Yancer v. Kaufman ( 2014 )

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137 N.W.2d 721 (1965). It failed to do so. The NRD’s argu-
ments that it negotiated in good faith are without merit.
CONCLUSION
We affirm the district court’s conclusion that the NRD
failed to show that it made a reasonable attempt to induce the
Camdens to accept its offer to acquire an easement.
Affirmed.
Deborah Ann Yancer, appellee, v.
Michael K aufman, appellant.
___ N.W.2d ___
Filed September 2, 2014. No. A-13-214.
1. Moot Question: Jurisdiction: Appeal and Error. Mootness does not prevent
appellate jurisdiction. But, because mootness is a justiciability doctrine that
operates to prevent courts from exercising jurisdiction, appellate courts review
mootness determinations under the same standard of review as other jurisdic-
tional questions.
2. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question that does
not involve a factual dispute is determined by an appellate court as a matter of
law, which requires the appellate court to reach a conclusion independent of the
lower court’s decision.
3. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether it has jurisdiction
over the matter before it.
4. Courts: Jurisdiction. While it is not a constitutional prerequisite for jurisdiction,
the existence of an actual case or controversy is necessary for the exercise of
judicial power.
5. Moot Question. 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: Words and Phrases. A moot case is one which seeks to deter-
mine a question which does not rest upon existing facts or rights, in which the
issues presented are no longer alive.
7. Moot Question: Time: Appeal and Error. Appeals involving the granting of a
protection order will almost always be moot before the case is heard because of
the time-limited nature of a protection order.
8. Moot Question: Appeal and Error. Under certain circumstances, an appellate
court may entertain the issues presented by a moot case when the claims pre-
sented involve a matter of great public interest or when other rights or liabilities
may be affected by the case’s determination.
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9. ____: ____. In determining whether the public interest exception should be
invoked, the court considers the public or private nature of the question pre-
sented, the desirability of an authoritative adjudication for future guidance of
public officials, and the likelihood of future recurrence of the same or a simi-
lar problem.
10. ____: ____. The public interest exception to the mootness doctrine applies where
the activity sought to be prohibited is of a public nature.
11. Judgments. The proper disposition of applications for protection orders is a mat-
ter affecting public interest.
12. Moot Question: Judgments: Appeal and Error. The other rights or liabilities
exception to the mootness doctrine is inapplicable absent proof of collateral con-
sequences resulting from the issuance of a protection order.
Appeal from the District Court for Lancaster County: Gale
Pokorny, County Judge. Appeal dismissed.
Tregg Lunn, of Law Office of Tregg Lunn, for appellant.
Kristina M. Morris, of Bowman & Krieger, for appellee.
Irwin, Riedmann, and Bishop, Judges.
Riedmann, Judge.
INTRODUCTION
Michael Kaufman appeals from an order of the district court
for Lancaster County granting Deborah Ann Yancer a harass-
ment protection order against him. Because we find that the
protection order has, by its terms, expired, and because we
find no reason to apply an exception to the mootness doctrine,
the appeal is dismissed as moot.
BACKGROUND
On January 18, 2013, Yancer filed a petition and affidavit
to obtain a harassment protection order against Kaufman.
Yancer alleged in the petition that despite repeated requests
that Kaufman stop, he continued to send her letters, e-mails,
and text messages. In December 2012, she contacted an attor-
ney who sent Kaufman a cease and desist letter. Kaufman
continued to contact her, and according to the petition and its
attachments, the continued contact caused Yancer to fear for
her safety.
On January 18, 2013, the court entered an ex parte
harassment protection order, pursuant to Neb. Rev. Stat.
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§ 28-311.09 (Cum. Supp. 2012). The court specified that
based on § 28-311.09, the protection order was to remain
in effect for a period of 1 year unless modified by order of
the court.
On January 25, 2013, Kaufman filed a request for hear-
ing, which request was granted. A hearing was scheduled for
February 13. Kaufman testified that the week before the hear-
ing, he contacted the clerk’s office and requested that the hear-
ing be postponed because his witness was unavailable, but his
request was denied. The transcript reveals that a letter dated
February 11, 2013, was filed with the court requesting a con-
tinuance of the February 13 hearing and that the continuance
request was denied on the date it was received.
