IN RE THE MARRIAGE OF MISTY DAWN BARNES AND BENJAMIN SCOTT BARNES:
BENJAMIN SCOTT BARNES, Respondent/Appellee. MISTY DAWN BARNES, NOW WYNN, Petitioner/Appellant,
Mandate Issued: 07/26/2017
FROM THE DISTRICT COURT OF JOHNSON COUNTY, OKLAHOMA HONORABLE
CHARLES MIGLIORINO, JUDGE
S. Elliot, JEREMY S. ELLIOT, Durant, Oklahoma, for
D. BELL, JUDGE
In this post-dissolution of marriage proceeding,
Petitioner/Appellant, Misty Dawn Barnes, now Wynn (Mother),
appeals from an order of modification which granted
Respondent/Appellee, Benjamin Scott Barnes (Father), the
right to claim one minor child as a dependent for tax
exemption purposes. Finding no abuse of discretion, we affirm
the trial court's order.
Mother and Father entered an agreed divorce decree on June
30, 2014. Therein, Father and Mother were awarded joint
custody over the two minor children. The decree did not
specify which parent would have the right to claim the
children for tax purposes. Mother declared both of the
children as dependents in 2014. On February 17, 2015, Father
filed a motion to modify the child support provision due to
changes in employment and changes of both parties'
residences. Father sought to reduce his child support
obligation and to claim one child as a dependent on his
income tax return. The parties agreed to modify Father's
child support obligation and visitation but could not agree
on the tax exemption. After trial, the judge awarded Father
the 15-year-old child as a dependent and awarded Mother the
8-year-old child as a dependent. From this order of
modification, Mother now appeals.
Father failed to file a response brief; therefore, this
matter proceeds on Mother's brief only. Where an
appellant's brief-in-chief is "reasonably supportive
of the allegations of error, " we will ordinarily
reverse the appealed judgment. Sneed v. Sneed, 1978
OK 138, ¶10, 585 P.2d 1363. But, "Reversal is never
automatic on appellee's failure to file answer
brief." Hamid v. Sew Original, 1982 OK 46,
¶7, 645 P.2d 496.
Mother first argues her right to claim a child as a dependent
for tax exemption purposes is a property right, and therefore
the trial court lacks jurisdiction to modify the award. As
support, Mother cites Clifton v. Clifton, 1990 OK
88, ¶1, 801 P.2d 693, which states, "[I]n the
absence of fraud, a property settlement award... cannot be
modified in a post-decretal hearing." However,
Clifton did not address whether the right to claim a
child as a dependent for tax purposes is a property
Although we are unable to find statutory or Oklahoma Supreme
Court authority specifically addressing this issue, sister
states agree the right to claim a child as a dependent for
tax purposes is related to an award of child support. See
Foster v. Foster, 266 Neb. 32, 662 N.W.2d 191, 194
(2003) ("[A] tax dependency exemption is nearly
identical in nature to an award of child support"); and
Dumas v. Tucker, 82 Ark.App. 173, 119 S.W.3d 516,
518 (2003) ("[T]he right to claim the parties'
children as dependents for tax purposes is accurately
characterized as a matter of child support"). Also,
Division 3 of this Court, although not explicitly addressing
this issue, held the parents' rights to claim children as
dependents are modifiable, thus implicitly holding such
rights are akin to child support. See Wilson v.
Wilson, 1991 OK CIV APP 79, ¶5, 831 P.2d 1. We
therefore hold the right to claim a child as a dependent for
tax purposes is a child support issue, and thus it is
modifiable pursuant to 43 O.S.Supp. 2016 §118I (A)(1).
Mother next argues even if the right is modifiable, the trial
court erred in granting the order for modification because it
is not in the children's best interests. As support,
Mother erroneously relies on Gibbons v. Gibbons,
1968 OK 77, 442 P.2d 482, which declares the interests of the
child must be taken into account for custody modifications.
The custody of the children is not at issue in this
proceeding. Thus, Gibbons is inapplicable.
Mother next argues the trial court must follow 26 U.S.C.
§152(e) of the Internal Revenue Code, which states a
child shall be treated as being the dependent of the
noncustodial parent for a calendar year if: (1) "the
custodial parent signs a written declaration [waiving the
right to claim the child], " (2) the "custodial
parent [does] not claim such child as a dependent for [that
taxable year], " and (3) "the noncustodial parent
attaches such written declaration to the noncustodial
parent's return for [that taxable year]." Mother
claims she is entitled to the dependent exemption because she
has not signed a written declaration waiving this right. This
argument lacks merit. Mother and Father have joint custody
over the children. Furthermore, "the trial court has the
power to allocate the exemptions and the power to order the
custodial parent to execute the exemption waiver...."
Wilson, 1991 OK CIV APP 79 at ¶7.
For modification of child support, 43 O.S.Supp. 2016
§118I (A)(1) states, "Child support orders may be
modified upon a material change in circumstances which
includes... an increase or decrease in the income of the
parents...." This Court will not reverse the trial
court's decision in a child support modification
proceeding unless there has been a showing of an abuse of
discretion, or a showing that the trial court's decision
is against the clear weight of the evidence. Williamson
v. Williamson, 2005 OK 6, ¶5, 107 P.3d 589. It is
undisputed in the record that since the divorce decree was
issued, Father lost his job in the oil field. This is a clear
material change in circumstances that warrants a modification
of the dependent tax exemption. We therefore find the trial
court acted within its discretion when it modified the
parties' rights to claim the children as dependents. The
judgment of the trial court is therefore affirmed.
P.J., and ...