State v. Bartel , 308 Neb. 169 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/09/2021 12:09 AM CDT
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. BARTEL
Cite as 308 Neb. 169State of Nebraska, appellee, v.
Marc J. Bartel, appellant.
___ N.W.2d ___
Filed January 15, 2021. No. S-20-148.
1. Motions for New Trial: Appeal and Error. The standard of review
for a trial court’s denial of a motion for new trial after an evidentiary
hearing is whether the trial court abused its discretion in denying
the motion.
2. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable, or when its action is clearly against justice, conscience, reason,
or evidence.
3. Criminal Law: Motions for New Trial: Statutes. In Nebraska, limita-
tions on the grounds and timing of a criminal defendant’s motion for
new trial are controlled by statute.
4. Pleadings: Statutes: Time. In order for a motion to have any effect, it
must comply with statutory time limitations.
5. Motions for New Trial: Statutes: Time: Appeal and Error. An appel-
late court does not consider a motion for new trial to the extent that its
grounds fail to conform to the statutory requirements of timeliness.
6. Motions for New Trial: Time. The time limitation for filing a motion
for new trial runs from the date on which a verdict is rendered, not the
date of sentencing.
7. Motions for New Trial: Words and Phrases. “Unavoidably prevented”
refers to circumstances beyond the control of the party filing the motion
for new trial.
8. Attorney and Client. The law requires diligence on the part of clients
and their attorneys, and the mere neglect of either will not entitle a party
to relief on that ground.
9. Criminal Law: Motions for New Trial: Evidence: Proof. Neb. Rev.
Stat. § 29-2101(5) (Reissue 2016) imposes on defendants a two-
prong burden of proof: First, a criminal defendant must show that the
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STATE v. BARTEL
Cite as 308 Neb. 169evidence at issue has been newly discovered since trial, meaning that
the evidence could not, with reasonable diligence, have been discovered
and produced at trial. Second, the defendant also must show that the
evidence at issue is so substantial that with it, a different verdict would
probably have been reached at trial.
10. Words and Phrases. Whereas an object is new at the moment that it
begins to exist, it is newly discovered once it is revealed or found out to
have previously been in existence.
11. Trial: Evidence: Words and Phrases. Evidence is newly discovered if
it existed at the time of trial but has been uncovered since the trial.
12. New Trial: Evidence. Evidence newly created after trial does not satisfy
Neb. Rev. Stat. § 29-2101(5) (Reissue 2016).
13. ____: ____. Evidence of facts happening after trial ordinarily cannot be
considered as newly discovered evidence on which to justify the grant-
ing of a new trial.
14. ____: ____. A new trial will not be granted on the ground of newly
discovered evidence where it appears that such evidence was not avail-
able at the time of the trial, but, rather, the result of changed condi-
tions since.
15. New Trial: Evidence: Verdicts. In any but a very extraordinary case in
which an utter failure of justice will unequivocally result, a verdict on
the evidence at the trial will not be set aside and a new trial granted on
the basis of evidence of facts occurring subsequent to such trial.
16. New Trial: Evidence: Witnesses. To warrant a new trial, newly discov-
ered evidence must involve something other than the credibility of the
witness who testified at trial.
17. Divorce. Domestic relations cases are civil cases, litigated between
individuals.
18. ____. Domestic relations litigation often involves considerable negotia-
tion between parties about the terms of divorce.
19. ____. Assuming the parties’ negotiation in a domestic relations case was
conducted fairly and reasonably, courts give considerable weight to the
terms agreed upon by the parties.
20. Motions to Dismiss: Motions to Vacate. A nonparty to a case has no
authority to ask the court to dismiss or vacate it.
21. Stipulations. A legal conclusion is not the proper subject of a
stipulation.
22. Words and Phrases. Void ab initio means null from the beginning.
23. Judgments: Words and Phrases. An order is void ab initio, rather
than merely voidable, if the character of the judgment was not such as
the court had the power to render or because the mode of procedure
employed by the court was such as it might not lawfully adopt.
