concurring:
I fully concur in the outcome reached in the majority opinion, but I disagree with the basis of the decision.
The central question before us is whether award of the tax dependency exemption is an incident of child custody, and thus subject to modification as a part of the court's continuing jurisdiction under R.C. 3109.05, or is a component of marital property the award of which is not subject to modification within that continuing jurisdiction.
Hughes v. Hughes (1988), 35 Ohio St. 3d 165, and Bobo v. Jewell (1988), 38 Ohio St. 3d 330, suggest that the exemption is encompassed within the concept of marital property. However, neither case addressed the distinction directly and neither determined the trial court's authority to modify a prior award of the exemption. Neither case support the view that the issue is settled and determined.
I am reluctant to view the tax exemption as an element marital of property that is sui generis modifiable. Opening the doors to further similar issues is, then, almost inevitable. I also believe it is unnecessary.
The dependency tax exemption may be characterized as "marital property" when viewed as another of the financial obligations or benefits arising from the marriage which are distributed in the "property settlement". But, it differs from other elements in that distribution in several important respects.
First the tax exemption attaches as a direct consequence of child custody and the court's decisions concerning the matter. The rules creating and governing the exemption look to that decision to determine allocation of the exemption. The exemption is, therefore, an incident of child custody and should be recognized as such.
Second, the exemption for a minor dependent is founded on an obligation for support which continues for both parents after decree. The Ohio Child Support Guidelines (C.P. Sup. R. 75) are predicated on that continuing obligation.
In that respect child support is distinctly different from true marital assets and liabilities, which are divided between the parties at termination of marriage and in which no mutual interests continue. The character of those interests require completeness andfinality in their division. The obligations arising from support and custody, and those matters incident *42to them, continue and should not be finally determined at decree.
Third, custody and support decisions are modifiable because they are based on changing circumstances of income and need. The dependency exemption should not, injustice, be allocated permanently when the factors determining its allocation may change and are modifiable by law. In that respect it deserves the same treatment as sustenance alimony, which is modifiable upon a reservation of jurisdiction.
For the foregoing reasons I believe that award of the tax dependency exemption for minor children whose custody and support are determined by the court is modifiable by the court upon the bases recited in R.C. 3109.05 so long as the custody and support orders continue in force and effect. I would hope that the Supreme Court would view its decisions in Hughes v. Hughes, supra and Bobo v. Jewell, supra, as improvident to the extent they imply or provide otherwise.