APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
Petitioner-Appellant, and BRIAN DOUGLAS McGARRITY,
548 N.E.2d 136, 191 Ill. App. 3d 501, 138 Ill. Dec. 906 1989.IL.1938
Appeal from the Circuit Court of McLean County; the Hon. Luther H. Dearborn, Judge, presiding.
JUSTICE SPITZ delivered the opinion of the court. STEIGMANN and McCULLOUGH, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ
On December 21, 1988, the trial court awarded Sheila Mae McGarrity (petitioner) and Brian Douglas McGarrity (respondent) a judgment for dissolution of marriage. The parties entered into a property settlement agreement and joint parenting agreement in which petitioner was to have custody of their child. The court accepted these agreements on April 12, 1989. However, the parties reserved for the court the issue of which parent would be awarded the dependency exemption for Federal income tax purposes. After a hearing, the court awarded the dependency deduction to respondent. Petitioner now appeals.
At issue is whether a trial court may award the Federal dependency exemption to the non-custodial parent. Petitioner claims that section 152(e) of the Internal Revenue Code (Code) (26 U.S.C. § 152(e) (Supp. IV 1986)) provides that the custodial parent automatically receives the dependency exemption unless that parent signs a waiver of the exemption. Because petitioner is the custodial parent, and has not signed a waiver, she argues that the trial court erred when it awarded respondent the exemption. Alternatively, petitioner argues that the trial court abused its discretion in awarding respondent the deduction.
Respondent contends that section 152(e) of the Code does not divest State trial courts of jurisdiction to award dependency exemptions in the context of dissolution of marriage proceedings. Respondent further argues that petitioner agreed to allow the trial court to decide who received the deduction and that the trial court did not abuse its discretion in awarding the deduction.
Section 152(e) of the Code provides in pertinent 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 ...