( Downing )

( Tulsa County - Kasey Baldwin )

AFFIRMED

Travis Barnett, Daphne A. Burns, WELSH & MCGOUGH, PLLC, Tulsa, Oklahoma, For Petitioner/Appellee W. Allen Vaughn, Tulsa, Oklahoma, For Respondent/Appellant

OPINION

¶1 Appellant Tod Burton (Father) appeals from the trial court's Order Modifying Custody, Visitation, and Child Support (Order), entered on May 31, 2022. Father challenges the trial court's award of the tax exemptions for the minor children to Bethany Burton (Mother) and denial of his request for credit from previous years. Upon our review of the record on appeal and applicable law, we affirm.

BACKGROUND

2 Father and Mother were married in 2006. The parties have two minor children, born in 2007 and 2011. Mother filed for divorce in 2013.1 The Decree of Dissolution of Marriage (Decree) was filed on July 20, 2016. Pertinent to this appeal, the Decree granted joint custody to the parties and, with regards to tax exemptions, provided: Parties agree to split the tax exemption so long as [Father] is current on all child support obligations by December 31" of that year. [Mother] shall claim the younger child each year, and [Father] shall claim the older child each year. When the older child is no longer eligible to be claimed, the parties shall alternate the tax dependency exemption each year with [Mother] having odd number years and [Father] having even number years.

¶3 On April 16, 2018, Mother filed a Motion to Terminate Joint Custody Plan based on Father's alleged failure to communicate effectively, threatening minor children with punishment, and a difference in beliefs as to religious instruction. In an Application for Emergency Ex Parte Order filed on April 17, 2018, Mother alleged that Father engaged in corporal punishment. An Emergency Ex Parte Order was entered on April 17, 2018, wherein the trial court ordered both parties to refrain from using corporal punishment and for Father to enroll and complete age appropriate parenting classes.

¶4 Mother filed a second Application for Emergency Ex Parte Order on July 12, 2019, based on allegations of child abuse by Father. A show cause hearing on the emergency custody application was held on August 30, 2019. At the conclusion of the hearing, the trial court granted, in part, Mother's request for emergency custody of the minor children based on the emotional distress of the children. The trial court ordered the parties to participate in reconciliation therapy. The trial court granted Father three (3) hours of supervised visitation two (2) nights per week and all-day visitation on Saturday or Sunday. Father attended the intake session with the reconciliation therapist and then refused to pay for or attend additional sessions.

¶5 On September 20, 2019, Father filed a Motion to Modify Custody and Visitation alleging Mother was attempting to alienate the minor children from him. On October 16, 2019, a Joint Application to Suspend Visitation (Joint Application) was filed by Mother and the attorney for the minor children. The Joint Application alleged that visitation with Father is not being supervised as ordered by the trial court, that the children continued to express fear and anxiety about visitation with Father, and that the individual conducting reconciliation therapy has concerns for the emotional safety of the children.2

¶6 On April 22, 2021, Mother filed a Motion to Set Child Support, Motion to Terminate Joint Custody Confessed, or in the Alternative Set Matter for Pretrial Conference (Motion). In this Motion, Mother requested child support be calculated and set based upon a "change in circumstance, to wit: [Father] has not had any overnight visitation with the minor child[ren] since at least June 13, 2019, and custody was granted to [Mother] on April 18, 2018."

¶7 On May 9-10, 2022, the trial court held a hearing on Mother's 2018 Motion to Terminate Joint Custody Plan, Father's Motion to Modify Custody and Visitation, and Mother's Motion.3 Evidence at the hearing established that Mother claimed N.B., the older child, on her tax returns in 2017, 2019, 2020, and 2021.

¶8 Evidence demonstrated that Father had no contact with the children from October 2019 until the date of the hearing. From October 2019 through the date of the hearing, Mother paid for or received assistance for clothing, food, extracurricular activities and school supplies since 2019 without any contribution from Father.

