(concurring specially).
I concur in the majority opinion but I write to concur specially in the disposition of the issue on allocation of the income tax dependency exemption, hereafter the exemption.
I recognize that there is a split of authority among the various state courts that have decided this issue. Both sides agree that the adoption of 26 U.S.C. § 152(e), hereafter the amendment, has changed the law to provide for allocation of the exemption to the custodial parent unless that parent signs a waiver releasing the exemption to the noncustodial parent. The division is actually over the authority of the courts, or the means by which the courts can coerce the custodial parent to sign that waiver.
The authorities typified by the North Dakota decisions would distinguish the rights of the federal government to levy taxes from the rights of the state courts to grant divorce decrees, divide property, assign custody of children and provide for their support. They consider the provision for support to include the control over the parties so as to coerce, if necessary, the execution of the waiver. The authorities typified by the Michigan decisions, take the position that the federal law has now removed the right previously given, to allocate the exemption. However, they hastily acknowledge the right of the trial court to take the allocation into consideration when setting the level of child support. This is perhaps a subtiler form of coercion, but coercion nonetheless.
As yet we have no indication how the Internal Revenue Service views those waivers executed under the pains and penalties of punishment for contempt of court. They well may disregard them as outside the contemplation of the statute. On the other hand, I find some support for the Michigan view in the minutes of the House Committee considering the proposed amendment.
For this exception to apply, the custodial parent will have to sign a written declaration that he or she will not claim the child as a dependent for the year, and the noncustodial parent will have to attach the written declaration to his or her tax return. That declaration may be made for one or more specified calendar years. The parties may make a permanent declaration a copy of which the noncustodial parent attaches to each year’s return, or the declaration may be made by the custodial spouse annually in order to better insure the receipt of child support payments
H.R. No. 432, 98th Cong., 2d Sess., pt. 2, reprinted in 1984 U.S.Code Cong. & Admin. News 697, 1140-41.
The footnote in State, Fall River County v. Dryden, 409 N.W.2d 648 (S.D.1987), cited by the majority, is not particularly persuasive to me. I think that it was obi-ter dicta inasmuch as the amendment was not at issue. The real issue in Dryden was the amendment of a prior decree to give the exemption to mother, the custodial parent, as opposed to father, the noncustodial parent. The affirmation of the trial court hinged on the factual determination that father had a bad history of making the support payments and that mother had been required to make payments for health care over and above the insurance coverage. I do not believe that a policy determination as to which of two lines of authority this court is going to follow should be relegated to a footnote.
I therefore opt to support the Michigan line of cases. I would further note that the last legislative session amended SDCL ch. 25-7 so as to add a factor for deviation from the schedule for support obligation as follows: “(3) Whether the federal income tax dependent deduction for such minor child is allocated to the benefit of the support obligor or the custodial parent[.]” 1989 S.D.Sess.L. ch. 220, effective 7-1-89.