Mahoney v. Mahoney ( 1997 )

YANDE WALLE, Chief Justice,

concurring and dissenting.

[¶ 46] Under the facts of the case, and because of a lack of any explanation, I would reverse the trial court on the income tax dependency exemptions.

[¶ 47] Although I agree the trial court may allocate income tax dependency exemptions, the opinion of the trial court does not explain its rationale. The original divorce decree awarded the exemptions to Tim. The modified decree awarded the exemptions for the children living with Debra to her. No explanation is made for the change. The majority rationalizes why the trial court may have made the change, but the trial court has not explained its reasons. I disagree with the suggestion in the majority opinion that the exemption should be used to help Debra’s new husband decrease his taxes.

[¶ 48] The fact the trial court may award the exemptions to the noncustodial parent or provide they be retained by the custodial parent does not mean the court may do either upon its whim or caprice. Where, as here, the original exemptions were awarded to Tim the reason for change should be explained by the trial court before we affirm. The original decree did contain the provision “so long as he [Tim] is current in his support obligations.” It was suggested at oral argument the change was made because Tim was not current. If so, the trial court should tell us, particularly here where the annual net income of Tim and the annual net income of Debra, as found by the trial court, are so disparate, ie., $18,200 for Debra and $124,-942 for Tim, and the amount of child support Tim was ordered to pay was set at $2,629.00 per month, although we now remand for recalculation of the offset Debra is to pay to Tim for the child in his custody. I can only conclude Tim is providing a majority of the support.

[¶ 49] We have said several times “[t]rial courts should consider tax consequences when determining divorce transactions.” Kostelecky v. Kostelecky, 537 N.W.2d 551, 554 (N.D.1995). See Neubauer v. Neubauer, 524 N.W.2d 593 (N.D.1994). In the area of tax exemptions for children, we have noted “it may be desirable for a trial court to consider tax consequences, including directions to the parties about allocation of exemptions in connection with the child support provisions.” Gorsuch v. Gorsuch, 392 N.W.2d 392, 395 (N.D.1986). The tax consequences here obviously favor Tim unless the income of Debra’s new husband, “one of the top managers in his company” according to Debra, is considered. But it is Tim, not the new husband, who is responsible for the support of Tim’s children and the payments he is required to make in child support are evidence of that obligation. Insofar as Tim, rather than Debra, would benefit from the exemptions and insofar as there is no explanation given for transferring the exemptions to Debra from Tim, I would reverse the trial court on that issue.

[¶ 50] I am concerned about the issues here concerning Tim’s net income as outlined in footnote 4 of the majority opinion. However, I do not understand the majority opinion to approve or disapprove of the trial court’s adoption of the special master’s computations. Rather, we conclude, as we have in numerous other cases, that issues not raised below will not be considered on appeal. I agree with that disposition as well as the disposition by the majority of the other issues, except the income tax exemptions.

[¶ 51] SANDSTROM, J., concurs.