24. Fraud: Proof. The standard for showing fraud is high.
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STATE v. BARTEL
Cite as 308 Neb. 169Appeal from the District Court for Douglas County, Marlon
A. Polk, Judge, on appeal thereto from the County Court
for Douglas County, Darryl R. Lowe, Judge. Judgment of
District Court affirmed.
Michael J. Wilson, of Berry Law Firm, for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
I. INTRODUCTION
In October 2016, a jury found Marc J. Bartel guilty of vio-
lating a domestic abuse protection order. Bartel filed a motion
for new trial based on a stipulated order, entered in June 2017
in his separate domestic case, that purported to render the
original protection order “void ab initio.”
The county court denied Bartel’s motion, and the district
court found no abuse of discretion. We affirm.
II. FACTS
1. Domestic Abuse
Protection Order
In 2015, Bartel and his then-wife, M.B., were experiencing
marital problems. Pursuant to Neb. Rev. Stat. § 42-924 (Reissue
2016), M.B. petitioned for a domestic abuse protection order
against Bartel. On September 16, after hearing oral arguments
and receiving evidence, the district court for Douglas County
made a finding that “a credible threat was made [by Bartel]
that would put [M.B.] in fear of bodily injury.” Based on these
findings, the district court issued a protection order, effective
for “one year from the date of” the order, “unless modified by
order of the court.”
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STATE v. BARTEL
Cite as 308 Neb. 169Under the protection order, Bartel was “enjoined and pro-
hibited from imposing any restraint upon the person or liberty
of [M.B.]”; “enjoined and prohibited from threatening, assault-
ing, molesting, attacking, or otherwise disturbing the peace of
[M.B.]”; “enjoined and prohibited from telephoning, contact-
ing, or otherwise communicating with [M.B.]”; and “ordered to
stay away from” M.B.’s home and work addresses.
Within the protection order, the district court also made spe-
cific allowances for Bartel to continue visitations with his two
daughters at least 1 day every week. The district court ordered:
“The children will be exchanged at [a church near M.B.’s
house]. [Bartel is] to remain in vehicle except to assist children
from car seats.” Despite his general prohibition against hav-
ing any contact with M.B., Bartel was permitted “to notify her
by text message that he [is] unable to pick up [the] children”
for visitation.
At the September 16, 2015, hearing on M.B.’s petition for
a protection order, the district court specifically asked Bartel
whether he understood that “violation of this order is an
arrestable offense.” Bartel responded, “Yes.”
2. Conviction for Violation
of Protection Order
Saturday, October 31, 2015, was scheduled to be a regular
visitation day between Bartel and his daughters. Prior to pick-
ing up the girls that morning, Bartel texted M.B. and asked if
she would agree to let him pick up their daughters 30 minutes
earlier than usual. Bartel wished to take the daughters with him
to a funeral in a town an hour away.
M.B. agreed, but asked that on this day only Bartel park
on the street in front of her house to pick up the girls. M.B.
testified that because the pickup time was earlier than usual,
she believed it would be easier to ready the girls for their day
if she did not need to drive them to the court’s ordered site of
dropoff at the church.
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STATE v. BARTEL
Cite as 308 Neb. 169Just after the agreed-upon time, Bartel arrived in front of
M.B.’s home. He texted M.B. that he was there and remained
in his car. The girls emerged from the house, and Bartel exited
his car to help load them into car seats.
Bartel became angry because he believed that his daughters
appeared “disheveled.” He had purchased dresses and tights
for them to wear to the funeral, but they were wearing casual
shirts and leggings instead. M.B. testified that she had dressed
the girls in leggings to make them comfortable during the
drive and that their dresses were packed in a sack carried by
one of the girls. Taking the girls’ sack and ordering the girls
back inside the house to change, Bartel marched behind them,
toward M.B.’s front door.
M.B., still standing on her front stoop, became concerned
when she observed Bartel striding toward her house “like a
freight train.” M.B. reminded Bartel that he was prohibited by
the protection order from approaching her house. He responded
that he was coming in to have the girls change their clothes.
Alarmed, M.B. ushered her daughters inside the house and
slammed the front door shut, locking it with a deadbolt.
