Recent Cases: Administrative review of Child Support and Income Tax deductions in true joint custody

Challenge to administrative review of child support. State ex rel. Sherrie L. Hansen, Relator v. State of Missouri, Department of Social Services, Family Support Division, Janel Luck, Director, Respondent, No. 88242 (Mo. banc, June 26, 2007), Stith. J.
This is another attempt to challenge the authority of the State of Missouri to seek modification of child support judgments administratively. The opinion highlights the difference between perception and reality in that the state cannot enter orders modifying child support. “…[S]ection 454.496 'does not vest the Division with powers reserved exclusively by the constitution to the judicial department' because it does not, in fact, permit the Division to administratively modify a child support order. Rather, the statute merely provides a procedure whereby the Division can seek judicial modification of such an order.'” Chastain v. Chastain, 932 S.W.2d 396 (Mo. banc 1996).
Held: Preliminary writ of prohibition quashed.
One of the interesting arguments made by Hansen in challenging the authority of the Division of Family Support was essentially that the division's conclusions on a child support modification do not take into consideration all of the requisite factors under § 452.340.1 and Rule 88.01 (a)-(b).
However, since the preliminary writ of prohibition halting the division's administrative process occurred prior to a hearing and judicial review, consideration of this aspect of the case was premature. The opinion notes that the statute requires the division to consider all relevant factors related to the modification of child support. “If the Division, at some later date, attempts to apply a standard different than that required by Rule 88.01 or section 452.340, Ms. Hansen can then seek the appropriate relief.” What this opinion does not say but implies is that the “different standard” is the process for modification consisting of nothing more than the mathematical computation of a Form 14. Therefore, this issue is not necessarily dead.

Income tax deductions in true joint physical custody. Harold Robertson, Appellant v. Samantha Robertson, Respondent, No. 67330 (Mo. App. W.D., July 24, 2007), Newton, P.J.
Father appealed on several grounds the modification judgment as to child custody and support. This summary only addresses the one upon which reversal was ordered. In the original divorce in 1997, the trial court awarded both dependency exemption deductions to father. In the modification judgment, the trial court “… granted . . .the tax deduction for one of the children” to mother. Although the parties have joint physical custody, father claimed to be the “primary” physical custodian. Therefore, he argues that he should get both deductions in accordance with the Internal Revenue Code.
The opinion notes that this parenting plan provides for a virtual 50/50 physical custody split.
Held: Reversed.
“Assignment of the tax deduction must follow federal law under 26 U.S.C. Section 152(e). Simon-Harris v. Harris, 138 S.W.3d 170 at 183 (Mo. App. WD 2004). In order to grant the child tax deduction to the non-custodial parent, the trial court must order the other parent to annually assign the tax deduction to the non-custodial parent. Id. Custody in this case is shared equally; 26 U.S.C. Section 152 (c)(4)(B)(ii) grants the deduction to the person with the highest adjusted gross income where custody is shared equally. Since the trial court has found that each parent should obtain the deduction for one of the children, the trial court must order the parent with the highest adjusted gross income to annually assign one of the deductions to the other.”

From The Missouri Bar Courts Bulletin, 7-Aug

Categories: Child Support