Paw K. v. Christian G. , 315 Neb. 781 ( 2024 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/19/2024 09:08 AM CST
- 781 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
PAW K. V. CHRISTIAN G.
Cite as 315 Neb. 781Paw K., appellee, v.
Christian G., appellant.
___ N.W.2d ___
Filed January 19, 2024. No. S-23-195.
1. Judgments: Appeal and Error. When a jurisdictional question does not
involve a factual dispute, the issue is a matter of law. An appellate court
reviews questions of law independently of the lower court’s conclusion.
2. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by these rules; judicial
discretion is involved only when the rules make discretion a factor in
determining admissibility.
3. Judges: Words and Phrases. A judicial abuse of discretion exists when
the reasons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just results in mat-
ters submitted for disposition.
4. Rules of Evidence: Hearsay: Appeal and Error. Apart from rul-
ings under the residual hearsay exception, an appellate court reviews
for clear error the factual findings underpinning a trial court’s hear-
say ruling and reviews de novo the court’s ultimate determination to
admit evidence over a hearsay objection or exclude evidence on hear-
say grounds.
5. Jurisdiction. One who invokes the power of the court on an issue other
than the court’s jurisdiction over one’s person makes a general appear-
ance so as to confer on the court personal jurisdiction over that person.
6. Jurisdiction: Pleadings: Parties. A party will be deemed to have
appeared generally if, by motion or other form of application to the
court, he or she seeks to bring its powers into action on any matter other
than the question of jurisdiction over that party.
7. Judgments: Appeal and Error. An appellate court may affirm a lower
court’s ruling that reaches the correct result, albeit based on differ-
ent reasoning.
8. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not needed to adjudicate the controversy before it.
- 782 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
PAW K. V. CHRISTIAN G.
Cite as 315 Neb. 7819. Affidavits. Affidavits are ordinarily not considered competent evidence
because they are not subject to cross-examination, they combine facts
and conclusions, and they often omit or distort important facts.
10. ____. An affidavit is competent evidence where authorized by statute or
where not objected to on proper grounds by the party against whom it
is offered.
11. ____. Under Neb. Rev. Stat. § 25-1244 (Reissue 2016), an affidavit is
admissible in motion practice, which includes the use of affidavits relat-
ing to preliminary, collateral, and interlocutory matters.
12. ____. A statute such as Neb. Rev. Stat. § 25-1244 (Reissue 2016) allow-
ing an affidavit to be used upon a motion is general, and it leaves to
the discretion of the trial judge whether it is appropriate to receive the
affidavit into evidence.
13. Trial: Evidence: Appeal and Error. Because it is the proponent’s
responsibility to separate the admissible and inadmissible parts when
offering evidence, an appellate court will ordinarily uphold a court’s
exclusion of an exhibit if the proponent did not properly limit its offer
to the part or parts that are admissible.
Petition for further review from the Court of Appeals,
Bishop, Arterburn, and Welch, Judges, on appeal thereto
from the District Court for Lancaster County, Ryan S. Post,
Judge. Judgment of Court of Appeals affirmed.
Matt Catlett, of Law Office of Matt Catlett, for appellant.
Courtney R. Ruwe, of Astley Putnam, P.C., L.L.O., for
appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
INTRODUCTION
The district court overruled Christian G.’s motion to vacate
a domestic abuse protection order, and the Nebraska Court
of Appeals affirmed. 1 On further review, he challenges the
appellate court’s dispositions regarding personal jurisdiction
1
See Paw K. v. Christian G., 32 Neb. App. 317, 997 N.W.2d 84 (2023).
- 783 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
PAW K. V. CHRISTIAN G.
Cite as 315 Neb. 781and an evidentiary ruling excluding an affidavit. We conclude
that by filing a request for hearing, Christian made a general
appearance. And because he did not offer the affidavit with-
out its inadmissible portions, its exclusion was not reversible
error. Although our reasoning differs from that of the Court of
Appeals, we affirm its decision.
BACKGROUND
Domestic Abuse Protection
Order Proceedings
Paw K. filed a petition and affidavit for a domestic abuse
protection order in the district court for Lancaster County.
She sought an order against Christian, the father of her child.
Paw listed an address in Iowa for Christian.