M.B. and Bartel each called the police. M.B. testified at
trial that she had been afraid for her life and that until the
police arrived several minutes later, she held a baseball bat for
protection. M.B.’s mother, who was visiting from out of state,
gathered the girls in a back bedroom to keep them away from
the altercation.
Bartel continuously knocked at M.B.’s front door for several
minutes, cursing. He then returned to his car and began pacing
alongside it until police arrived.
Two Omaha police officers arrived on the scene. They
separately spoke with M.B. and Bartel. One of the officers then
searched police records and discovered the protection order
requiring Bartel to stay away from M.B.’s home address. The
officers arrested Bartel for violation of the protection order and
took him into police custody.
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STATE v. BARTEL
Cite as 308 Neb. 169On October 7, 2016, at a trial in the county court for
Douglas County, M.B. testified as a witness against Bartel. She
averred that the protection order had been in effect and that
Bartel had violated it on October 31, 2015. A jury convicted
Bartel of having knowingly violated the protection order, a
Class I misdemeanor. 1 The county court later sentenced Bartel
to 12 months’ probation, a $250 fine, and a suspended sentence
of 2 days in jail.
3. Motion for New Trial
In June 2017, while his direct appeal was still pending,
Bartel moved to dismiss the appeal and filed a motion for new
trial. 2 He requested that the county court vacate his conviction
because of an order entered in another case.
In M.B. and Bartel’s separate domestic relations case, on
June 5, 2017, the district court for Douglas County entered an
order holding that its “September 16, 2015[,] Protection Order
shall be deemed void ab initio, and shall be considered void
from the date of entry of this Order.” The order stated that “the
parties acknowledge and specifically intend and anticipate that
this Order will vacate or void [Bartel’s] conviction of violating
the Protection Order.” At that time, M.B. also agreed not to
object if Bartel moved for new trial in county court after his
conviction for violation of the protection order.
In January 2018, at the county court’s hearing on Bartel’s
motion for new trial, Bartel offered the June 2017 order and
asserted that it was newly discovered evidence relevant to his
defense at trial. He also alleged that M.B.’s stipulation to the
district court not to object to a motion for new trial implied that
she had perpetrated a fraud against the county court by testify-
ing for the State at trial. Finally, Bartel contended that because
his conviction was premised on a protection order that was
now void ab initio, his conviction was an error of law.
1
See § 42-924(4).
2
See Neb. Rev. Stat. § 29-2103 (Reissue 2016).
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STATE v. BARTEL
Cite as 308 Neb. 169The county court orally issued an order denying Bartel’s
motion for new trial. Sitting as an intermediate appellate
court, 3 the district court for Douglas County affirmed, reason-
ing that the June 2017 order in the domestic relations case
reflected the parties’ negotiations after trial based on then-
existing circumstances and was not newly discovered evidence
relevant to Bartel’s criminal trial. The district court further
found no error in the jury’s conviction or the county court’s
sentence and denied Bartel’s motion for new trial.
Bartel filed a timely notice of appeal, and we moved the
appeal to our docket. 4
III. ASSIGNMENT OF ERROR
On appeal, Bartel assigns only one error: that it was error
for the district court to uphold the county court’s denial of
Bartel’s motion for new trial in the 2016 criminal case, con-
sidering the stipulated June 2017 order in his domestic rela-
tions case.
IV. STANDARD OF REVIEW
[1,2] The standard of review for a trial court’s denial of a
motion for new trial after an evidentiary hearing is whether
the trial court abused its discretion in denying the motion. 5
An abuse of discretion occurs when a trial court’s decision
is based upon reasons that are untenable or unreasonable, or
when its action is clearly against justice, conscience, reason,
or evidence. 6
V. ANALYSIS
More than 8 months after he was convicted in 2016 of
violating a domestic abuse protection order, Bartel filed a
3
See Neb. Rev. Stat. § 25-2733 (Reissue 2016).
4
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
5
See State v. Price, 306 Neb. 38, 944 N.W.2d 279 (2020).
6
See id.- 176 -
Nebraska Supreme Court Advance Sheets
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STATE v. BARTEL
Cite as 308 Neb. 169motion for new trial based on the June 2017 order, which
purported to render the protection order void ab initio. Bartel
alleged that the stipulated order had effectively turned back
the clock 8 months to nullify the protection order and, with it,
the conviction.
