In re Change of Name of Whilde ( 2017 )

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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
IN RE CHANGE OF NAME OF WHILDE
Cite as 298 Neb. 510
In re Change of Name of Whilde.
Lillias Delong Dulles Whilde, a minor,
by and through her mother and next
friend,H annah Whilde, appellee, v.
M argaret Whilde, appellant.
___ N.W.2d ___
Filed December 22, 2017. No. S-17-299.
1. Motions to Vacate: Time. In a civil case, 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.
2. ____: ____. The decision to vacate an order at any time during the term
in which the judgment is rendered is within the discretion of the court;
such a decision will be reversed only if it is shown that the district court
abused its discretion.
3. Judgments: Words and Phrases. An abuse of discretion occurs when
the trial court’s decision is based upon reasons that are untenable or
unreasonable or if its action is clearly against justice or conscience,
reason, and evidence.
4. Motions to Vacate: Judgments: Time. In the absence of an applicable
rule to the contrary, a motion asking the court to exercise its inherent
power to vacate or modify its own judgment does not toll the time for
taking an appeal.
Appeal from the District Court for Otoe County: Michael A.
Smith, Judge. Affirmed.
Anthony W. Liakos, of Govier, Katskee, Suing & Maxell,
P.C., L.L.O., for appellant.
Julie E. Bear, of Reinsch, Slattery, Bear & Minahan, P.C.,
L.L.O., for appellee.
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298 Nebraska R eports
IN RE CHANGE OF NAME OF WHILDE
Cite as 298 Neb. 510
Heavican, C.J., Miller-Lerman, Cassel, and Stacy, JJ., and
R iedmann, Judge.
Miller-Lerman, J.
NATURE OF CASE
Margaret Whilde appeals the order of the district court for
Otoe County, Nebraska, which overruled a motion to vacate
the court’s earlier order which granted a request to change the
name of a minor child. She argued that she was entitled to
notice by certified mail as a “noncustodial parent” under Neb.
Rev. Stat. § 25-21,271(2) (Reissue 2016), and that because she
had not received such notice, the order changing the child’s
name should be vacated. We affirm the district court’s order
overruling Margaret’s motion to vacate.
STATEMENT OF FACTS
The minor child at issue in this case was born in January
2010. On December 21, 2016, the child’s biological mother,
Hannah Whilde, filed on behalf of the child a petition under
§ 25-21,271 to change the child’s name. The request was to
change the child’s two middle names, “Delong Dulles,” to
two new middle names, “Coco Nadine,” and to change her
last name from “Whilde” to Hannah’s family name of “Hoch”;
no request was made to change the child’s first name. After
Hannah filed the petition, she caused notice of the filing of the
petition to be published in a newspaper of general circulation
in Otoe County for 2 consecutive weeks.
The district court held a hearing on the petition for name
change on January 24, 2017. At the hearing, Hannah offered
into evidence proof of publication of the notice. Hannah tes-
tified at the hearing that she was the natural mother of the
child, that there was no noncustodial parent with respect to the
child, and that there was “no natural father” involved because
the child was “the product of a sperm donation.” Hannah
further testified regarding the reasons for the name change.
She testified that the name change was not for the purpose
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IN RE CHANGE OF NAME OF WHILDE
Cite as 298 Neb. 510
of avoiding creditors or hiding the child. She testified instead
that the two middle names she proposed were a nickname by
which the child had generally been known since birth and the
name of “a beloved great-grandmother” who was “very close
to” the child. Hannah did not testify at the hearing regarding
the reasons for changing the child’s last name; however, in
the petition, Hannah had stated that she wanted the child to
have Hannah’s family name and that Hannah was changing
her own last name from “Whilde” back to her family name.
After Hannah’s testimony, the court stated that it found that
Hannah had complied with the statute and that there was no
good reason the order to change the child’s name should not
be granted.
The court filed an order that same day in which it stated,
inter alia, that it found “statutory notice to have been given
pursuant to [§] 25-21,271(2),” that no objection had been
filed, that there was no reason to deny the requested name
change, and that it was in the child’s best interests to have
her name changed. The court therefore on January 24, 2017,
ordered the child’s name to be changed to the name requested
by Hannah.
