Emily Fischer, Appellant-Petitioner v. Gary Fischer, Appellee-Respondent (2026)

MEMORANDUM DECISION

Case Summary

[1] In July 2024, Emily Fischer (“Mother”) and Gary Fischer (“Father”) entered into a dissolution agreement, which was approved and adopted as an order of the trial court. Mother appeals the trial court's subsequent order finding her in contempt of the portion of the dissolution decree ordering that Father shall claim income tax exemptions for all three of the parties’ children for tax year 2024.

[2] We affirm in part, reverse in part, and remand with instructions.

Issues

[3] Mother raises the following two restated issues:

I. Whether the trial court abused its discretion when it found that Mother had claimed the child tax credit for the parties’ children in tax year 2024.

II. Whether the trial court erred when it found Mother's claim of the Earned Income Credit (“EIC”) for the parties’ children for tax year 2024 was a violation of the court's order that Father shall claim income tax exemptions for the children in tax year 2024.

Facts and Procedural History

[4] Mother and Father were married and have three minor children. On July 10, 2024, the trial court entered a decree of dissolution in which it approved and adopted as an order of the court the parties’ Marital Settlement Agreement. The dissolution decree provided that Mother has sole legal and physical custody of the three children, with Father having supervised visitation as recommended by the children's therapist. The decree further provided, in relevant part,

4(G) -- The parties agree that each party shall be entitled to claim the children on his or her income tax returns for determining income tax exemptions according to the following schedule:

I. Father shall claim all three children for the 2024 tax year.

․

VI. Both parties shall cooperate to sign all necessary documents that will allow both parties to do so.

App. at 16-17.

[5] On her return for tax year 2024, Mother claimed the EIC for all three children but did not claim the children as dependents for tax exemption purposes. The EIC schedule Mother completed stated, in relevant part, “You can't claim the EIC for a child who didn't live with you for more than half of the year.” Id. at 32. Children lived with Mother for all of 2024 and did not live with Father for any period of time in 2024.

[6] On Father's tax return for tax year 2024, he claimed all three children as dependents and also claimed the EIC for all three children. Father's estimated refunds if that tax return had been accepted would have been a federal tax refund of $10,242 and an Indiana refund of $866. However, Father's return was rejected because the children had been “already claimed for Earned Income Credit [on] a different tax return.” Id. at 35. When Father subsequently submitted a return for tax year 2024 without claiming the children as dependents or claiming the EIC for the children, his return was accepted, and he was issued a federal tax refund of $40 and an Indiana tax refund of $136.

[7] On April 25, 2025, Father filed a contempt petition alleging that Mother had violated the dissolution decree by “claim[ing] all three (3) children on her taxes for the 2024 tax year.” Id. at 23. On April 29, Mother signed IRS Form 8332, “Release ․ of Claim to Exemption for Child by Custodial Parent,” in which she agreed not to claim tax “exemptions” for all three children for tax year 2024. Id. at 36-38. IRS Form 8332 states, in relevant part: “Note: This form also applies to some tax benefits, including the child tax credit, additional child tax credit, and credit for other dependents. It doesn't apply to other tax benefits, such as the earned income credit, dependent care credit, or head of household filing status.” Id. (emphasis added).

[8] The trial court conducted a hearing on Father's contempt petition on June 11. Mother testified that she did not take “any child or other ․ dependent tax credit” for any of the children for tax year 2024 but did take the EIC for all three children for that year. Tr. at 24-25. Mother's 2024 Income Tax Return, including the EIC Schedule, was admitted into evidence without objection. Mother testified that Father could have claimed the children as dependents and claimed “the child and other tax dependent tax credits” for tax year 2024, Tr. at 27, but could not have claimed the EIC for children because they did not live with him “for more than half of the year,” id. at 26. At the conclusion of the evidence, Mother argued that her taking the EIC for the children “precluded” Father from taking the EIC but did not prevent him from claiming the children as dependents for other tax benefit purposes. Id. at 33. The trial court judge stated, “I think when it says in the decree father shall claim all 3 (three) children for the 2024 tax year, I don't think that means one person gets to claim them as dependents and the other one gets to claim the ․ child tax credit․.” Id. at 35.

[9] That same day, the trial court issued a written order finding:

1. [Mother] completed her tax return herself and claimed the child tax credit for all three children; she did not provide [Father] with the form(s) needed to claim the children until April 29, 2025, past the date when taxes were due.

2. [Father] was unable to claim the children when he filed his taxes on or about April 10, 2025.

3. [Mother] has now signed the form to allow [Father] to claim the children.

4. [Father] would need to file an amended return to see if he can now claim the children.