Viewing that passage of time differently in the light of our
statutes, the State argues that Bartel’s grounds for new trial
are both too little and too late to warrant a new trial following
Bartel’s conviction. We agree.
[3] In Nebraska, limitations on the grounds and timing of
a criminal defendant’s motion for new trial are controlled by
statute. 7 The grounds on which a trial court may order a new
trial after a criminal conviction has been entered are specified
in Neb. Rev. Stat. § 29-2101 (Reissue 2016). 8
Bartel, in support of his motion for new trial before the
county court, offered the June 2017 order from his domestic
relations case and cited each of three grounds listed within
§ 29-2101. He argued first that a new trial was warranted under
§ 29-2101(1) because M.B.’s stipulation to the June 2017 order
implied that she had perpetrated a fraud against the district
court and county court during her prior testimony. Second,
Bartel contended that because his conviction was premised on
a protection order that was now void ab initio according to
the June 2017 order, his conviction was an error of law under
§ 29-2101(4). Third, Bartel alleged that under § 29-2101(5),
the June 2017 order was newly discovered evidence that would
have been relevant to his defense at trial.
The county court denied Bartel’s motion for new trial,
and the district court affirmed. Bartel assigns that the district
court’s affirmance was in error because the county court had
abused its discretion in denying his motion for new trial. We
find no such abuse of discretion and affirm the decision of
7
See State v. Avina-Murillo, 301 Neb. 185, 917 N.W.2d 865 (2018).
8
See id.- 177 -
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STATE v. BARTEL
Cite as 308 Neb. 169the district court below to uphold the county court’s denial of
Bartel’s motion for new trial.
1. Timeliness of Bartel’s
Motion for New Trial
[4,5] We begin by considering whether Bartel’s motion for
new trial was timely. In order for a motion to have any effect,
it must comply with statutory time limitations. 9 An appellate
court does not consider a motion for new trial to the extent
that its grounds fail to conform to the statutory requirements
of timeliness. 10 The time limitations for motions for new trial
are set forth in § 29-2103. 11
(a) 10-Day Limit
[6] The time limitation for filing a motion for new trial runs
from the date on which a verdict is rendered, not the date of
sentencing. 12 Thus, under § 29-2103(3), for Bartel’s arguments
for a new trial based on § 29-2101(1) and (4) to have any
effect, they needed to be filed within 10 days after the jury ren-
dered its verdict in his criminal case on October 7, 2016. Yet
Bartel did not file a motion for new trial until June 23, 2017,
more than 8 months after the jury’s verdict.
[7,8] Further, Bartel has failed to allege, nor does the
record show, that timely filing was somehow unavoidably
prevented for 8 months. “‘[U]navoidably prevented’ as used
in § 29-2103(3) refers to circumstances beyond the control of
the party filing the motion for new trial.” 13 The law requires
diligence on the part of clients and their attorneys, and the
mere neglect of either will not entitle a party to relief on that
9
See id.
10
See id.
11
Id.
12
See id. See, also, State v. Lacy, 195 Neb. 299, 237 N.W.2d 650 (1976).
13
Avina-Murillo, supra note 7, 301 Neb. at 195, 917 N.W.2d at 873.
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STATE v. BARTEL
Cite as 308 Neb. 169ground. 14 Because Bartel’s motion for new trial was untimely
without justification, it was ineffective insofar as it rested on
the first two grounds alleged under § 29-2101(1) and (4). We
thus do not consider those grounds in our analysis below.
(b) Within Reasonable Time
After Discovery
Bartel’s third ground for new trial was that under
§ 29-2101(5), he had newly discovered evidence that would
have been relevant to his defense at trial. Like the first two
grounds for a new trial alleged by Bartel, this ground was
also filed 8 months after the jury rendered a guilty verdict in
Bartel’s criminal case. But under § 29-2103(4), a motion based
on newly discovered evidence is timely so long as it was filed
within a reasonable time, generally not to exceed 5 years, after
discovery of that new evidence. 15
Because we conclude below that the evidence at issue was
not newly discovered, we need not determine here whether
Bartel’s motion, based on the ground specified in § 29-2101(5),
was timely filed.