The same day, the court entered an ex parte domestic
abuse protection order. It provided notice to Christian that
if he wished to appear and show cause why the order should
not remain in effect, he needed to complete the provided
“Request for Hearing” form and return it to the clerk of the
district court within 10 business days. An information sheet
included with the ex parte order stated that the court would
schedule a hearing within 30 days after reviewing the request
for a hearing.
Three days later, the court received Christian’s request for
hearing form. Later that day, the court entered an order which
set a hearing on Monday, January 30, 2023, at 10:30 a.m.
The certificate of service showed that the order was sent to
Christian via U.S. mail on January 24.
On January 30, 2023, Christian did not appear for the hear-
ing. The same day, the court entered an order affirming the
protection order.
Motion to Vacate Proceedings
Ten days later, Christian filed a motion to vacate the
January 30, 2023, order. Christian stated that he was not
served with the order setting the hearing date until after the
- 784 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
PAW K. V. CHRISTIAN G.
Cite as 315 Neb. 781hearing had occurred. He also claimed that the district court
lacked personal jurisdiction over him. He attached an affidavit
to this motion. The affidavit included an exhibit purporting to
be an email from the U.S. Postal Service.
During a hearing on the motion to vacate, Christian asserted
that the court lacked personal jurisdiction to enter a final
protection order against a nonresident respondent. The court
inquired whether Christian submitted himself to the court’s
jurisdiction when he requested a hearing. Christian argued
that no one could know whether he requested a hearing
for the purpose of challenging personal jurisdiction. Paw’s
counsel “remind[ed]” the court that “in the parties’ pater-
nity/custody case, [Christian was] ordered to come here to
Nebraska to pick up his child to bring him back to Iowa every
other weekend.”
During the hearing, Christian offered his own affidavit with
a copy of an email attached to it. The copy of the email dif-
fered somewhat from the one attached to his earlier affida-
vit. Christian’s affidavit stated that he did not receive the
court’s order for hearing until the afternoon of January 30,
2023. He averred that the attached email had been transmit-
ted from “‘USPS Informed Delivery’” to his email address at
7:24 a.m. on January 30. The email included an image of the
front of an envelope from the clerk of the district court. Paw
objected based on foundation and hearsay. Christian argued
that the rules of evidence do not apply during a hearing on a
motion to vacate. Nonetheless, the court sustained Paw’s hear-
say objection.
The court subsequently entered an order overruling the
motion to vacate. With respect to personal jurisdiction, the
court reasoned that “[t]he incidents of abuse occurred in
Nebraska and were part of regular contact from [Christian]
to [Paw] in Nebraska.” Although the bill of exceptions of
the hearing on the motion to vacate did not show a ruling on
Paw’s foundational objection, the order stated that the court
sustained “the objections.” It further stated that Christian’s
- 785 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
PAW K. V. CHRISTIAN G.
Cite as 315 Neb. 781argument asserting he did not receive notice of the hearing
until after it occurred did not address the foundational issue
with the attachment to the affidavit.
Appeal
Christian appealed. He alleged that the district court erred
in (1) denying his motion to vacate when the district court
did not have personal jurisdiction over him, (2) denying his
motion to vacate when he was not served with the order con-
taining the hearing date until after the hearing had occurred,
and (3) refusing to receive his affidavit.
In a published opinion, 2 the Court of Appeals affirmed. It
determined that Christian “waived personal jurisdiction” 3 and
that the district court properly sustained Paw’s hearsay objec-
tion to Christian’s affidavit. The appellate court reasoned that
“Christian’s affidavit was an out-of-court statement offered in
evidence to prove the truth of the matter asserted, i.e., that he
did not receive, or was not served, the order for hearing . . .
until after the hearing had already occurred.” 4 Christian filed
a timely petition for further review, which we granted.
ASSIGNMENTS OF ERROR
Christian assigns, reordered, that the Court of Appeals erred
in (1) holding that Christian waived personal jurisdiction in
the district court by not “‘fil[ing] a motion to dismiss for
lack of personal jurisdiction’” and not “‘specifically stat[ing]
in his request for hearing on the protection order that he was
challenging personal jurisdiction’”; (2) holding that Christian
forfeited the issue of personal jurisdiction on appeal by not
requesting a bill of exceptions of the January 30, 2023, hear-
ing; and (3) finding no error in the district court’s sustaining
Paw’s hearsay objection to Christian’s affidavit.
2
Id.3
Id. at 327, 997 N.W.2d at 92.