Yancer appeared with counsel at the hearing, and Kaufman
appeared pro se. Yancer testified that she had been in a romantic
relationship with Kaufman, but that she had ended it on August
22, 2012. After the breakup, Kaufman continued to contact
her through various means. According to Yancer, some of the
communications were “sexually explicit” and it made her feel
“very frightened.” While most of the letters were mailed to her,
she received a particular letter which she described as “very
upsetting” because it was “sexually explicit and very detailed.”
She also explained that Kaufman personally, or someone acting
on his behalf, had entered her property, come to her front door,
opened the mailbox contained in her front door, and slid the
detailed and sexually explicit letter inside her home. All of this
happened sometime in the dark, during night hours. As a result,
Yancer hired an attorney to send Kaufman a cease and desist
letter. Kaufman continued to send communications, including
letters and poems, which prompted Yancer to file the petition
for a protection order.
At trial, Yancer’s attorney offered the petition and affida-
vit, but the court refused the offer, stating that it would take
judicial notice of them. Yancer’s counsel questioned Yancer
about each of the documents to which she had referred in
her petition, and Kaufman was given an opportunity to cross-
examine her.
Kaufman testified that he had “incurred considerable
expenses as a result of [his] relationship with . . . Yancer”
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and that he believed he was entitled to “some form of restitu-
tion for the work” he did for her. In an attempt to substantiate
his claim, he submitted a spreadsheet of time and labor he
expended on Yancer’s home, which the court marked but never
specifically received. Kaufman also submitted a spreadsheet
of funds he expended on Yancer, which the court once again
marked, but did not specifically receive. Kaufmann also sub-
mitted a letter from his unavailable witness, which the court
agreed to “look at” without explicitly receiving it.
The court allowed Kaufman to deliver a narrative regarding
his relationship with Yancer. In the end, the court stated that
it was going to continue the protection order on the basis that
Yancer said Kaufman was disturbing her peace and quiet, and
the court agreed. The protection order was extended 1 year
from January 18, 2013. Kaufman timely filed this appeal.
ASSIGNMENTS OF ERROR
Kaufman assigns that the district court erred in granting
Yancer’s request for a protection order because the evidence
was insufficient and because he was denied his due process
rights, his right to an impartial judge, and his right to call a
nonparty witness.
STANDARD OF REVIEW
[1,2] Mootness does not prevent appellate jurisdiction. But,
because mootness is a justiciability doctrine that operates to
prevent courts from exercising jurisdiction, we have reviewed
mootness determinations under the same standard of review
as other jurisdictional questions. State v. York, 278 Neb. 306,
770 N.W.2d 614 (2009). A jurisdictional question that does
not involve a factual dispute is determined by an appellate
court as a matter of law, which requires the appellate court
to reach a conclusion independent of the lower court’s deci-
sion. Id.
ANALYSIS
[3,4] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it. Greater Omaha Realty
Co. v. City of Omaha, 258 Neb. 714, 605 N.W.2d 472 (2000).
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While it is not a constitutional prerequisite for jurisdiction,
the existence of an actual case or controversy is necessary for
the exercise of judicial power. Id. Thus, we must first deter-
mine whether the expiration of the protection order, which
expired by its own terms on January 18, 2014, has rendered
this appeal moot.
[5,6] A case becomes moot when the issues initially pre-
sented in litigation cease to exist or the litigants lack a legally
cognizable interest in the outcome of litigation. Id. A moot case
is one which seeks to determine a question which does not rest
upon existing facts or rights, in which the issues presented are
no longer alive. Putnam v. Fortenberry, 256 Neb. 266, 589
N.W.2d 838 (1999). As a general rule, a moot case is subject to
summary dismissal. Id.
[7,8] The protection order in the present case was entered
on January 18, 2013, and by its own terms was effective until
January 18, 2014. Because the protection order in this case
has expired, the instant appeal is moot. Appeals involving
the granting of a protection order will almost always be moot
before the case is heard because of the time-limited nature of
a protection order. Hron v. Donlan, 259 Neb. 259, 609 N.W.2d
379 (2000). However, it has been recognized that under cer-
tain 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. Id.
[9] In determining whether the public interest exception
should be invoked, the court considers the public or pri-
vate nature of the question presented, the desirability of an
authoritative adjudication for future guidance of public offi-
cials, and the likelihood of future recurrence of the same or a
similar problem. Hauser v. Hauser, 259 Neb. 653, 611 N.W.2d
840 (2000).
The dissent suggests that the court made “at least two
errors” that should be addressed under the public interest
exception: “(1) an error of law with regard to the harassment
protection order statutes and (2) an evidentiary error.” We note
that Kaufman does not raise the first basis as an assigned error.
