IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
MCCARTY V. MCCARTY
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
CRYSTAL A. MCCARTY, APPELLANT,
V.
BRENDA S. MCCARTY, STEPHANIE W. MILONE, AND JON PARSONS, APPELLEES.
Filed September 6, 2022. No. A-22-071.
Appeal from the District Court for Sarpy County: STEFANIE A. MARTINEZ, Judge.
Affirmed.
Jeffrey A. Wagner, of Wagner, Meehan &Watson, L.L.P., for appellant.
Stephanie Weber Milone for appellee Brenda S. McCarty, and individually as
intervenor-appellee.
MOORE, RIEDMANN, and WELCH, Judges.
RIEDMANN, Judge.
INTRODUCTION
Crystal A. McCarty appeals the denial of her application to proceed in forma pauperis on
appeal from a dissolution decree entered by the district court for Sarpy County. We find no error
in the district court’s determination that Crystal was not indigent and therefore affirm the order on
that basis.
BACKGROUND
On December 9, 2020, the district court entered a decree of dissolution dissolving Crystal’s
marriage to Brenda S. McCarty. Crystal timely filed a notice of appeal and an application to
proceed in forma pauperis. The district court denied the application “for lack of accompanying
financial affidavit.” Crystal filed another application to proceed in forma pauperis with a financial
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affidavit attached. The documents indicated that Crystal was unable to pay the costs of the appeal
and had no assets that could be liquidated. The district court denied the application the next day
without a hearing. Crystal appealed the denial, and on January 5, 2021, in case No. A-21-006, this
court summarily reversed based in part upon the district court’s failure to comply with Neb. Rev.
Stat. § 25-2301.02(1) (Reissue 2016) which requires a written statement of the court’s reasons for
denying the application..
Following remand, Brenda filed an objection to the application to proceed in forma
pauperis, claiming that Crystal had sufficient funds to pay costs, fees, or security, and that Crystal
was asserting legal positions that were frivolous and malicious. An evidentiary hearing was held
on November 3, 2021. In addition to offering documentary evidence, Brenda elicited testimony
from Crystal which revealed that Crystal was “sometimes” working 40 hours a week at a job which
paid $14 per hour and it was the same employment and rate of pay she was earning at the time of
the dissolution trial. Crystal testified that she supports her mother, age 46, and her brother, age 18.
On cross-examination, Crystal explained that she pays $500 per month in rent, plus $80 in utilities.
In addition, she has routine expenses such as groceries, clothing, vehicle maintenance, health
insurance, and attorney fees. She estimated her monthly support to her mother and brother at
approximately $500.
The district court denied in forma pauperis status in a written order. It concluded that, based
upon Crystal’s testimony, she was gainfully employed at the rate of $14 per hour and had worked
remotely for a substantial amount of time, thereby minimizing vehicle expenses. It further found
that Crystal’s credit card expenses, and “possibly attorney fees” have been discharged in
bankruptcy. Finally, it noted that Crystal itemized her expenses for her mother and brother at $160
per month in her poverty affidavit, but increased that amount to $500 at the time of the hearing
without explanation. Consequently, it discredited this testimony and concluded that Crystal had
sufficient funds to pay costs, fees, and/or security.
The district court also determined that Crystal’s legal position was wholly without merit,
and further denied the application on the basis that Crystal was pursuing a frivolous proceeding.
Crystal timely appeals.
ASSIGNMENT OF ERROR
Crystal assigns that the district court erred in failing to grant her leave to proceed in forma
pauperis on appeal.
STANDARD OF REVIEW
A district court’s denial of in forma pauperis status is reviewed de novo on the record based
on the transcript of the hearing or written statement of the court. Sabino v. Ozuna, 303 Neb. 318,
928 N.W.2d 778 (2019).
ANALYSIS
Crystal argues that the court erred in its order of February 1, 2022, denying her in forma
pauperis status. We disagree.
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Neb. Rev. Stat. § 25-2301.01 (Reissue 2016) states:
Any county or state court, except the Nebraska Workers’ Compensation Court, may
authorize the commencement, prosecution, defense, or appeal therein, of a civil or criminal
case in forma pauperis. An application to proceed in forma pauperis shall include an
affidavit stating that the affiant is unable to pay the fees and costs or give security required
to proceed with the case, the nature of the action, defense, or appeal, and the affiant’s belief
that he or she is entitled to redress.
Section 25-2301.02 provides that an application to proceed in forma pauperis shall be
granted unless there is an objection that the party filing the application (a) has sufficient funds to
pay costs, fees, or security or (b) is asserting legal positions which are frivolous or malicious. If
an objection is made, an evidentiary hearing shall be held.
