Courtney v. Jimenez
25 Neb. Ct. App. 75
| Neb. Ct. App. | 2017Background
- On May 6, 2016, Courtney filed a petition and affidavit and the Douglas County District Court entered an ex parte domestic abuse protection order against Jimenez.
- The order instructed a respondent wishing to contest it to return a Request for Hearing form within 5 days after service. Jimenez was served May 17 but did not return the form within 5 days.
- Because no timely request for a show-cause hearing was filed, the temporary ex parte order would have become final and remained in effect for one year absent further court action.
- On August 1, 2016, Jimenez filed a motion to vacate (titled Motion to Dismiss Protection Order). The district court held a hearing August 9 and vacated the ex parte order, concluding Courtney’s petition and affidavit did not allege sufficient facts.
- Courtney appealed. By the time the appeal reached the Court of Appeals the protection-order term had expired, raising mootness concerns; the Court accepted review under the public-interest exception to mootness for the statutory-timing issue.
Issues
| Issue | Plaintiff's Argument (Courtney) | Defendant's Argument (Jimenez) | Held |
|---|---|---|---|
| Whether the appeal is moot and whether the public-interest exception applies | Appeal should not be dismissed; court should review merits | Order expired but court can address statutory question | Appeal was moot as to the expired order, but public-interest exception applied to the statutory-timing question |
| Whether the district court lacked authority to vacate the ex parte order after the 5-day deadline in § 42-925(1) | 5-day deadline is mandatory; failure to timely request a hearing bars later collateral attacks; analogous to statutes of limitation | Court retains inherent power to vacate/modify orders during its term; motion to vacate was filed within the court term | Court has inherent power to vacate orders during its term; vacatur was permissible |
| Whether the 5-day request-for-hearing deadline in § 42-925(1) is mandatory or directory | The 5-day period is "hard and fast" and mandatory | The 5-day period is directory; its purpose is procedural convenience, not essential to statutory protection | The 5-day requirement is directory, not mandatory; failure to meet it does not preclude later motions to bring the matter before the court |
| Whether Courtney adequately pleaded facts to support the ex parte order | Allegations were sufficient to justify the protection order | Petition/affidavit lacked sufficient factual allegations | Court did not decide on sufficiency (moot); district court had vacated for insufficiency, and appellate court declined to review merits due to mootness |
Key Cases Cited
- Mahmood v. Mahmud, 279 Neb. 390 (recognizing protection orders as analogous to injunctions and stating standard of review)
- Glantz v. Daniel, 21 Neb. App. 89 (appellate court applied public-interest exception and held a similar 5-day timing rule directory)
- D.I. v. Gibson, 291 Neb. 554 (addressing statutory time limits and when they are directory vs. mandatory)
- Kibler v. Kibler, 287 Neb. 1027 (discussing a court’s inherent power to vacate or modify judgments during its term)
- Hron v. Donlan, 259 Neb. 259 (describing mootness and the requirement of a case or controversy)
- Doty v. West Gate Bank, 292 Neb. 787 (noting appellate courts need not decide issues unnecessary to resolution of the case)