Moreover, we fail to see how either alleged error rises to the
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level of public interest so as to merit consideration under the
exception. Rather, at best, we are presented with an isolated
misinterpretation of the harassment statute and evidentiary
errors committed by a single judge.
[10] A review of cases in which the Nebraska Supreme
Court has applied the public interest exception leads us to the
conclusion that the exception applies where the activity sought
to be prohibited is of a public nature. See, e.g., Evertson v. City
of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009); In re Interest
of Anaya, 276 Neb. 825, 758 N.W.2d 10 (2008).
Evertson v. City of Kimball, supra, was a mandamus action
in which citizens sought to compel the City of Kimball to
disclose an investigative report on racial profiling by police.
The district court ordered the city to produce the report and
also attached a redacted copy to its order. On appeal, the
appellees contended the appeal was moot because of the
court’s disclosure. The Nebraska Supreme Court held that
although the appeal was moot, the public interest doctrine
applied because the court could foresee a public body hiring a
private investigator to conduct an internal investigation of its
officials to eliminate the appearance of impartiality and the
courts and public bodies would find guidance from a review
of the issues.
In In re Interest of Anaya, supra, the parents of a newborn
infant objected to a State-required blood screening for their
son. Based upon their refusal, the State filed a petition for
adjudication, and the child was removed from his parents’
home. See Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2013). He
was ultimately tested and returned to his parents. The parents
filed suit, claiming that the screening statutes were unconsti-
tutional and that the evidence was insufficient to adjudicate
the child. The court determined the case was moot because
the screening had been performed and the adjudication peti-
tion had been dismissed. It proceeded to consider the appeal,
however, under the public interest exception. In deciding to do
so, the court stated:
The validity of the newborn screening statutes and
the proper statutory method of enforcing the statutes fall
squarely within the public interest. Resolution of these
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issues involves the health and welfare of all children
born in the state, an issue of paramount importance to
the citizens of this state. Furthermore, this court’s resolu-
tion of the constitutional and statutory issues in this case
will provide guidance for state officials and the juvenile
courts on the validity of the newborn screening stat-
utes and the proper method of enforcing these statutes.
Finally, the appellants in this case are of childbearing
age, so the issues presented in this appeal are capable of
recurring in the future, and in addition, similar cases are
likely to arise.
In re Interest of Anaya, 276 Neb. at 832, 758 N.W.2d at 17.
[11] In the present action, Yancer sought to prevent her
jilted paramour from making continued contact with her. We
are unable to equate the public’s interest in such a situation
to that of the parties’ activities in Evertson v. City of Kimball,
278 Neb. 1, 767 N.W.2d 751 (2009), and In re Interest of
Anaya, 276 Neb. 825, 758 N.W.2d 10 (2008), that gave rise
to the application of the public interest exception. Even if we
consider the “proper disposition of applications for protec-
tion orders” as a matter affecting public interest, as did the
Nebraska Supreme Court in Elstun v. Elstun, 257 Neb. 820,
824, 600 N.W.2d 835, 839 (1999), we fail to see how the
remaining two factors, desirability of an authoritative adjudi-
cation for future guidance of public officials and the likelihood
of future recurrence of the same or a similar problem, are met.
The dissent ignores the second consideration, the desirability
of an authoritative adjudication for future guidance of pub-
lic officials. Our review of Nebraska case law indicates that
while it may have been error for the trial court to take judicial
notice of the petition and affidavit, this does not require us
to invoke the public interest exception because it would not
provide any future guidance for public officials beyond that
which the appellate courts have already provided in similar
situations. See, Mahmood v. Mahmud, 279 Neb. 390, 778
N.W.2d 426 (2010); Hronek v. Brosnan, 20 Neb. Ct. App. 200,
823 N.W.2d 204 (2012) (providing authoritative guidance on
court’s inability to take judicial notice of protection order and
supporting affidavit); Sherman v. Sherman, 18 Neb. Ct. App. 342,
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781 N.W.2d 615 (2010). The same is true for the trial court’s
failure to specifically rule on exhibits offered by the parties.
