Child Support Enforcement - Sarpy County Nebraska

Newer Case Law re. Incarceration and Modification
Hopkins v. Stauffer, 18 Neb. App. 116, 775 N.W.2d 457 (2009)
Facts: Proving he is a failure at everything, Father tries unsuccessfully to murder his wife, is
arrested, tried, convicted and sentenced to 20-40 years incarceration. Obviously he wants his
child support reduced. Under the new legislation he succeeds! A split opinion of the Court of
Appeals. They immediately all went home and took showers.
We conclude that the Legislature intended for an incarcerated inmate to be able to
file his or her own complaint to modify child support and for the incarceration to be
considered an involuntary reduction of income when the conditions of § 43-512.15
(1)(b) are met. We cannot ignore the evident intent of the legislative act merely
because the Legislature could have chosen a better section in which to codify its
amendment. Having settled the meaning of the statute, an appellate court must give
effect to the purpose and intent of the Legislature.
A change in law, rather than the actions of the parties, may itself constitute a
material change in circumstances such to justify a modification of child support.
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.‖
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