dissenting. The issue before us today is whether the subject matter jurisdiction of a state domestic relations court is broad enough to allow the awarding of a federal tax exemption.
It is undisputed that Section 152, Title 26, U.S. Code, specifically states a custodial parent is entitled to an exemption unless he or she expressly releases the right to claim it.3 The legislative history to the statute consistently refers to the release as a waiver. The United States Supreme Court recently stated that “[a] fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” Perrin v. United States (1979), 444 U.S. 37, 42.4 The ordinary, contemporary and common definition of the word “release” is “the relinquishment, concession, or giving up of *169a right, claim, or privilege * * Black’s Law Dictionary (5 Ed. 1979) 1159.5 Accordingly, the federal tax code indicates a custodial parent is entitled to an exemption for a child in all cases unless he or she voluntarily relinquishes or gives up that exemption.6
In my view, a court-ordered release is not the same as a “voluntary release.” Hence, such a release does not comply with the tax code. Therefore, a domestic relations court has no power to “order” an individual to “voluntarily release” his or her lawful right to an exemption for a child in the division of the marital estate.
The majority reaches the curious conclusion that a domestic relations court may award a dependency exemption despite the explicit language of Section 152, Title 26, U.S. Code. I agree that a domestic relations court has broad discretion to determine the proper mix in allocation of marital assets and property rights in a divorce proceeding. However, the clear tenor *170and language of the federal tax code indicates a trial court is without jurisdiction to award a tax exemption for a child in a divorce proceeding.
By stating a domestic relations court has the power to award a federal dependency exemption under Section 152, the majority has implicitly held that a domestic relations court may, under threat of contempt, force one to “release” his or her right to an exemption. Following such logic, a trial court may now force one to “release” other substantial rights under threat of contempt. Such precedent is unwise and may lead to other unsound conclusions.
The majority cannot sidestep the issue of whether the Section 152 release must be voluntary by claiming its opinion is “limited.” The weakness of the majority opinion is compounded by its failure to adequately address this issue. We should not ignore the fact that the words “voluntary,” “release” and “waiver” are homogenous.7
When we disregard the express intent and purpose of our lawmakers, we invade the political process and seize the power to amend statutes. This conduct violates the constitutional structure we are sworn to protect. Therefore, I respectfully dissent.
Moyer, C.J., and Douglas, J., concur in the foregoing dissenting opinion.Section 152(e)(2), Title 26, U.S. Code provides as follows:
“Exception Where Custodial Parent Releases Claim To Exemption For The Year. — A child of parents described in paragraph (1) shall be treated as having received over half of his support during a calendar year from the noncustodial parent if,
“(A) the custodial parent signs a written declaration (in such manner and form as the Secretary may by regulations prescribe) that such custodial parent will not claim such child as a dependent for any taxable year beginning in such calendar year, and
“(B) the noncustodial parent attaches such written declaration to the noncustodial parent’s return for the taxable year beginning during such calendar year. * * *”
In fact, Ohio has codified this rule in R.C. 1.42.
See, also, Fleming v. Warshawsky & Co. (C.A. 7, 1941), 123 F. 2d 622, 626 (construing “release” with “waive”); Shaw v. Close (1968), 92 Ill. App. 2d 1, 3, 235 N.E. 2d 830, 831 (“release” is the giving up or abandoning of a claim or right); Atlantic Natl. Ins. Co. v. Armstrong (1966), 65 Cal. 2d 100, 112, 52 Cal. Rptr. 569, 577, 416 P. 2d 801, 809 (equates “waiver” and “release” in an analysis of an agreement to forgo collection of payments); Commercial Ins. Co. of Newark v. Copeland (1967), 248 Cal. App. 2d 561, 565, 56 Cal Rptr. 794,797 (“release” is the relinquishment, concession, or giving up of a right, claim, or privilege); Gronquist v. Olson (1954), 242 Minn. 119, 125, 64 N.W. 2d 159, 163 (a “release” is a relinquishment, concession, or giving up of a right, claim, or privilege); Woodrough v. Douglas Cty. (1904), 71 Neb. 354, 361, 98 N.W. 1092, 1095 (holding a release is a “voluntary relinquishment”); Coopey v. Keady (1914), 73 Ore. 66, 76, 144 P. 99, 101 (a “release” is a relinquishment, concession or giving up of a right, claim, or privilege).
I would find release to be synonymous with waiver. Both a release and a waiver require a voluntary act. See, generally, People’s Bank v. Pioneer Food Indus., Inc. (1972), 253 Ark. 277, 282, 486 S.W. 2d 24, 28 (“waiver” is a voluntary relinquishment of a known right); Brown v. Cranston (1963), 214 Cal. App. 2d 660, 668, 29 Cal. Rptr. 725, 729 (to constitute waiver there must be a voluntary election); Conner v. Fisher (1964), 136 Ind. App. 511, 516, 202 N.E. 2d 572, 575 (“waiver” is the voluntary yielding up of some existing right); Garden City Production Credit Assn. v. Lannan (1971), 186 Neb. 668, 676, 186 N.W. 2d 99, 106 (“waiver” is a voluntary abandonment or surrender, by a capable person, of a right known by him to exist, with the intention that such right shall be surrendered), overruled on other grounds in Farmers State Bank v. Farmland Foods, Inc. (1987), 225 Neb. 1, 10, 402 N.W. 2d 277, 282; Gerbig v. Gerbig (1940), 60 Nev. 292, 295, 108 P. 2d 317, 318 (equates “waive[r]” with “voluntar[y]” acceptance); Beneficial Finance Co. of Jersey City, Inc. v. Norton (1962), 76 N.J. Super. 577, 581, 185 A. 2d 218, 220 (“waiver” is a voluntary, clear and decisive act, implying an election to forgo some advantage which the waiving party might have insisted on); Peloso v. Hartford Fire Ins. Co. (1968), 102 N.J. Super. 357, 367, 246 A. 2d 52, 58, reversed on other grounds (1970), 56 N.J. 514, 267 A. 2d 498; Ed Black’s Chevrolet Center, Inc. v. Melichar (1970), 81 N.M. 602, 604, 471 P. 2d 172, 174 (“[i]n no case will a waiver be presumed or implied, contrary to the intention of the party whose rights would be injuriously affected thereby * * *”); Wright v. State, ex rel. Iser (1947), 189 Md. 218, 223, 55 A. 2d 849, 852 (“waive” means voluntary relinquishment); Kerr v. Small (1941), 112 Mont. 490, 494, 117 P. 2d 271, 273 (equates “waive” with “acquiesc[e]” in tax deed validity contest); Gorge Lumber Co. v. Brazier Lumber Co. (1972) , 6 Wash. App. 327, 336, 493 P. 2d 782, 788 (“[a] waiver is the intentional and voluntary relinquishment of a known right”); Smedley v. State Indus. Ct. (Okla. 1977), 562 P. 2d 847, 849 (equates “waive” with “abandon, throw away, remove, repudiate, or surrender”).
Interestingly, the majority does not mention the one state court decision that has properly interpreted the 1984 amendments to Section 152, Title 26, U.S. Code. See Davis v. Fair (Tex. App. 1986), 707 S.W. 2d 711.