Kolb v. Kolb, 17753

• Decision Date: 16 March 1972
• Docket Number: No. 17753,17753
• Citation: Kolb v. Kolb, 479 S.W.2d 81 (Tex. Ct. App. 1972)
• Parties: Natalee B. KOLB, Appellant, v. Robert M. KOLB, Appellee.
• Court: Texas Civil Court of Appeals

Page 81

479 S.W.2d 81

Natalee B. KOLB, Appellant, v.Robert M. KOLB, Appellee.

No. 17753.

Court of Civil Appeals of Texas Dallas.

March 16, 1972.

R. Lewis Nicholson, Dallas, for appellant.

Him Law, McKool, McKool, Jones, Shoemaker & Turley, Dallas, for appellee.

BATEMAN, Justice.

The only question here is: Which of the parties is entitled to claim their two children as dependents for income tax purposes?The parties were divorced by decree dated January 4, 1966.The original judgment, after reciting that their community property had been divided by agreement, in five separate numbered paragraphs decreed: (1) that Robert M. Kolb(appellee) be granted a divorce; (2) that custody of the children be given to Natalee B. Kolb(appellant) for nine months, and to appellee for three months, each year; (3) that appellee pay $150 per month per child for their support during the nine months each year they were in custody of appellant and $75 per month per child during the time they were with him; (4) that 'the court further finds that the parties hereto have agreed that the plaintiff, ROBERT M. KOLB, shall claim for the purpose of income tax deductions, the aforesaid two children as dependents and the defendant shall not, and that the parties have agreed to file a joint income tax return for the year 1965'; (5) that they file such joint return for 1965'and that thereafter plaintiff(appellee) is awarded the right to claim the two children as income tax dependents .'

On June 2, 1969 the child support payments were decreased by order of the court, and on March 2, 1971appellee filed another motion to reduce them.Appellant answered and asked the court, because of material change in 'the circumstances of the parties,' to award to her the right to claim either or both of said children as dependents for income tax purposes.The trial court further reduced the child support payments and denied appellant's said claim, holding that it was 'without jurisdiction to alter or modify this portion of the judgment because it is not a part of the original child support order.'It is only of this latter part of the judgment that appellant complains on appeal.

The federal income tax laws* recognize the right of divorced parents to determine by agreement, or of the court granting the divorce to decree, that a parent not having custody shall be entitled to the deductions if he provides at least $600 for the support of each such child during the year, or if he provides $1,200 or more for the support of all the children during the year and the parent having custody does not prove that he or she provided more for such support than the parent not having custody.

Here the divorce decree itself, reciting the agreement that appellee should have the right to claim the deductions, was signed and agreed to by the parties, and it is not disputed that appellee provided more than $1,200 for the children's support each year, and appellant does not contend that she provided more than he did.Therefore, the agreement is in compliance with the rules of the taxing authority and is enforceable until and unless changed by proper court order or abrogated by agreement of the contracting parties.The only question, then, is whether the trial court erred in refusing to consider appellant's plea for a change in this part of the judgment for lack of jurisdiction or power to do so.

We think the judgment should be affirmed.Vernon'sTex.Rev.Civ.Stat.Ann., art. 4639a, gives the trial court in a divorce suit continuing jurisdiction to alter or change its judgments as to support of children 'as the facts and circumstances and justice may require,' but contains no authority to make the change requested by appellant.

Appellant does not contend that her...