MICHAEL T. CANAVAN, JR v. ELISABETH JEAN CANAVAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0010-08T20010-08T2

MICHAEL T. CANAVAN, JR.,

Plaintiff-Appellant,

v.

ELISABETH JEAN CANAVAN,

Defendant-Respondent.

__________________________

 

Argued May 18, 2009 Decided

Before Judges Sapp-Peterson and Alvarez.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-1612-07.

Glen J. Vida argued the cause for appellant.

Alfonse A. De Meo argued the cause for respondent.

PER CURIAM

Plaintiff Michael T. Canavan, Jr., appeals from a July 25, 2008 order that continued the right of defendant Elisabeth Jean Canavan to claim the parties' then five-year-old child as a tax exemption. We affirm.

When the parties divorced on July 12, 2007, their judgment of divorce did not specify the allocation of the tax exemption because defendant, who is the primary residential parent, would not agree to waive the exemption in alternating years. The divorce judgment specifically provided that "no issues were unresolved in this matter and all issues pleaded and not proven are deemed abandoned."

Subsequent to unsuccessful post-judgment motion practice initiated by defendant seeking an order allowing her to relocate to Seattle, Washington with the parties' child, plaintiff filed a motion seeking, among other things, an order directing that he could claim the minor child as an exemption in alternating years. Initially, the court granted his request. Thereafter, defendant filed a motion for reconsideration, which was granted. Plaintiff's request to alternate the tax exemption with defendant was then denied. This appeal followed.

In general, an appellate court should not "disturb the factual findings and legal conclusions of the trial judge" unless it is "convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974) (internal quotations omitted). Specifically, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). The interpretation by a trial court, however, of "the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995).

The leading case on this question is Gwodz v. Gwodz, 234 N.J. Super. 56 (App. Div. 1989). Gwodz begins by acknowledging the propriety of the Family Court maximizing income available for the support of children through use of the exemption. Id. at 61. The case also acknowledges the Internal Revenue Code's presumption that the custodial parent will retain the tax exemption, subject to waiver. Id. at 62.

In considering "a request for change in the status quo respecting exemptions," a trial judge must first determine the extent of child support provided by each parent. Ibid. If a change in tax exemptions is "deemed warranted," the court must also consider whether modification of the existing support order is necessary to "reflect the benefits achieved by the change." Id. at 62-63. The trial court, however, must also consider whether the change in exemptions "falls within the principles of Lepis v. Lepis, 83 N.J. 139, 149-53 (1980)." Gwodz, supra, 234 N.J. Super. at 63.

In Lepis, the Court required a showing of "changed circumstances" as a prerequisite to modification of a support order. Lepis, supra, 83 N.J. at 146. In other words, as a threshold proposition, plaintiff must establish a change in circumstances between the date of divorce and the date of his application because alternating the exemption is a significant alteration of the status quo. In this case, no such change in circumstances is even alleged to have occurred as would warrant reconsideration by the Family Court or by us on this appeal.

Additionally, by failing to pursue the issue when the divorce settlement was negotiated, plaintiff abandoned that right. A waiver is a "voluntary and intentional relinquishment of a known right." Knorr v. Smeal, 178 N.J. 169, 177 (2003). It must be evidenced by a clear, unequivocal and decisive act from which an intention to relinquish the right can be inferred. Ibid.

Entry of the divorce judgment, which included provision for child support, custody and visitation, signaled an abandonment on plaintiff's part of his claim to the exemption. The custodial parent is presumed to have the right to claim the exemption, and plaintiff was silent on that point at his only opportunity to raise the issue. Therefore, he abandoned his right to litigate the exemption. See Gotlib v. Gotlib, 399 N.J. Super. 295, 304 (App. Div. 2008).

As the motion judge stated in the July 25, 2008 order:

The IRS Code grants the custodial parent the exemption unless it is waived by the custodial parent. In this case it was not waived. The exemption was discussed and negotiated as shown by the correspondence and there was no agreement to waive the exemption. The settlement was silent on the issue because it was reasonable to believe that [without] an express waiver the exemption belonged to defendant/wife. No change in circumstances was argued or shown that would warrant a change by this court.

We agree. Affirmed.

 

(continued)

(continued)

5

A-0010-08T2

June 26, 2009