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Sabino v. Ozuna

Supreme Court of Nebraska

June 7, 2019

Ariana Bernal Sabino, appellant,
v.
Juan Carlos Genchi Ozuna, appellee.

         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 transcript 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.

          Roxana Cortes Reyes, of Immigrant Legal Center, an affiliate of the Justice for Our Neighbors Network, and David V. Chipman, of Monzon, 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 [303 Neb. 319] 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 regarding 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 assisting 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 asking 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 biological 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 [303 Neb. 320] 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 ...


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