dissenting
Inasmuch as I am unable to agree with the majority as to the disposition of the first assignment of error, I respectfully dissent.
The appellant's contention in his first assignment of error is that the trial court erred in awarding the tax deduction, (i.e., tax exemption), to the appellee. The appellant's basis for this assignment of error is that the appellant's income is far greater than that of the appellee and that he would receive far greater benefit from the use of the tax exemptions than the appellee. Further, he contends that, to award the appellee, the tax exemptions would render those exemptions "totally wasted."
The basis for this dispute is that Section 152(e), Title 26 U.S. Code, as amended by the Tax Reform Act of 1984, grants to the custodial parent the children's tax exemptions unless specifically waived by that parent. However, this rather simple tax provision is complicated *419by the Ohio Supreme Court's decision in Hughes v. Hughes (1988), 35 Ohio St. 3d 165, syllabus, where the Ohio Supreme Court ruled "as a part of the division of marital property in a divorce proceeding, a domestic relations court may award the dependency exemption permitted in Section 151, Title 26, U.S. Code, to the noncustodial parent" and that "[sluch an order does not conflict with Section 152, Title 26, U.S. Code, nor the Sixteenth Amendment to the United States Constitution."
The Ohio Supreme Court admitted, however, that the Ohio courts cannot force a custodial parent to execute the required "waiver" and that Ohio courts are without the authority to bind the Internal Revenue Service to comply with such an order. Id. at 167-168.
The Ohio Supreme Court later qualified the Hughes decision (supra) by its decision in Bobo v. Jewell (1988), 38 Ohio St. 3d 330, by stating at page 332 as follows:
"Thus, if a trial court exercises the authority to allocate a child dependency deduction to the noncustodial parent, the record must show that the interest of the child has been furthered."
In this case, while it is apparent that there is a great disparity in the incomes of the parties, there is nothing which demonstrates that in the event the dependency exemptions had been granted by court order to the appellant that this fact would have benefitted the children in any way whatsoever.
The standard by which this court examines the domestic court's actions in those matters which are appealed to this court is found in Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217 as follows:
"The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable ***" id. at 219.
In view of the facts found in the record as well as the review of the statutory law, I would overrule the appellant's first assignment of error inasmuch as the trial court's failure to award the tax exemption to the appellant can hardly be defined as an unreasonable, arbitrary, or unconscionable act.