See, e.g., Mahmood v. Mahmud, supra; Sherman v. Sherman,
supra (stating that documents must be admitted into evidence
at contested factual hearings in protection order proceedings
to be considered by court). Nor do we find that addressing the
judge’s misinterpretation of the harassment statutes would pro-
vide future guidance on a problem likely to reoccur, given the
plain and unambiguous nature of the statute itself. See, State
v. Johnson, 287 Neb. 190, 842 N.W.2d 63 (2014) (applying
public interest exception because question present involved
area of law that had not yet been developed); In re Interest of
Thomas M., 282 Neb. 316, 803 N.W.2d 46 (2011) (applying
exception because previous appellate cases have questioned
juvenile court’s authority of issue presented, but issue had
evaded review).
If every error committed by a trial judge called into play
the public interest exception, the mootness doctrine would be
subsumed by the exception. Therefore, we decline to address
the merits of this case under that exception.
The dissent goes on to further suggest “[f]or the sake of
completeness” that “other rights or liabilities may be affected
by the case’s determination.” The dissent ponders that when
our review of a protection order appeal reveals errors or
deficiencies in the record that warrant reversal and vaca-
tion of the protection order, having such an order vacated
should qualify as a “right” belonging to the respondent
that should invoke this other exception to the moot-
ness doctrine.
But then the dissent changes course, claiming that
the other rights or liabilities exception has not been
examined by the Nebraska Supreme Court in this spe-
cific context, and an analysis of this other exception
is unnecessary to the resolution of the appeal before
us currently, since the public interest exception can be
invoked instead.
[12] Nebraska jurisprudence reveals that the Nebraska
Supreme Court has clearly rejected application of the other
rights or liabilities exception absent proof of collateral
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consequences resulting from the issuance of the protection
order. See, Hauser v. Hauser, 259 Neb. 653, 611 N.W.2d
840 (2000); Hron v. Donlan, 259 Neb. 259, 609 N.W.2d 379
(2000); State v. Patterson, 237 Neb. 198, 465 N.W.2d 743
(1991). This court has followed suit. See Gernstein v. Allen,
10 Neb. Ct. App. 214, 630 N.W.2d 672 (2001). The dissent iden-
tifies no right of Kaufman that has been or may be affected
by this protection order sufficient to bring it within the moot-
ness exception for other rights or liabilities affected by the
case’s determination.
Because Kaufman does not allege any reasons which would
justify the application of any exception to the mootness doc-
trine, nor is there any indication in the record that any excep-
tion should be invoked under the circumstances of this case,
we decline to do so.
CONCLUSION
Because we have concluded that this appeal is moot and
that no exceptions to the mootness doctrine apply, the appeal
is dismissed.
Appeal dismissed.
Bishop, Judge, dissenting.
By no fault of Kaufman, his appellate review of the harass-
ment protection order entered against him did not reach this
court until more than 1 year after its entry. The majority has
concluded that since the protection order expired by its own
terms on January 18, 2014, the appeal should be dismissed
as moot.
Citing to Hron v. Donlan, 259 Neb. 259, 609 N.W.2d 379
(2000), the majority acknowledges that appeals involving the
granting of a protection order will almost always be moot
before the case is heard, because of the time-limited nature
of a protection order, but that under certain circumstances, an
appellate court may entertain the issues presented by a moot
case when the claims presented involve a matter of great pub-
lic interest or when other rights or liabilities may be affected
by the case’s determination. The Hron decision tells us that
in determining whether the public interest exception should
be invoked, the court considers the public or private nature
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of the question presented, the desirability of an authoritative
adjudication for future guidance of public officials, and the
likelihood of future recurrence of the same or a similar prob-
lem. In considering those factors, the majority concludes that
“Kaufman does not allege any reasons which would justify the
application of any exception to the mootness doctrine, nor is
there any indication in the record that any exception should be
invoked under the circumstances of this case.” I respectfully
conclude otherwise.
In support of a public interest exception to the mootness
doctrine, there are at least two errors made by the court that are
more public than private in nature, and may result in a future
recurrence of the same or a similar problem if not addressed:
(1) an error of law with regard to the harassment protection
order statutes and (2) an evidentiary error.
Requirements for Harassment
Protection Order.
The court erred in its interpretation and application of the
harassment protection order statutes, concluding that evidence
of threatening behavior was not necessary to the issuance of a
harassment protection order. In fact, the court specifically told
Kaufman that the harassment statute did not require evidence
of threatening or dangerous behavior, only that the behavior
is harassing and annoying. The court also later indicated that
Kaufman had disturbed Yancer’s “peace and quiet” and, in
making that finding, entered the order. This is not consistent
with the law and is not an error personal to Kaufman. There is
clearly a public interest in making sure trial courts are applying
the law correctly to the evidence before them.
