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) provides a respondent 5 days after service to return a form requesting a show-cause hearing; Jimenez did not return that form within 5 days.
- Jimenez filed a Motion to Dismiss / Motion to Vacate the protection order on August 1, 2016; the district court held a hearing August 9 and vacated the ex parte order for insufficient allegations.
- The district court noted it was confined to the petition’s allegations when evaluating an ex parte protection order and suggested Courtney could refile with more detail; it also ordered no contact in a related paternity case.
- Courtney appealed, but delays in preparing the appellate record meant the protection order’s original one-year term would have expired before appeal was decided, rendering the appeal moot as to reinstatement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness — may the court decide where the order expired on its own term? | Courtney: Appeal not moot because relief is necessary and statutory interpretation of § 42-925(1) warrants review. | Jimenez: Order expired; appeal moot. | Appeal is moot as to reinstating the expired order, but public-interest exception applies to the statutory question. |
| Whether § 42-925(1)’s 5-day request-for-hearing requirement is mandatory | Courtney: 5-day deadline is a hard, statutory deadline that should bar later collateral attacks; akin to a statute of limitations. | Jimenez: Even if missed, court can later consider motions; 5-day rule is not jurisdictional. | The 5-day requirement is directory, not mandatory; missing it does not bar later motions to vacate or hearings. |
| District court’s inherent power to vacate within its term | Courtney: Statutory scheme controls and should limit court’s equity powers. | Jimenez: Court has inherent power to vacate or modify judgments during the court’s term; motion was filed within the term. | Court properly exercised inherent authority to vacate the prior ex parte order (motion filed within court term). |
| Sufficiency of the petition/affidavit to support ex parte relief | Courtney: Petition alleged threats and prior conduct sufficient for protection order. | Jimenez: Allegations insufficient; text message not threatening on its face. | Court need not decide on sufficiency because relief cannot be granted (order expired) and issue is private — no public-interest exception for this question. |
Key Cases Cited
- Mahmood v. Mahmud, 279 Neb. 390 (analogizing protection orders to injunctions; review de novo)
- Glantz v. Daniel, 21 Neb. App. 89 (appellate public-interest exception applied to timeliness of show-cause requests for ex parte protection orders)
- Kibler v. Kibler, 287 Neb. 1027 (court’s inherent power to vacate or modify judgments during its term)
- D.I. v. Gibson, 291 Neb. 554 (statutory time limits construed as directory where not central to statute’s purpose)