On February 7, 2017, Margaret filed a motion asking the
court to vacate its January 24 order changing the child’s
name. Margaret stated in the motion that she was filing the
motion pursuant to Neb. Rev. Stat. § 25-2001 (Reissue 2016).
She alleged as follows: Pursuant to an order filed in the
district court for Travis County, Texas, on September 27,
2012, Margaret had been appointed “Temporary Non-Parent
Possessory Conservator” of the child and, as a result of such
status, had been awarded certain rights and duties with respect
to the child. In a modification of custody case separate from
the instant name change action, on June 6, 2014, Hannah had
filed in the district court for Otoe County an application to
register the Texas judgment and a complaint to modify said
judgment. After a trial at which both Hannah and Margaret
appeared in August 2016 in the modification of custody case,
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298 Nebraska R eports
IN RE CHANGE OF NAME OF WHILDE
Cite as 298 Neb. 510
the district court on December 16 had filed an opinion and
order of modification in which it found that “an in loco paren-
tis relationship did exist at one time between” Margaret and
the child. The court, however, had ultimately ordered that
sole legal and physical custody of the child be awarded to
Hannah and that Margaret be granted no rights of custody or
visitation with the child. On January 10, 2017, Margaret filed
a notice of appeal of the district court’s December 16, 2016,
order modifying the child’s custody. No supersedes bond or
other stay of the modification and custody ruling in the other
action had been implemented. At the time Margaret filed the
motion to vacate in this name change case, the appeal of the
custody order was pending in the Nebraska Court of Appeals.
That appeal was moved to the docket of this court as case
No. S-17-045.
Margaret further alleged that at no time prior to the January
24, 2017, hearing in this case had she been provided notice of
the request to change the child’s name. She argued that she was
a “noncustodial parent” of a child who was under 19 years of
age and that she should have been provided notice pursuant to
§ 25-21,271(2), which provides as follows:
Notice of the filing of the [name change] petition shall
be published in a newspaper in the county, and if no
newspaper is printed in the county, then in a newspaper
of general circulation therein. The notice shall be pub-
lished (a) once a week for four consecutive weeks if the
petitioner is nineteen years of age or older at the time the
action is filed and (b) once a week for two consecutive
weeks if the petitioner is under nineteen years of age at
the time the action is filed. In an action involving a peti-
tioner under nineteen years of age who has a noncustodial
parent, notice of the filing of the petition shall be sent
by certified mail within five days after publication to the
noncustodial parent at the address provided to the clerk
of the district court pursuant to subsection (1) of section
42-364.13 for the noncustodial parent if he or she has
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IN RE CHANGE OF NAME OF WHILDE
Cite as 298 Neb. 510
provided an address. The clerk of the district court shall
provide the petitioner with the address upon request.
Margaret alleged that if she had been provided notice of the
petition, she would have filed an objection and would have
appeared at the hearing to oppose the name change. Margaret
therefore requested that the order changing the child’s name
be vacated and that no further action be taken regarding the
requested name change until the pending appeal in the modifi-
cation and custody case was decided.
Hannah filed a resistance to Margaret’s motion to vacate the
name change order. She alleged that the following facts were
undisputed: Hannah and Margaret had been an unmarried cou-
ple living together in Texas at the time that the child, who was
conceived through a sperm donor, was born in January 2010.
On November 26, 2011, Hannah took the child and moved to
her parents’ home in Nebraska City, Nebraska. On November
28, Margaret filed a petition in the district court in Texas. After
the Texas court heard the case, it entered a temporary order in
which it determined that Margaret was a “‘non-parent posses-
sory conservator’” and awarded her periods of visitation with
the child. Hannah noted in her resistance that the Texas court’s
order “put no restriction and made no reference of any change
of name for” the child. The Texas order further provided that
Hannah had certain exclusive rights, which included, inter
alia, “the right to represent the child in legal action[s] and
to make other decisions of substantial legal significance con-
cerning the child.” After Hannah filed her petition in 2014 to
register the Texas order in the district court for Otoe County,
the Nebraska court conferred with the Texas court, as required
by the applicable uniform act, and determined that the Texas
court would relinquish jurisdiction of the modification and
custody case to the Nebraska court. Hannah further alleged
that when Margaret filed her notice of appeal of the district
court’s December 16, 2016, order modifying custody of the
child, Margaret did not request a stay of the order and did not
file a supersedeas bond.
