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Courtney v. Jimenez

Court of Appeals of Nebraska

September 26, 2017

Alexandra Courtney, appellant.
v.
Rene Jimenez, appellee.

         1. Judgments: Injunction: Appeal and Error. A protection order is analogous to an injunction. Accordingly, the grant or denial of a protection order is reviewed de novo on the record.

         2. Statutes: Appeal and Error. Statutory interpretation presents a question of law, which an appellate court resolves independently of the trial court.

         3. Moot Question: Jurisdiction: Appeal and Error. Because mootness is a justiciability doctrine that operates to prevent courts from exercising jurisdiction, an appellate court reviews mootness determinations under the same standard of review as other jurisdictional questions.

         4. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional question does not involve a factual dispute, its determination is a matter of law, which requires an appellate court to reach a conclusion independent of the decisions made by the lower courts.

         5. Moot Question: Words and Phrases. A case becomes moot when the issues initially presented in litigation cease to exist or the litigants lack a legally cognizable interest in the outcome of litigation.

         6. Moot Question. As a general rule, a moot case is subject to summary dismissal.

         7. Moot Question: Appeal and Error. Under certain circumstances, an appellate court may entertain the issues presented by a moot case when the claims presented involve a matter of great public interest or when other rights or liabilities may be affected by the case's determination.

         8. ___: ___. When determining whether a case involves a matter of public interest, an appellate court considers (1) the public or private nature of the question presented, (2) the desirability of an authoritative adjudication for future guidance of public officials, and (3) the likelihood of future recurrence of the same or a similar problem.

         [25 Neb.App. 76] 9. Motions to Vacate: Time. A court has inherent power to vacate or modify its own judgments at any time during the term at which those judgments are pronounced, and such power exists entirely independent of any statute.

         10. Judgments: Statutes: Time. The 5-day period set forth in Neb. Rev. Stat. § 42-925(1) (Reissue 2016) is not central to the purpose of the domestic abuse protection order statutes; once the ex parte protection order has been granted, the fundamental purpose of the statute has been satisfied.

         11. Pleadings: Time. The 5-day period to file a show cause hearing request as set forth in Neb. Rev. Stat. § 42-925(1) (Reissue 2016) is directory and not mandatory. Accordingly, failing to file a request for a show cause hearing within that 5-day period does not preclude the later filing of a motion to bring the matter back before the court, including the filing of a motion to vacate an ex parte order.

         Appeal from the District Court for Douglas County: Leigh Ann Retelsdorf, Judge. Affirmed.

          Jeff T. Courtney, PC, L.L.O., for appellant.

          Hugh I. Abrahamson, of Abrahamson Law Office, for appellee.

          Moore, Chief Judge, and Pirtle and Bishop, Judges.

          Bishop, Judge.

         INTRODUCTION

         An ex parte domestic abuse protection order was entered by the Douglas County District Court in favor of Alexandra Courtney and against Rene Jimenez. Jimenez did not request a hearing to challenge the ex parte order within 5 days as set forth in Neb. Rev. Stat. § 42-925(1) (Reissue 2016); however, Jimenez subsequently filed a motion to vacate the order. Courtney appeals from the district court's order vacating the ex parte order. We affirm.

         BACKGROUND

         Courtney filed a petition and affidavit for an ex parte domestic abuse protection order on May 6, 2016. The petition [25 Neb.App. 77] indicates that Courtney and Jimenez have a 3-year-old child together, that a "Paternity/Custody" case was pending between them, and that another protection order against Jimenez (in favor of Courtney) was set to expire on May 8. Where the form requested the facts of the most recent incidents of domestic abuse, Courtney described the following incidents: First, she alleged that on April 29, 2016, Jimenez sent her a text message "about our daughter and death, " which she took as a death threat to her (Courtney). In a second incident, on October 16, 2015, Jimenez told a mediator that "the protection order would be over soon [and] 'he'll be able to handle this himself" Courtney said that "[t]his made me very afraid because of the way I know that he handles things." Courtney next listed as an incident of domestic abuse, "See previous affidavit submitted on 5/7/2015." Finally, Courtney alleged that on May 6, 2016, after she spoke to the county attorney about Jimenez' April 29 text message, she was informed that the text message had become part of a '"warrant case'"; she thought this would "further provoke" Jimenez.

         The district court entered an ex parte domestic abuse protection order against ...


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