The opinion
RATLIFF, Chief Judge,
concurring in part and dissenting in part.
I cannot agree with the majority opinion in its handling of the income tax exemption issue. Our decision in In re Marriage of Davidson (1989), Ind.App., 540 N.E.2d 641 , compels an opposite result. In Davidson, we recognized that prior to January 1, 1985, the Federal Internal Revenue Code clearly authorized state courts to allocate the dependency exemption for income tax purposes and the non-custodial parent. I.R.C. § 152(e) automatically grants the exemption to the custodial parent unless that parent by specific written waiver for the particular tax year in question waives the exemption. Id. "Thus, state courts no longer possess the authority to allocate the exemption to the non-custodial parent." [citations omitted.] Id.
Although the previous order allocating the tax exemption was proper as a qualified pre-1985 instrument under § 152(e), when the trial court modified that order in 1989, there no longer was a qualified pre-1985 instrument. Further, the majority's reliance upon Blickenstaff v. Blickenstaff (1989), Ind.App., 539 N.E.2d 41 , is misplaced. In Blickenstoff, Judge Sullivan, writing for the court, considered the trial court's statement that "based upon the economic circumstances of the parties, the husband should have the right to claim the two younger children as dependents," and found no basis to hold the modification order to be an abuse of discretion. 539 N.E.2d at 45 . However, Judge Sullivan clearly and correctly observed "[slo long as [husband] meets the requirements of the Internal Revenue Code, his claim of the dependency exemptions is appropriate [citations omitted]." Id. Further, in footnote 2 in Blickenstaff, the court stated: "suffice it to say that the right of either party to claim a child in children as a dependent is governed by the Internal Revenue Code." Id. Thus, far from conflicting with Davidson as the majority suggests, Blickenstaff supports our decision in Davidson.
The trial court could not, under Davidson and LR.C. § 152(e) allocate the dependency exemptions. Nor could it do indirectly what it could not do directly. Therefore, the majority's view that the trial court could indirectly accomplish what it is not permitted to do by compelling the execution of a waiver or by adjustment of the support order to that end is sanctioning a subterfuge and an evasion of both the holding in Davidson and the provisions of the federal statute.
For the reasons heretofore indicated, I dissent from the majority opinion as to the first issue. I concur as to the remaining issues.