[Cite as Boyer v. Hacker, 2014-Ohio-760.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                            BROWN COUNTY




NATASHA BOYER,                                   :
                                                         CASE NO. CA2013-08-009
        Plaintiff-Appellee,                      :
                                                                OPINION
                                                 :               3/3/2014
   - vs -
                                                 :

THOMAS HACKER,                                   :

        Defendant-Appellant.                     :




              APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS
                              JUVENILE DIVISION
                               Case No. 20044171


Natasha Boyer, 1941 Pine Knot Drive, Williamsburg, Ohio 45176, plaintiff-appellee, pro se

Cecelia J. Potts, 750 South High Street, P.O. Box 474, Mt. Orab, Ohio 45154, for defendant-
appellant



        S. POWELL, J.

        {¶ 1} Defendant-appellant, Thomas Hacker, appeals from the decision of the Brown

County Court of Common Pleas, Juvenile Division, awarding plaintiff-appellee, Natasha

Boyer, the right to claim the tax exemption status for both of their two minor children. For the

reasons outlined below, we affirm.

        {¶ 2} Hacker and Boyer are the parents of two minor children ages seven and nine,
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respectively. It is undisputed that Boyer is designated as the residential parent for both

children. It is also undisputed that Boyer has always claimed the tax exemption for both of

the children for purposes of filing her taxes. Hacker and Boyer never married.

       {¶ 3} On December 12, 2012, Hacker filed a motion requesting permission to claim at

least one of the children on his individual tax return. The motion also requested the trial court

to establish a visitation schedule. A hearing was subsequently scheduled on the matter.

Prior to the hearing, however, the parties entered into an agreed guideline visitation schedule

that included some flexibility due to Hacker's out-of-town work schedule. As a result of this

agreement, the trial court limited the upcoming hearing to issues regarding the allocation of

the tax exemptions. At the hearing, the trial court heard testimony from both Boyer and

Hacker.

       {¶ 4} Following the hearing, the trial court determined it was in the best interest of the

children for Boyer to continue claiming the tax exemptions for both children. In so holding,

the trial court found Hacker had $15,000 federal tax lien against him, and that he had a

"small arrearage" on his child support obligations. The trial court also found that Boyer

testified that having the tax exemptions remain with her was in the best interest of the

children, whereas Hacker did not give any testimony regarding the best interest of the

children, nor did he provide any evidence to contradict Boyer's testimony in any way.

       {¶ 5} Hacker now appeals from the trial court's decision, raising a single assignment

of error for review.

       {¶ 6} THE COURT FAILED TO TAKE INTO CONSIDERATION ALL FACTORS OF

O.R.C. §3119.82 AS IT RELATES TO THE BEST INTEREST OF THE CHILDREN.

       {¶ 7} In his single assignment of error, Hacker argues the trial court abused its

discretion by awarding Boyer the tax exemptions for both of their two minor children. We

disagree.
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       {¶ 8} This court reviews a trial court's decision allocating tax exemptions for

dependents under an abuse of discretion standard. Rainey v. Rainey, 12th Dist. Clermont

No. CA2012-10-083, 2011-Ohio-4343, ¶ 38. An abuse of discretion connotes more than an

error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or

unconscionable. Pentzer v. Thomas, 12th Dist. Fayette No. CA99-09-026, 2000 WL 190019,

* 1 (Feb. 14, 2000); Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). Such discretion,

however, is both guided and limited by the statutory requirements of R.C. 3119.82. Pahls v.

Pahls, 12th Dist. Butler No. CA2009-01-005, 2009-Ohio-6923, ¶ 21.

       {¶ 9} The Internal Revenue Code creates a presumption in favor of awarding the tax

exemption to the residential parent. Burns v. May, 133 Ohio App.3d 351, 356 (12th

Dist.1999). However, pursuant to R.C. 3119.82, "a court may grant the non-residential

parent the tax exemption for federal income purposes, if the court determines that this

furthers the best interest of the children and the payments for child support are substantially

current as ordered by the court for the year in which the child will be claimed as a

dependent." Ornelas v. Ornelas, 12th Dist. Warren No. CA2011-08-094, 2012-Ohio-4106, ¶

53.

       {¶ 10} If there is a disagreement as to which parent should claim a child as a

dependent, such as the case here, "the burden is on the nonresidential parent to produce

competent and credible evidence to show that allocating the dependency exemption to the

nonresidential parent would be in the best interests of the child." Id., citing Meassick v.

