1. Child Support, Custody, and Visitation--support modification--deviation from
Child Support Guidelines
In a child support modification case, the trial court's order supporting a deviation from
the Child Support Guidelines must be reversed and remanded for additional fact-finding because
the order: (1) does not identify the presumptive amount of support due under the Guidelines; (2)
does not analyze the reasonable needs of the two minor children, other than a finding that
plaintiff-mother's child care costs for the minor child Kelly are reasonable; and (3) only
concludes that the cause for the deviation is that the deviation is “reasonable and fair.”
2. Child Support, Custody, and Visitation--support modification--income tax
dependency exemption
In a child support modification case, the trial court did not err by ordering plaintiff-
custodial parent to surrender her income tax dependency exemption to defendant-father because:
(1) there is no case law from any jurisdiction disallowing a court-ordered waiver of a custodial
spouse's dependency exemption because that order was entered in a child support proceeding;
(2) sufficient findings of fact support the conclusion that plaintiff receives the earned income tax
credit, has no tax liability, and therefore wastes the exemption for the minor child Kelly; and (3)
there is no possible basis to determine that defendant's use of that exemption would conflict with
the best interests of the child.
Rosalee Hart-Morrison for plaintiff-appellant Rowan County
Department of Social Services.
No brief filed for defendant-appellee.
MARTIN, Judge.
Plaintiff appeals from an order of the district court
granting her motion to modify a child support order, granting
defendant's motion to deviate from the North Carolina Child Support
Guidelines, and directing that defendant receive the income tax
dependency exemption for the parties' minor child, Kelly Brooks.
We affirm in part, reverse in part and remand. On 15 October 1997, plaintiff and defendant entered into a
voluntary support agreement in which defendant agreed to pay $922
per month in child support for their three minor children, Kenneth,
Christopher and Kelly. Plaintiff filed a motion to modify child
support in Rowan County District Court on 9 November 1998. A
hearing was held on the motion on 16 December 1998, but was not
transcribed. At the hearing, defendant made a verbal motion to
deviate from the North Carolina Child Support Guidelines.
On 19 February 1999, the district court entered an order
granting plaintiff's motion to increase the child support amount,
granting defendant's motion to deviate from the Guidelines, and
ordering that defendant be awarded the income tax dependency
exemption for one of the minor children, Kelly. In its order, the
court found changed circumstances in that the child Kenneth had
attained majority and was no longer in school. The court made
detailed findings as to plaintiff's and defendant's respective
incomes and determined that plaintiff's child care costs for Kelly
were reasonable. The order referenced three alternative worksheets
prepared by the parties, which calculated defendant's support
obligation under the Guidelines as either $853.43, $1,022.80, or
$1,106.00.
Based on these findings, the court concluded it was “fair and
reasonable” to deviate from the Guidelines. The order established
defendant's new child support obligation as $1,000 per month to be
paid in biweekly increments of $461.53.
Concerning the income tax exemption, the court found that
plaintiff received an Earned Income Tax Credit and, therefore, hadno income tax liability. The court further found that “based upon
the plaintiff's income, the number of income tax exemptions in the
home, and the plaintiff's entitlement to the Earned Income Credit,
the plaintiff's exemptions for the minor child Kelly is wasted.”
It was therefore found “fair and reasonable” that the exemption for
Kelly be surrendered to defendant.
Plaintiff raises two issues in her brief to this Court.
First, she argues the district court made insufficient findings of
fact to justify its deviation from the Guidelines. Second, she
claims the district court lacked the authority and failed to find
sufficient facts to order plaintiff to surrender her income tax
dependency exemption to defendant.
[1]We review the district court's deviation from the amount
of child support prescribed by the Guidelines for abuse of
discretion. Sain v. Sain, 135 N.C. App. 460, 465, 517 S.E.2d 921,
926 (1999). To support a deviation, the district court must (1)
determine the presumptive child support award under the Guidelines;
(2) hold a hearing on the needs of the child and the relative
abilities of the parents to meet those needs; (3) find by the
greater weight of the evidence that the presumptive award “would
not meet or would exceed the reasonable needs of the child
considering the relative ability of each parent to provide support
or would be otherwise unjust or inappropriate[,]” N.C. Gen. Stat.
