Lehrer v. Commissioner

• Decision Date: 17 July 1980
• Docket Number: Docket No. 9109-78.
• Citation: 1980 TC Memo 256,40 TCM (CCH) 680
• Parties: David R. Lehrer v. Commissioner.
• Court: U.S. Tax Court

40 TCM (CCH) 680

1980 TC Memo 256

T.C. Memo. 1980-256.

David R. Lehrer v. Commissioner.

Docket No. 9109-78.

United States Tax Court.

Filed July 17, 1980.

Neal D. Huebsch, One Park Ave., Estis, Fla., for the petitioner. Willie Fortenberry, for the respondent.

Memorandum Findings of Fact and Opinion

SCOTT, Judge:

Respondent determined a deficiency in petitioner's income tax for the calendar year 1975 in the amount of $3,806.18. Some of the issues raised by the pleadings have been conceded by petitioner, leaving for our decision only whether petitioner is entitled to deduct $8,000 paid to his former wife during the year 1975 as alimony payments under sections 71 and 215, I.R.C. 1954.¹

Findings of Fact

Some of the facts have been stipulated and are found accordingly.

Petitioner, who resided in Groveland, Lake County, Florida, at the time of the filing of his petition in this case, filed his Federal income tax return for the calendar year 1975 with the Director, Internal Revenue Service Center, Chamblee, Georgia.

Petitioner and Geraldine K. Lehrer were divorced by the Erie County Common Pleas Court of Ohio on January 9, 1969. The judgment of divorce (Case No. 37555) entered by the Common Pleas Court of Erie County, Ohio provided for the granting of an absolute divorce to Geraldine K. Lehrer from petitioner. It further granted the custody of the couple's minor children to Mrs. Lehrer and incorporated by reference and approved the property settlement and separation agreement entered into by the parties on December 30, 1968. This property settlement and separation agreement provided that petitioner make a monthly support payment for each of his minor children and be responsible for other of their expenses. It further provided in paragraph 8 as follows:

8. The HUSBAND shall, as alimony for the WIFE, pay to the WIFE the following amounts beginning January 5, 1969 and on the same day of each month thereafter, said payments to be made through the Clerk of the Common Pleas Court of Erie County, Ohio, when and if this agreement is approved by said Court: $750.00 per month until the HUSBAND is no longer obligated for the support or education of any two of the above named three children and thereafter $800.00 per month. Until this agreement is so approved, the HUSBAND shall make such monthly payments directly to the WIFE. The Common Pleas Court of Erie County, Ohio (which the parties agree shall be the only Court having jurisdiction to do so) shall have the power to decrease the amount of such alimony, but only (1) in the event the HUSBAND is physically unable to continue the practice of medicine or the practice of medicine generally becomes substantially less profitable than at present and is financially unable to make such payments out of sources other than current income, or (2) in the event the economy suffers significant deflation; and such Court shall have the power to increase such alimony in the event there is a significant increase in the HUSBAND's earnings or in the event the economy suffers significant additional inflation. Upon the HUSBAND's 65th birthday, the monthly amount he is then required to pay the WIFE as alimony shall be reduced by 25% and continue at that reduced amount, subject to the other provisions of this Agreement.

The HUSBAND'S obligation to the WIFE for alimony shall terminate immediately in the event of her death or remarriage. The obligation of the HUSBAND'S estate for alimony payments to the WIFE hereunder shall continue for one year following his death, notwithstanding any provisions above and shall thereupon terminate.

After the granting of the divorce, Geraldine K. Lehrer took various enforcement actions against petitioner, culminating with a judgment which was entered by the Common Pleas Court of Erie County, Ohio in Case No. 39140, filed March 2, 1971. On or about July 16, 1971, Geraldine K. Lehrer filed an action in Civil Case No. 71-7436 in Lake County, Florida to approve a foreign judgment. The foreign judgment sought to be enforced was the monetary judgment in Case No. 39140 and not the decree of divorce entered in Case No. 37555. This complaint recited in part:

3. While the parties were residents of Sandusky, Ohio, the Common Pleas Court, Erie County, Ohio, entered a Final Decree of Divorce in case no. 31940 between the parties to this action, and on March 2nd, 1971, the said Court entered a Judgment against the defendant in case no. 31940 of said Court, a copy of said Judgment is attached as Exhibit A.²

4. In the said Judgment, the Court provided that the defendant, David Richard Lehrer, should pay to the plaintiff, Geraldine K. Lehrer, the sum of $420.00, which was the balance owing to the defendant for alimony for the month of February 1971, and the sum of $100.00 still owed by the defendant to the plaintiff for support for February 1971, and that defendant, David Richard Lehrer, henceforth fully and punctually comply with the property settlement agreement between himself and plaintiff, Geraldine K. Lehrer, dated December 30th, 1968.

