SUMNER v. TART, 362 So.2d 344 (Fla.App. 1 Dist. 1978)

KATHRYN F. SUMNER F/K/A KATHRYN F. TART, APPELLANT, v. JOE FRANK TART, APPELLEE.

No. II-44.District Court of Appeal of Florida, First District.
August 9, 1978. Rehearing Denied September 19, 1978.

Appeal from the Circuit Court, Marion County, William T. Swigert, J.

Charles Ruse, Jr., Ocala, for appellant.

Robert L. Appleget, Jr., of Black, Landt Appleget, Ocala, for appellee.

PER CURIAM.

Wife appeals an order modifying a final judgment of dissolution. She claims first that the trial court abused its discretion in awarding her only a $25 per month child support increase. While we may have awarded more had we been sitting in the trial court’s position, we cannot say on this record that the trial court abused its discretion in the amount awarded. We do find merit in wife’s second and third points, however. She validly contests the part of the modification order in which the trial court awarded the federal income tax deduction for the child to the husband. We agree with the court in Lang v. Lang, 252 So.2d 809 (Fla. 4th DCA 1971), that federal tax matters must be resolved according to the Internal Revenue Code and Regulations, not the provisions of a state court order modifying a final judgment of dissolution. That part of the order granting husband the income tax deduction for the parties’ child will therefore be stricken from the judgment.

Finally, wife contends that the court erred in denying her attorney’s fees for the modification proceeding. We agree. The record reveals that husband currently has an income while wife does not. Neither party has substantial assets. We think the proof is ample to show her need and his ability to pay the fees.

The judgment is therefore affirmed in part and reversed in part, and the case remanded for the entry of an order not inconsistent with the above opinion.

McCORD, C.J., and MILLS and ERVIN, JJ., concur.

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