¶9 Evidence further established that Father gave Mother a money order on December 31, 2019 for child support payments that totaled six-hundred dollars ($600.00). Father gave Mother another money order for the same amount on April 30. The year on this money order is not legible. However, the memo line stated the payment was for back child support for January 2021-December 2021.

¶10 At the conclusion of the evidence, the trial court ordered, in pertinent part, that Mother was to have sole physical and legal custody of the minor children. Father was awarded "therapeutic/reconciliation visitation with the minor children." Father's contact with the children would progress at the rate in which the therapist recommended. Father would receive supervised visitation only when the therapist deemed it appropriate. The trial court further ordered that Mother "shall claim both children each year for tax purposes" and denied Father's request for any credit for previous years during which Mother claimed the older child.

¶11 From this Order, Father appeals, challenging the trial court's decision to award Mother the tax exemptions for the minor children and denial of credit for the years Mother, according to Father, improperly claimed the older child on her tax returns in violation of the Decree.

STANDARD OF REVIEW

¶12 The right to claim a child for tax purposes is a child support issue. In re Marriage of Barnes, 2017 OK CIV APP 38, 5, 400 P.3d 321, 322. Child support proceedings are of equitable cognizance. Merritt v. Merritt, 2003 OK 68, 7, 73 P.3d 878, 881. When reviewing the decision of the trial court in an equity proceeding, the judgment will not be disturbed unless the trial court abused its discretion or unless the court's finding was clearly contrary to the weight of the evidence. Thornton v. Thornton, 2011 OK 6, 5, 247 P.3d 1180, 1182. "[A]n abuse of discretion occurs when a court bases its decision on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling." Arulkumar v. Arulkumar, 2022 OK 90, 7, 521 P.3d 131, 134.

ANALYSIS

¶13 In his first claim of error, Father argues the trial court abused its discretion in failing to punish Mother for claiming both minor children on her taxes in 2017, 2019, 2020, and 2021. Father claims these are years in which he should have, pursuant to the Decree, claimed the older child. Father's second claim of error mirrors the first, only Father argues the trial court abused its discretion in failing to give him the credit for the deduction he should have received in 2017, 2019, 2020, and 2021 when Mother claimed the older child on her tax documents. The only case law supporting each proposition is case law defining the standard of review. Father presents this Court with no argument or authority supporting his position that the trial court abused its discretion in not punishing Mother or giving him credit he allegedly should have received. These propositions will not be considered due to the lack of citation to authority. See Lee v. Bueno, 2016 OK 97, 37, 381 P.3d 736, 749 ("Neither counsel nor pro se litigants have a right to place upon this court the researching burden and consume its time in a search for authorities that would support their argument"); Tulsa Stockyards, Inc. v. Clark, 2014 OK 14, n.1, 321 P.3d 185, 187 (refusing to consider arguments raised on appeal because the party presented no legal authority to support the arguments); Okl. Sup. Ct. R. 1.11(k), 12 O.S.2021, ch. 15, app. 1. Regardless, Father would not prevail on his first two claims.

¶14 In his third claim of error, Father claims the trial court abused its discretion in awarding Mother the tax exemption for the minor children beginning in 2022 and continuing each year after. Father acknowledges that the right to claim a child for tax purposes is modifiable but contends the trial court's modification was an abuse of discretion.

We disagree.

¶15 "Child support orders may be modified upon a material change in circumstances". 43 O.S. 18I(A)(1). As stated, the trial court terminated the joint custody order, awarding sole physical and legal custody to Mother, a decision Father does not challenge. The termination of joint custody constitutes a material change in circumstances. Daniel v. Daniel, 2001 OK 117, 20, 42 P.3d 863, 870 (recognizing that a termination of joint custody to sole custody of one parent constitutes a material change in circumstances).

¶16 Pursuant to 26 U.S.C.A. 152 (2017), a child who receives over half of its support from a parent during the tax year may be claimed as a dependent by that parent. The tax code presumes that the custodial parent will claim the exemption as the custodial parent is considered to have provided over half of the child's support. Decker v. Davis, 2007 OK CIV APP 46, 16, 162 P.3d 956, 960.