§ 50-13.4(c); and (4) enter written findings of fact that show the
presumptive support amount, the reasonable needs of the child, the
relative abilities of the parents and that the presumptive amount
is inadequate, excessive, or otherwise inappropriate or unjust. Sain, 135 N.C. App. at 466, 517 S.E.2d at 926. Our review of the
order reveals the district court failed to make sufficient findings
of fact to support a deviation from the Guidelines. The order does
not identify the presumptive amount of support due under theGuidelines. In addition, there is no analysis of the reasonable
needs of the two minor children, other than a finding that
plaintiff's child care costs for Kelly are reasonable. See State
ex rel. Fisher v. Lukinoff, 131 N.C. App. 642, 507 S.E.2d 591
(1998). Finally, the court's finding as to the cause for the
deviation is limited to a conclusion that such a deviation is
“reasonable and fair.” We must therefore reverse this portion of
the order and remand for additional fact-finding consistent with
Sain and Fisher.
[2]Under federal tax law, the custodial parent is entitled to
the support exemption for a child, even when the non-custodial
parent provides more than half of the child's support. 26 U.S.C.A.
§ 152(e)(1) (West 1999). However, the custodial parent may waive
the right to claim the exemption in favor of the non-custodial
parent. 26 U.S.C.A. § 152(e)(2).
In Cohen v. Cohen, 100 N.C. App. 334, 347-48, 396 S.E.2d 344,
352 (1990), disc. review denied, 328 N.C. 270, 400 S.E.2d 451
(1991), this Court upheld the trial court's order requiring the
custodial parent to waive the right to claim the dependency
exemption for income tax purposes. Plaintiff seeks to distinguish
Cohen as a divorce proceeding involving the division of the marital
property. Plaintiff notes that the Cohen court relied on case law
from other jurisdictions which had treated the dependency exemption
as part of the marital estate. She urges that a court sitting in
a child support proceeding lacks the authority to dispose of
portions of the marital estate. Following Cohen, we hold that the district court acted within
its authority in ordering the custodial parent to waive her
dependency exemption in favor of the non-custodial parent.
Plaintiff's attempt to distinguish Cohen from the instant case is
unpersuasive. The Cohen court was reviewing a child support order
and did not define the dependency exemption as marital property.
Appellant has failed to point to a decision from any jurisdiction
disallowing a court-ordered waiver of a custodial spouse's
dependency exemption because that order was entered in a child
support proceeding. Moreover, the case most heavily relied upon by
plaintiff, Hughes v. Hughes, 35 Ohio St. 3d 165, 518 N.E.2d 1213,
cert. denied, 488 U.S. 846, 102 L. Ed. 2d 97 (1988), was
subsequently modified by the Ohio Supreme Court to remove the
characterization of the exemption as “marital property” and to
allow Ohio courts to treat the exemption as “analogous to or part
of child support.” Singer v. Dickinson, 63 Ohio St. 3d 408, 413,
588 N.E.2d 806, 810 (1992).
We also find that the district court made sufficient findings
of fact to support the waiver. The court found that appellant
receives the Earned Income Tax Credit, has “no income tax
liability” and, therefore, “waste[s]” the exemption for the minor
child Kelly. Appellant does not challenge the validity of the
court's income tax analysis; rather she avers that the court was
required to make findings as to the best interests of the child.
We agree that in most cases an explicit finding as to the child's
interests is warranted. However, since the district court foundthat plaintiff derives no monetary benefit from the tax exemption,
we see no possible basis to determine that defendant's use of that
exemption would conflict with the best interests of the child.
For the reasons discussed above, we affirm the portions of the
district court's award granting plaintiff's motion for an increase
in child support and ordering that defendant be entitled to the
dependency exemption for the minor child Kelly. We reverse the
grant of defendant's motion to deviate from the Guidelines and
remand for further findings either from the evidence of record or
after receipt of additional evidence.
Affirmed in part, reversed in part and remanded.
Judges WYNN and SMITH concur.
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