Child Support Enforcement - Sarpy County Nebraska

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