Opinion
No. 6-185 / 05-0347
Filed April 12, 2006
Appeal from the Iowa District Court for Polk County, Arthur Gamble, Judge.
A father appeals from modification decree provisions that awarded the mother dependent income tax exemptions and trial attorney fees. AFFIRMED.
Van M. Plumb of Plumb Law Office, West Des Moines, for appellant.
Catherine Levine, Des Moines, for appellee.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
Raphael Plasencia appeals from the provisions of a district court modification decree that awarded his former wife, Deborah Plasencia, the dependent income tax exemptions for the parties' children and ordered Raphael to pay Deborah's trial attorney fees. Upon our de novo review, Iowa R. App. P. 6.4; In re Marriage of Wagner, 604 N.W.2d 605, 608 (Iowa 2000), we affirm the district court.
Raphael and Deborah's marriage was dissolved in 1994. Deborah was awarded physical care of the parties' two children: Danielle, born in 1985, and Michael, born in 1991. Raphael was awarded reasonable visitation and ordered to pay $454.26 per month in child support. The decree was silent as to which party was entitled to take dependent income tax exemptions for the children. However, Raphael has taken the dependent tax exemption for Michael since the entry of the decree.
In 2001 a modification decree was entered that increased Raphael's child support obligation to $604.85 per month. It further provided that each party was responsible for one-third of the children's postsecondary education expenses. The decree was again silent on the issue of dependent tax exemptions.
In April 2004 Raphael filed a modification petition requesting that his child support obligation be modified in light of Danielle's pending high school graduation, and seeking increased visitation with Michael. Deborah answered, and in October 2004 filed an application for rule to show cause that asserted Raphael had violated the 2001 modification decree by willfully failing to pay his share of Danielle's postsecondary education expenses.
On November 10, 2004, Raphael filed a motion to amend his modification petition to request a change in Michael's physical care. Deborah resisted the amendment. On November 29, the date set for hearing on the motion to amend and only three days prior to trial, Michael withdrew his motion.
Raphael's modification petition and Deborah's contempt application were tried to the court on December 2. At the time Deborah had a gross yearly income of $50,424.48 and Raphael had a gross yearly income of $45,552.00. In addition to visitation, child support, and contempt determinations, the court was asked to make an original determination as to which party should receive the tax exemption for Michael, and to address Deborah's request for an award of attorney fees.
In its January 2005 modification decree the district court established Raphael's child support obligation for Michael, and found Raphael was entitled to credit for overpayment of support commencing August 1, 2004. The court also granted Raphael increased visitation with Michael. The court awarded Deborah the dependent income tax exemptions for both children, as "[s]he is the custodial parent and provides more than 50% of their support." The court also found Raphael in contempt of the 2001 modification decree, for "willfully and intentionally fail[ing] and refus[ing] to [pay] his share of Danielle's college expenses." The court also ordered Raphael to pay Deborah $2349 in attorney fees because he "intentionally withheld payment of Danielle's college expenses pending the outcome of his child support modification which unjustifiably increased the cost of litigation" to Deborah.
The parties stipulated to weekend, mid-week, and most holiday visitation, but submitted the contested issues of visitation during spring break and summer vacation to the district court.
Raphael appeals. He asserts the district court erred in awarding Deborah the dependent tax exemption for Michael, and in ordering him to pay Deborah's trial attorney fees. Deborah requests an award of appellate attorney fees.
Dependent Exemption.
Raphael contends that he is deemed to pay an equal share of Michael's expenses, and absent proof Deborah provided "out of the ordinary care," the tax exemption for Michael must be alternated between the parties. We first note Raphael has cited no authority in support of his contention, which alone is sufficient to waive the issue. See Iowa R. App. P. 6.14(1)( c).
Moreover, consistent with the Internal Revenue Code, "[t]he `general rule' is that the parent given primary physical care of the child is entitled to claim the child as a tax exemption." In re Marriage of Okland, 699 N.W.2d 260, 269 (Iowa 2005); see also 26 U.S.C. § 152(c)(4)(B)(i); Iowa Ct. R. 9.6(4). Although a court may award the exemption to the noncustodial parent "to achieve an equitable resolution of the economic issues presented," Okland, 699 N.W.2d at 269 (citation omitted), here equity dictates awarding the exemption to Deborah.
Although this rule is subject to exemptions, see id. § 152(e)(2)-(3), none are applicable here.
The only evidence regarding the parties' percentage contribution to Michael's expenses was Deborah's testimony that Raphael's past child support obligation did not provide for more than fifty percent of the children's expenses, and that she did not believe his future support obligation would provide for more than fifty percent of Michael's expenses. This testimony only buttresses the presumption that Deborah, as the custodial parent, is the party who has provided and will continue to provide the greater portion of Michael's support. In addition, there is no indication Raphael would gain a greater tax advantage from receiving the exemption than would Deborah, particularly as Deborah is the parent with the greater yearly income. Cf. In re Marriage of Rolek, 555 N.W.2d 675, 679 (Iowa 1996) (citations omitted) (noting "inequity of allowing the exemption to remain with the parent who stands to benefit the least"). We agree that Deborah is entitled to claim the dependent tax exemption for Michael.
Trial Attorney Fees.
Raphael contends the district court erred when it ordered him to pay Deborah's trial attorney fees because Deborah has a higher income, he succeeded on most of the issues before the district court, and Deborah could not have incurred additional litigation expenses in pursuing her contempt application because he "always stipulated that he owed the money and would pay it forthright," and "only requested that his overpayment of child support be deducted from the college contribution."
An award of trial attorney fees is within the considerable discretion of the district court, and will be overturned only if the court abused that discretion. In re Marriage of Giles, 338 N.W.2d 544, 546 (Iowa Ct.App. 1983). The amount of fees awarded must be fair and reasonable, In re Marriage of Willcoxson, 250 N.W.2d 425, 427 (Iowa 1977), and based on the parties' respective abilities to pay, In re Marriage of Lattig, 318 N.W.2d 811, 817 (Iowa Ct.App. 1982). Moreover, district courts have been given express statutory authority to award reasonable attorney fees to a party, such as Deborah, who successfully prosecutes a contempt action. Iowa Code § 598.24 (2003).
Although Raphael prevailed on the majority of issues before the district court, Deborah was the prevailing party on the issue of the dependent tax exemption. More importantly, however, Raphael was found to be in contempt of the 2001 modification decree for willfully and intentionally failing to pay his share of Danielle's postsecondary education expenses. Raphael's excuse that he simply held off paying for those expenses because he wanted an offset for overpayment of child support is a basis to award, rather than deny, attorney fees.
In addition, the district court decree implicitly recognized that at least part of Deborah's attorney fees were incurred when Raphael attempted to introduce and then withdrew the wholly new issue of physical care shortly before trial. Although Deborah does earn a slightly higher gross income than does Raphael, this fact alone does not render the fee award unfair or unreasonable. Raphael has failed to demonstrate the district court abused its discretion when it ordered him to pay $2349 to Deborah for trial attorney fees she incurred in this matter.
Appellate Attorney Fees.
Deborah requests an award of appellate attorney fees. Such awards are not a matter of right but rest within our discretion. In re Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct.App. 1997). We consider the needs of the requesting party, the other party's ability to pay, and whether the requesting party was obligated to defend the district court's decision on appeal. Id. Deborah was obligated to defend the district court's decision on appeal and has done so successfully. We award Deborah $1000 in appellate attorney fees. Cost of this appeal are assessed to Raphael.