In re Change of Name of Whilde
298 Neb. 510
| Neb. | 2017Background
- Minor born Jan 2010; mother Hannah filed a petition Dec 21, 2016 under Neb. Rev. Stat. § 25-21,271 to change the child’s two middle names and surname; published notice twice in county paper.
- Hearing held Jan 24, 2017; court found statutory notice given, no objections filed, and ordered the name change.
- Margaret (non‑biological caregiver previously granted visitation/possessory conservatorship by a Texas court) had been deprived of custody/visitation by a Nebraska modification order entered Dec 16, 2016; she appealed that custody order on Jan 10, 2017 but did not obtain a stay.
- Margaret moved Feb 7, 2017 to vacate the Jan 24 name‑change order, arguing she was a “noncustodial parent” entitled to certified‑mail notice under § 25-21,271(2) and therefore had not received required notice.
- District court denied the motion to vacate; appeal followed. The Nebraska Supreme Court limited review to the denial of the motion to vacate (Margaret’s direct appeal of the Jan 24 order was untimely).
Issues
| Issue | Plaintiff's Argument (Margaret) | Defendant's Argument (Hannah) | Held |
|---|---|---|---|
| Timeliness of appeal of Jan 24 name‑change order | Margaret treated the Feb 7 motion to vacate as tolling appeal period | Hannah: notice period not tolled by such motion; appeal of Jan 24 was untimely | Appeal of Jan 24 order was untimely; Court limits review to denial of motion to vacate |
| Was Margaret a “noncustodial parent” under § 25-21,271(2) entitled to certified‑mail notice? | Margaret: Texas temporary conservatorship / in loco parentis status made her a noncustodial parent entitled to certified notice | Hannah: Margaret had no legal parental status; Nebraska Dec 16 order terminated her custody/visitation rights before the name petition; thus not a noncustodial parent | Margaret was not a "noncustodial parent" when notice was required; certified‑mail notice was not required |
| Whether district court abused discretion in denying motion to vacate (for lack of required notice) | Margaret: absence of certified‑mail notice to her made the name order voidable and warranted vacatur | Hannah: statutory notice by publication satisfied § 25-21,271(2) because Margaret was not a noncustodial parent | Court: no abuse of discretion; denial of motion to vacate affirmed |
Key Cases Cited
- Kibler v. Kibler, 287 Neb. 1027, 845 N.W.2d 585 (court’s inherent power to vacate or modify judgments during the term)
- State v. Hausmann, 277 Neb. 819, 765 N.W.2d 219 (motions invoking inherent power do not toll appeal period absent rule)
- Windham v. Griffin, 295 Neb. 279, 887 N.W.2d 710 (in loco parentis is not equivalent to legal parenthood for all purposes)
- Davis v. State, 297 Neb. 955, 902 N.W.2d 165 (statutory interpretation is reviewed de novo)
- Hall v. Hall, 176 Neb. 555, 126 N.W.2d 839 (appeal does not stay custody order absent supersedeas)
- 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 need for supersedeas to stay custody orders)