[Cite as Didonato v. Didonato, 2016-Ohio-7770.]


                                      COURT OF APPEALS
                                 TUSCARAWAS COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

STEPHEN J. DIDONATO                                  JUDGES:
                                                     Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                           Hon. William B. Hoffman, J.
                                                     Hon. Craig R. Baldwin, J.
-vs-
                                                     Case No. 2016AP040022
CHRISTINA HUTH DIDONATO

        Defendant-Appellant                          OPINION




CHARACTER OF PROCEEDING:                          Appeal from the Tuscarawas County Court
                                                  of Common Pleas, Case No.
                                                  2013 TC 07 0288


JUDGMENT:                                         Affirmed.



DATE OF JUDGMENT ENTRY:                           November 15, 2016

APPEARANCES:




For Plaintiff-Appellee                            For Defendant-Appellant

PAUL HERVEY                                       MICHELA HUTH
Fitzpatrick, Zimmerman                            PO Box 17
& Rose Co., L.P.A.                                Bolivar, Ohio 44612
P.O. Box 1014
New Philadelphia, Ohio 44663
Tuscarawas County, Case No. 2016AP040022                                                  2

Gwin, P.J.,

      {¶1}    Appellant appeals the March 17, 2016 judgment entry of the Tuscarawas

County Court of Common Pleas granting appellee’s motion for definitive order of

allocation of tax exemptions.

                                   Facts & Procedural History

      {¶2}    On April 8, 2014, appellant Christina DiDonato (“Mother”) and appellee

Stephen DiDonato (“Father”) were granted a divorce pursuant to an agreed judgment

entry. The parties agreed Mother would be the sole residential and legal custodian of the

children, subject to visitation and parenting rights of Father. The parties further agreed

Mother would be entitled to claim one of the parties’ children for tax purposes, and Father

would claim the other child. Once the eldest child could no longer be claimed as an

exemption, the exemption for the younger child would alternate between the parties.

      {¶3}    Shortly after the parties filed the agreed entry, Father filed a motion to

modify parental rights and responsibilities. On July 22, 2015, the trial court granted

Father’s motion to modify and designated Father as the residential parent and legal

custodian of the two children. The trial court also ordered Mother to pay child support.

The trial court did not mention the tax exemptions in its July 22, 2015 judgment entry.

      {¶4}    Mother appealed the trial court’s decision to this Court. We affirmed the

trial court’s decision on April 11, 2016 in DiDonato v. DiDonato, 5th Dist. Tuscarawas

Nos. 2015 AP 07 0042, 2015 AP 09 0051, 2016-Ohio-1511. Father did not file an appeal

or cross-appeal from the trial court’s July 22, 2015 judgment entry.

      {¶5}    On February 5, 2016, Father filed a motion for definitive order of allocation

of tax exemptions. Father argued that, pursuant to R.C. 3119.82, when issuing a child
Tuscarawas County, Case No. 2016AP040022                                                   3


support order as was issued in the July 22, 2015 judgment entry, the trial court was

required to designate the parent who is to claim each child for federal tax purposes. On

February 8, 2016, Mother filed an opposition to Father’s motion, arguing the parties

agreed entry governs the tax exemptions as Father failed to appeal the July 22, 2015

judgment entry.

       {¶6}   The trial court issued a judgment entry on March 17, 2016 granting Father’s

motion. The trial court stated that, pursuant to the language contained in R.C. 3119.82,

it should have designated which parent may claim each child for tax exemption purposes

in its July 22, 2015 judgment entry as it changed the residential parent to Father and

ordered Mother to pay child support. The trial court further found it is in the best interest

of the children for Father to claim both of the children as dependents and found Father

may claim both children for tax exemption purposes.

       {¶7}   Mother appeals the March 17, 2016 judgment entry of the Tuscarawas

County Court of Common Pleas and assigns the following as error:

       {¶8}   “I. THE COURT OF COMMON PLEAS COMMITTED REVERSIBLE

ERROR AND ABUSED ITS DISCRETION WHEN IT GRANTED APPELLEE STEPHEN

DIDONATO’S FEBRUARY 5, 2016 MOTION FOR DEFINITIVE ORDER OF

ALLOCATION OF TAX EXEMPTION.

       {¶9}   “II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN

IT ORDERED THAT APPELLEE STEPHEN DIDONATO IS ENTITLED TO CLAIM BOTH

OF THE PARTIES’ MINOR CHILDREN FOR FEDERAL INCOME TAX PURPOSES.”
Tuscarawas County, Case No. 2016AP040022                                                 4


                                               I & II

      {¶10} Because Mother’s assignments of error raise related issues, we shall

address them together.