4
Id. at 331, 997 N.W.2d at 94.
- 786 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
PAW K. V. CHRISTIAN G.
Cite as 315 Neb. 781STANDARD OF REVIEW
[1] When a jurisdictional question does not involve a fac-
tual dispute, the issue is a matter of law. An appellate court
reviews questions of law independently of the lower court’s
conclusion. 5
[2,3] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by these
rules; judicial discretion is involved only when the rules make
discretion a factor in determining admissibility. 6 A judicial
abuse of discretion exists when the reasons or rulings of a trial
judge are clearly untenable, unfairly depriving a litigant of a
substantial right and denying just results in matters submitted
for disposition. 7
[4] Apart from rulings under the residual hearsay excep-
tion, an appellate court reviews for clear error the fac-
tual findings underpinning a trial court’s hearsay ruling and
reviews de novo the court’s ultimate determination to admit
evidence over a hearsay objection or exclude evidence on
hearsay grounds. 8
ANALYSIS
Personal Jurisdiction
Christian maintains that the district court lacked personal
jurisdiction over him. The Court of Appeals determined that
Christian waived that defense because he did not file a motion
to dismiss on that ground or specifically state in his request
for hearing that he was challenging personal jurisdiction. The
Court of Appeals further reasoned that even if Christian did
not waive the defense, he forfeited the issue by not requesting
a bill of exceptions of the January 30, 2023, hearing.
5
Nimmer v. Giga Entertainment Media, 298 Neb. 630, 905 N.W.2d 523(2018).
6
Brown v. Morello, 308 Neb. 968, 957 N.W.2d 884 (2021).
7
Id.8
Id.- 787 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
PAW K. V. CHRISTIAN G.
Cite as 315 Neb. 781We assume, without deciding, that the Nebraska Court
Rules of Pleading in Civil Cases apply in a general sense to
a proceeding involving a domestic abuse protection order.
We further assume that because no responsive pleading was
required, 9 a motion asserting lack of personal jurisdiction was
not required. 10
But even with those assumptions and disregarding that
Christian may have previously submitted himself to the
court’s jurisdiction, he filed a request for hearing and thereby
made a general appearance.
[5,6] One who invokes the power of the court on an issue
other than the court’s jurisdiction over one’s person makes
a general appearance so as to confer on the court personal
jurisdiction over that person. 11 A party will be deemed to have
appeared generally if, by motion or other form of application
to the court, he or she seeks to bring its powers into action
on any matter other than the question of jurisdiction over
that party. 12 Here, Christian filed a form requesting a hearing
concerning the ex parte domestic abuse protection order. The
form responded to notice of the general issue—the merits of
Paw’s petition. This was an application to the court, seeking
to invoke the court’s powers on a matter other than personal
jurisdiction. Through this filing, Christian made a general
appearance that conferred jurisdiction over him.
Christian attempts to avoid this result by arguing that he
had to use the form. Nothing in our statutes or rules pre-
cluded him from endorsing the form to limit his request to
one addressing only jurisdiction. He did not do so, and his
rationale lacks merit.
9
See, generally, Neb. Rev. Stat. § 42-925 (Cum. Supp. 2022); Neb. Ct. R.
Pldg. § 6-1107.
10
See Neb. Ct. R. Pldg. § 6-1112(b).
11
In re Estate of Marsh, 307 Neb. 893, 951 N.W.2d 486 (2020).
12
Applied Underwriters v. Oceanside Laundry, 300 Neb. 333, 912 N.W.2d
912 (2018).
- 788 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
PAW K. V. CHRISTIAN G.
Cite as 315 Neb. 781[7] The courts below concluded that the district court had
personal jurisdiction over Christian, and we agree. Although
our reasoning differs from that of the Court of Appeals, it
reached the correct result. An appellate court may affirm a
lower court’s ruling that reaches the correct result, albeit
based on different reasoning. 13
[8] Because we have determined that the district court
acquired personal jurisdiction over Christian, we need not
address his assignment regarding the Court of Appeals’ alter-
native forfeiture reasoning. An appellate court is not obligated
to engage in an analysis that is not needed to adjudicate the
controversy before it. 14
Hearsay Objection
Christian argues that the Court of Appeals erred in find-
ing that the district court properly sustained Paw’s hearsay
objection to Christian’s affidavit. The Court of Appeals deter-
mined that Christian’s affidavit was hearsay because it consti-
tuted an out-of-court statement offered to prove that Christian
was not served the order for hearing until after the hearing
had occurred.
