In re Change of Name of Whilde
298 Neb. 510
| Neb. | 2017Background
- Minor born Jan 2010; mother Hannah filed petition (Dec 21, 2016) under Neb. Rev. Stat. § 25-21,271 to change the child’s two middle names and the surname to Hannah’s family name. Publication notice ran for two weeks.
- Hearing held Jan 24, 2017; court received proof of publication, heard Hannah’s testimony, and granted the name change the same day.
- Margaret (appellant) had earlier been designated a “Temporary Non‑Parent Possessory Conservator” by a Texas court and later litigated a custody modification in Nebraska. On Dec 16, 2016, Nebraska district court awarded Hannah sole legal and physical custody and terminated Margaret’s custody/visitation rights. Margaret appealed that custody order on Jan 10, 2017 but did not obtain a stay.
- Margaret moved to vacate the Jan 24 name‑change order (filed Feb 7, 2017), arguing she was a “noncustodial parent” under § 25‑21,271(2) and therefore entitled to certified‑mail notice (which she did not receive).
- District court denied the motion to vacate; Margaret appealed the denial. The Supreme Court limited review to the denial of the motion to vacate because Margaret’s direct appeal of the Jan 24 order was untimely.
Issues
| Issue | Plaintiff's Argument (Margaret) | Defendant's Argument (Hannah) | Held |
|---|---|---|---|
| Whether Margaret was a “noncustodial parent” entitled to certified‑mail notice under § 25‑21,271(2) | Margaret claimed her Texas conservatorship / in loco parentis status made her a noncustodial parent entitled to certified notice | Hannah argued Margaret was not a parent: Texas order labeled her a “non‑parent” conservator and Nebraska’s Dec 16 order gave Hannah sole custody and terminated Margaret’s rights | Held: Margaret was not a “noncustodial parent”; no certified‑mail notice was required and statutory notice by publication was sufficient |
| Whether the district court abused its discretion in denying the motion to vacate | Margaret argued failure to give certified‑mail notice invalidated the name‑change order and warranted vacatur | Hannah argued notice requirements were met and Margaret had no legal rights at the relevant times to trigger certified‑mail notice | Held: No abuse of discretion; court properly found statutory notice satisfied and denied vacatur |
| Whether the Jan 24 name‑change order was timely appealed | Margaret attempted to appeal the Jan 24 order after 30 days | Hannah maintained the appeal was untimely; the motion to vacate did not toll the appeal period | Held: Margaret’s direct appeal of Jan 24 order was untimely; review limited to denial of motion to vacate |
| Effect of pending appeal in custody case on notice entitlement | Margaret argued the pending appeal preserved her status and notice rights | Hannah noted Margaret did not obtain a stay or supersedeas, so the Dec 16 order remained effective | Held: Pending appeal without stay did not preserve rights; Dec 16 order controlled and extinguished Margaret’s rights for notice purposes |
Key Cases Cited
- Kibler v. Kibler, 287 Neb. 1027 (court’s inherent power to vacate judgments during the term)
- State v. Hausmann, 277 Neb. 819 (motion to exercise inherent power does not toll appeal period absent rule)
- Davis v. State, 297 Neb. 955 (statutory interpretation reviewed de novo)
- Windham v. Griffin, 295 Neb. 279 (in loco parentis is temporary and not equivalent to legal parenthood for all purposes)
- Hall v. Hall, 176 Neb. 555 (appeal does not stay order absent supersedeas or stay)
- Kula v. Kula, 180 Neb. 893 (same principle regarding effect of unsuperseded custody orders)
- Kricsfeld v. Kricsfeld, 8 Neb. App. 1 (same principle regarding enforcement of unsuperseded custody orders)