      {¶11} R.C. 3119.82 provides, in pertinent part:

      Whenever a court issues, or whenever it modifies, reviews, or otherwise

      reconsiders a court child support order, it shall designate which parent may

      claim the children who are the subject of the court child support order as

      dependents for federal income tax purposes. * * * If the parties agree on

      which parent should claim the children as dependents, the court shall

      designate that parent as the parent who may claim the children. If the

      parties do not agree, the court, in its order, may permit the parent who is

      not the residential parent and legal custodian to claim the children as

      dependents for federal income tax purposes only if the court determines

      that this furthers the best interest of the children and, with respect to orders

      the court modifies, reviews, or reconsiders, the payments for child support

      are substantially current as ordered by the court for the year in which the

      children will be claimed as dependents. In cases in which the parties do not

      agree which parent may claim the children as dependents, the court shall

      consider, in making its determination, any net tax savings, the relative

      financial circumstances and needs of the parents and children, the amount

      of time the children spend with each parent, the eligibility of either or both

      parents for the federal earned income tax credit or other state or federal tax
Tuscarawas County, Case No. 2016AP040022                                                   5


       credit, and any other relevant factor concerning the best interest of the

       children.

       {¶12} Mother first contends since the income tax deduction issue was not included

in the trial court’s July 22, 2015 judgment entry and because Father did not appeal the

July 22, 2015 judgment entry, the trial court could not allocate the tax exemptions in the

March 17, 2016 judgment entry. Father did not appeal the trial court’s July 22, 2015

judgment entry, but instead brought the issue to the trial court’s attention via motion.

       {¶13} This Court has previously addressed the issue of whether a trial court can

consider the issue of a tax exemption by motion of a party in order to correct an oversight

of leaving out the income tax allocation in a previous entry modifying child support in

Kager v. Kager, 5th Dist. Stark No. 2005CA00208, 2006-Ohio-2427. We stated as

follows:

       R.C. 3119.82 states the court must consider the issue of the tax exemption

       whenever it modifies, reviews, or otherwise considers a child support order.

       Thus, even if neither party brought the issue to the trial court’s attention, it

       nevertheless should have been a part of the February 15, 2005 judgment

       entry. Thus, we reject appellant’s argument it was appellee’s responsibility

       to raise the issue in the trial court. In the alternative, the court could have

       reached the same result by treating the Civ.R. 60(B) motion as a new

       motion to modify. From any perspective, the court should have considered

       the income tax issue in its February order, and it was not error for the court

       to correct the oversight in its July order.
Tuscarawas County, Case No. 2016AP040022                                                 6

       {¶14} Like in the Kager case, in this case, in its July 22, 2015 judgment entry, the

trial court modified child support. Thus, pursuant to the mandatory word “shall” contained

in R.C. 3119.82, the trial court was required to designate which parent would receive the

tax exemptions. Id.; Fisher v. Fisher, 3rd Dist. Henry No. 7-05-03, 2005-Ohio-5615. It is

clear that the trial court did not allocate the tax exemptions in the July 22, 2015 entry

pursuant to R.C. 3119.82. Therefore, the trial court did not exceed its discretion in

correcting its oversight in its March 17, 2016 order after a motion was filed by Father. In

the alternative, the trial court could have treated Father’s motion as a new motion to

modify.

       {¶15} Further, as to Mother’s argument that the prior agreement controls, R.C.

3119.82 requires the trial court to designate which parent receives the exemptions when

it modified the child support order from the previous agreement, which it did via the July

22, 2015 judgment entry when it changed the child support order and appointed Father

the residential parent.   Additionally, we have previously held, with regards to R.C.

3119.82, that the determination of the best interest of the child is not to be limited by a

prior agreement or previous allocation. Piciacchia v. Piciacchia, 5th Dist. Stark No.

2006CA00286, 2007-Ohio-2328.

       {¶16} Mother also argues the trial court erred in allocating the tax exemptions for

the minor children to Father because the evidence does not support the trial court’s

determination.

