Patton v. Patton

----ooOoo----

Shelle Sherece Scott Patton,
Plaintiff and Appellee,

v.

Mark Kenneth Patton,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990629-CA

F I L E D
December 14, 2000 2000 UT App 357 -----

Fifth District, St. George Department
The Honorable G. Rand Beacham

Attorneys:
G. Michael Westfall, St. George, for Appellant
Jonathan O. Hafen, Salt Lake City, for Appellee

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Before Judges Jackson, Davis, and Thorne.

DAVIS, Judge:

Appellant first argues that the trial court erred in its March 16, 1998 order awarding child support in the amount $1550 per month during the first six months of 1996. Appellant claims that the court erred by finding he was voluntarily unemployed during that period, and if child support was due during that period, the amount owed was no more than $750 per month. The order being appealed superceded an August 15, 1996 order which dictated that Appellant pay Appellee $750 per month for 18 months starting January 1, 1995, and then at least $2,000 thereafter.(1) That August 15, 1996 order incorporated a previously executed stipulation between the parties which contemplated the six month time period at issue. Neither Appellant nor Appellee argue that the order based upon the stipulation is invalid. During the first six months of 1996, the stipulation provided for child support in the amount of $750 per month. Generally, an order based upon a stipulation between the parties is valid. See Utah Code Ann. § 78-45-7(1)(b) (1999). Thus, the order based upon the stipulation controls, and Appellant is liable for $750 per month during that period.

Second, Appellant argues that the trial court erred by ordering child support retroactively from July 1996 until October 1997. Utah Code Ann. § 30-3-10.6(1)(c) (1999)(2) provides that child support payments are "not subject to retroactive modification" on or after the date they are due. In a situation when there has been retroactive modification, the previous order is applicable. See Peterson v. Peterson, 912 P.2d 1006, 1011-12 (Utah Ct. App. 1996) (holding that the court may not retroactively apply a modified order and thus the prior order is still enforceable). Pursuant to the stipulation, Appellant could arguably be liable for child support in the amount of at least $2,000 per month; however, Appellee requests only that the trial court's order be affirmed. See Nova v. Able Constr. Inc., 1999 UT 69,¶7, 983 P.2d 575 (finding that cross appeal is needed when appellees wish to enlarge their own rights or lessen the rights of their opponent); State v. South, 924 P.2d 354, 356 (Utah 1996) (holding that a cross appeal is necessary when requesting a different result). Thus, since the trial court's order is based upon the child support guidelines, and the amount is concededly correct, that amount will stand.

Third, Appellant contends that the trial court erred by failing to award him the tax exemption for dependent children. Here, Appellant was paying the majority of the child support amount and would receive a greater tax benefit from the exemption. See Utah Code Ann. § 78-45-7.21(1), (2) (1999); see also Allred v. Allred, 835 P.2d 974, 978 (Utah Ct. App. 1992) (finding that "the noncustodial parent must have a higher income and provide the majority of support for the child," and that the transfer of tax dependancy must be in the best interest of the parties as well as the child). However, under Utah Code Ann. § 78-45-7.21(3) (1999), a parent who is behind in child support cannot be awarded the tax dependancy exemption.(3) Appellant conceded at the hearing, in his brief, and at oral argument before this court that he was in arrears with his child support payments at the time of the January 23, 1998 hearing.(4) Thus, the trial court correctly applied section 78-45-7.21(3), and appellant was not entitled to the tax exemption.(5)

Lastly, we will not award attorney fees. Appellee conceded in oral argument that attorney fees were not addressed by the trial court and are not properly before this court. In addition, neither party prevails on all the issues on appeal; therefore, an award of attorney fees to either party is not appropriate.

Thus, the Appellant's arrears is reduced by $4,800 from the amount previously determined by the trial court, based upon a reduction of $800 a month for the first six months of 1996. Affirmed in part, reversed in part.
 
 
 
 

______________________________
James Z. Davis, Judge -----

WE CONCUR:
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 
 
 

______________________________
William A. Thorne, Jr., Judge

1. Although the stipulation had been signed by both parties on or about May 5, 1995, the court did not adopt it until the August 15th order.

2. Effective May 1, 2000, this section was renumbered as § 78-45-9.3.

3. Utah Code Ann. § 78-45-7.21(3) (1999) states in pertinent part: "the court . . . may not award any exemption to the noncustodial parent if that parent is not current in his child support obligation, in which case the court . . . may award the exemption to the custodial parent."

4. Appellant's counsel acknowledged that as of the January 23, 1998 hearing, Appellant owed $1,284.50 in unpaid child support based upon a rate of $750 per month.

5. The trial court was also correct in ordering that this issue could be reconsidered once Appellant was current with his child support payments.