DEBRA OFFUTT MARKS v. WILLIAM MORRIS MARKS, JR.
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RENDERED:
SEPTEMBER 23, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001209-MR
DEBRA OFFUTT MARKS
v.
APPELLANT
APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE CHARLES W. BOTELER, JR., JUDGE
ACTION NO. 95-CI-00026
WILLIAM MORRIS MARKS, JR.
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM AND JOHNSON, JUDGES; EMBERTON, SENIOR JUDGE. 1
JOHNSON, JUDGE:
Debra Offutt Marks has appealed from the May
21, 2004, order of the Hopkins Circuit Court which adopted the
December 31, 2003, report of the Domestic Relations
Commissioner, allowing William Morris Marks, Jr. to claim two of
the parties’ three minor children as dependents for tax
1
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and Kentucky Revised Statutes (KRS) 21.580.
purposes.
Having concluded, after reviewing the record, that
Debra failed to preserve the issue for appeal, we affirm.
Debra and William were married on December 31, 1987.
They separated on October 29, 1994, and Debra filed a verified
divorce petition on January 13, 1995.
Three children were born
of the marriage, namely Laura Frances Marks, (DOB December 21,
1989), Jennifer Dawn Marks and William Morris Marks III (DOB
December 16, 1990).
The children have primarily resided with
Debra.
On May 11, 1995, the parties entered into a separation
and property settlement agreement resolving all issues,
including child custody, child support, property valuation and
division, attorney’s fees, and the allocation of the children as
dependents for tax purposes.
The agreement provided that Debra
and William would alternate the tax exemptions, with William
claiming two children and Debra claiming one child in odd
numbered years, and Debra claiming two children and William
claiming one child in even numbered years.
Further, William’s
child-support obligation was set at $700.00 per month for 18
months following the effective date of the agreement.
This
amount was a lower sum than the amount calculated pursuant to
the child-support guidelines, but Debra was allowed to seek a
modification following the 18-month period.
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The trial court
found the agreement not unconscionable and incorporated it into
the decree of dissolution of marriage entered on May 18, 1995.
On December 5, 2003, William filed a motion for
dependency exemption, wherein he claimed that he was providing
over 60% of the children’s support and should be entitled to
claim all three children as tax exemptions.
On the same date,
Debra filed a motion to increase child support requesting that
William pay child support in accordance with the guidelines.
A
hearing was held before the Commissioner on December 10, 2003.
On December 31, 2003, the Commissioner filed her
report on the issues of visitation, child support, the parties’
attendance at a cooperative parenting program, attorney’s fees,
and the allocation of the children as dependents for tax
purposes.
The Commissioner recommended that William’s child-
support obligation be modified to $1,083.00 per month, which
included reimbursement to Debra of uninsured healthcare costs.
Further, the Commissioner recommended that beginning in 2004
William should be allowed to claim two of the parties’ children
as dependents for tax exemption purposes, and Debra should be
allowed to claim one child, rather than the previous agreement
where the parties alternated the exemption by tax year.
Debra filed exceptions to the Commissioner’s report on
January 12, 2004.
She stated that under current Kentucky law
she was entitled to claim all three children as dependents for
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tax exemption purposes.
William responded by asking the circuit
court to adopt the Commissioner’s recommendations.
The trial
court entered an order on May 21, 2004, adopting the
Commissioner’s report in its entirety.
This appeal followed.
Debra’s sole argument on appeal is that the trial
court abused its discretion by awarding William tax exemptions
for two of the children.
In reviewing the trial court’s ruling,
our standard of review “is not whether [the appellate court]
would have decided the issue differently, but whether the
findings of the trial judge were clearly erroneous or that he
abused his discretion” [citations omitted]. 2
Findings of fact
are clearly erroneous if they “are manifestly against the weight
of the evidence” [citations omitted]. 3
Abuse of discretion
implies that the trial court’s decision is unreasonable or
unfair. 4
It is well-settled law in Kentucky that a circuit
court has the authority to allocate between former spouses the
tax exemption for a child of the dissolved marriage. 5
Further,
“[a] trial court should allocate the exemption so as to maximize
the amount available for the care of the children” [footnote
2
Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982); Kentucky Rules of Civil
Procedure (CR) 52.04.
3
Wells v. Wells, 412 S.W.2d 568, 571 (Ky. 1967).
4
Kuprion v. Fitzgerald, 888 S.W.2d 679, 684 (Ky. 1994).
5
Marksberry v. Riley, 889 S.W.2d 47, 48 (Ky.App. 1994).
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omitted]. 6
However, the trial court’s findings in this case do
not address whether the tax exemptions were allocated so as to
maximize the amount available for the care of the children. 7
William argues to this Court that Debra waived this
argument on appeal by failing to file a post-judgment request
for additional findings pursuant to CR 52.04. 8
Debra argues in
her reply brief that her opposition to the trial court’s ruling
is not based on inadequate findings of fact.
Rather, she states
that her argument is “that the trial court abused its discretion
by entering the order granting [William’s] motion for the
dependency exemptions without any evidence to support it.”
6
7
Hart v. Hart, 774 S.W.2d 455, 457 (Ky.App. 1989).
The findings included the following:
[B]eginning with tax year 2004 . . . and continuing
until further orders of the Court, William should be
permitted to claim two children as dependents and
Debra should be permitted to claim one child, if the
financial circumstances of the parties remain as they
have now indicated. (Should the financial
circumstances of one or both parties change, or
should federal or state tax laws be modified such
that this determination would not provide the
greatest amount of resources available for the
children’s support, one or both parties should file a
motion for the Court to review this determination
prior to January 1 of the year in which the tax
returns are due.)
8
CR 52.04 states as follows:
A final judgment shall not be reversed or remanded
because of the failure of the trial court to make a
finding of fact on an issue essential to the judgment
unless such a failure is brought to the attention of
the trial court by a written request for a finding on
that issue or by a motion pursuant to Rule 52.02.
-5-
Debra relies on CR 52.01 and CR 52.03 to support her argument
that she properly preserved the issue on appeal.
She argues
that the dependency award was erroneous as a matter of law,
because there was not sufficient evidence in the record to
support the ruling.
In reviewing the record, it appears that both parties’
pay stubs from their current employment were filed as evidence.
The parties signed an “Agreed Narrative Statement” entered in
the record on November 9, 2004, which reflects the contents of
the December 10, 2003, hearing before the Commissioner regarding
the dependency exemption issue.
The narrative specifically
states that the hearing ended with “neither attorney asking any
questions and without either party presenting any evidence on
the issue of entitlement to dependency for the children.”
However, having the parties’ current income, the trial court had
sufficient evidence to make adequate findings of fact regarding
the dependency exemption award.
Therefore, we cannot conclude
that there was a lack of evidence, but rather the trial court
failed to adequately explain how it used the parties’ incomes to
make the dependency exemption award.
We conclude that Cherry is dispositive, and since
Debra failed to request a more definite finding of fact, the
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issue is deemed waived. 9
Therefore, while we also conclude that
the trial court’s findings of fact regarding the dependency
exemption award are inadequate, we are compelled to hold that
Debra failed to preserve the issue for our review.
For the foregoing reasons, the order of the Hopkins
Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Thomas E. Turner
Madisonville, Kentucky
Melanie A. Rolley
Madisonville, Kentucky
9
Cherry, 634 S.W.2d at 425.
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