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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

VICTORIA L. BERKOWITZ N/K/A : IN THE SUPERIOR COURT OF

VICTORIA S. HOLLISTER, : PENNSYLVANIA

:

Appellant :

v. :

:

JUDAH S. BERKOWITZ, :

: No. 2777 EDA 2015

Appeal from the Order Entered August 13, 2015

in the Court of Common Pleas of Chester County Domestic Relations

at No(s): 2005-06278

BEFORE: PANELLA, OTT, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED MARCH 21, 2016.

Appellant, Victoria L. Berkowitz, n/k/a Victoria S. Hollister (“Wife”), 

appeals from the order entered in the Chester County Court of Common 

Pleas denying her Petition for Special Relief for Enforcement of Marriage 

Settlement Agreement.1 Wife challenges the trial court’s determination that 

the exemption for the parties’ child, Emily, became unavailable for use by 

the parties when Emily claimed herself as a dependent in her 2014 tax 

return. We reverse and remand.

We glean the undisputed facts from the record. Appellee, Judah S. 

Berkowitz (“Husband”), and Wife were married on April 18, 1986. R.R. at 

 

*

Former Justice specially assigned to the Superior Court.

1 The trial court, in the August 13th order, refers to the petition as a petition 

for the enforcement of the property settlement agreement (“PSA”). For 

consistency, we refer to it as the PSA.
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28a.2 Husband and Wife entered into a PSA on July 16, 2007. Id. at 29a37a. The PSA was set forth in the Report and Recommendation of the 

Master. Id. at 27a-38a. The PSA provided, in pertinent part, as follows:

18. Starting in tax year 2007, Wife shall be entitled 

to claim Emily[3]and Ann[4]as dependents for tax 

purposes, and Husband shall be entitled to claim 

Rebecca[5]as a dependent. When there is no longer 

a dependency exemption available for Rebecca, then 

Husband shall be entitled to claim Ann and Wife shall 

be entitled to claim Emily. When Ann can no longer 

be claimed as a dependent for tax purposes, then 

each party shall be entitled to claim Emily in 

alternating years.

Id. at 36a-37a. A divorce decree was entered on September 11, 2007. Id.

at 39a. The decree provided that “[t]he agreement reached by the parties, 

the provisions which are set forth at length in the Master’s Report, is 

incorporated herein.” Id.

Wife claimed Ann6and Emily as dependents in her 2014 U.S. 

Individual Income Tax Return. Id. at 49a. Wife’s return was rejected by the 

IRS for the following reason:

 

2

For convenience, we refer to the reproduced record where applicable.

3 Emily was born on June 8, 1993. In 2014, she was a senior in college. Id.

at 48a.

4 Ann was born on April 21, 1992. Id.

5 Rebecca was born on May 16, 1991. Id.

6 We note that in her income tax return, Wife spells Ann with an “e” unlike 

the spelling of the dependent’s name in the PSA.
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Your dependent’s social Security number (SSN) cannot be 

used to claim an exemption on two separate tax returns. 

You claimed a dependent as an exemption on your tax 

return, but this dependent has also filed their own tax 

return claiming a person exemption.

Id. at 51a. On April 6, 2015, Husband wrote to Wife stating: “When I 

prepared Emily’s 2014 taxes for her this year I checked off the box that no 

one was claiming her as a dependent.” Id. at 53a. 

On June 15, 2015, Wife filed a petition to enforce the PSA. Id. at 1a3a. In the petition, Wife averred, in pertinent part, as follows:

[Wife] was entitled to a federal income tax refund of 

$2,203.00 when Emily was claimed as a dependent 

exemption. . . .

Due to [Husband’s] willful and deliberate refusal to 

abide by the terms of the [PSA, Wife] was required to refile her federal and state income tax returns. As a result, 

[Wife’s] federal income tax refund was reduced to 

$1,273.00, a difference of $930.00. . . .

Id. at 3a. Wife requested the court to order Husband to pay her the sum of 

$930.00. Id. On August 13, 2015, following a hearing, the trial court 

denied Wife’s request for relief. Id. at 66a. Wife filed a motion for 

reconsideration and notice of appeal on September 4, 2015. The trial court 

denied the motion for reconsideration on September 8, 2015. 

Appellant raises the following issues for our review:7

 

7 We note that the trial court found Appellant waived the issues raised on 

appeal for failure to file a Pa.R.A.P. 1925(b) statement of errors complained 

of on appeal. See R.R. at 77a-78a. This court has held:
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1. Did the trial court err as a matter of law or abuse its 

discretion in failing to enforce the parties’ PSA with respect 

to the income tax dependency exemption for the parties’ 

child to reflect the agreement of the parties as contained in 

the PSA?

2. Did the trial court err or abuse its discretion by 

concluding that [Husband] did not violate the terms of the 

PSA with regard to the allocation of income tax 

dependency exemptions when the evidence, including 

Husband’s own admission, showed that Husband alone was 

 

Before addressing the merits of [the a]ppellant’s claims, 

we need to decide whether they are preserved for 

appellate review as required by the Pennsylvania Supreme 

Court in Commonwealth v. Lord, [ ] 719 A.2d 306 ([Pa.] 