Here, following remand, Brenda filed an objection to Crystal’s application and the court
scheduled an evidentiary hearing. At the hearing, Crystal testified that at the time of the dissolution
trial, she was “employed on a full-time basis.” She then stated she “sometimes” worked 40 hours
a week, but could not recall if she testified at trial that she was working 40 hours a week at that
time. Her rate of pay was $14 per hour. She confirmed that she continues to work full time for the
same company, at the same rate of pay, but that migraines cause her to take “intermittent leave.”
She provided no estimation of how much work she misses due to her migraines or whether her
time off is compensated. Based upon this testimony, the district court concluded that Crystal
“works 40 hours per week at $14 per hour.” Given the vagueness of the testimony, we find no
error in the court’s summation of Crystal’s testimony.
Crystal claims that the district court’s statement that “All of her credit card debts and
possibly attorney fees that were included in her bankruptcy petition have been discharged” is
“simply conjecture by the court.” Brief for appellant at 11. However, Crystal answered
affirmatively when she was asked if her debts were discharged in her Chapter 7 bankruptcy. And
more specifically, she agreed that she was no longer required to make payments to certain creditors
and pay credit card debts because they, too, were discharged. Therefore, we find no error in the
court’s statement regarding Crystal’s debts.
The court also stated in its order that “Given the court’s previous findings that [Crystal]
lacks credibility the court finds that if any monies are sent to her family, it is for a lesser amount
than indicated.” Crystal claims this is “conjecture by the court there is no evidence to support this.”
Brief for appellant at 11. However, a trial court’s decision regarding the truthfulness or good faith
of a litigant’s poverty affidavit and notice of appeal will not be disturbed on appeal unless it
amounts to an abuse of discretion. Flora v. Escudero, 247 Neb. 260, 526 N.W.2d 643 (1995).
Here, Crystal submitted a poverty affidavit in December 2020 in which she listed an expense of
“$60.00 + 100.00” for “mom insurance, food.” She did not list any expense for her brother. At the
hearing, however, she estimated a monthly expense of $500 for her mother and brother. She did
not explain the discrepancy in the amounts, therefore, we find no abuse of discretion in the court’s
decision regarding the truthfulness of Crystal’s testimony.
Our review of the record indicates that Crystal is employed 40 hours per week, except for
“intermittent leave” for her migraines, at the rate of $14 per hour. Considering the expenses that
the district court found credible, we conclude that Crystal has sufficient funds to pay costs, fees,
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and security. We affirm the district court’s denial of the application to proceed in forma pauperis
on the basis that she has sufficient funds to proceed.
Because in forma pauperis status is available only to a litigant who is without sufficient
funds to pay fees and costs or give security required to proceed with the case, we need not address
Crystal’s argument that the court erred in finding that she was asserting legal positions that were
frivolous and malicious. See Baker-Heser v. State, 309 Neb. 979, 963 N.W.2d 59 (2021) (appellate
court is not obligated to engage in analysis which is not needed to adjudicate case and controversy
before it).
Crystal’s appeal of her dissolution order has been docketed in this court at case No.
A-20-901. Neb. Rev. Stat. § 25-1912(4) (Cum. Supp. 2020) provides that “an appeal shall be
deemed perfected and the appellate court shall have jurisdiction of the cause when such notice of
appeal has been filed and such docket fee deposited in the office of the clerk of the district court.”
In lieu of payment of costs and fees of litigation, in forma pauperis status may be obtained by
appropriate application.
The current appeal is solely an appeal from the denial of Crystal’s application to proceed
in forma pauperis in the appeal docketed as case No. A-20-901. Because we conclude that the
district court did not err in denying Crystal’s application to proceed in forma pauperis on the basis
that she was not indigent, we affirm the district court’s order denying in forma pauperis status.
However, Crystal’s appeal docketed as case No. A-20-901 concerning the merits of her
claim should be held under submission for payment of the statutory docket fee. Section
25-2301.02(1) provides:
If an objection [to in forma pauperis status] is sustained, the party filing the application
shall have thirty days after the ruling or issuance of the statement to proceed with an action
or appeal upon payment of fees, costs, or security notwithstanding the subsequent
expiration of any statute of limitations or deadline for appeal.
As such, we conclude that Crystal shall be permitted 30 days from the issuance of the mandate in
this case in which to pay the statutory docket fee. Failure to so do will result in the dismissal of
her appeal from the dissolution decree docketed as case No. A-20-901.
CONCLUSION
The district court did not err in denying Crystal’s application to proceed in forma pauperis.
We therefore affirm that decision. But we note that Crystal has 30 days in which to pay the
statutory docket fee for the appeal docketed as case No. A-20-901. Crystal’s failure to do so will
result in the dismissal of that appeal.
AFFIRMED.
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