2. Merit of Bartel’s Motion for
New Trial Based on Newly
Discovered Evidence
Bartel assigns that the district court erred in upholding
the county court’s denial of his motion for new trial under
§ 29-2101(5). Under that statute, a criminal defendant may be
granted a new trial if his or her substantial rights were materi-
ally affected by “newly discovered evidence material for the
defendant which he or she could not with reasonable diligence
have discovered and produced at the trial.” 16
14
Id.
15
See State v. Cross, 297 Neb. 154, 900 N.W.2d 1 (2017).
16
See § 29-2101(5). See, also, Neb. Rev. Stat. § 29-2102(3) (Reissue 2016).
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STATE v. BARTEL
Cite as 308 Neb. 169[9] In our opinions interpreting § 29-2101(5), we have
found it to impose on defendants a two-prong burden of
proof: First, a criminal defendant must show that the evidence
at issue has been newly discovered since trial, meaning that
the evidence could not, with reasonable diligence, have been
discovered and produced at trial. 17 Second, the defendant also
must show that the evidence at issue is so substantial that
with it, a different verdict would probably have been reached
at trial. 18
We turn to the first prong. Bartel contends that the evidence
at issue—the June 2017 order in his domestic relations case—
was newly discovered evidence. He claims that because the
order was not entered until 8 months after the jury announced
a guilty verdict following his county court trial, he could not
possibly have discovered it and produced it at trial, no matter
how much diligence he would have exercised.
The State responds that our decision in State v. Jackson 19
counsels against Bartel’s position. In Jackson, we contrasted
newly discovered evidence with newly available evidence.
The issue was whether the testimony of a codefendant who
had refused to testify at the defendant’s criminal trial but then
promised after trial to provide exculpatory testimony warranted
a new trial. We held that it did not because there was nothing
about the codefendant’s exculpatory testimony that had been
newly discovered since trial. What had changed since trial were
the codefendant’s circumstances and corresponding willingness
to testify. Such testimony was thus not newly discovered, but
“newly available evidence which does not provide a basis for
the granting of a new trial.” 20
17
See State v. Krannawitter, 305 Neb. 66, 939 N.W.2d 335 (2020).
18
Id.19
State v. Jackson, 264 Neb. 420, 648 N.W.2d 282 (2002).
20
Id. at 433, 648 N.W.2d at 293 (emphasis omitted).
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STATE v. BARTEL
Cite as 308 Neb. 169Unlike in Jackson, the evidence at issue here, the June 2017
order, did not exist at the time of Bartel’s trial and conviction.
It had not yet been created. After Bartel’s trial in county court,
the district court’s 2017 order did not become newly available;
it was altogether new. But new is not the same as “newly dis-
covered” for purposes of § 29-2101(5).
[10-12] Whereas an object is new at the moment that it
begins to exist, it is newly discovered once it is “revealed” or
“found out” to have previously been in existence. 21 We have
held before that evidence is newly discovered if it existed at
the time of trial but has been “uncovered since the trial.” 22
Implicit in that holding is that evidence must have existed at
trial for it to be uncovered after the trial. Evidence newly cre-
ated after trial does not satisfy § 29-2101(5).
[13-15] This was also our interpretation in a closely analo-
gous context. The Nebraska civil procedure rules similarly
allow for a new trial to be granted based on “newly discovered
evidence.” 23 As we have clarified about § 25-1142, however:
“‘[E]vidence of facts happening after trial ordinarily
cannot be considered as newly discovered evidence on
which to justify the granting of a new trial.’ [Citation
omitted.] ‘A new trial will not be granted on the ground
of newly discovered evidence where it appears that such
evidence was not available at the time of the trial, but
rather the result of changed conditions since.’ [Citation
omitted.] ‘In any but a very extraordinary case in which
an utter failure of justice will unequivocally result, a
verdict on the evidence at the trial will not be set aside
21
Compare “New,” Oxford English Dictionary Online, http://oed.com/view/
Entry/126504 (last visited Jan. 9, 2021), with “Discovered,” Oxford
English Dictionary Online, http://oed.com/view/Entry/54010 (last visited
Jan. 9, 2021).
