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Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

SABINO v. OZUNA

Cite as 303 Neb. 318

Ariana 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 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. Reversed and remanded with directions.

Roxana Cortés Reyes, of Immigrant Legal Center, an affiliate 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 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

06/28/2019 12:06 AM CDT
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Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

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 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 
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Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

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 making 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 Advance Sheets

303 Nebraska Reports

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 presented 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 individual 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 commence an action in forma pauperis. As a general proposition, 
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Nebraska Supreme Court Advance Sheets

303 Nebraska Reports

SABINO v. OZUNA

Cite as 303 Neb. 318

courts should make the appellate in forma pauperis determination 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 considered Sabino’s future earnings in its determination of forma 

pauperis status.

In addition to considering Sabino’s future income, the district 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 various 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 portion 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 Advance Sheets

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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 living 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 opinion should not be read to preclude a county—which bears the 

expenses resulting from that status—from seeking a reexamination 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 existence 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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303 Nebraska Reports

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.

Reversed and remanded with directions.