Child Support Enforcement - Sarpy County Nebraska
Child Support Enforcement - Sarpy County Nebraska
Child Support Enforcement - Sarpy County Nebraska
You also want an ePaper? Increase the reach of your titles
YUMPU automatically turns print PDFs into web optimized ePapers that Google loves.
Even though the inmate’s circumstances have not changed from his last action to<br />
modify his support obligation, the change of law constitutes a material change of<br />
circumstances.<br />
Rouse v. Rouse, 18 Neb. App. 128, 775 N.W.2d 445 (2009)<br />
Facts: Decided the same day as Hopkins v. Stauffer. The prisoner was sentenced to 38<br />
years incarceration. He was behind in his support payments by over $3,000 at the time of his<br />
incarceration. The District court denied him a downward modification due, in part, to the fact he<br />
owed past due child support at the time he was first incarcerated.<br />
Held: Reversed and remanded. Presentence incarceration must be considered by the trial<br />
court when evaluating any allegation of a lack of “clean hands” by the prisoner.<br />
[T]he change of law making incarceration an involuntary reduction in income under<br />
certain conditions rather than a voluntary reduction constituted a material change of<br />
circumstances.<br />
A person continuously jailed while awaiting trial faces the same reduction in income<br />
as a person continuously incarcerated after sentencing, and the statute specifically<br />
references incarceration in jails in addition to incarceration in federal or state<br />
correctional facilities.<br />
Because there is no documented record of Rouse’s willfully failing or neglecting to<br />
provide proper support when he had sufficient resources to provide such support, we<br />
reverse, and remand for further proceedings.<br />
Still good law:<br />
Smith v. Smith, 12 Neb. App. 597, 681 N.W.2d 57 (2004)<br />
When obligated parent was incarcerated, but not yet sentenced, child support<br />
maybe based upon his regular rate of income pre-incarceration.<br />
Distinguished from State v. Porter, below. In Smith, “There was no evidence from<br />
which the court could determine whether James would be sentenced to a term of<br />
incarceration.“ …”this case presents a factual scenario more akin to where an<br />
individual is not incarcerated at the time of the initial child support award.”<br />
State v. Porter, 259 Neb. 366, 610 N.W.2d 23 (2000)<br />
When earning capacity is used as a basis for an initial determination of child support<br />
under the <strong>Nebraska</strong> <strong>Child</strong> <strong>Support</strong> Guidelines, there must be some evidence that<br />
the parent is capable of realizing such capacity through reasonable effort. When an<br />
individual is incarcerated at the time initial child support is determined, the<br />
individual’s preincarceration earnings cannot be considered.<br />
Income “from all Sources…”<br />
Disposable income, defined.<br />
Disposable income shall mean that part of the income of any individual remaining after the<br />
deduction from such income of any amounts required by law to be withheld, excepting the<br />
amounts required to be deducted and withheld pursuant to the Income Withholding for <strong>Child</strong><br />
<strong>Support</strong> Act or those provisions of law allowing garnishment, attachment, or execution.<br />
Source: Laws 1985, Second Spec. Sess., LB 7, § 27.<br />
- 92 -