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6. Defendant has failed to comply with the judgment, is now in arrears as of the date of filing this action in the amount of four thousand seven hundred and seventy ($4,770.00) dollars for support and alimony, and one thousand six hundred dollars for college expenses for the minor child, Ann Lehrer.

On November 11, 1971, the Lake County Court entered its order establishing a foreign decree as a Florida judgment, the judgment referred to being that in Case No. 39140, Common Pleas Court of Erie County, Ohio. This judgment read as follows:

This cause coming on to be heard before the Honorable W. Troy Hall, Jr., one of the Judges of the above styled Court upon the Plaintiff's Complaint to establish a foreign decree as a Florida judgment, and the Defendant's Answer to said Complaint. The said Complaint had attached to it a certified copy of a Judgment entered in the Common Pleas Court of Erie County, Ohio, in case No. 31940, wherein the Plaintiff obtained a Judgment against the Defendant and others. A copy of said Judgment is attached hereto and made a part hereof. After hearing arguments of the attorneys for the Plaintiff and the attorney for the Defendant it is

ORDERED AND ADJUDGED that the above described Judgment from the Common Pleas Court of Erie County, Ohio, be entered as a Judgment of this Court, and that this Court will enforce said Judgment to the medium of the remedies available for the enforcement of a Florida Judgment, including, but not limited, to Contempt, Sequestration, Receivership or Requirement as security for future payments.

In early 1972, Geraldine K. Lehrer filed a petition for emergency contempt hearing for payment of alimony and support in Lake County, Florida, Case No. 71-7436, contending, among other things, that there existed an arrearage in petitioner's alimony payments to her. In an affidavit filed on April 7, 1972, in support of her petition, Mrs. Lehrer stated that she was in a very serious financial emergency because of her former husband not obeying the alimony order of Case No. 39140 in the Common Pleas Court of Erie County, Ohio and that she had —

received no alimony for the twelve (12) months of 1971 and the first three (3) months of 1972 (fifteen (15) months alimony amounts to $11,250.00) other than $1,000.00 in 1971 and $100.00 in 1972, so that $10,150.00 is now past due * * *.'

Petitioner filed on or about May 5, 1972, a motion for summary judgment in Case No. 71-7436 in Lake County, Florida in which he stated in part that the application for a citation for contempt —

is not properly brought upon the pleadings, matters and things pending before this Court; for that this is an action for the enforcement of a foreign judgment, which is a money judgment and is not subject matter of a contempt proceedings under the rules and laws of the State of Florida;

In his answer, also filed on or about May 5, 1972, petitioner stated in part as follows:

1. That he admits a final decree of divorce was entered between the parties by the Common Pleas Court of Erie County, Ohio, on or about January 9, 1969; however, this was in a different action than the one pleaded in paragraph numbered 1 of the Wife's Petition as it was entered in Case No. 37555. He admits that in Case No. 39140, Common Pleas Court of Erie County, Ohio, a certain order was entered on the 2nd day of March, 1971, but affirmatively alleges that this is a different action from the divorce action between the parties.

2. He specifically denies the allegations of paragraph numbered 2, and the Court's attention is directed to Exhibit A of Petitioner's Complaint to Establish Foreign Decree as Florida Judgment, where a copy of an ostensible judgment was entered in Case No. 39140, Common Pleas Court of Erie County, Ohio. It speaks for itself.

* * *

4. He admits that a certain judgment was entered in Case No. 39140, dated March 2, 1971, and it has been entered as a judgment of the Court of the Fifth Judicial Circuit of the State of Florida, but not in Case No. 31940.

He further alleged as an affirmative defense in part as follows:

1. That the only matter before this Court is consideration of a certain money judgment entered in Case No. 39140 of the Common Pleas Court of Erie County, Ohio, filed March 2, 1971; and that the said DAVID RICHARD LEHRER has complied with all the provisions thereof that he is required to do under the laws of the State of Ohio and/or the State of Florida.

2. That he would show unto this Honorable Court that the said judgment was entered by the Common Pleas Court of Erie County, Ohio by constructive service and that personal service was never obtained upon the said DAVID RICHARD LEHRER, and that said Court did not have jurisdiction to enter any affirmative orders requiring performance by DAVID RICHARD LEHRER "in personam" as they did not have personal jurisdiction over the said DAVID RICHARD LEHRER; further that the

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