       {¶17} We review a trial court’s decision allocating tax exemptions for dependents

under an abuse of discretion standard. Hughes v. Hughes, 35 Ohio St.3d 15, 518 N.E.2d

1213 (1988). Thus, pursuant to Blakemore v. Blakemore, we must determine whether
Tuscarawas County, Case No. 2016AP040022                                                     7


the trial court’s decision in awarding the tax exemptions to Father was arbitrary,

unconscionable, or unreasonable, and not merely an error of law or judgment. 5 Ohio

St.3d 217, 450 N.E.2d 1140 (1989). However, this discretion is both limited and guided

by R.C. 3119.82. Thus, if the trial court allocates the tax exemptions to the non-custodial

parent, it must find the interest of the child has been furthered and must consider any

relevant factor concerning the best interest of the child in making such a decision. Doyle

v. Metzer, 5th Dist. Stark No. 2015CA00002, 2015-Ohio-3738.

       {¶18} In this case, the trial court specifically found in its judgment entry that Father

is now the residential parent and legal custodian of the children and thus is entitled to

claim the child for tax purposes. Further, that allocating the tax exemptions to Father was

in the best interest of the children. Pursuant to R.C. 3119.82, the custodial parent is

presumed to be entitled to claim the minor children for income tax purposes. In this case,

the trial court concluded Father was entitled to the tax exemptions because he was both

the residential parent and because it was in the best interest of the children. Our review

of the record indicates the trial court’s conclusion was not arbitrary, unconscionable, or

unreasonable. Accordingly, we find the trial court did not abuse its discretion in allocating

the tax exemptions to Father.         See Schaefer v. Schaefer, 5th Dist. Stark No.

2007CA00283, 2008-Ohio-3960.
Tuscarawas County, Case No. 2016AP040022                                         8


       {¶19} Based on the foregoing, we overrule Mother’s assignments of error. The

March 17, 2016 judgment entry of the Tuscarawas County Court of Common Pleas is

affirmed.



By: Gwin, P.J. and

Baldwin, J. concur;

Hoffman, J., concurs in part;

dissents in part



                                         ___________________________________
                                         HON. W. SCOTT GWIN


                                         ___________________________________
                                         HON. WILLIAM B. HOFFMAN


                                         ___________________________________
                                         HON. CRAIG R. BALDWIN
Tuscarawas County, Case No. 2016AP040022                                                    9

Hoffman, J., concurring in part and dissenting in part

         {¶20} As it pertains to Mother’s second assignment of error, I agree with the

majority the trial court’s award of the tax exemptions to Father would not have been an

abuse of discretion [had it done so in its July 22, 2015 judgment]. However, I respectfully

disagree with the majority’s decision to overrule Mother’s first assignment of error.

         {¶21} The majority relies primarily on this Court’s prior opinion in Kager v. Kager,

5th Dist. Stark No. 2005CA00208, 2006-Ohio-2427.1 I find Kager significantly different

procedurally.

         {¶22} In Kager, the appellee filed a Civ.R. 60(B) motion to vacate the trial court’s

decision and, if granted, add a designation for allocation of tax exemptions which was

absent from its earlier order modifying child support. I find a distinct conceptual difference

between a motion to vacate a judgment and a post-judgment motion to correct an error

in that judgment. The latter motion does not vacate the original judgment. The original

judgment remains law of the case unless changed on appeal or vacated.                 Neither

occurred in this case.

         {¶23} The majority finds, in the alternative, the trial court could have reached the

same result by treating Father’s motion as a new motion to modify, similar to the

reasoning of the Kager Court. However, the statute requires a new motion to modify child

support, not merely a motion to modify the allocation of tax exemptions. Father’s motion

herein was not a motion to modify child support.

         {¶24} Given the fact the trial court modified the existing child support order in its

July 22, 2015 Judgment Entry, it had not only the authority, but also the duty to designate



1   I did not participate in the Kager decision.
Tuscarawas County, Case No. 2016AP040022                                                      10


the allocation of tax exemptions for the children. It committed error in failing to do so [and

acknowledged its error in the March 17, 2016 Judgment Entry].2

       {¶25} The trial court’s failure to fulfil its duty under the statue constituted reversible

error. While Mother appealed the trial court’s July 22, 2015 Judgment Entry, Father did

not. Having failed to do so, I find the principle of law of the case and/or res judicata

precludes the trial court from reallocating the tax exemption unless and until it modifies,

reviews, or otherwise reconsiders a child support order in this case in the future.

       {¶26} I would sustain Mother’s first assignment of error and reverse the judgment

of the trial court.




2While not argued in his brief, an argument could be made based upon the presumption
of regularity. The trial court was aware it had the authority under R.C. 3119.82 to modify
the Agreed Entry relative to the allocation of the tax exemption, but decided, at that time
[July 22, 2015], not to do so. Under the presumption of regularity, by not expressly
changing the preexisting designation, it would be presumed it intended to keep them the
same.