A person filing a petition for a harassment protection order
(the petitioner) has the burden to establish by a preponderance
of the evidence the truth of the facts supporting a protection
order. Mahmood v. Mahmud, 279 Neb. 390, 778 N.W.2d 426
(2010). Neb. Rev. Stat. § 28-311.09(1) (Cum. Supp. 2012)
states in part: “Any victim who has been harassed as defined
by section 28-311.02 may file a petition and affidavit for a
harassment protection order as provided in subsection (3) of
this section.”
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“Harass” is defined at Neb. Rev. Stat. § 28-311.02(2)(a)
(Reissue 2008) as follows: “Harass means to engage in a
knowing and willful course of conduct directed at a specific
person which seriously terrifies, threatens, or intimidates the
person and which serves no legitimate purpose.” And a “course
of conduct” is defined at § 28-311.02(2)(b):
Course of conduct means a pattern of conduct composed
of a series of acts over a period of time, however short,
evidencing a continuity of purpose, including a series of
acts of following, detaining, restraining the personal lib-
erty of, or stalking the person or telephoning, contacting,
or otherwise communicating with the person.
Based on the plain reading of these statutes, a harassment pro-
tection order should only issue against the perpetrator of such
actions (the respondent) when a preponderance of the evidence
establishes that the respondent engaged in a knowing and will-
ful course of conduct directed at a specific person which seri-
ously terrifies, threatens, or intimidates that person and which
serves no legitimate purpose. Furthermore, when analyzing
§ 28-311.02, the Nebraska Supreme Court has concluded
that Nebraska’s stalking and harassment statutes are given an
objective construction and that the victim’s experience result-
ing from the perpetrator’s conduct should be assessed on an
objective basis. In re Interest of Jeffrey K., 273 Neb. 239, 728
N.W.2d 606 (2007). Thus, the inquiry is whether a reasonable
person would be seriously terrified, threatened, or intimidated
by the perpetrator’s conduct. Id.
In the case before us, Kaufman conceded that he likely
engaged in a course of conduct, that he did send Yancer “a few
letters and poems,” but that “[i]n all of [his] communications
to her, [he had] never said anything threatening.” As noted ear-
lier, the county court judge mistakenly informed Kaufman that
the statute did not require proof of threatening behavior. When
Kaufman, who appeared pro se, was given an opportunity to
question Yancer about one of her allegations, the following
exchange took place:
[Kaufman:] Debbie, what have I done to make you
feel threatened?
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THE COURT: Are you talking about this January 7
letter? We’re talking about threatened, the statute doesn’t
talk about — doesn’t necessitate threaten or danger, it
says harass and annoy.
[Kaufman:] Your Honor, I do have the statute, I don’t
know if I need to review it with you, or —
THE COURT: I’ve got the statute, too . . . . Now ask
her about the January 7 letter or [the attorney’s] letter
to you.
After Kaufman indicated that he did not have questions specific
to the attorney’s letter or the e-mail the court was referring to,
the county court judge proceeded to read the next allegation in
the petition regarding some poetry sent by Kaufman to Yancer.
At the conclusion of the hearing, the county court judge stated,
“Nobody said violence was a necessary part of it. She says
you’re disturbing her peace and quiet, and I believe you are.
I’m going to sign this protection order.”
Evidence of a respondent engaging in annoying behav-
ior, or otherwise disturbing a petitioner’s peace and quiet,
does not satisfy the requirements of the harassment protection
order statutes which seek to protect against behaviors that
seriously terrify, threaten, or intimidate. If the court is under
the mistaken impression that something less than “seriously
terrifie[d], threaten[ed], or intimidate[d]” is sufficient for the
entry of a harassment protection order, then this is a problem
capable of recurrence with persons other than Kaufman, and
accordingly, the appeal warranted consideration under a public
interest exception to the mootness doctrine. As noted in Elstun
v. Elstun, 257 Neb. 820, 824, 600 N.W.2d 835, 839 (1999),
“[T]he proper disposition of applications for protection orders
. . . is a matter affecting the public interest.”
Court’s Refusal to Receive
Documentary Evidence.