We start with the extreme positions advocated by the par-
ties. On one side, Christian asserted in his appellate brief
that “an affidavit . . . is always admissible in support of a
motion.” 15 He backs away slightly from this absolutist view
in his petition for further review, asserting that “an affidavit
may always be used to impeach service and object to personal
jurisdiction.” 16 On the other side, in connection with assert-
ing that Christian’s affidavit failed to show lack of notice,
Paw orally argued that Christian was served notice of the
hearing when the clerk of the district court deposited the
13
Schaeffer v. Frakes, 313 Neb. 337, 984 N.W.2d 290 (2023).
14
In re Estate of Walker, ante p. 510, 997 N.W.2d 595 (2023).
15
Brief for appellant at 18 (emphasis in original).
16
Brief for appellant in support of petition for further review at 6.
- 789 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
PAW K. V. CHRISTIAN G.
Cite as 315 Neb. 781order for hearing in the mail. She maintained that it made
no difference if Christian ever received the order. We reject
these positions.
[9,10] An affidavit is one mode by which testimony of wit-
nesses may be taken. 17 But an affidavit is regarded as the least
satisfactory mode of presenting testimony. 18 Affidavits are
ordinarily not considered competent evidence because they are
not subject to cross-examination, they combine facts and con-
clusions, and they often omit or distort important facts. 19 An
affidavit is competent evidence where authorized by statute or
where not objected to on proper grounds by the party against
whom it is offered. 20 In the absence of statutory permission,
an affidavit is not competent evidence, although made under
oath, because it is hearsay. 21
[11] Nebraska authorizes use of an affidavit for certain
purposes. A statute specifically provides that “[a]n affidavit
may be used to verify a pleading, to prove the service of a
summons, notice or other process, in an action, to obtain a
provisional remedy, an examination of a witness, a stay of pro-
ceedings, or upon a motion, and in any other case permitted
by law.” 22 This less satisfactory mode of presenting evidence
is “‘specially provided for to meet considerations of con-
venience or necessity.’” 23 Over a century ago, we remarked
that “[t]he long-established practice has been to prove facts
17
See Neb. Rev. Stat. § 25-1240 (Reissue 2016).
18
2A C.J.S. Affidavits § 57 (2023).
19
See id.
20
Tanzola v. De Rita, 45 Cal. 2d 1, 285 P.2d 897 (1955). See, also, Vannier v.
Superior Court, 32 Cal. 3d 163, 650 P.2d 302, 185 Cal. Rptr. 427 (1982);
Rowan v. City and County of San Francisco, 244 Cal. App. 2d 308, 53 Cal.
Rptr. 88 (1966).
21
In re Estate of Horman, 265 Cal. App. 2d 796, 71 Cal. Rptr. 780 (1968).
22
Neb. Rev. Stat. § 25-1244 (Reissue 2016).
23
Swigart v. Swigart, 115 N.E.2d 871, 875 (Ohio App. 1953), quoting State
v. Budd, 65 Ohio St. 1, 60 N.E. 988 (1901).
- 790 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
PAW K. V. CHRISTIAN G.
Cite as 315 Neb. 781necessary for the determination of motions by affidavit . . . .” 24
More recently, we iterated that under § 25-1244, an affidavit
is admissible in motion practice, which includes the use of
affidavits relating to preliminary, collateral, and interlocu-
tory matters. 25
As Christian observes, we have spoken on purposes for
which an affidavit may be used. An affidavit may be used to
attack or support the return of an officer on a summons in a
revivor proceeding. 26 Thus, we have interpreted § 25-1244 to
mean that an affidavit may be used to impeach an officer’s
return on the service of a summons. 27 We authorized use of
an affidavit in a hearing on a special appearance to prove
or disprove the factual basis for a court’s assertion or exer-
cise of personal jurisdiction over a defendant. 28 In doing so,
we explained that a special appearance was preliminary and
collateral to determining the merits of an action. 29 We also
authorized use of an affidavit in connection with a motion for
attorney fees under Neb. Rev. Stat. § 76-726 (Reissue 2018),
stating that such a motion is a collateral matter. 30
Here, the bases of the motion to vacate—lack of service
and lack of personal jurisdiction—are collateral and pre-
liminary to whether Christian is an abuser as claimed in the
underlying petition for a protection order. Thus, Christian was
authorized to use an affidavit at the hearing on the motion.