1998), which held an [a]ppellant must comply whenever 

the trial court orders the filing of a statement of matters 

complained of on appeal pursuant to Pa.R.A.P.1925: “Any 

issues not raised in a 1925(b) statement will be deemed 

waived.” Id. [ ] at 309.

However, there are caveats to a finding of waiver. 

First, the trial court must issue a Rule 1925(b) order 

directing an [a]ppellant to file a response within fourteen 

days of the order. Second, the Rule 1925(b) order must 

be filed with the prothonotary. Third, the prothonotary 

must docket the Rule 1925(b) order and record in 

the docket the date it was made. Fourth, the 

prothonotary shall give written notice of the entry of the 

order to each party’s attorney of record, and it shall be 

recorded in the docket the giving of notice. See Pa.R.C.P. 

236. If any of the procedural steps set forth above are 

not complied with, [an a]ppellant’s failure to act in 

accordance with Rule 1925(b) will not result in a waiver of 

the issues sought to be reviewed on appeal. See 

Commonwealth v. Hess, [ ] 810 A.2d 1249, 1252 ([Pa.] 

2002).

Forest Highlands Cmty. Ass'n v. Hammer, 879 A.2d 223, 226-27 (Pa. 

Super. 2005) (emphases added). In the case sub judice, there was no Rule 

1925(b) order on the docket. Therefore, we decline to find waiver. See id. 
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responsible for preparing and filing daughter Emily’s tax 

return in direct violation of the express language of 

paragraph 18 of the parties’ [PSA]?

3. Did the trial court err or abuse its discretion in ignoring 

the IRS definition of dependent, the conclusion of the IRS 

audit of [Wife’s] 2012 Federal income tax return 

confirming Wife’s claim of dependency exemptions, and 

the evidence that the children met the same definition of 

dependent in 2014 as they did in 2012?

4. Did the trial court err or abuse its discretion in ignoring 

the Internal Revenue Code section which requires an 

individual who qualifies as a dependent of another person 

to not claim him or herself as a personal exemption as the 

exemption belongs to the person on whom the individual is 

dependent? 26 U.S.C. § 151.

Wife’s Brief at 4-5. We address Wife’s issues together because they are 

interrelated.8

 

8

 In issue three, Wife refers to correspondence from the IRS which stated, 

in pertinent part, as follows:

Thank you for your correspondence received dated March 

20, 2014. We have evaluated all the submitted 

information and have concluded that you and all three 

dependents are related. According to the court decree, 

starting in the tax year 2007, [Wife] is allowed to claim 

both dependents namely Emily [ ] and Ann[ ] and 

[Husband] is allowed to claim one dependent namely 

Rebecca [ ]. When there is no longer a dependency 

exemption available for Rebecca, then [H]usband shall be 

entitled to claim Ann[ ] and [W]ife shall be entitled to 

claim Emily. When Ann[ ] can no longer be claimed as 

dependent for tax purposes, then each party shall be 

entitled to claim Emily in alternating years.

Under these orders, [Wife] is allowed to claim both 

dependents Emily and Ann[ ] in 2012. . . .
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Our review is governed by the following principles:

The law in Pennsylvania with regard to property settlement 

agreements is well-settled. Generally, courts in this 

Commonwealth possess the broad authority to enforce the 

terms of a parties’ property settlement agreement. . . . 

In Pennsylvania, we enforce property settlement 

agreements between husband and wife in accordance with 

the same rules applying to contract interpretation.

Cioffi v. Cioffi, 885 A.2d 45, 48 (Pa. Super. 2005) (citations and formatting 

omitted). “Because contract interpretation is a question of law, this Court is 

not bound by the trial court’s interpretation. Our standard of review over 

questions of law is de novo and to the extent necessary, the scope of our 

review is plenary . . . .”9 Stamerro v. Stamerro, 889 A.2d 1251, 1257 (Pa. 

Super. 2005) (quotation marks and citations omitted).

The term dependent is statutorily defined as follows:

(a) In general.─ For purposes of this subtitle, the term 

“dependent” means─

(1) a qualifying child . . .

 * * *

(c) Qualifying child.─For purposes of this section─

(1) In general.─The term “qualifying child” means, 

with respect to any taxpayer for any taxable year, an 

individual—

 

R.R. at 65a.

9 Given our scope and standard of review, the absence of a Pa.R.A.P. 

1925(a) opinion is not consequential. Furthermore, we have the trial court’s 

rationale in the August 13th order and opinion. See R.R. at 66a-67a. 
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(A) who bears a relationship to the taxpayer 

described in paragraph (2) . . .

 * * *

(2) Relationship.─For purposes of paragraph (1)(A), 

an individual bears a relationship to the taxpayer 

described in this paragraph if such individual is─

(A) a child of the taxpayer or a descendant of such a 

child . . .

