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07/26/2019 09:07 AM CDT




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                                  Nebraska Supreme Court A dvance Sheets
                                          303 Nebraska R eports
                                                SABINO v. OZUNA
                                                Cite as 303 Neb. 318




                                     A riana Bernal Sabino, appellant, v.
                                    Juan Carlos Genchi Ozuna, appellee.
                                                  ___ N.W.2d ___

                                         Filed June 7, 2019.     No. S-18-234.

                 1. Affidavits: Appeal and Error. A district court’s denial of in forma
                    pauperis status is reviewed de novo on the record based on the tran-
                    script of the hearing or written statement of the court.
                 2. Affidavits: Evidence. An analysis of an applicant’s eligibility for
                    in forma pauperis status will necessarily be dependent on the facts
                    and circumstances presented by that applicant’s financial and personal
                    situation.

                  Appeal from the District Court for Douglas County: Peter
               C. Bataillon, Judge. Reversed and remanded with directions.

                  Roxana Cortés Reyes, of Immigrant Legal Center, an affili-
               ate of the Justice for Our Neighbors Network, and David V.
               Chipman, of Monzón, Guerra & Associates, for appellant.

                    No appearance for appellee.

                 Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
               Papik, and Freudenberg, JJ.

                    Heavican, C.J.
                                      INTRODUCTION
                  The district court entered a decree dissolving the marriage
               of Ariana Bernal Sabino and Juan Carlos Genchi Ozuna, but
               denied Sabino’s petition for findings of fact regarding the
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           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
                        SABINO v. OZUNA
                        Cite as 303 Neb. 318

abuse, abandonment, and neglect of her children by Ozuna.
Sabino filed a motion to proceed in forma pauperis on appeal.
After a hearing, that motion was denied. Sabino has appealed
that denial. We reverse the district court’s denial of Sabino’s
request for in forma pauperis status and remand the cause with
directions to grant Sabino’s motion.
                   FACTUAL BACKGROUND
    A decree dissolving the marriage of Sabino and Ozuna
was entered on January 11, 2018. At that time, the district
court denied Sabino’s motion seeking findings of fact regard-
ing abuse, abandonment, and neglect of her children by their
father, Ozuna.
    Sabino filed a notice of appeal on February 6, 2018.
Accompanying that notice of appeal was a motion to proceed
in forma pauperis. The supporting poverty affidavit stated that
Sabino had $200 on hand, no checking or savings account
funds, had been unemployed until recently, and listed expenses
of $2,842. The affidavit also indicated that she lived with her
partner and her four minor children. Sabino further noted that
until she had recently obtained employment, her partner had
been her “sole provider,” and that she was unable to pay the
fee or provide security for her appeal.
    The district court set a hearing on its own motion, in which
it sought information regarding the income of Sabino’s partner.
The district court noted that it “assume[d] the partner is assist-
ing in these bills, or assisting in some other way. If they’re
partners, then, I take it, all of his money is her money or all
her money is her money or whatever. So that’s what I’m ask-
ing here.”
    Information provided at the hearing indicated that Sabino
and her four children resided with the partner, but that the
couple was not married and that the partner was the bio-
logical father of only the youngest child. At the time of the
hearing, Sabino had just begun a job that paid $9.75 per
hour, explaining that she believed she should eventually earn
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             Nebraska Supreme Court A dvance Sheets
                     303 Nebraska R eports
                            SABINO v. OZUNA
                            Cite as 303 Neb. 318