22
See Jackson, supra note 19, 264 Neb. at 432, 648 N.W.2d at 293.
23
See Neb. Rev. Stat. § 25-1142(7) (Reissue 2016).
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Cite as 308 Neb. 169and a new trial granted on the basis of evidence of facts
occurring subsequent to such trial.’ . . .” 24
We note that motions for new trial are reviewed against dif-
ferent standards depending on whether they follow a civil or
a criminal trial. 25 Still, we find the above language instructive
here, given the similarity of language between the statutory
grounds for a new trial based on newly discovered evidence in
the civil and criminal contexts. 26
(a) June 2017 Order in Domestic
Relations Case
In support of his motion for new trial, Bartel relied on a June
2017 order from the district court entered in his domestic rela-
tions case more than 8 months after the criminal trial. In that
order, the district court noted that both M.B. and Bartel had
stipulated that the 2015 protection order should be rendered
“void as of the date of entry.”
According to the June 2017 order, M.B. understood that
“it [was] anticipated that [Bartel’s] conviction [would] be dis-
missed and/or vacated with prejudice.” Further, the June 2017
order stated that M.B. had agreed not to object if Bartel filed a
motion for new trial in his criminal case. The June 2017 order
then asserted that “the . . . 2015 Protection Order shall be
deemed void ab initio, and shall be considered void from the
date of entry of this Order.”
We find nothing on the face of this June 2017 order that
would make it newly discovered evidence under § 29-2101(5)
concerning facts that existed at Bartel’s criminal trial. To
24
State ex rel. Douglas v. Bible Baptist Church, 218 Neb. 307, 309, 353
N.W.2d 20, 22 (1984) (quoting Wagner v. Loup River Public Power
District, 150 Neb. 7, 33 N.W.2d 300 (1948)). Accord In Interest of S.H.,
L.H., and A.H., 225 Neb. 452, 406 N.W.2d 112 (1987).
25
See Hubbard v. State, 72 Neb. 62, 100 N.W. 153 (1904). See, also, e.g.,
State v. Torrence, 192 Neb. 720, 224 N.W.2d 177 (1974), disapproved on
other grounds, State v. Harney, 237 Neb. 512, 466 N.W.2d 540 (1991).
26
Compare § 25-1142(7), with § 29-2101(5).
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Cite as 308 Neb. 169the contrary, the order did not exist until 8 months after trial.
At that point, it was newly created by the district court, pursu-
ant at least in part to M.B.’s and Bartel’s stipulation made after
the county court’s trial.
At oral argument, Bartel conceded that the June 2017 order
itself did not exist until after his criminal trial. Yet he con-
tended that the order still had legal effect upon the facts that
existed at trial and, thus, that the order was newly discovered
evidence under § 29-2101(5). According to Bartel, the order
implied that M.B. had fraudulently testified to the district court
in support of the protection order and to the county court in
support of a conviction. Next, Bartel asserted that the June
2017 order rendered his protection order retroactively ineffec-
tive prior to trial. We disagree.
(b) M.B.’s Testimony
[16] As an initial matter, testimony recanted after trial is
notoriously unreliable. 27 We have thus long held that to warrant
a new trial, newly discovered evidence must involve something
other than the credibility of the witness who testified at trial. 28
Even if M.B.’s stipulation to the June 2017 order did cast doubt
on her credibility by undermining her prior testimony, that
would not warrant a new trial under § 29-2101(5).
[17-19] Moreover, Bartel has failed to show that M.B.’s
stipulation actually undermined her prior testimony. Domestic
relations cases are civil cases, litigated between individ­
uals. 29 Such litigation often involves considerable negotia-
tion between parties about the terms of divorce. 30 Assuming
the parties’ negotiation was conducted fairly and reasonably,
27
See State v. Lotter, 278 Neb. 466, 771 N.W.2d 551 (2009). See, also,
Jackson, supra note 19.
28
See State v. Oliveira-Coutinho, 291 Neb. 294, 865 N.W.2d 740 (2015).
29
See Marshall v. Marshall, 298 Neb. 1, 902 N.W.2d 223 (2017).
