State on behalf of Jakai C. v. Tiffany M., 292 Neb. 68

Background

Parents Damian C. (father) and Tiffany M. (mother) have a minor, Jakai (born 2009); 2011 decree awarded joint legal custody and physical custody to Tiffany, with Damian parenting time and child support ordered.
Damian filed to modify custody (2012), seeking sole legal and physical custody and that Tiffany pay support; Tiffany cross-petitioned to increase Damian’s support.
A November 5, 2013 modification trial produced conflicting testimony about parenting-time interference, exchanges, social-media disparagement, and caregiving; the court denied custody modification but increased Damian’s child support to $407/month (Nov. 8, 2013).
Damian sought to proceed in forma pauperis on appeal; the district court denied that motion without an evidentiary hearing, then issued an amended written denial (Dec. 16, 2013) without holding a hearing.
The Nebraska Supreme Court vacated the amended order and remanded for an evidentiary hearing under Neb. Rev. Stat. § 25-2301.02; after the hearing the district court granted in forma pauperis status and the appeal proceeded on the merits.
On de novo review of the trial record, the Supreme Court affirmed the district court’s denial of custody modification (finding no material change in circumstances and that modification was not in the child’s best interests) and affirmed the child-support adjustment.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether district court erred by denying in forma pauperis without a hearing	Damian: denial violated § 25-2301.02; hearing required when court objects on ability to pay	Tiffany/district court: Damian waived or demonstrated ability to pay by later posting fee/bond; district court relied on affidavit to deny	Court: Reversed and remanded; statute requires an evidentiary hearing when court objects on ability to pay; later district order granted in forma pauperis
Whether Damian proved a material change in circumstances to modify custody	Damian: Tiffany interfered with parenting time, made disparaging social-media comments, failed to consult on medical/daycare, and child showed bruising	Tiffany: Incidents were isolated or disputed; she corrected parenting-time violations; no direct harm to child; disputes about communication also reflect Damian’s conduct	Court: Held Damian failed to show a material change in circumstances affecting child’s best interests; no abuse of discretion in denying modification
Whether modification would be in child's best interests	Damian: custody solely to him would better protect child from alleged interference and poor decisions by Tiffany	Tiffany: Child’s welfare not harmed; she has matured as a single parent and provides care; conflicts stem from poor communication	Court: Evidence did not establish that changing custody was in Jakai’s best interests; affirmed denial of modification
Whether paying docket fee waived right to in forma pauperis relief	Tiffany: payment shows ability to pay and waiver	Damian: payment of docket fee does not waive statutory right to seek in forma pauperis for other appeal costs; county may be required to pay costs if granted	Court: Payment did not constitute waiver; district court erred by not holding hearing; later in forma pauperis grant resolved issue

Key Cases Cited

State v. Sims, 291 Neb. 475 (2015) (§ 25-2301.02 requires a hearing when the court objects on ability to pay)
Glass v. Kenney, 268 Neb. 704 (2004) (consideration of in forma pauperis procedures)
Schrag v. Spear, 290 Neb. 98 (2015) (standard of review and deference in child custody appeals)
Jacob v. Schlichtman, 261 Neb. 169 (statutory scope of costs and relief for in forma pauperis litigants)
In re Interest of Edward B., 285 Neb. 556 (2013) (poverty affidavit serves as substitute for docket fee)
Adams v. Adams, 13 Neb. App. 276 (2005) (elements required to modify custody: material change and best interests)
Flora v. Escudero, 247 Neb. 260 (1995) (prior rule requiring hearing before denying in forma pauperis; later superseded by statute)