In re the Marriage of: Vickie Kay Graff, n/k/a Vickie Kay Sidwell, petitioner, Appellant, vs. Michael G. Graff, Respondent.

In re the Marriage of: Vickie Kay Graff, n/k/a Vickie Kay Sidwell, petitioner, Appellant, vs. Michael G. Graff, Respondent. A05-1024, Court of Appeals Unpublished, March 21, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1024

 

In re the Marriage of:

 

Vickie Kay Graff,

n/k/a Vickie Kay Sidwell, petitioner,

Appellant,

 

vs.

 

Michael G. Graff,

Respondent.

 

Filed March 21, 2006

Affirmed

Kalitowski, Judge

 

Ramsey County District Court

File No. DM-F4-87-25969

 

Lawrence H. Crosby, Crosby & Associates, 2277 Highway 36 West, Suite 234E, St. Paul, MN 55113-3830 (for appellant)

 

Michael C. Black, Michael C. Black Law Office, Ltd., 265 West Seventh Street, Suite 201, St. Paul, MN 55102 (for respondent)

 

            Considered and decided by Kalitowski, Presiding Judge; Willis, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

Appellant Vickie Kay Graff challenges the district court's postdissolution order compelling her to execute IRS waiver forms allowing respondent Michael G. Graff to claim the parties' child as a tax dependent.  Appellant also argues that the district court abused its discretion in awarding attorney fees.  We affirm.     

D E C I S I O N

            A district court may construe or clarify an ambiguous dissolution judgment.  Stieler v. Stieler, 244 Minn. 312, 319, 70 N.W.2d 127, 131 (1955).   Whether a judgment is ambiguous is a question of law, which this court reviews de novo.  Gray v. Farmland Indus., Inc., 529 N.W.2d 514, 516 (Minn. App. 1995), review denied (Minn. June 14, 1995).  The meaning of an ambiguous judgment provision is a question of fact, which this court reviews for clear error.  Tarlan v. Sorensen, 702 N.W.2d 915, 919 (Minn. App. 2005).  

I.

            In the 2005 order at issue in this appeal, the district court interpreted its 1997 order that amended the parties' 1989 dissolution judgment.  The 1997 order provides that respondent, the noncustodial parent, was entitled to claim the parties' youngest child as a tax dependent for 1996 and future years.  The order states that "[s]uch claim of exemption shall be conditioned upon [respondent] being current in his child support obligation to [appellant] as of December 31 of the year for which the exemption is to be claimed."  In the next paragraph, the order provides that "[u]pon written request by [respondent], [appellant] shall promptly execute IRS Form [8332], or such other form as may be required, each year in which [respondent] is entitled to claim the exemption . . . ."  The district court determined that the wording of the 1997 order was ambiguous, but interpreted that order to condition the allocation of the tax-dependency exemption to respondent only on his remaining current in his child-support obligation.

The parties do not dispute that respondent was current in his child-support obligation for the designated period.   But appellant argues that the 1997 order requires, as a condition of allocating the tax exemption to respondent, that respondent both fulfill his child-support obligation and request appellant's waiver of the exemption on a yearly basis.           

Appellant acknowledges that the district court has the power to allocate the tax exemption to respondent.  See Fudenberg v. Molstad, 390 N.W.2d 19, 21 (Minn. App. 1986) (stating that district court has authority to award federal tax exemptions to noncustodial parent and require custodial parent to waive exemption); see also Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998) (stating that allocation of tax exemption is within discretion of district court and will not be reversed absent abuse of discretion), review denied (Minn. Feb. 18, 1999).  But appellant maintains that the district court legally erred by failing to recognize federal waiver requirements for allocating that exemption.  See I.R.C.§ 152(e) (West Supp. 2005) (providing that custodial parent's written declaration not to claim child as dependent will satisfy requirement for noncustodial parent to claim tax exemption); Theroux v. Boehmler, 410 N.W.2d 354, 358 (Minn. App. 1987) (stating that absent a "clear waiver" of right to claim tax-dependency exemption by custodial parent, district court must follow federal law awarding tax exemption to custodial parent).  Appellant therefore contends that the district court improperly interpreted its earlier order to allow allocation of the tax-dependency exemption for the parties' minor child to respondent without respondent sending to appellant waiver forms for her signature on a yearly basis.

But the purpose of filing waiver forms is to notify the IRS of the allocation of the dependency exemption, not to determine that allocation.  See Fudenberg, 390 N.W.2d at 21 (stating that legislative history of section 152(e) indicates goal of "alleviating the burden on the IRS caused by factfinding determinations").  Thus, the district court was entitled to make a factual determination on the allocation of the tax-dependency exemption and to issue an order specifying how that allocation would be carried out.  The district court did not clearly err in interpreting its 1997 order to mean that (1) the respondent would be allocated the exemption if he remained current in child-support payments; and (2) if that condition were satisfied, the allocation would be carried out by filing waiver forms with the IRS.

The parties dispute whether respondent sent waiver forms to appellant, and the district court made no findings on this issue.  But the record unequivocally shows that respondent satisfied the condition for claiming the exemption by staying current under his support obligation.  It also reflects that appellant was served a copy of the 1997 order, which made it clear that she was not entitled to claim the exemption.  Thus, we conclude that the district court properly construed its previous order and ordered the execution of waiver forms for the years 1997-2004, as well as the reimbursement of respondent's assessed IRS penalties for failure to file a waiver form with his 2002 tax return. 

II.

            Appellant challenges the district court's award of attorney fees to respondent.    The district court in a dissolution action has broad discretion in determining whether to award attorney fees and will not be reversed absent an abuse of that discretion.  Solon v. Solon, 255 N.W.2d 395, 397 (Minn. 1977).  The record reflects the district court's reasoning that respondent was required to bring this motion and incur attorney fees because appellant continued to claim the parties' child as an exemption, which she was not entitled to do under the court's 1997 order.  We conclude that on this record, the court's award of attorney fees was not an abuse of discretion.  See Minn. Stat. § 518.14, subd. 1 (2004) (stating that court may award conduct-based attorney fees "against a party who unreasonably contributes to the length or expense of the proceeding").     

            Finally, appellant contests that part of the order allowing respondent to set off amounts payable under the order from respondent's future child-support obligation.   But because this argument was not briefed on appeal, it is waived.  See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (stating that issues not briefed on appeal are waived). 

Affirmed.