30
See, e.g., Bayne v. Bayne, 302 Neb. 858, 925 N.W.2d 687 (2019).
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Cite as 308 Neb. 169courts generally give considerable weight to the terms agreed
upon by the parties. 31
[20,21] That appears to have happened here. Over the course
of negotiations in M.B. and Bartel’s domestic relations case, it
appears M.B. accepted that Bartel’s criminal conviction might
be dismissed or vacated. Because she was not the party pros-
ecuting Bartel’s criminal case, M.B. had no authority, even if
she had been so inclined, to herself ask the county court to
dismiss or vacate it. 32 Instead, in the domestic relations case to
which she was a party, M.B. stipulated that she understood that
the county court’s criminal case might be dismissed or vacated.
We note that to the extent M.B. characterized the protection
order as void ab initio, that characterization was a legal con-
clusion and thus not the proper subject of a stipulation. 33 The
district court documented M.B.’s stipulation, as proposed, in
its 2017 order.
Absent from the June 2017 order, however, is evidence that
M.B. was recanting her prior testimony. She did not assert that
her testimony to the county court or district court had been
false or misconstrued. The district court made no findings that
M.B.’s prior statements were untrue or fraudulent.
Bartel asserts that M.B.’s stipulation “amounts to an admis-
sion by [M.B.] that she misled the jury when she testified that
the protection orders were based on valid concerns and that
she ‘fe[lt] the need to seek a domestic abuse protection order’
against Bartel.” 34 But M.B. did not stipulate to having misled
the jury about her fear of Bartel that prompted the protection
order. Instead, her stipulation appears to reflect her view of
the facts that occurred after Bartel’s criminal trial and over
31
See id.32
See HBI, L.L.C. v. Barnette, 305 Neb. 457, 941 N.W.2d 158 (2020).
33
See Vitalix, Inc. v. Box Butte Cty. Bd. of Equal., 280 Neb. 186, 786 N.W.2d
326 (2010).
34
Brief for appellant at 14.
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Cite as 308 Neb. 169the course of negotiations in the domestic relations case. It
might well have been true that in 2017, M.B. was no longer as
afraid of Bartel as she had been when she sought the protection
order in 2015. Still, that would not change the facts that existed
in 2015 and at trial. We find no evidence that M.B. explicitly
refuted or undermined her prior testimony.
That M.B. stipulated to the June 2017 order is not newly
discovered evidence under § 29-2101(5). We reject Bartel’s
argument to the contrary.
(c) Void ab Initio
[22,23] We also find no basis for Bartel’s argument that the
June 2017 order rendered his protection order retroactively
ineffective at the time of trial. Void ab initio, the term used in
the June 2017 order, means “[n]ull from the beginning.” 35 As
courts in other jurisdictions have stated, “[a]n order is void
ab initio, rather than merely voidable, if ‘the character of the
judgment was not such as the court had the power to render,
or because the mode of procedure employed by the court was
such as it might not lawfully adopt.’” 36
Similarly to those other jurisdictions, we have applied the
doctrine of void ab initio sparingly, such as when a court’s
order was entered without personal or subject matter jurisdic-
tion 37 or absent proper procedures. 38 Here, Bartel provides
no reasoning, nor do we find, that the district court in 2015
35
Black’s Law Dictionary 1885 (11th ed. 2019). See, also, Salem Grain Co.
v. City of Falls City, 302 Neb. 548, 924 N.W.2d 678 (2019).
36
Collins v. Shepherd, 274 Va. 390, 402, 649 S.E.2d 672, 678 (2007). See,
also, Reid v. Indep. Union of All Workers, 200 Minn. 599, 275 N.W. 300(1937); Hampshire v. Woolley, 72 Utah 106, 269 P. 135 (1928), overruled
in part on other grounds, In re Rice’s Estate, 111 Utah 428, 182 P.2d 111(1947); 56 Am. Jur. 2d Motions, Rules, and Orders § 47 (2020).
37
See, e.g., Sid Dillon Chevrolet v. Sullivan, 251 Neb. 722, 559 N.W.2d 740(1997).
38
See, e.g., Big John’s Billiards v. Balka, 254 Neb. 528, 577 N.W.2d 294(1998).
