997 N.W.2d 84
Neb. Ct. App.2023Background
- Paw filed a petition and affidavit for an ex parte domestic abuse protection order alleging repeated abusive texts and threats from Christian; the court issued an ex parte protection order the same day.
- Christian (served in Iowa) returned the court’s Request for Hearing form; the court mailed an Order for Hearing on Jan 24 setting a show-cause hearing for Jan 30.
- Christian did not appear at the Jan 30 show-cause hearing; the court found evidence was adduced, affirmed the protection order, and entered a one-year order.
- Christian filed a motion to vacate asserting he was not served with the Order for Hearing until after the hearing (supported by an affidavit and a USPS Informed Delivery printout) and that the court lacked personal jurisdiction.
- At the March motion hearing the court sustained Paw’s hearsay objection to Christian’s affidavit (refusing to admit it), found Christian had waived or was subject to personal jurisdiction, and denied the motion to vacate.
- Christian appealed; the Court of Appeals affirmed the denial, holding the affidavit was hearsay and personal jurisdiction was either waived or supported by the record.
Issues
| Issue | Plaintiff's Argument (Paw) | Defendant's Argument (Christian) | Held |
|---|---|---|---|
| Personal jurisdiction — waiver by requesting a hearing | Paw: Christian’s Request for Hearing was a general appearance that waived objection to personal jurisdiction. | Christian: Requesting a hearing is ministerial under the statute and does not constitute waiver; he intended only to contest the ex parte order. | Court: Waiver — Request for Hearing constituted a general appearance; Christian waived personal-jurisdiction defense. |
| Personal jurisdiction — sufficiency of contacts | Paw: Even if not waived, Nebraska had personal jurisdiction based on contacts (texts received in Nebraska, custody/paternity proceedings, visits). | Christian: Paw’s petition alleged he was nonresident and failed to allege acts giving Nebraska jurisdiction. | Court: Even absent record of hearing evidence, presume evidence supported jurisdiction; Wheelbarger long-arm/minimum-contacts analysis satisfied. |
| Admissibility of Christian’s affidavit at motion to vacate | Paw: Objected — affidavit and attachments are hearsay and lack foundation; rules of evidence apply. | Christian: Affidavits are routinely used in motion practice and the evidentiary rules do not strictly apply to motions to vacate; affidavit should be admitted. | Court: Rules of evidence apply to motions to vacate; Christian’s affidavit was hearsay and objection properly sustained. |
| Timeliness of service / denial of motion to vacate | Christian: Showed he did not receive the Order for Hearing until after the hearing (USPS Informed Delivery printout) so denial of opportunity was improper. | Paw: Service by first-class mail was proper; Christian declined email notification and offered no admissible proof of late service. | Court: Christian produced no admissible evidence (hearsay excluded) or testimony; denial of motion to vacate was not an abuse of discretion. |
Key Cases Cited
- In re Estate of Marsh, 307 Neb. 893, 951 N.W.2d 486 (Neb. 2020) (general appearance by seeking court’s power waives personal-jurisdiction objection)
- Burns v. Burns, 293 Neb. 633, 879 N.W.2d 375 (Neb. 2016) (motions or other court applications can constitute general appearance)
- Wheelbarger v. Detroit Diesel, 313 Neb. 135, 983 N.W.2d 134 (Neb. 2023) (long-arm statute and minimum-contacts inquiry for nonresidents)
- TransCanada Keystone Pipeline v. Nicholas Family, 299 Neb. 276, 908 N.W.2d 60 (Neb. 2018) (affidavits are admissible in certain collateral or interlocutory matters)
- State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (Neb. 2008) (appellate review standard for hearsay rulings)
- Schaaf v. Schaaf, 312 Neb. 1, 978 N.W.2d 1 (Neb. 2022) (abuse-of-discretion standard for evidentiary rulings)