Sabino v. Ozuna
303 Neb. 318
Neb.2019Background
- Divorce decree entered January 11, 2018; district court denied Sabino’s request for findings of abuse/abandonment/neglect and she filed a notice of appeal.
- Sabino moved to proceed in forma pauperis on appeal, submitting an affidavit showing $200 cash, no bank accounts, recent unemployment until she began a job paying $9.75/hr (projected ~$1,690/month), and monthly expenses of $2,842.
- Sabino lived with a nonmarital partner who worked ~80 hours/week, earned about $3,740/month, paid the household expenses and sent $600/month to his parents; he was the biological father of the youngest child only.
- The district court held a hearing, questioned whether the partner’s income should be considered available to Sabino, and noted Sabino’s recent employment and her partner’s payment of expenses.
- The district court denied in forma pauperis status, finding Sabino was not destitute and could pay appeal costs estimated at $600–$750; Sabino appealed that denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court erred denying in forma pauperis for appeal | Sabino: current snapshot shows insufficient funds ($200 vs $600–$750 costs); cannot be required to rely on partner’s funds or future income | Trial court: Sabino recently employed and partner pays all expenses, so she has access to sufficient resources | Reversed: court must base decision on present ability to pay; limited imputation of partner funds only to amounts actually used for Sabino’s living expenses is appropriate, but Sabino lacked sufficient funds now |
Key Cases Cited
- Mumin v. Frakes, 298 Neb. 381 (2017) (standard: de novo review of denial of in forma pauperis on the record)
- March v. Municipal Court for San Francisco Judicial District, 7 Cal.3d 422 (1972) (appellate in forma pauperis determinations should focus on present ability to pay, not future funds)
- Fine v. Fine, 4 Neb. App. 101 (1995) (financial imprudence or reliance on others does not establish ability to pay appeal costs)
- Lee v. McDonald’s Corp., 231 F.3d 456 (8th Cir. 2000) (discusses principles regarding imputation of income for in forma pauperis purposes)