5. The court takes the matter under advisement pending [Father's] efforts to refile his taxes.

App. at 42. The court then ordered Father to “attempt to file an amended return claiming all three children” and report to the court whether that attempt to file an amended return for tax year 2024 was successful. Id.

[10] On June 17, Father notified the court that he had filed an amended tax return for 2024 in which he claimed all three children as dependents and claimed the associated tax exemptions, including the “[c]hild tax credit” but not including the EIC. Id. at 55. Father further notified the court that his new estimated federal tax refund was $6,000 and his new state refund amount was $407.

[11] On June 17, Mother filed a Motion to Correct Error in which she asked the court to (1) correct the clerical error in its June 11 order stating that Mother had “claimed the child tax credit” rather than the EIC, for all three children for tax year 2024, id. at 44, and (2) “revise or clarify” the dissolution decree to conform with federal law that allows Father to claim the children as dependents in 2024 but prohibits him, as the non-custodial parent, from claiming the EIC for the children, id. at 45.

[12] On June 18, the trial court issued an order taking Mother's motion to correct error under advisement and notifying the parties that “an order on the hearing and on the motion to correct errors will be issued at a later date once information regarding the success or failure of [Father's] amended tax filing is known.”¹ Id. at 46. On June 26, Father filed a “Statement in Opposition to Motion to Correct Error,” in which he alleged that Mother's motion improperly attempted “to introduce evidence that either should have been known to the Petitioner prior to the trial or was discoverable with reasonable diligence before the trial proceedings.” Id. at 47-48. However, Father's motion does not specify the alleged evidence to which it refers.

[13] On August 27, the trial court entered its order denying Mother's motion to correct error and entering judgment on Father's request for a contempt petition. The trial court found, in pertinent part:

1. [Mother] did claim the child tax credit on her taxes in contravention of the court's order approving the settlement agreement of the parties.

2. By taking the child tax credit [Mother] caused [Father] to receive a refund less than he should have.

3. [Father] was issued a federal refund of $6,133.79 and a state refund of $407.[2]

4. His expected refund had he originally been allowed to claim the children as provided under the approved and ordered settlement agreement would have been $10,242 federal and $866 state.

5. [Father] received $4,567.21 less than he should have for tax year 2024.

6. [Mother] is in contempt for failing to abide by the parties’ marital settlement agreement.

7. A judgment should be entered against [Mother] for the money [Father] lost as a result of her contemptuous act.

Appealed Order at 1.

[14] The court entered a judgment against Mother and in favor of Father in the amount of $4,567,21. That amount is the total federal and state refunds estimated if Father had claimed the children as dependents and had been allowed to take the EIC for the children ($11,108), minus the total federal and state refunds Father received when he claimed the children as dependents but did not claim the EIC for them ($6,540.79). Mother now appeals.³

Discussion and Decision

Standard of Review

[15] Mother appeals the trial court's contempt order and denial of her motion to correct error. We review both contempt orders and denials of motions to correct error under an abuse of discretion standard. See, e.g., Steele-Giri v. Steele, 51 N.E.3d 119, 124 (Ind. 2016) (regarding contempt orders); Indianapolis Pub. Transp. Corp. v. Bush, 266 N.E.3d 719, 726 (Ind. 2025) (regarding denial of a motion to correct error). An abuse of discretion occurs when the trial court's decision is against the logic and effect of the facts and circumstances before the court or if the court has misinterpreted the law. E.g., Poiry v. City of New Haven, 113 N.E.3d 1236, 1239 (Ind. Ct. App. 2018). We review questions of law de novo. E.g., id.

Waiver

[16] Mother asserts that the trial court's contempt finding is erroneous because (1) she did not claim the child tax credit in 2024, and (2) the EIC cannot, as a matter of law, be included as an “income tax exemption” to which Father could be eligible under the Decree. App. at 16. However, as an initial matter, we must address Father's contention that Mother has waived the latter argument by allegedly raising it for the first time in her motion to correct error.

[17] “Appellate review presupposes that a litigant's arguments have been raised and considered in the trial court.” Plank v. Cmty. Hosps. of Ind., Inc., 981 N.E.2d 49, 53 (Ind. 2013). Thus, issues not raised in the trial court are waived on appeal. Id. This rule “in part protects the integrity of the trial court; it cannot be found to have erred as to an issue or argument that it never had an opportunity to consider.” GKC Ind. Theaters, Inc. v. Elk Retail Invs., 764 N.E.2d 647, 651 (Ind. Ct. App. 2002).