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
IN RE CHANGE OF NAME OF WHILDE
Cite as 298 Neb. 510
Hannah asserted in her resistance to Margaret’s motion to
vacate that Margaret had no right to notice by certified mail
under § 25-21,271(2). She argued that Margaret was not a
“noncustodial parent” under that statute, because both the
Texas court and the Nebraska court had found that Margaret
was not a biological or adoptive parent of the child, and that
the Texas court had designated her only as a “‘non-parent
possessory conservator,’” while it designated Hannah as the
“‘parent sole managing conservator.’” She noted that nothing
in the Texas court’s order gave Margaret rights regarding the
child’s legal name. She further argued that after the Nebraska
court filed its modification and custody order on December 16,
2016, Hannah had sole legal and physical custody of the child,
while Margaret had no rights of visitation or custody, and that
therefore Margaret was clearly not a “noncustodial parent” at
the time Hannah filed the petition on December 21 to change
the child’s name.
The district court heard arguments on Margaret’s motion
to vacate on February 21, 2017, and on that day, the court
entered in its notes a ruling that it denied the motion. Margaret
filed a notice of appeal of the ruling on March 20. The
Nebraska Court of Appeals on April 17 issued an order to
show cause in which it noted that there had been no signed,
file-stamped order entered regarding the motion to vacate
from which an appeal could be taken. The district court
filed a signed and file-stamped order on April 20 in which
it denied Margaret’s motion to vacate the January 24 name
change order. After a copy of the order was filed in the
Court of Appeals, the Court of Appeals found that cause
had been shown. The Court of Appeals ordered the appeal
to proceed, and the appeal was later moved to our docket on
our motion.
ASSIGNMENTS OF ERROR
Margaret claims that the district court erred in its January
24, 2017, order when it granted Hannah’s request to change
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
IN RE CHANGE OF NAME OF WHILDE
Cite as 298 Neb. 510
the child’s name and abused its discretion when it overruled
her motion to vacate its January 24 order.
STANDARDS OF REVIEW
[1] Although Margaret cited § 25-2001 as the authority for
her motion to vacate, we note that in a civil case, 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.
Kibler v. Kibler, 287 Neb. 1027, 845 N.W.2d 585 (2014).
The district court for Otoe County is in the Second Judicial
District, and under Rules of Dist. Ct. of Second Jud. Dist. 2-1
(rev. 1995), the regular term of the court runs from January
1 through December 31 of each calendar year. Therefore,
Margaret’s February 7, 2017, motion to vacate was filed within
the same term as the district court’s January 24 order, and
§ 25-2001 is not applicable. See Kibler v. Kibler, supra.
[2,3] The decision to vacate an order at any time during the
term in which the judgment is rendered is within the discre-
tion of the court; such a decision will be reversed only if it
is shown that the district court abused its discretion. Id. An
abuse of discretion occurs when the trial court’s decision is
based upon reasons that are untenable or unreasonable or if
its action is clearly against justice or conscience, reason, and
evidence. Id.
ANALYSIS
Margaret’s Notice of Appeal From the District
Court’s January 24, 2017, Name Change
Order Was Not Timely Filed.
As urged by Hannah, we note as an initial matter that
Margaret’s notice of appeal filed on March 20, 2017, was not
timely to appeal the court’s January 24 name change order.
We further note that pursuant to Neb. Rev. Stat. § 25-1912(2)
(Reissue 2016), Margaret’s notice of appeal from the order
denying the motion to vacate is treated as having been filed
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
IN RE CHANGE OF NAME OF WHILDE
Cite as 298 Neb. 510
on April 20, the date the district court entered a signed, file-
stamped order overruling the motion. Therefore, this appeal
will be limited to consideration of the error Margaret assigned
regarding the order which overruled her motion to vacate.