24
Hamer v. McKinley-Lanning Loan & Trust Co., 52 Neb. 705, 707, 72 N.W.
1041, 1041 (1897).
25
See, Cullinane v. Beverly Enters. - Neb., 300 Neb. 210, 912 N.W.2d 774(2018); TransCanada Keystone Pipeline v. Nicholas Family, 299 Neb. 276,
908 N.W.2d 60 (2018).
26
See Johnson v. Carpenter, 77 Neb. 49, 108 N.W. 161 (1906).
27
See Erdman v. National Indemnity Co., 180 Neb. 133, 141 N.W.2d 753(1966).
28
Williams v. Gould, Inc., 232 Neb. 862, 443 N.W.2d 577 (1989).
29
See id.30
TransCanada Keystone Pipeline v. Nicholas Family, supra note 25.
- 791 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
PAW K. V. CHRISTIAN G.
Cite as 315 Neb. 781But we do not understand this authority to mean that the
rules of evidence do not apply to an affidavit submitted under
§ 25-1244. That statute specifies that “[a]n affidavit may be
used,” 31 but it does not mandate the affidavit’s admission
into evidence. Nor does a statute exempt such an affidavit
from the rules of evidence. Neb. Rev. Stat. § 27-101 (Reissue
2016) provides that the Nebraska Evidence Rules “govern
proceedings in the courts of [this state], except to the extent
and with the exceptions stated in [Neb. Rev. Stat. §] 27-1101
[(Reissue 2016)].” Relevant to the facts of this case, the lat-
ter statute instructs that the Nebraska Evidence Rules apply
to district courts 32 and that they apply generally to all civil
proceedings. 33 Section 27-1101(4), which identifies situations
in which the rules of evidence do not apply, does not include
a hearing on a motion to vacate.
[12] A statute such as § 25-1244 allowing an affidavit to be
used upon a motion is general, and it leaves to the discretion
of the trial judge whether it is appropriate to receive the affi-
davit into evidence. 34 Because we allow use of affidavits with
respect to collateral matters and disallow their use to prove
facts material to the issue in the case, the hearsay nature
of the affidavit is typically of no import. In TransCanada
Keystone Pipeline v. Nicholas Family, 35 we upheld the admis-
sion of the affidavits with respect to attorney fees even
though it was “‘beyond question’” that they contained hear-
say. And we have explained that by allowing an affidavit to
prove the service of a summons, notice, or other process in
an action, § 25-1244 “avoids problems relating to same with
31
§ 25-1244.
32
See Neb. Rev. Stat. § 27-1101(1) (Reissue 2016).
33
See § 27-1101(2).
34
See Swigart v. Swigart, supra note 23 (interpreting statute now codified at
Ohio Rev. Code Ann. § 2319.03 (Anderson 2001)).
35
TransCanada Keystone Pipeline v. Nicholas Family, supra note 25, 299
Neb. at 283, 908 N.W.2d at 66.
- 792 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
PAW K. V. CHRISTIAN G.
Cite as 315 Neb. 781reference to the ‘hearsay’ rule.” 36 Thus, statements within an
affiant’s personal knowledge generally should be admitted.
But the inclusion of statements otherwise excludable may
affect an affidavit’s admissibility. We cannot say that a trial
court abuses its discretion by sustaining a hearsay objection
to statements of third parties or to other averments not falling
within a hearsay exception.
We recall the specific objection and ruling at the hearing on
the motion to vacate. Paw objected to the entire exhibit—the
affidavit and attachment—on the grounds of hearsay and foun-
dation. She elaborated:
On the original affidavit that was filed with this Court,
no email address is contained on this USPS alleged proof
that he didn’t get service. And now, all of the sudden,
he has an affidavit that shows that email address. He
wouldn’t have foundation to testify to that. And it, cer-
tainly, is hearsay.
The court stated that it was unaware of any authority refusing
to apply the rules of evidence to the proceeding and then it
sustained the hearsay objection.