¶17 Mother has had sole custody of the children since August 30, 2019, when the trial court granted Mother's application for emergency custody and granted Father visitation. Evidence during the May 2022 hearing demonstrated that Father had not contributed to the minor children's basic needs since 2019. Father paid child support on December 31, 2019, but failed to timely pay child support in 2020 or 2021.4 Additionally, Father refused to pay for or participate in reconciliation therapy as ordered in 2019 because it was "not [his] turn" to pay and he believed the therapist was biased. Father did nothing to seek the visitation ordered by the trial court between October 2019 and the hearing in May of 2022. Instead, evidence established that Father worked a full-time job as a military recruiter during a portion of that time and "invested" thousands of dollars in cryptocurrency, all the while Mother was seeking charity to help provide for the children.

¶18 In addition to receiving sole physical and legal custody of the minor children as well as the yearly tax exemptions for both, the trial court ordered Mother to pay 66.7% of childcare and non-covered "medical, dental orthodontic, optometric, psychological or any other physical or mental health expenses" for the minor children not covered by insurance, and Father was ordered to pay 33.3%.

¶19 Because a material change in circumstances occurred and because Mother is the custodial parent of the minor children, who is providing more than half of the support, a balancing of the equities demonstrates the trial court's award of the tax exemptions for the minor children to Mother was not an abuse of discretion. This proposition is denied.

¶20 In his final claim of error, Father asks this Court to award attorney fees for both the trial and the appeal against Mother and remand for the trial court to hold a hearing on the amount of the appeal-related attorney fees.

¶21 To the extent Father is requesting trial related attorney fees, this request is not properly before this Court. Both Father and Mother requested attorney fees in the motions that were heard by the trial court in May of 2022. However, Father failed to renew his request at the hearing and a ruling on attorney fees was not made.

Additionally, Father failed to timely file a motion pursuant to 12 O.S. §696.4(B).

We decline to consider Father's request for trial related attorney fees.

¶22 As for appeal related attorney fees, Father's request does not comply with the Oklahoma Supreme Court Rules. Rule 1.14 which states, in pertinent part, "[a] motion for an appeal related attorney's fee must be made by a separately filed and labeled motion in the appellate court prior to issuance of mandate. The motion must state the statutory and decisional authority allowing the fee." Okl. Sup. Ct. R. 1.14(B), 12 O.S. 2021, ch. 15, app. 1. As Father requested the attorney fees within his brief and not by separate motion, his request is denied without prejudice to him refiling a motion pursuant to Rule 1.14.

CONCLUSION

¶23 After a review of the record and applicable law, we find the trial court's award of tax exemptions to Mother is supported by the record and the trial court acted within its discretion. Father's request for appeal related attorney fees is denied.

¶24 The trial court's Order is hereby AFFIRMED.

GOREE, P.J., and SWINTON, J., concur.

(FOOTNOTES):

1 Although the Petition for Legal Separation is not part of the record on appeal, this Court may take judicial notice of the district court's docket in Tulsa County District Court Case No. FD-2013-1705. In re M.K.T, 2016 OK 4, 64 n.54, 368 P.3d 771, 790.

2 According to the docket sheet for Tulsa County District Court Case No. FD-2013-1705, the Joint Application was set for hearing multiple times. However, a hearing on the Joint Application never occurred and an order was never entered.

3 The trial court also heard evidence relating to Mother's Emergency Protective Order filed in Tulsa County District Court Case No. P0-2021-1969, which was consolidated with the divorce case. At the conclusion of the hearing, the trial court denied Mother's request for a permanent protective order and dismissed the Emergency Protective Order.

4 Although a second money order for back child support was given to Mother on April 30, the year of that money order is not legible. The memo line on that money order reflects the money order was for back child support for January 2021-December 2021. Regardless of what year this money order was given to Mother, the evidence established the child support was not paid prior to the December 31' requirement set forth in the Decree, which permitted Mother to claim the child on her taxes.