In re Change of Name of Whilde
298 Neb. 510
| Neb. | 2017Background
- Child born January 2010; mother Hannah filed a petition on December 21, 2016 to change the child’s two middle names and the child's surname to Hannah’s family name under Neb. Rev. Stat. § 25-21,271.
- Hannah published statutory notice in the county newspaper for two consecutive weeks and testified at the January 24, 2017 hearing that the child had no natural father and no noncustodial parent.
- The district court granted the name change on January 24, 2017 and entered an order finding statutory notice had been given and that the change was in the child’s best interests.
- Margaret (appellant) had previously been appointed a Temporary Non-Parent Possessory Conservator in Texas and later involved in Nebraska custody proceedings; on December 16, 2016 the Nebraska court awarded Hannah sole legal and physical custody and terminated Margaret’s visitation/custody rights (Margaret appealed that custody order but did not obtain a stay).
- Margaret moved to vacate the January 24 name-change order (filed Feb. 7, 2017), arguing she was a “noncustodial parent” entitled to certified-mail notice under § 25-21,271(2); the district court denied the motion and Margaret appealed that denial.
- The Nebraska Supreme Court limited review to the denial of the motion to vacate and held Margaret was not a “noncustodial parent” at the relevant times because her custody/visitation rights had been extinguished by the December 16, 2016 order, so certified-mail notice was not required; the denial of the motion was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Margaret was entitled to certified-mail notice as a “noncustodial parent” under § 25-21,271(2) | Margaret: her Texas conservatorship/in loco parentis status made her a noncustodial parent entitled to certified-mail notice; custody order was being appealed so her status persisted | Hannah: Margaret was not a legal parent; Nebraska custody order (Dec. 16) awarded Hannah sole custody and terminated Margaret’s rights, so no certified-mail notice required | Held: Margaret was not a “noncustodial parent” when notice was given because her legal rights were extinguished by the Dec. 16 order; certified-mail notice not required |
| Whether the January 24, 2017 name-change order should be vacated for lack of required notice | Margaret: failure to send certified-mail notice invalidates the order; she would have objected | Hannah: published notice satisfied statute; Margaret lacked statutory status to trigger certified-mail requirement | Held: Court affirmed denial of motion to vacate; required statutory notice was given (publication) and no certified-mail duty existed to Margaret |
| Whether the district court abused its discretion in denying the motion to vacate | Margaret: district court should have vacated based on statutory notice defect | Hannah: district court acted within discretion based on legal status and proof in open court | Held: No abuse of discretion; decision based on tenable legal reasoning |
| Whether the appeal from the January 24 order was timely | Margaret: appealed the January 24 order on March 20, 2017 | Hannah: notice of appeal was untimely; appeal preserved only from denial of motion to vacate | Held: Appeal of the January 24 order was untimely; review limited to the April 20, 2017 order denying the motion to vacate |
Key Cases Cited
- Kibler v. Kibler, 287 Neb. 1027, 845 N.W.2d 585 (court’s inherent power to vacate/modify judgments during same term; review for abuse of discretion)
- State v. Hausmann, 277 Neb. 819, 765 N.W.2d 219 (motion invoking inherent power to vacate does not toll appeal period absent rule)
- Davis v. State, 297 Neb. 955, 902 N.W.2d 165 (statutory interpretation reviewed de novo)
- Windham v. Griffin, 295 Neb. 279, 887 N.W.2d 710 (in loco parentis is temporary and not equivalent to legal parenthood)
- Hall v. Hall, 176 Neb. 555, 126 N.W.2d 839 (appeal does not stay enforcement absent supersedeas bond or stay)
- Kula v. Kula, 180 Neb. 893, 146 N.W.2d 384 (same principle regarding effect of appeal on custody orders)
- Kricsfeld v. Kricsfeld, 8 Neb. App. 1, 588 N.W.2d 210 (same principle regarding necessity of supersedeas to stay custody orders)