In re Change of Name of Whilde
298 Neb. 510
Neb.2017Background
- Child born Jan 2010; mother Hannah petitioned (Dec 21, 2016) under Neb. Rev. Stat. § 25-21,271 to change two middle names and the surname; notice was published for two weeks.
- At the Jan 24, 2017 hearing, Hannah testified (including that child was conceived via sperm donation), offered proof of publication, and court found statutory notice given and granted the name change.
- Margaret, who earlier had been designated a "Temporary Non-Parent Possessory Conservator" by a Texas court and later had an in-loco-parentis relationship recognized, had a Nebraska modification order (Dec 16, 2016) awarding Hannah sole legal and physical custody and extinguishing Margaret’s custody/visitation rights; Margaret appealed that custody order on Jan 10, 2017 without posting a stay/supersedeas bond.
- Margaret filed a motion to vacate the Jan 24 name-change order (Feb 7, 2017), arguing she was a "noncustodial parent" under § 25-21,271(2) and therefore entitled to certified-mail notice; she claimed she would have objected had she received notice.
- The district court denied the motion to vacate (ruling placed Feb 21; signed order Apr 20); Margaret’s initial appeal of the Jan 24 order was untimely, so the Supreme Court limited review to the order overruling the motion to vacate.
- Supreme Court concluded Margaret was not a "noncustodial parent" under § 25-21,271(2) at relevant times (due to Nebraska custody order effective during appeal), so certified-mail notice was not required and the district court did not abuse its discretion; judgment affirmed.
Issues
| Issue | Margaret's Argument | Hannah's Argument | Held |
|---|---|---|---|
| Whether Margaret timely appealed the Jan 24, 2017 name-change order | Margaret appealed but waited until Mar 20, 2017, so contends review is proper | Hannah argued the Jan 24 order appeal was untimely | Appeal of Jan 24 order untimely; Court limited review to denial of motion to vacate |
| Whether Margaret was a "noncustodial parent" under § 25-21,271(2) entitled to certified-mail notice | Margaret: her Texas conservatorship/in-loco-parentis status made her a noncustodial parent requiring certified-mail notice | Hannah: Margaret was not a parent—Nebraska court had awarded Hannah sole custody and extinguished Margaret’s rights before petition; thus no certified-mail notice due | Margaret was not a "noncustodial parent" at relevant times; certified-mail notice not required; motion to vacate properly denied |
Key Cases Cited
- Kibler v. Kibler, 287 Neb. 1027 (inherent power of court to vacate or modify judgments during same term)
- State v. Hausmann, 277 Neb. 819 (motion to invoke inherent power does not toll appeal period absent rule)
- Davis v. State, 297 Neb. 955 (statutory interpretation is a question of law reviewed de novo)
- Windham v. Griffin, 295 Neb. 279 (in loco parentis is temporary and not equivalent to legal parent for all purposes)
- Hall v. Hall, 176 Neb. 555 (appeal does not operate as stay absent supersedeas; non-superseded custody orders remain effective)
- Kula v. Kula, 180 Neb. 893 (same principle regarding effect of unsuperseded custody orders)
- Kricsfeld v. Kricsfeld, 8 Neb. App. 1 (same principle regarding effect of unsuperseded custody orders)