approximately $1,690 per month. In addition, questioning
from the district court revealed that the couple had two cars,
both titled in the partner’s name, one of which was driven by
Sabino. Monthly expenses addressed at the hearing totaled
$2,842 and included rent, utilities, food, telephone, insurance,
and payments on medical bills for one of Sabino’s children
with Ozuna.
   Other evidence indicated that Sabino’s partner worked three
jobs for a total of approximately 80 hours of work per week,
earning approximately $3,740 per month. In addition to paying
all expenses, the partner sent $600 per month to his parents in
Mexico. Evidence at the hearing also suggested that Sabino
had begun to work, earning an income so that her partner could
quit one of his jobs.
   The district court found that appeal expenses would be
between $600 and $750 and denied the request of in forma
pauperis status. In its oral pronouncement of that decision, the
district court explained that Sabino
      has no expenses because he’s paying everything. . . . And
      she’s making — going to be making at least $1,690 a
      month gross income. So the gross income that she’s mak-
      ing isn’t paying any of the expenses since her partner is
      paying all of the expenses. Therefore, I’m finding that
      she’s not destitute or not in the condition that she can’t
      pay these fees.
                ASSIGNMENT OF ERROR
  Sabino assigns that the district court erred in denying her
motion to proceed in forma pauperis.
                   STANDARD OF REVIEW
   [1] A district court’s denial of in forma pauperis status is
reviewed de novo on the record based on the transcript of the
hearing or written statement of the court.1

1
    Mumin v. Frakes, 298 Neb. 381, 904 N.W.2d 667 (2017).
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           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
                         SABINO v. OZUNA
                         Cite as 303 Neb. 318

                             ANALYSIS
   The sole issue on appeal is whether the district court erred
in denying Sabino’s motion to proceed in forma pauperis status
for her appeal of the divorce decree entered on January 11,
2018. We find that the court erred, and accordingly reverse,
and remand with directions.
   Neb. Rev. Stat. § 25-2301.01 (Reissue 2016) authorizes the
district court to grant in forma pauperis status. As relevant to
this situation, Neb. Rev. Stat. § 25-2301.02(1) (Reissue 2016)
provides that
      [a]n application to proceed in forma pauperis shall be
      granted unless there is an objection that the party filing
      the application . . . has sufficient funds to pay costs, fees,
      or security . . . . Such objection may be made by the court
      on its own motion . . . . An evidentiary hearing shall be
      conducted on the objection . . . .
   [2] The focus of § 25-2301.02 is whether the applicant has
sufficient funds. An analysis of an applicant’s eligibility will
necessarily be dependent on the facts and circumstances pre-
sented by that applicant’s financial and personal situation. As
such, a court should make its determination regarding in forma
pauperis status on a case-by-case basis by considering the indi-
vidual situation of the applicant. In this case, Sabino sought
permission to appeal in forma pauperis. On its own motion,
the district court challenged Sabino’s assertion that she did not
have sufficient funds, and accordingly, it held an evidentiary
hearing. Following that hearing, the district court denied her
motion. In so denying, the district court focused on the facts
that Sabino had recently obtained employment and that she
resided with a partner who paid her expenses.
   We turn first to the court’s determination that because
Sabino had recently obtained employment, she would soon
be able to pay the costs of her appeal. Because of the limited
time in which to appeal, we distinguish this case from cases
considering whether an applicant has sufficient funds to com-
mence an action in forma pauperis. As a general proposition,
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              Nebraska Supreme Court A dvance Sheets
                      303 Nebraska R eports
                              SABINO v. OZUNA
                              Cite as 303 Neb. 318

courts should make the appellate in forma pauperis determina-
tion by examining the applicant’s present ability to pay, and
should not base its determination on whether the applicant
will have necessary funds in the future or may accumulate
funds at a later date.2 Thus, the district court improperly con-
sidered Sabino’s future earnings in its determination of forma
pauperis status.
   In addition to considering Sabino’s future income, the dis-
trict court concluded that Sabino had “no expenses because
[her partner’s] paying everything.” Sabino takes issue with the
court’s decision “to impute [the partner’s] income and/or assets
onto [Sabino].”3
   We acknowledge the existence of case law discussing vari-
ous approaches to the wholesale imputing of income for in
forma pauperis purposes.4 But we need not address that larger
concern, because a review of the district court’s decision
suggests that it did not impute all of her partner’s income
to Sabino, but as a practical matter imputed only that por-
tion of his income which was used to pay Sabino’s living
expenses. On these facts, this limited imputation of income
was appropriate.
   The record shows that Sabino’s partner was supporting his
and Sabino’s minor child, for whom he has a legal obligation.
In addition, Sabino’s partner was paying the living expenses
of Sabino and her other children, for whom he has no legal

