Fine v. Fine

537 N.W.2d 642, 4 Neb. Ct. App. 101, 1995 Neb. App. LEXIS 300
CourtNebraska Court of Appeals
DecidedOctober 3, 1995
DocketNo. A-95-702
StatusPublished
Cited by24 cases

This text of 537 N.W.2d 642 (Fine v. Fine) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fine v. Fine, 537 N.W.2d 642, 4 Neb. Ct. App. 101, 1995 Neb. App. LEXIS 300 (Neb. Ct. App. 1995).

Opinion

Hannon, Judge.

Naomi L. Fine has appealed from the decree dissolving her marriage with Brent L. Fine. In lieu of paying the costs of the appeal, Naomi filed an affidavit of poverty under Neb. Rev. Stat. § 25-2301 (Reissue 1989). After that affidavit was filed, the district court found that Naomi was not indigent and that the appeal was frivolous and not taken in good faith and therefore denied her application to proceed in forma pauperis. This case now comes before this court on Brent’s motion to dismiss the appeal in view of the trial court’s findings and Naomi’s failure to pay the necessary appeal costs or give security following the court’s finding. We conclude that the district court abused its [102]*102discretion in finding that Naomi was able to pay the costs of the appeal and that its conclusion that the appeal was not taken in good faith and was frivolous was not supported by specific findings. Therefore, we deny the motion.

Brent does not attempt to raise a jurisdictional issue by this motion, but, rather, seeks to have this court dismiss the appeal because Naomi failed to file a cost bond as required by Neb. Rev. Stat. § 25-1914 (Cum. Supp. 1994), to deposit the docket fee as required by Neb. Rev. Stat. § 25-1912 (Cum. Supp. 1994), to deposit the approximate cost of the bill of exceptions with the court reporter as required by Neb. Ct. R. of Prac. 5B(1)e (rev. 1995), to file a brief, and to notify the court reporter of the record preparation date as required.

The trial court filed a decree dissolving the parties’ marriage on March 1, 1995. By an order filed March 30, the court slightly modified that decree and overruled the parties’ separate motions for new trial. On April 3, Naomi filed a combined application and affidavit to proceed in forma pauperis, which document contains those statements required under § 25-2301, that is, that she believed she was entitled to redress and that she was unable to pay the court costs or give security therefor. On April 5, the trial court set a hearing date for April 10 to consider Naomi’s application. By an order filed May 26, the trial court denied her application.

In its order of May 26, the trial court made specific findings which can be summarized as follows: That approximately 2 weeks after the decree was entered Naomi borrowed $1,000 and spent $500 of that money to make a payment and a partial advance payment on her vehicle and then used $500 to bail an acquaintance out of jail; that she made no inquiries concerning borrowing funds sufficient to pay the costs of her appeal; that in late March she quit a full-time job at which she earned $5.50 per hour; that she admitted to having received financial assistance from her mother since the decree; that at the time of trial she was living with a man whom she was engaged to marry, but that by the time of the hearing he had left town with all of the money from her checking account; and that she has made no attempt to pay any child support. The court found that Naomi’s situation had deteriorated since the decree was entered, [103]*103that her testimony concerning indigence is not credible, that she is not indigent for purposes of prosecuting this appeal, and that “the Respondent’s appeal is not taken in good faith and is frivolous. ”

In holding the hearing and in entering the order of May 26, the trial court was plainly attempting to follow the dictates of Flora v. Escudero, 247 Neb. 260, 526 N.W.2d 643 (1995). In Flora, the Supreme Court stated it intended to clarify the procedure trial courts must follow when denying leave to proceed in forma pauperis, and in so doing the court said:

As required by § 25-2301, the trial court must certify in writing if, in its judgment, an appeal lacks good faith. However, a written statement of the trial court’s reasons, findings, and conclusions for denial of the appellant’s leave to proceed in forma pauperis must accompany its certification that an appeal is frivolous.

247 Neb. at 265-66, 526 N.W.2d at 647.

In Flora, the court stated that ordinarily, a trial court’s decision regarding the truthfulness or good faith of a litigant’s poverty affidavit will not be disturbed on appeal unless the decision amounts to an abuse of discretion. We conclude that if the trial court makes the requisite specific findings, its decision that a litigant has no right to in forma pauperis status must be affirmed in the absence of an abuse of discretion. No bill of exceptions has been filed, and obviously, none can be expected if Naomi is unable to deposit the estimated cost of the bill of exceptions with the court reporter and she is denied in forma pauperis status. The lack of availability of a bill of exceptions in this situation is undoubtedly why in Flora the Supreme Court required trial courts to make specific findings of fact when an application under § 25-2301 is denied as frivolous.

Section 25-2301 provides in part that “[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” Neb. Rev. Stat. § 25-2306 (Reissue 1989) provides that upon the filing of an affidavit, the court shall order a transcript “if the suit or appeal is not frivolous, but presents a substantial question.” These statutes clearly deal with the situation where the trial court denies in forma pauperis status to an appellant on the ground that the [104]*104appeal is frivolous or not taken in good faith. However, in Flora, the Supreme Court stated: “Sections 25-2301 and 25-2308 require the lower court to act if it determines that the allegations of poverty are untrue or if it determines that the appeal is not taken in good faith.” 247 Neb. at 265, 526 N.W.2d at 647.

In In re Interest of Noelle F. & Sarah F., 3 Neb. App. 901, 534 N.W.2d 581 (1995), this court considered a case where the trial court held the appellant’s financial status did not warrant granting him in forma pauperis status, and we found that the record showed the trial court did not abuse its discretion in doing so and dismissed the appeal for failure to pay docket fees. We therefore conclude that a trial court may deny in forma pauperis status to an appellant on either of two grounds, (1) when the appellant is in fact able to pay the costs or give security therefor or (2) when the appeal is frivolous or not taken in good faith. In the case at hand, the trial court denied Naomi that status on both grounds. In Flora, the trial court found only that the appeal was not taken in good faith or was frivolous. Flora therefore gives no guidance on the subject matter of the required specific findings when in forma pauperis status is denied upon the basis that the appellant is not unable to pay the costs or give security therefor. However, the above-quoted statutes and cases allow the trial court to act if it determines that the allegations of poverty are untrue.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Sabino v. Ozuna
303 Neb. 318 (Nebraska Supreme Court, 2019)
Sabino v. Genchi Ozuna
928 N.W.2d 778 (Nebraska Supreme Court, 2019)
Cervantes v. Darnell
Nebraska Court of Appeals, 2017
Payne v. Gage
Nebraska Court of Appeals, 2016

Cite This Page — Counsel Stack

Bluebook (online)
537 N.W.2d 642, 4 Neb. Ct. App. 101, 1995 Neb. App. LEXIS 300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fine-v-fine-nebctapp-1995.