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Cite as 308 Neb. 169lacked jurisdiction or failed to follow proper procedures when
it entered the protection order.
Bartel instead claims that the district court’s authority to
render its protection order void ab initio came from Neb.
Rev. Stat. § 25-2001(4) (Reissue 2016). Under that statute,
“[a] district court may vacate or modify its own judgments
or orders after the term at which such judgments or orders
were made . . . for fraud practiced by the successful party in
obtaining the judgment or order.” 39 According to Bartel, the
­district court in 2017 had authority under § 25-2001(4) to ren-
der its protection order void ab initio because “the protection
order was obtained by [M.B.’s] fraud,” practiced in her petition
to the district court to procure a protection order. 40
But even assuming, arguendo, that § 25-2001 would autho-
rize a district court to go back in time to nullify its protection
order in the way that Bartel suggests, we find that the statutory
requirements for such action were not met here. First, a district
court’s authority under the law to vacate an order after the
term in which the order was made may be invoked only by “a
motion filed within six months after the entry of the judgment
or order.” 41 Because the district court entered the protection
order on September 16, 2015, the district court’s term ended at
the end of 2015. 42
Yet after the district court entered the protection order, it
was not until almost 15 months later, on January 4, 2017, that
Bartel filed a motion seeking to vacate the protection order
pursuant to the district court’s authority under § 25-2001. On
May 26, 2017, Bartel again filed a motion to invoke the district
court’s authority under § 25-2001. Neither motion was filed
within the 6 months required under § 25-2001(1).
39
§ 25-2001.
40
Brief for appellant at 17.
41
§ 25-2001(1).
42
See Eicher v. Mid America Fin. Invest. Corp., 275 Neb. 462, 748 N.W.2d
1 (2008).
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Cite as 308 Neb. 169We note that before its expiration, the protection order
appears to have been timely withdrawn pursuant to M.B.’s
motion filed on December 17, 2015. However, that withdrawal
did not invoke the district court’s authority under § 25-2001.
The district court’s “Order of Dismissal” entered on January 6,
2016, did not find that the protection order should never have
existed, nor that the protection order was vacated pursuant to
the district court’s § 25-2001 authority. Instead, it appears that
the district court withdrew the protection order from having
future effect pursuant to § 42-924. But because no motion to
vacate the protection order pursuant to § 25-2001 was filed
within 6 months after the protection order’s issuance, we find
no authority under § 25-2001(4) for the district court to have
vacated the protection order with retroactive effect.
[24] Second, even if a motion had been filed within 6
months, we question whether the district court would have
had a lawful basis for exercising its authority to vacate the
protection order under § 25-2001(4). The standard for show-
ing fraud under that statute is high. 43 And, as analyzed above,
the June 2017 order does not definitively state that M.B.
wished to recant her prior testimony. Bartel does not iden-
tify even a single fact from M.B.’s prior testimony that she
explicitly refuted or undermined. The district court made no
findings of fraud, nor do we find evidence of fraud in the
record. Without statutory authority, the June 2017 order could
have had no legal effect upon the protection order entered in
September 2015.
At most, then, the district court’s use of the term “void ab
initio” in the June 2017 order was a finding of fact about a
term that M.B. and Bartel had negotiated in their domestic
relations case. But that term could itself have no legal effect. 44
43
See State on behalf of B.M. v. Brian F., 288 Neb. 106, 846 N.W.2d 257(2014).
44
See Vitalix, Inc., supra note 33.
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Cite as 308 Neb. 169And, for purposes of the county court’s trial, it was not newly
discovered evidence under § 29-2101(5).
The district court did not err in upholding the county court’s
denial of Bartel’s motion for new trial. Bartel’s assignment of
error is without merit.
VI. CONCLUSION
Bartel was convicted by a jury in county court of violating
a protection order. We find no merit to Bartel’s contention that
the subsequent June 2017 order in his domestic relations case
was newly discovered evidence sufficient to warrant a new trial
in the criminal case. Finding no abuse of discretion, we affirm
the decision of the district court upholding the county court’s
denial of Bartel’s motion for new trial.
Affirmed.