Courtney v. Jimenez
25 Neb. Ct. App. 75
Neb. Ct. App.2017Background
- Courtney obtained an ex parte domestic abuse protection order against Jimenez on May 6, 2016; Jimenez was served May 17, 2016.
- § 42-925(1) requires a respondent to return a form requesting a show-cause hearing within 5 days of service to contest an ex parte order.
- Jimenez did not return the form within 5 days; he filed a motion to vacate the order on August 1, 2016, arguing the petition/affidavit failed to allege facts supporting a protection order.
- The district court held a hearing August 9, 2016, concluded the petition lacked sufficient allegations, and vacated the ex parte order (but entered separate no-contact relief in the paternity case).
- Courtney appealed; by the time of appellate briefing the ex parte order’s original one-year term would have expired, raising mootness concerns.
Issues
| Issue | Plaintiff's Argument (Courtney) | Defendant's Argument (Jimenez) | Held |
|---|---|---|---|
| Whether appeal is moot | Appeal still reviewable; court erred in vacating order | Order expired but public-interest question exists | Appeal moot as to relief, but public-interest exception applies to statutory issue |
| Whether § 42-925(1) 5-day requirement is jurisdictional/mandatory | 5-day deadline is "hard and fast"; failure bars later challenges or motions | 5-day limit is directory; court may later entertain motions including to vacate | 5-day requirement is directory, not mandatory; failing to meet it does not preclude later motions |
| Whether district court had power to vacate ex parte order after 5 days | Statutory scheme forbids collateral attacks outside statutory deadlines | Court has inherent equitable power to vacate or modify judgments during its term | Court has inherent power to vacate/modify orders within its court term; no conflict with statutes found |
| Whether petition/affidavit alleged sufficient facts to support ex parte order | Allegations (text message, past behavior) were sufficient; vacatur improper | Allegations insufficient to support relief | Sufficiency not reached on appeal (moot); district court found allegations insufficient but appellate court declined to decide on merits due to mootness exception scope |
Key Cases Cited
- Mahmood v. Mahmud, 279 Neb. 390 (protection orders reviewed de novo as analogous to injunctions)
- Glantz v. Daniel, 21 Neb. App. 89 (public-interest exception applied; 5-day deadline for harassment orders treated as directory)
- Kibler v. Kibler, 287 Neb. 1027 (court has inherent power to vacate or modify judgments during its term)
- D.I. v. Gibson, 291 Neb. 554 (statutory time limits construed as directory when not central to statute’s purpose)
- Doty v. West Gate Bank, 292 Neb. 787 (appellate courts need not decide issues unnecessary to resolution of the case)
- Hron v. Donlan, 259 Neb. 259 (mootness and requirement of actual case or controversy)