The district court’s corresponding written order expanded
on the foundational objection. It stated that Paw objected that
the affidavit was hearsay, that the affidavit did not lay founda-
tion for the attachment, and that the attachment was altered
and that the court “sustained the objections.” According to
the order, Christian’s argument “did not address the founda-
tional issue with the attachment to the affidavit (or [Paw’s]
argument the attachment was altered)” and that “even if the
affidavit was received, the most it could show was that when
[Christian] checked his mail in the afternoon of January 30,
2023, the order for hearing was in his mail.”
Thus, the critical question is whether the exhibit was partly
admissible and partly inadmissible. Christian’s statements
36
Anderson v. Autocrat Corp., 194 Neb. 278, 286, 231 N.W.2d 560, 565
(1975).
- 793 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
PAW K. V. CHRISTIAN G.
Cite as 315 Neb. 781based on his personal knowledge could be properly admitted,
but hearsay statements of another could be properly excluded.
Our case law demonstrates that the trial court has vast dis-
cretion in such a situation and that any error generally will not
be reversible. Two rules exist, depending on whether the court
overrules or sustains an objection.
Christian relies on the rules that it is not error to overrule
an objection which is in part valid and in part invalid 37 and
that an objection to an exhibit as a whole is properly overruled
where a part of the exhibit is admissible. 38 But here, the court
did not overrule the objection.
[13] Christian fails to cite the rule that when part of an
exhibit is inadmissible, a trial court has discretion to reject the
exhibit entirely or to admit the admissible portion. 39 Because
it is the proponent’s responsibility to separate the admissible
and inadmissible parts when offering evidence, an appellate
court will ordinarily uphold a court’s exclusion of an exhibit
if the proponent did not properly limit its offer to the part or
parts that are admissible. 40
The portion of the email stating that it was transmitted
on January 30, 2023, at 7:24 a.m. and that “[y]ou have mail
and packages arriving soon” and depicting the image of an
envelope from the clerk was hearsay. Hearsay is a state-
ment, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth
of the matter asserted. 41 It was a statement made by someone
other than Christian. The affidavit stated that the email was
attached “[a]s further proof that [Christian] did not receive [the
notice of hearing] until it was too late.” Thus, it was offered
37
State v. Merrill, 252 Neb. 736, 566 N.W.2d 742 (1997).
38
Id. See, also, State v. Matteson, 313 Neb. 435, 985 N.W.2d 1 (2023).
39
In re Guardianship of Jill G., 312 Neb. 108, 977 N.W.2d 913 (2022);
Arens v. NEBCO, Inc., 291 Neb. 834, 870 N.W.2d 1 (2015).
40
In re Guardianship of Jill G., supra note 39.
41
Neb. Rev. Stat. § 27-801(3) (Cum. Supp. 2022).
- 794 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
PAW K. V. CHRISTIAN G.
Cite as 315 Neb. 781to prove the truth of the matters asserted in the email—the date
and time of transmission, that Christian had mail arriving soon,
and that the mail consisted in part of an envelope from the
clerk of the district court. Christian cited no hearsay exception
to the district court. On appeal, his initial brief cited to Neb.
Rev. Stat. § 27-803(8) (Cum. Supp. 2022), which excepts,
[u]pon reasonable notice to the opposing party prior to
trial, records, reports, statements, or data compilations
made by a public official or agency of facts required to
be observed and recorded pursuant to a duty imposed
by law, unless the sources of information or the method
or circumstances of the investigation are shown by the
opposing party to indicate a lack of trustworthiness.
We are not persuaded that Christian’s affidavit established
that the U.S. Postal Service was required by law to provide
the email service of “‘USPS Informed Delivery.’” Thus, we
cannot say that Christian met his burden of establishing the
elements of the hearsay exception. It necessarily follows that
this portion of the exhibit was inadmissible.
Because part of Christian’s affidavit was inadmissible, the
burden rested on him to offer only the admissible portion. He
did not do so. We find no reversible error.
We are not unmindful that Christian did not participate in
the hearing at which the protection order was affirmed. But we
also recognize that his posthearing affidavit did not attempt to
show that he was prejudiced by the mailed notice—the affi-
davit wholly failed to set forth any of his personal knowledge
regarding the events leading to the protection order. In the
absence of any such showing, we limit our consideration to
his assigned errors.
CONCLUSION
Our conclusion is based on somewhat different reasoning
than that of the Court of Appeals. Nonetheless, we determine
that the judgment of the appellate court—affirming the judg-
ment of the district court—was correct.
Affirmed.