Meassick, 171 Ohio App.3d 492, 2006-Ohio-6245, ¶ 15 (7th Dist.). In making such a

determination, the court shall consider the following factors: (1) any net tax savings, (2) the

relative financial circumstances and needs of the parents and child, (3) the amount of time

the child spends with each parent, (4) the eligibility of either or both parents for the federal

earned income tax credit or other state or federal tax credit, and (5) any other relevant factor
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concerning the best interest of the child. In re A.E.G-D., 12th Dist. Clermont No. CA2011-04-

031, 2012-Ohio-547, ¶ 7.

        {¶ 11} In this case, Hacker claims the trial court erred by not awarding him with at least

one of the tax exemptions from their two children because it failed to take into consideration

his alleged net tax savings.      According to Hacker, had the trial court taken this into

consideration, it would have awarded him with at least one of the two tax exemptions as such

an award would have allowed him to pay off his tax lien and become current on his child

support obligations, thereby freeing up funds to use on the children during their visitation

time.

        {¶ 12} Initially, we note that the trial court was provided with both parties' tax returns

from the years 2011 and 2012. By procuring both parties' tax returns, the trial court was able

to calculate the net tax savings, if any, for both Hacker and Boyer. Hacker has provided

absolutely no evidence indicating the trial court failed to go through this analysis in

determining it was in the children's best interest for the tax exemptions to remain with Boyer.

In fact, the trial court specifically found that, based on Hacker's trial counsel's allegations,

Hacker would actually "derive a great tax benefit from the exemptions." The trial court made

this finding despite Hacker's own testimony that he "had no idea" what the net tax savings

would be for him if he was to claim one or both of the children.

        {¶ 13} Moreover, while it may be true that Hacker would have had more spending

money for the children during their limited visitation time if he had been awarded at least one

of the tax exemptions, this falls well short of his burden as the nonresidential parent to show

how such an allocation was in the best interest of the children. This is particularly true given

the vast difference in income between the parties, as well as Boyer's explicit testimony

indicating she relies heavily on her tax refund to support their two children throughout the



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year.1 For instance, when asked if the children would be impacted if she did not receive the

benefit of the tax exemptions, Boyer explicitly testified that they would. As Boyer testified:

"Absolutely. There would be things in which I wouldn't be able to provide to them that I do

today if in fact it was to be reduced, or I wasn't able to claim them." Again, besides making a

vague allegation that he would have more spending money during their limited visitation time,

Hacker did not provide any testimony to contradict Boyer's claims.

       {¶ 14} Hacker's testimony, as well as his appellate brief submitted to this court, merely

reference benefits that would directly impact him, i.e., paying off his federal tax lien and

becoming current on his child support obligations. Hacker, however, did not provide any

support for his contention that this somehow entitles him to receive either of the disputed tax

exemptions, nor has our research uncovered anything that would support such a claim.

Rather, we discovered case law indicating quite the opposite to be true. See Corwin v.

Corwin, 12th Dist. Warren Nos. CA2013-01-005, CA2013-02-012, 2013-Ohio-3996, ¶ 94

(finding no support for wife's contention that she should be allocated a tax exemption merely

because it would benefit her).

       {¶ 15} As stated previously, as the nonresidential parent, Hacker was required to show

that allocating the tax exemptions would be in the best interest of the children, not to his own

benefit. Hacker failed to do so here. Furthermore, while Hacker may very well receive a

greater tax benefit if granted the tax exemptions, "this fact alone does not result in an abuse

of discretion by the trial court." Ornelas, 2012-Ohio-4106 at ¶ 55. The record here clearly

supports the trial court's decision. Therefore, we find the trial court did not abuse its

discretion in finding Boyer was entitled to receive the tax exemptions for both of their two

minor children. Accordingly, Hacker's single assignment of error is overruled.


1. After making approximately $74,000 in 2012, Hacker testified that his expected income for 2013 would be
approximately $100,000, whereas Boyer's testimony revealed her income to be approximately $42,000 in 2011
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       {¶ 16} Judgment affirmed.


       HENDRICKSON, P.J., and M. POWELL, J., concur.




and $44,000 in 2012. Boyer did not provide any testimony regarding her anticipated income for 2013.
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