[18] In addition, it is “well-settled ․ that issues raised for the first time in a motion to correct error are waived.” Carmichael v. Separators, Inc., 148 N.E.3d 1048, 1058 (Ind. Ct. App. 2020), trans. denied. As this Court has observed before, “[i]f the opposite were true, motions to correct error might contain a bevy of untimely objections, petty complaints regarding the logistical presentation of evidence, attempts to rework trial strategies that did not work well, and other untimely arguments that would distract from the purpose of a motion to correct error.” Thalheimer v. Halum, 973 N.E.2d 1145, 1150 (Ind. Ct. App. 2012).

[19] However,

[t]he rule that parties will be held to trial court theories by the appellate tribunal does not mean that no new position may be taken, or that new arguments may not be adduced; all that it means is that substantive questions independent in character and not within the issues or not presented to the trial court shall not be first made upon appeal.

Moryl v. Ransone, 4 N.E.3d 1133, 1136 (Ind. 2014) (citation modified). Thus, “[q]uestions within the issues and before the trial court are before the appellate court, and new arguments and authorities may with strict propriety be brought forward.” Id. The “crucial factor” in determining whether a party may raise “what appears to be a new issue” on appeal is whether the other party “had unequivocal notice of the existence of the issue and, therefore, had an opportunity to defend against it.” Id. at 1136-37.

[20] Here, the question is whether the trial court was asked to consider if the EIC was part of the “income tax exemptions” provided for in the dissolution decree. App. at 16. At the hearing, Mother testified that Father could have claimed the children as dependents and claimed “the child and other tax dependent tax credits” for tax year 2024, Tr. at 27, but could not have claimed the EIC for the children because they did not live with him “for more than half of the year,” id. at 26. Moreover, at the conclusion of the evidence, Mother argued that her taking the EIC for the children “precluded” Father from taking the EIC but did not preclude him from claiming the children as dependents for other tax benefit purposes. Id. at 33. Thus, Mother raised the issue in the trial court, where Father had the opportunity to address the issue. That is, Mother did not raise the issue for the first time in her June 17, 2025, motion to correct error, as Father claims.

[21] Mother did explicitly raise the issue again in the motion to correct error, which was filed after the court's June 11 order but before its final order, issued on August 27. And we note that Father had yet another opportunity to—and did—address the issue in his June 26 “Statement in Opposition to Motion to Correct Error,” which was also filed before the court issued its final order on Father's contempt petition.⁴ App. at 47. Thus, Father had “unequivocal notice of the existence of the issue and, therefore, had an opportunity to defend against it.” Moryl, 4 N.E.3d at 1136-37. Mother has not waived her claim regarding the EIC.

Merits

[22] Mother notes two errors in the trial court's order finding her in contempt of the parties’ dissolution decree. First, Mother contends that the trial court erred when it concluded that she had claimed the “child tax credit” for the three children in tax year 2024. Appealed Order at 1. We agree that the trial court abused its discretion on this issue, as its conclusion was not supported by the facts and circumstances before the court. See Poiry, 113 N.E.3d at 1239. It is clear from the undisputed evidence of Mother's 2024 income tax returns that she did not claim the children as dependents or claim the “child tax credit” for any of them. See App. at 31.

[23] Second, it appears that the trial court mistakenly used the term “child tax credit” interchangeably with the term “earned income credit” and, to that extent, misinterpreted federal tax law. A “child tax credit” is a credit “equal to $1,000” that a taxpayer may claim for a “dependent,” which means a “qualifying child of the taxpayer[.]” 26 U.S.C. § 24(a); 26 U.S.C. § 152(a). A “qualifying child” has the meaning specified at 26 U.S.C. § 152(c), which includes the requirement that the child “has the same principal place of abode as the taxpayer for more than one-half of such taxable year.” However, federal tax law specifically permits a custodial parent with whom the child has lived for over half of the tax year to release his or her claim of the child as a dependent (and, therefore, the tax exemptions and credits for the dependent) to the noncustodial parent for the tax year. See 26 U.S.C. § 152(e). Such a release is accomplished by the custodial parent completing and signing a “written declaration” that he or she “will not claim such child as a dependent” for that tax year, and by the noncustodial parent attaching that written declaration to his or her return in which he or she claims the child as a dependent for that tax year. 26 U.S.C. § 152(e)(1), (2).

[24] The parties do not dispute that the written declaration to which 26 U.S.C. § 152(e)(1) refers is contained in IRS Form 8332, which is entitled in relevant part, “Release ․ of Claim to Exemption for Child by Custodial Parent[.]” That form specifically states, in relevant part:

Note: This form also applies to some tax benefits, including the child tax credit, additional child tax credit, and credit for other dependents.

App. at 36-38 (emphases added).

