1 N.W.3d 467
Neb.2024Background
- Paw K. filed for a domestic abuse protection order against Christian G., the father of her child, listing Christian's Iowa address.
- The district court issued an ex parte protection order; Christian responded by filing a request for a hearing, but did not appear when the hearing occurred.
- Christian filed a motion to vacate the order, claiming lack of personal jurisdiction and that he received hearing notice after the hearing date.
- Christian submitted an affidavit (with an attached USPS email) to support his claim of late notice; Paw objected on hearsay and foundational grounds.
- The district court overruled the motion to vacate, and the Nebraska Court of Appeals affirmed, finding personal jurisdiction was conferred by Christian's request for a hearing and that parts of the affidavit were inadmissible.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Personal jurisdiction | Christian waived by participating | No waiver; merely followed court procedure | Request for hearing constituted general appearance |
| Service/Notice | Notice effective upon mailing | Did not receive hearing notice in time | Notice presumed effective when mailed |
| Admissibility of affidavit | Affidavit is hearsay/inadmissible | Affidavit always admissible on motions | Affidavit partially inadmissible, no reversible error |
| Forfeiture for lack of record | Forfeited issue by no hearing transcript | Not relevant to personal jurisdiction | Did not need to address forfeiture, jurisdiction proper |
Key Cases Cited
- In re Estate of Marsh, 307 Neb. 893 (general appearance confers personal jurisdiction)
- Applied Underwriters v. Oceanside Laundry, 300 Neb. 333 (filing seeking court action constitutes general appearance)
- Cullinane v. Beverly Enters. - Neb., 300 Neb. 210 (affidavits admissible for certain preliminary matters)
- TransCanada Keystone Pipeline v. Nicholas Family, 299 Neb. 276 (affidavits may contain hearsay for collateral matters)
- Arens v. NEBCO, Inc., 291 Neb. 834 (proponent must segregate admissible/inadmissible portions to avoid exclusion)
- Williams v. Gould, Inc., 232 Neb. 862 (affidavits may be used on collateral motions to jurisdiction)