S COUNSEL]: You want the Court to award the tax dependency exemptions to you?
“ [WIFE]: Yes. I have full custody of my children. I think they should be awarded to me.
“[HUSBAND’S COUNSEL]: But if you’re not making enough money for—
“[WIFE’S COUNSEL]: Objection, Your Honor. The regulations on child support say they go to the custodial parent. It’s-—the [Internal Revenue Service (IRS)] is going to do it automatically if she has custody.
“[HUSBAND’S COUNSEL]: I don’t know about the objection, but in terms of that being true, Your Honor, if the Court orders he get the dependency exemptions, all she has to do is sign a form if necessary. But over the last 20 years it’s been my experience, I’d almost never needed those forms, so this Court can do whatever it wants and that won’t be a problem on the tax returns.
“THE COURT: I was under the impression that changed.
“[WIFE’S COUNSEL]: Well, I think the IRS regulations say they automatically go to the custodial parent, but there is a case, even though the Court can’t assign those, it can order a person to sign the Form 8332, non—the custodial parent signs a form with the IRS. I think that’s the only thing the IRS still recognizes.
“But the second point is the child support calculations. Assume they go to the custodial parent and child support amounts are already based on the fact that, well, you’re going to get a tax advantage. So there’s two reasons: One, the IRS says they go to the custodial parent; but, secondly, the amount of child support is less because they factor in the fact mom would have income tax benefits.
“[HUSBAND’S COUNSEL]: I wouldn’t disagree with that, Your Honor, except it’s also built right into these new*237 calculations, that you can factor in the rebuttal factors and give the dependency exemption to whoever this Court wants to, so ...
“THE COURT: And there is a way, then, to adjust it in the child support?
“ [HUSBAND’S COUNSEL]: Yes.
“THE COURT: Objection overruled.”
(Emphases added.)
Although wife’s counsel noted that “the IRS regulations say [that the exemptions] automatically go to the custodial parent,” counsel did not argue that federal law precluded the court from doing as husband’s counsel suggested—ordering a custodial parent to sign IRS Form 8332.® Nor did wife’s counsel argue that existing case law—which counsel referenced—is contrary to federal law. Therefore, wife’s argument on appeal that federal law precludes a court from awarding the right to claim a tax exemption to the noncustodial parent is unpreserved, and we do not consider it further. See ORAP 5.45(1) (“No matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court.”); Charles v. Palomo,
Wife alternatively argues that the trial court erred in failing to consider and make findings regarding the impact of the tax exemption award on husband’s child support obligation.
“Under the invited error doctrine, a party who was actively instrumental in bringing about an alleged error cannot be heard to complain, and the case ought not to be reversed because of it.” State v. Kammeyer,
As noted, at the time of trial, husband was scheduled to begin a tour of duty in South Korea. Husband testified that he did not know what his monthly income would be but that he would know in three months. During argument, the court proposed the following:
“Now, on—the big hullabaloo in this case, obviously, is the income. And one thing that pops to my mind is—I’m not dead set for or against this, but one thing that pops in my mind since we’re going to have reliable information in a relatively short period of time, October we’re talking about?
*239 “*** One thing that pops to my mind is continue the temporary order until we get reliable information in [October], And we then recalculate child support.”
(Emphasis added.) Wife’s counsel responded that the “Court’s idea is a good one.” Later, wife’s counsel suggested:
“And unless there’s some—generally, the rebuttal factor, the way that works is if the noncustodial gets one, then the amount of child support is increased. And the Court sort of looks at the tax advantage to [husband]. The tax loss to [wife], if any, and then they increase the child support on that.
“So that is one way of doing it. We really don’t have any testimony on the way his tax is going to be.”
The trial court orally ruled, as relevant here, that the temporary child support would remain in place until husband’s income was established. Following that ruling, the following exchange occurred:
“[HUSBAND’S COUNSEL]: Just for clarification on the child support, you said income’s the same. Can we just order the child support without doing calculations?
“THE COURT: Yes. Yes.
“THE COURT: You might want to just put something in [the judgment] as the Court finding present income so difficult to conclude, it’s falling back on the present child support payment. I mean, if you want to make a paper record of that, then I’m just opting out because otherwise I’m thinking I’m doing too much guessing.
“[HUSBAND’S COUNSEL]: That’s why I don’t want to use the child support calculation and incorporate them.
“THE COURT: Right. Because this is not a leg for future calculations.
“THE COURT: This is just a ballpark figure that’s already in effect that is less of a guesstimate. I can, if then—if I started guessing.”
Finally, wife contends that the trial court erred in its division of husband’s military pension. As noted, husband joined the Army in 1997, and wife and husband were
The trial court ordered that wife “be awarded 50 [percent] of the marital fraction of [husband’s] interest in his Army retirement plan plus [Survivor Benefit Plan] coverage proportionate to [wife’s] share of the retirement benefits based on [husband’s] current pay grade of E7.” (Emphasis added.) On appeal, wife reiterates her argument, asserting that, under Kiser,
In Oregon, pensions are personal property that are subject to division at the time of dissolution. See ORS 107.105(l)(f)(A) (“A retirement plan or pension or an interest therein shall be considered as property.”). “Generally, a spouse is entitled to one-half of that portion of a pension that was accumulated during the marriage.” Stokes,
In Kiser, the husband argued that “the trial court should award [the] wife 50 percent of the monthly payout he would receive if he retired at the date of dissolution!’ 176
Similarly, in Stokes, the trial court used a “hypothetical retirement date”—-in that case, the date of separation— to determine the total value of the pension.
“[T]he appropriate measure of the total pension benefit is the value of husband’s pension as of the date of his actual retirement, determined either by way of the actuarial present value or as the benefits are distributed at the time of retirement. The trial court erred in using a hypothetical retirement date based on the date of separation in determining the total value of the pension.”
Id. at 575-76.
On appeal, wife argues that the court erred in using a hypothetical pension amount—based on husband’s pay grade at the time of dissolution—instead of using the actual value of the pension at retirement. We agree with wife. The trial court’s division of the pension did not “look to the value of the benefit at retirement” as Kiser requires,
Notes
Husband did not appear on appeal.
The court further ordered that, after 2014, “each party shall be entitled to claim one child as a tax dependent exemption,” and that, “[a]t such time that there is only one exemption],] the parties shall alternate claiming that child with wife claiming the [exemption] the first year.”
The court found that it could not determine the amount of husband’s income at the time of trial due to his upcoming deployment to South Korea.
Specifically, the court ordered:
“[Husband] shall be entitled to claim the children as tax dependent exemptions ***. *** [Wife] agrees to sign IRS Form 8332 which [husband] may attach to his tax returns.”
IRS Form 8332 permits a custodial parent to release his or her claim to an exemption for a dependent child.
The scale used to calculate child support under the Oregon Child Support Guidelines “presumes the parent with primary physical custody will take the tax exemption for the child for whom support is sought for income tax purposes. When
As noted, we understand wife’s argument on appeal to be that the court erred in failing to consider and make findings regarding the impact of the tax exemption award on husband’s child support obligation. That is, wife asserts that the court erred in awarding the exemptions to husband without considering and making findings regarding whether to adjust husband’s child support using the rebuttal factor in OAR 137-050-0760(l)(h). To the extent that wife asserts that the court was required as a matter of law to adjust husband’s child support obligation based on its award of the exemptions to husband, we reject that argument without further discussion. See OAR 137-050-0725(9) (providing, in part, that “[w]hen [a custodial] parent does not take the tax exemption, the rebuttals in OAR 137-050-0760 may be used to adjust the child support obligation” (emphasis added)).