[25] The EIC, on the other hand, is a “[r]efundable [c]redit” that is distinct from the child tax credit. See 26 U.S.C. § 32. The EIC is a tax credit allowed to an “eligible individual” in an amount equal to a specified “credit percentage of so much of the taxpayer's earned income for the taxable year” for each “qualifying child.” Id. An “eligible individual” is one who has a “qualifying child,” and, as with the child tax credit, “qualifying child” has the meaning specified at 26 U.S.C. § 152(c)—that is, a qualified child is one who has resided with the taxpayer for more than half of the taxable year. 26 U.S.C. § 32(c). However, unlike with the child tax credit, there is no law permitting the custodial parent (i.e., the “eligible individual”) to release the claim of the EIC to the noncustodial parent. Thus, IRS Form 8332 provides, in pertinent part: “This form ․ doesn't apply to other tax benefits, such as the earned income credit․”. App. at 36-38 (emphases added). Therefore, the EIC may not be claimed by a noncustodial parent with whom a child has not resided for more than half of the tax year. See 26 U.S.C. § 32(c); 26 U.S.C. § 152(c); see also 26 U.S.C. § 6213(g)(2)(M) (defining “mathematical or clerical error” on a tax return as including a tax return of a noncustodial parent claiming an EIC);⁵ 8 Mertens Law of Federal Income Taxation § 32:45 (Carina Bryant, J.D., ed., 2025) (citing 26 U.S.C. § 32(c)(3)(A); 26 U.S.C. § 6213(g)(2)(M)) (“[F]or purposes of the EIC, a child cannot be a qualifying child of a noncustodial parent under any circumstances.”).

[26] In sum, the trial court erred as a factual matter when it concluded that Mother had claimed the “child tax credit” for the children on her 2024 tax return; the undisputed evidence clearly shows that she made no such claim. In addition, the trial court erred as a matter of law (1) to the extent it used the terms “child tax credit” and “earned income credit” interchangeably, as they are two separate credits, see 26 U.S.C. § 24(a); 26 U.S.C. § 32(c), and (2) in concluding that the dissolution decree authorized Father, the noncustodial parent, to claim the EIC for the children on his tax returns, as such a claim would be contrary to federal law, see 26 U.S.C. § 32(c); 26 U.S.C. § 152(c); 26 U.S.C. § 6213(g)(2)(M).

Conclusion

[27] Mother raised the issue of Father's ineligibility for the EIC in the trial court and, therefore, has not waived the issue on appeal. And the trial court's order finding Mother in contempt of the dissolution decree provision granting “income tax exemptions” to Father for tax year 2024 is erroneous because it is against the logic and effect of the facts and circumstances before the court and was based on a misinterpretation of applicable federal tax law. App. at 16. Therefore, we reverse the trial court's order that Mother pay Father the amount of $4,567.21, plus interest, but affirm the attorney fee portion of the order. We remand with instructions to revise the order in conformity with this decision.

[28] Affirmed in part, reversed in part, and remanded with instructions.

FOOTNOTES

1.   The order also noted that, “[i]n the event that more than thirty (30) days pass before a ruling on the motion to correct error[,] the parties are notified that this shall not operate as an automatic denial-of the motion.” App. at 46.

2.   It is unclear whether there is evidentiary support for these refund amounts; the record on appeal shows that Father's total federal refund for 2024 was $6,040 ($40 original refund and $6,000 refund under amended return) and total Indiana refund for 2024 was $543 ($136 original refund and $407 refund under amended return). However, the difference between the court's finding and the amount supported by the record is negligible, and Mother does not appeal the amounts found in paragraph 3 of the Appealed Order.

3.   Mother did not sign IRS Form 8332, which allowed Father to claim the children as dependents for tax year 2024, until after Father filed his contempt action. By the time of the August 27 contempt order, Mother had signed that form, and Father had already claimed the children as dependents and claimed all applicable tax credits for those dependents for tax year 2024. We note that the August 27 contempt order did not find Mother in contempt for failing to timely sign IRS Form 8332, but it did order that she pay $750 for the attorney fees Father incurred in bringing the contempt action. Mother does not appeal the latter portion of the August 27 order.

4.   We note that Father does not raise on appeal his unsupported claim in his Statement in Opposition to Motion to Correct Error that Mother's motion improperly attempts “to introduce evidence that either should have been known to the Petitioner prior to the trial or was discoverable with reasonable diligence before the trial proceedings.” Id. at 47-48. As already noted, Mother did present evidence at the hearing that Father was not entitled to claim the EIC under the dissolution decree.

5.   A “mathematical or clerical error” includes: “the entry on the return claiming the credit under section 32 with respect to a child if, according to the Federal Case Registry of Child Support Orders established under section 453(h) of the Social Security Act, the taxpayer is a noncustodial parent of such child[.]” 26 U.S.C. § 6213(g)(2)(M).

Bailey, Judge.

Vaidik, J., and Scheele, J., concur.