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08/24/89 In Re Marriage of Tamela Van Ooteghem

August 24, 1989

IN RE MARRIAGE OF TAMELA VAN OOTEGHEM,


APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

Petitioner-Appellant, and JOHN C. VAN OOTEGHEM,

Respondent-Appellee

543 N.E.2d 899, 187 Ill. App. 3d 696, 135 Ill. Dec. 331 1989.IL.1294

Appeal from the Circuit Court of La Salle County; the Hon. John David Zwanzig, Judge, presiding.

APPELLATE Judges:

JUSTICE BARRY delivered the opinion of the court. HEIPLE and SCOTT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY

The trial court entered a judgment of dissolution of the parties' marriage on June 6, 1986. A supplemental order was entered August 28, 1986, confirming and adopting the agreement of the parties with respect to child custody, support, and distribution of property. The petitioner, Tamela Van Ooteghem, was awarded custody of the parties' two minor children. The respondent, John Van Ooteghem, was ordered to pay $160 per week in child support. The order was silent as to which parent would be allowed to claim the minor children as dependents for tax purposes. In an order entered on July 5, 1988, the court assigned one tax exemption to each of the parties for the tax year 1987 and both exemptions to the respondent for 1988 and subsequent years. The petitioner appeals.

The sole issue raised by the petitioner on appeal is whether a State court is preempted by the provisions of the Internal Revenue Code from awarding tax exemptions for minor children to the noncustodial parent in a post-dissolution proceeding. Section 152(e) of the Internal Revenue Code (Code) as amended by the Deficit Reduction Act of 1984 provides in relevant part:

"(1) Custodial parent gets exemption.

Except as otherwise provided in this subsection, if --

a child . . . receives over half of his support during the calendar year from his parents --

(i) who are divorced or legally separated under a decree of divorce or separate maintenance, [and]

such child is in the custody of one or both of his parents for more than one-half ...


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