Rhonda Morris (now Smith) v. Robert Newton Morris

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

RHONDA MORRIS (now SMITH)

APPELLANT

V.

ROBERT NEWTON MORRIS

APPELLEE

CA03-771

April 27, 2005

APPEAL FROM THE POPE COUNTY CIRCUIT COURT

[NO. E97-114]

HON. RICHARD E. GARDNER,

JUDGE

REVERSED AND REMANDED

Robert J. Gladwin, Judge

The Pope County Circuit Court granted appellant Rhonda Morris (Smith)'s petition to increase the child support payments paid by appellee Robert Morris based on his substantial increase in income. In an order filed May 7, 2003, the trial court increased the child support payments from sixty dollars per week to $123 per week. The trial court also permitted appellee to claim the parties' oldest child as a dependent for federal and state income tax purposes. Appellant has provided this court with a brief that complies with our rules, so that we may now address the merits of her case.1 Appellant's sole argument on appeal is that the trial court erred in permitting appellee to claim one of their children for tax purposes because the trial court failed to make specific findings pursuant to Ark. Code Ann. § 9-12-312(a)(2) (Repl. 2002) and failed to follow Administrative Order Number 10, section III(f), entitled "Allocation of dependents for tax purposes." We agree and, accordingly, reverse and remand.

Administrative Order Number 10, section III(f), provides that allocation of dependents for tax purposes belongs to the custodial parent pursuant to the Internal Revenue Code. It further provides that the court shall have the discretion to grant dependency allocation, or any part of it, to the non-custodial parent if the benefit of the allocation to the non-custodial parent substantially outweighs the benefit to the custodial parent.

Arkansas Code Annotated section 9-12-312(a)(2) provides:

In determining a reasonable amount of support, initially or upon review, to be paid by the noncustodial parent, the court shall refer to the most recent revision of the family support chart. It shall be a rebuttable presumption for the award of child support that the amount contained in the family support chart is the correct amount of child support to be awarded. Only upon a written finding or specific finding on the record that the application of the support chart would be unjust or inappropriate, as determined under established criteria set forth in the family support chart, shall the presumption be rebutted.

In Freeman v. Freeman, 29 Ark. App. 137, 778 S.W.2d 222 (1989), the parties entered into a separation agreement, which was subsequently incorporated into the divorce decree, that included a provision governing the right to claim the parties' children as tax exemptions. This court noted that such a provision was more closely related in nature to an award of child support than it was to a settlement of property rights and that, therefore, the trial court retained authority to modify the provision on a proper showing as per the rules applicable to awards of child support.

The parties in Fontenot v. Fontenot, 49 Ark. App. 106, 898 S.W.2d 55 (1995), were divorced, and the mother was awarded custody of the parties' children and child support. In a subsequent order, the trial court increased child support and permitted the father to claim the children as dependents for income tax purposes. This court held that, in awarding the father the right to claim the parties' children as dependents, the trial court had essentially deviated from the support chart. This court noted that the father had clearly received a benefit from the award but could not determine from the record the extent of the benefit. Because the trial court had failed to make the requisite findings to support the deviation, the case was reversed and remanded for the trial court to reconsider the tax-exemption issue.

In a more recent case, Dumas v. Tucker, 82 Ark. App. 173, 119 S.W.3d 516 (2003), this court held that an award of a tax exemption to a non-custodial parent results in a deviation from the family support chart and that the trial court erred in making such an award without providing the findings required by Ark. Code Ann. § 9-12-312(a)(2) and without weighing the benefits to the parties as required by Administrative Order Number 10, section III(f).

In his ruling from the bench, the trial judge stated, "Based on the testimony and based on the increase in support and the other factors that were brought out, I'm going to allow Mr. Morris to claim the one child, the oldest child, as a tax dependent." This court has the power to decide cases involving child support de novo on the record before it, but in appropriate cases, the court also has the authority to remand such cases for further action. Fontenot, supra. We remand this case for the trial court to reconsider the tax-exemption issue and decide, in its discretion, whether to provide more detailed findings or whether further proof from the parties is necessary. Accordingly, we reverse and remand for further action consistent with this opinion.

Reversed and remanded.

Pittman, C.J., and Bird, J., agree.

1 In an unpublished opinion handed down on March 31, 2004, this court ordered rebriefing because appellant had failed to include the trial court's order from which she was appealing. In another unpublished opinion handed down on October 13, 2004, appellant's brief was again deficient because she had failed to include the notice of appeal.