[4] Under § 25-1912, a party has 30 days from the entry
of judgment to appeal the decision of a district court unless a
party has filed a motion which tolls the appeal period. In the
absence of an applicable rule to the contrary, a motion asking
the court to exercise its inherent power to vacate or modify its
own judgment does not toll the time for taking an appeal. State
v. Hausmann, 277 Neb. 819, 765 N.W.2d 219 (2009). A party
can move the court to vacate or modify a final order, but if the
court does not grant the motion, a notice of appeal must be
filed within 30 days of the entry of the earlier final order if the
party intends to appeal it. Id.
Thus, to the extent Margaret assigns error to the January 24,
2017, order, she did not timely appeal that order and we do
not consider such assignment of error. However, Hannah does
not argue, and as we have indicated above we do not find, that
Margaret failed to timely appeal the district court’s order over-
ruling her motion to vacate. We therefore consider Margaret’s
assignment of error regarding the order of the court which
overruled her motion to vacate.
District Court Did Not Abuse Its Discretion When
It Overruled Margaret’s Motion to Vacate the
District Court’s January 24, 2017,
Name Change Order.
Margaret contends that she is a “noncustodial parent” under
§ 25-21,271(2) and that she was entitled to receive notice of
the proposed name change by certified mail. She claims that
the district court erred when it concluded that she was not
a “noncustodial parent” entitled to certified mail notice and
overruled her motion to vacate the January 24, 2017, name
change order. We conclude that at the time notice was required
to be given in this name change action, Margaret was not a
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
IN RE CHANGE OF NAME OF WHILDE
Cite as 298 Neb. 510
“noncustodial parent” within the meaning of § 25-21,271(2),
and we therefore conclude that the district court did not err
when it overruled her motion to vacate the January 24 name
change order.
Section 25-21,271(3) requires that before a court can order
a name change, the court must be “duly satisfied by proof in
open court” that, inter alia, “notice of the filing of the petition
has been given as required by this section.” No challenge has
been made to the adequacy of the published notice. However,
if it were shown that another type of notice required by law
had not been given, such failure could be a valid reason to
vacate an order granting a name change.
Section 25-21,271(2) requires that, in addition to the gen-
eral notice that must be given by publication, “[i]n an action
involving a petitioner under nineteen years of age who has a
noncustodial parent, notice of the filing of the petition shall
be sent by certified mail within five days after publication to
the noncustodial parent . . . .” Whether Margaret was entitled
to notice by certified mail, and therefore whether notice was
given as required by the statute in this case, depends on
whether she was a “noncustodial parent” within the mean-
ing of the statute at the time notice was required to be given.
The meaning of “noncustodial parent” under § 25-21,271(2)
is a question of law which we decide independently of the
trial court. See Davis v. State, 297 Neb. 955, 902 N.W.2d 165
(2017) (statutory interpretation presents question of law which
we review independently).
Hannah argues that Margaret was not a “noncustodial par-
ent” when Hannah filed the petition to change the child’s name
on December 21, 2016, because any rights Margaret had with
respect to the child had been terminated by the district court’s
December 16 order in the separate modification and custody
action. Hannah notes that Margaret did not file a notice of
appeal of the December 16 order until January 10, 2017, and
as we have noted, Margaret did not post a supersedeas bond or
seek a stay of the order.
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
IN RE CHANGE OF NAME OF WHILDE
Cite as 298 Neb. 510
Margaret argues that because the December 16, 2016,
order terminating her custody and visitation rights was being
appealed at the time she filed the motion to vacate on February
7, 2017, the district court should have looked to the temporary
Texas court order to determine her status. Margaret claims
that her Texas status as a “Temporary Non-Parent Possessory
Conservator” conferred rights that equate to a “noncustodial
parent” entitled to certified mail notice under § 25-21,271(2).
She further notes that in the modification and custody case, the
district court determined that her status under the Texas order
had been similar to in loco parentis status under Nebraska law.
