Grider v. Grider

• Decision Date: 24 October 1979
• Citation: 376 So.2d 1103
• Parties: Shirley Temple GRIDER (Clemmons) v. David Eugene GRIDER. Civ. 1954.
• Court: Alabama Court of Civil Appeals

Page 1103

376 So.2d 1103

Shirley Temple GRIDER (Clemmons) v. David Eugene GRIDER.

Civ. 1954.

Court of Civil Appeals of Alabama.

Oct. 24, 1979.

William J. Underwood, Tuscumbia, for appellant.

Deborah Bell-Paseur, Florence, for appellee.

EDWARD N. SCRUGGS, Retired Circuit Judge.

The custody of the three minor children of the parties was granted to the appellant by a divorce judgment which was rendered in 1965.

In March 1979 the appellee filed his petition which, among other relief not here pertinent, sought authority from the court to claim the children as dependents on his federal income tax return.

At the hearing, which was heard ore tenus by the court, the evidence was to the effect that the father paid $50.00 per week for the support of the children and one-half of the dental bills for one child, that his yearly gross income presently was $11,090 with his biweekly income varying from $276 to $300, that both parties had remarried, and that his monthly bills amount to approximately $1,100 per month. The appellant testified that it cost $200 or more a week to support the three children. Apparently each party was required by the court to fill out and present to the trial judge a "worksheet." Neither of the worksheets is a part of the record on appeal.

As to the point in controversy, the trial judge ordered in her May 8, 1979 judgment that the appellee-father "shall be entitled to claim one of the said minor children of the parties for Federal and State income tax purposes." From this aspect of the circuit court's judgment the appellant appeals, and makes the following claims: (1) that such ruling is not allowed by law and is erroneous; (2) that the court could not retroactively allow the appellee to claim a child for a dependent in the 1979 tax year; and (3) that such judgment is ambiguous.

Prior to August 31, 1967 the divorced parent furnishing more than one-half of the support of a child was entitled to claim such child as a dependent for tax purposes. In every case, a question of fact was therefore presented. In order to attempt to settle disputes between divorced parents as to which of them was entitled to claim a child as a dependent, special provisions were enacted in 1967 creating presumptions and rules for their rebuttal. I.R.C. § 152.

Generally, the parent having custody is allowed as a deduction the exemption of a dependent child, with certain presumptions having been created to achieve such effect. However, the Internal Revenue Code allows the father to rebut this presumption and to claim the exemption if the agreement of the parties or the divorce decree or separation decree specifically provides that he shall be entitled to the deduction and if he provides at least $600 for the support of the child during the calendar year. I.R.C. § 152(e)(2)(A).

Thus, Congress has authorized divorce courts to order that a non-custodial parent may claim a child as a deduction. Such order must be followed by the IRS if he provided said $600 calendar-year child support. We deem it immaterial as to whether such deduction was authorized by a court originally in a divorce judgment or years later in a modification judgment as was done in this case. The parents may, by written agreement, give the exemption to the spouse not having custody and such agreement may be entered into by former spouses already divorced. 33 Am.Jur.2d, Federal Taxation...