2
    See March v. Municipal Court for San Francisco Jud. Dist., 7 Cal. 3d 422,
    498 P.2d 437, 102 Cal. Rptr. 597 (1972).
3
    Brief for appellant at 10.
4
    See, e.g., Lee v. McDonald’s Corp., 231 F.3d 456 (8th Cir. 2000); United
    States v. Stone, 298 F.2d 441 (4th Cir. 1962); United States v. Scharf, 354
    F. Supp. 450 (E.D. Penn. 1973); Hill v. State, 305 Ark. 193, 805 S.W.2d
    651 (1991); State v. Mettenbrink, 3 Neb. App. 7, 520 N.W.2d 780 (1994);
    State v. Vincent, 883 P.2d 278 (Utah 1994); Kelsey v. Hanson, 818 P.2d
    590 (Utah App. 1991); Todd v. Kohl’s Department Store, No. 08-cv-3827,
    2011 U.S. Dist. LEXIS 38427 (N.D. Ill. Sept. 15, 2010) (unpublished
    opinion).
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              Nebraska Supreme Court A dvance Sheets
                      303 Nebraska R eports
                             SABINO v. OZUNA
                             Cite as 303 Neb. 318

obligation. In considering whether an applicant has sufficient
funds for purposes of § 25-2301.02, it was appropriate for
the court to consider the source of the funds for Sabino’s liv-
ing expenses.
   But even so, any imputed “income” was offset by the living
expenses paid. As the record shows, Sabino had $200 in cash;
it was error for the court to consider her future pay. Nor is
there any evidence that Sabino had other sources of income or
money, including other funds of her partner.
   In considering whether an individual is entitled to in forma
pauperis status, the district court examines a current snapshot
of that individual’s financial position, and an appellate court
reviews that snapshot de novo. It is possible that if taken at a
different time, a different snapshot would emerge. We observe
that where such in forma pauperis status is granted, our opin-
ion should not be read to preclude a county—which bears the
expenses resulting from that status—from seeking a reexami-
nation of the applicant’s eligibility at some later point in the
proceeding in light of the then-existing circumstances.
   We find persuasive Judge Hannon’s conclusions in a case
with similar, but perhaps even less sympathetic, facts decided
by the Nebraska Court of Appeals:
         The findings of the trial court and the evidence would
      support a finding that [the applicant’s] financial condition
      would have been better if she had maintained the job she
      once held, if she had selected her friends more carefully,
      and if she had not trusted someone who was not worthy
      of trust. These matters might support a conclusion that
      she has been improvident, perhaps foolish, but the exis-
      tence of these attributes does not establish the ability to
      pay the costs. These matters may help to explain why she
      cannot pay the costs of the appeal, but they do not tend to
      establish that she had the ability to pay them.5

5
    Fine v. Fine, 4 Neb. App. 101, 107, 537 N.W.2d 642, 646 (1995).
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           Nebraska Supreme Court A dvance Sheets
                   303 Nebraska R eports
                        SABINO v. OZUNA
                        Cite as 303 Neb. 318

   In our snapshot of this case, Sabino had about $200, while
the cost of an appeal was between $600 and $750. Thus, under
§ 25-2301.02, it is clear that Sabino lacked “sufficient funds to
pay costs, fee, or security.” As such, the district court erred in
denying Sabino’s request to proceed in forma pauperis in her
appeal from the divorce decree.
                         CONCLUSION
   The district court’s denial of Sabino’s motion to proceed in
forma pauperis is reversed, and the cause is remanded with
directions to grant the motion to proceed in forma pauperis.
                     R eversed and remanded with directions.