Margaret contends that in loco parentis status is the equivalent
of a noncustodial parent.
Margaret’s arguments overlook the fact that the Texas order
specifically referred to Margaret as a “Non-Parent” and gave
certain rights exclusively to Hannah; most notably, Hannah
was given the exclusive right “to represent the child in legal
action[s] and to make other decisions of substantial legal
significance concerning the child.” Furthermore, we have rec-
ognized that in loco parentis status is not equivalent to the
status of a legal parent and does not entitle a person to all the
same rights that a legal parent would enjoy. See Windham v.
Griffin, 295 Neb. 279, 286, 887 N.W.2d 710, 715-16 (2016)
(stating “unlike biological and adoptive parenthood, the sta-
tus of in loco parentis is temporary, flexible, and capable of
being both suspended and reinstated”; “an individual stand-
ing in loco parentis, which is temporary in nature, is not the
functional equivalent of a lawful parent for all purposes or in
all contexts”).
The critical fact in our determination of whether Margaret
was a “noncustodial parent” for purposes of requiring certi-
fied mail service under § 25-21,271(2) is that as of the date
of the December 16, 2016, order in the modification and
custody case, Hannah was awarded sole legal and physical
custody of the child and Margaret was awarded no rights to
the child.
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
IN RE CHANGE OF NAME OF WHILDE
Cite as 298 Neb. 510
The district court’s December 16, 2016, order extinguished
any rights Margaret may have had with respect to the child
as a result of the Texas order or her previous in loco parentis
status. As noted, Margaret did not move to stay the modifica-
tion and custody order pending its appeal, and therefore, the
order was effective from the time it was entered and during
the pendency of its appeal. See Hall v. Hall, 176 Neb. 555,
126 N.W.2d 839 (1964) (stating that appeal does not operate
as stay of proceedings unless appellant shall have superseded
judgment or final order in manner provided by law; where
decree awarding custody of minor child has not been super-
seded, such order will be enforced as in case of any other non-
superseded judgment). See, also, Kula v. Kula, 180 Neb. 893,
146 N.W.2d 384 (1966), and Kricsfeld v. Kricsfeld, 8 Neb.
App. 1, 588 N.W.2d 210 (1999).
The order extinguishing Margaret’s rights of custody and
visitation was effective at all times relevant to this action,
including when Hannah filed the name change petition, when
she published notice, when the petition was considered and
granted by the district court, and when Margaret filed her
motion to vacate the name change order and the court over-
ruled Margaret’s motion. Although it is not determinative of
our resolution of this issue in this appeal, we note parentheti-
cally that in Whilde v. Whilde, ante p. 473, ___ N.W.2d ___
(2017), we affirmed the district court’s December 16, 2016,
modification of custody order in the separate case.
We give the word “parent,” under the language of
§ 25-21,271(2), its plain and ordinary meaning, and Margaret
was not a “parent” for purposes of the name-changing provi-
sion in § 25-21,271(2). Because Margaret had no legal rights
to custody or visitation or otherwise with regard to the child at
all relevant times during the pendency of this action to change
the child’s name, it is clear that she was not a “noncustodial
parent” under § 25-21,271(2) and that she was not entitled to
notice by certified mail as afforded to a noncustodial parent
under the statute. The district court’s finding in the January 24,
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298 Nebraska R eports
IN RE CHANGE OF NAME OF WHILDE
Cite as 298 Neb. 510
2017, order that the required statutory notice had been given
was therefore not erroneous. We conclude that the district
court did not abuse its discretion when it overruled Margaret’s
motion to vacate the January 24 name change order based on
the alleged failure to provide certified mail notice.
CONCLUSION
We conclude that Margaret did not timely appeal the
January 24, 2017, name change order, and we therefore do not
consider her assignment of error regarding that order. We fur-
ther conclude that the district court did not abuse its discretion
when it overruled Margaret’s subsequent motion to vacate the
name change order, and we therefore affirm the district court’s
order overruling the motion to vacate.
A ffirmed.
Wright, K elch, and Funke, JJ., not participating.