Child Support Enforcement - Sarpy County Nebraska
Child Support Enforcement - Sarpy County Nebraska
Child Support Enforcement - Sarpy County Nebraska
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or law of another state substantially similar to section 28-706 or (ii) the incarcerated individual<br />
has a documented record of willfully failing or neglecting to provide proper support which he or<br />
she knew or reasonably should have known he or she was legally obligated to provide when he<br />
or she had sufficient resources to provide such support, or (iii) the incarceration is a result of a<br />
conviction for a crime in which the child who is the subject of the child support order was<br />
victimized;…. . .<br />
(2) The department, a county attorney, or an authorized attorney shall not in any case be<br />
responsible for reviewing or filing an application to modify child support for individuals<br />
incarcerated as described in subdivision (1)(b) of this section.<br />
Practice Note: §42-358 (3) indicates that where the child support payment history shows that<br />
the obligated parent is in arrears, a prima facie case of contempt is made. Arguendo that<br />
should be all that is needed to shift the burden to the incarcerated parent to disprove that he or<br />
she was acting willfully or neglectfully with regard to their child support obligation at the time<br />
they walked (shackled) into prison. (Hat tip to Tyler Jacobsen in the Lancaster Co. Attorney’s<br />
office)<br />
Legacy Cases(?). Their relevance post 2007 is in doubt.<br />
State o/b/o Longnecker v. Longnecker, 11 Neb. App. 773, 660 N.W.2d 544 (2003)<br />
In considering a petition for the modification of child support, a different test is applied if<br />
an individual is incarcerated when an initial determination of child support is made versus<br />
when a modification of child support is sought.<br />
A petition for the modification of child support will be denied if a change in financial<br />
condition is due to fault or voluntary wastage or dissipation of one’s talents and assets.<br />
Ohler v. Ohler, 220 Neb. 272, 369 N.W.2d 615 (1985)<br />
Incarceration is not a material change of circumstances warranting suspension of child<br />
support obligation<br />
Incarceration is certainly a foreseeable result of criminal activity; we find no sound reason<br />
to relieve one of a child support obligation by virtue of the fact that he or she engaged in<br />
criminal conduct.<br />
Newer Case Law re. Incarceration and Modification<br />
Hopkins v. Stauffer, 18 Neb. App. 116, 775 N.W.2d 457 (2009)<br />
Facts: Proving he is a failure at everything, Father tries unsuccessfully to murder his wife, is<br />
arrested, tried, convicted and sentenced to 20-40 years incarceration. Obviously he wants his<br />
child support reduced. Under the new legislation he succeeds! A split opinion of the Court of<br />
Appeals. They immediately all went home and took showers.<br />
We conclude that the Legislature intended for an incarcerated inmate to be able to<br />
file his or her own complaint to modify child support and for the incarceration to be<br />
considered an involuntary reduction of income when the conditions of § 43-512.15<br />
(1)(b) are met. We cannot ignore the evident intent of the legislative act merely<br />
because the Legislature could have chosen a better section in which to codify its<br />
amendment. Having settled the meaning of the statute, an appellate court must give<br />
effect to the purpose and intent of the Legislature.<br />
A change in law, rather than the actions of the parties, may itself constitute a<br />
material change in circumstances such to justify a modification of child support.<br />
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