(3) Age requirements.─

(A) In general.─For purposes of paragraph (1)(C), 

an individual meets the requirements of this 

paragraph if such individual is younger than the 

taxpayer claiming such individual as a qualifying child 

and—

 * * *

(ii) is a student who has not attained the age of 

24 as of the close of such calendar year.

 * * *

(f) Other definitions and rules.─For purposes of this 

section—

 * * *

(2) Student defined.─The term “student” means an 

individual who during each of 5 calendar months during 

the calendar year in which the taxable year of the 

taxpayer begins─

(A) is a full-time student at an educational 

organization . . . .

26 U.S.C. § 152(a), (c), (f). 
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The Code provides that where a deduction is allowable to another 

taxpayer, a personal exemption is disallowed. 

(2) Exemption amount disallowed in case of certain 

dependents.─ In the case of an individual with respect to 

whom a deduction under this section is allowable to 

another taxpayer for a taxable year beginning in the 

calendar year in which the individual's taxable year begins, 

the exemption amount applicable to such individual for 

such individual’s taxable year shall be zero.

Id. § 151(d)(2) (emphasis added).

In Miller v. Miller, 744 A.2d 778 (Pa. Super. 1999), this Court 

addressed the legislative history of Section 152.

In recommending the changes to § 152(e), the House 

Ways and Means Committee stated:

The present rules governing the allocations of the 

dependency exemption are often subjective and 

present difficult problems of proof and 

substantiation. The Internal Revenue Service 

becomes involved in many disputes between parents 

who both claim the dependency exemption based on 

providing support over applicable thresholds. The 

cost to the parties and the Government to resolve 

these disputes is relatively high and the Government 

generally has little tax revenue at stake in the 

outcome. The committee wishes to provide more 

certainty by allowing the custodial parent the 

exemption unless that spouse waives his or her right 

to claim the exemption. Thus, dependency 

disputes between parents will be resolved 

without the involvement of the Internal 

Revenue Service.

H.R.Rep. No. 432, 98 th Cong., 2d Sess., pt. 3, at 1498-99 

(reprinted in 1984 U.S.Code Cong. & Admin. News 697, 

1140). It is clear from this legislative history that the 

“purpose [of the amendments] was to alleviate the 

administrative burden which had been placed on the 
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Internal Revenue Service (I.R.S.) due to the necessity for 

it to become involved in making determinations as to 

which parent provided the larger portion of a child’s 

support if the parties disagreed and both sought to claim 

the exemption.” This legislative history does not suggest 

that the changes were made to preclude state courts from 

exercising their authority regarding the exemption. 

Instead, “this silence demonstrates Congress’ surpassing 

indifference to how the exemption is allocated so long as 

the IRS doesn't have to do the allocating.” 

Id. at 784-85 (citations omitted and emphasis added).

In the case sub judice, the trial court opined:

[Wife and Husband] entered into a PSA in September 

2007. The PSA allows the parties to share the IRS 

dependency exemption (“exemption”) for their three 

daughters. . . . 

 * * *

[Wife] argues that she has the right to claim an 

exemption for two daughters, Ann and Emily, on her 2014 

Tax Return. [Husband] did not object to this claim to the 

extent that the exemptions remain “available” in 2014.

The evidence presented to the [c]ourt shows that Emily, 

a 21 year old in 2014, claimed herself as a dependent

in her 2014 Tax Return. As a result, her exemption 

became unavailable for use by the parties.

 * * *

. . . The simple fact is that Emily, acting upon her 

own right to claim herself as a dependent on her tax 

returns has made her exemption unavailable to her 

parents . . . . Consequently, . . . Husband is not in 

breach of the PSA and deny Wife’s request for relief.

R.R. at 66a-67a (citations omitted and some emphases added). 
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We find that the trial court erred in finding that Emily claimed herself 

as a dependent. See id. On the contrary, she claimed a personal 

exemption. See id. at 51a. Emily qualified as a dependent child. See 26 

U.S.C. § 152(a), (c), (f). As a dependent child, Emily was not permitted to 

claim a personal exemption. See id. § 151(d)(2). It is undisputed that 

Husband prepared Emily’s tax return and “checked off the box that no one 

was claiming her as a dependent,” in derogation of the PSA. See R.R. at 

53a. 

Pursuant to the PSA, Wife was entitled to claim Emily as a dependent 

for the income tax dependency exemption. See Cioffi, 885 A.2d at 48; R.R. 

at 36a-37a. We find the trial court erred in finding that “Emily, acting upon 

her own right to claim herself as a dependent on her tax returns has made 

her exemption unavailable to her parents.” See R.R. at 67a; 26 U.S.C. § 

151(d)(2); 26 U.S.C. § 152(a), (c), (f). It is beyond cavil that husband 

prepared Emily’s tax return erroneously. See 26 U.S.C. § 151(d)(2). 

Therefore, we reverse and remand to the trial court to enter an order 

consistent with this memorandum. See Miller, 744 A.2d at 784-85. 

Order reversed. Case remanded. Jurisdiction relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/21/2016