Another error committed by the court affecting the proper
disposition of applications for protection orders that supports
a public interest exception to the mootness doctrine was the
court’s refusal to receive documentary evidence when offered
by both parties. In addition to refusing other offered evidence,
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the court specifically refused to receive Yancer’s petition and
affidavit, and announced that it would take judicial notice of
those documents instead. The following colloquy took place:
[Yancer’s counsel:] Your Honor, I’d like to offer a copy
of the Petition and affidavit in full, as an exhibit to this
Court, and then I have one additional exhibit I’d like to
discuss at this time, since it’s an additional contact since
the time of —
THE COURT: We’re not going to do that. Somebody
has alleged three different things, and we start talking . .
. . It is my policy to say that she laid down three differ-
ent things, and that’s what we’re here talking about. If
we start throwing out different events or occurrences of
discourse, we’ll be here all day.
[Yancer’s counsel:] Okay, Your Honor. I just want to
make sure that —
THE COURT: You don’t need to offer the petition. I’ll
take judicial notice of it; I’m reading it.
The court erred in concluding that it could consider the peti-
tion and affidavit via judicial notice. In Sherman v. Sherman,
18 Neb. Ct. App. 342, 781 N.W.2d 615 (2010), this court consid-
ered the sufficiency of the evidence in a harassment protec-
tion order case, and like this case, the petitioner’s petition
and affidavit were not received as evidence at trial. Also like
this case, the trial court in Sherman attempted to take judicial
notice of the allegations contained in the petition and affidavit.
We noted that “a court may not take judicial notice of disputed
facts,” and therefore “the allegations contained in [the petition-
er’s] petition and affidavit were not evidence upon which the
court could base its findings and were not properly considered
by the court in making its determination.” Id. at 348, 349, 781
N.W.2d at 621.
Similarly in this case, the court’s refusal to receive the
petition and affidavit precluded it from considering anything
contained in those documents. The only evidence before the
court was the information revealed through the testimony of
Yancer and Kaufman. As noted by the majority, that testimony
revealed that Yancer and Kaufman had been in a romantic
relationship, and after the breakup, Kaufman continued to
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communicate with Yancer through letters and poems despite
a cease and desist letter sent to Kaufman by Yancer’s attor-
ney. None of these documents were received as evidence, and
the parties’ testimony about them failed to reveal anything
seriously terrifying, threatening, or intimidating by Kaufman
toward Yancer.
Accordingly, in my opinion, we should reach the merits of
this appeal under the public interest exception to the mootness
doctrine, and because I conclude the law was not correctly
applied and the evidence was insufficient to support the entry
of a harassment protection order based on the plain language of
the statute, I would have reversed the order and remanded the
matter with directions to vacate the protection order.
For the sake of completeness, I would further note that Hron
v. Donlan, 259 Neb. 259, 609 N.W.2d 379 (2000), indicates
that in addition to the public interest exception to the mootness
doctrine, under certain circumstances, an appellate court may
also entertain the issues presented by a moot case when “other
rights or liabilities may be affected by the case’s determina-
tion.” The majority states that Hron v. Donlan, supra, estab-
lishes that “the Nebraska Supreme Court has clearly rejected
application of the other rights or liabilities exception absent
proof of collateral consequences resulting from the issuance
of the protection order.” However, in addressing the moot-
ness issue as related to the respondent’s “stigma” argument
in the Hron case, the Hron court “recognized that even when
a sentence for a criminal conviction has already been fully
served, an appeal from the conviction is not moot when the
defendant is subjected to ‘collateral consequences’ as a result
of the criminal conviction.” 259 Neb. at 264, 609 N.W.2d at
384. The Hron court then goes on to state that “this exception
to the mootness doctrine is inapplicable in the present case,”
because the respondent “was never criminally convicted as
a result of the issuance of the protection order and therefore
cannot articulate any ‘collateral consequences’ resulting from
a criminal conviction that would cause him to ‘suffer future
penalties or disabilities.’” Id. I do not read Hron to mean that
in every protection order case, a respondent must prove that
a conviction resulted from the issuance of a protection order
Decisions of the Nebraska Court of Appeals
334 22 NEBRASKA APPELLATE REPORTS
before a court can consider whether “other rights or liabilities
may be affected by the case’s determination.” In my opinion,
when our review of a protection order appeal reveals errors
or deficiencies in the record that warrant reversal and vaca-
tion of the protection order, having such an order vacated
should qualify as a “right” belonging to the respondent that
should invoke this other exception to the mootness doctrine.
However, the other rights or liabilities exception has not been
examined by the Nebraska Supreme Court in this specific
context, and an analysis of this other exception is unnecessary
to the resolution of the appeal before us currently, since the
public interest exception can be invoked instead.
Troy Bird, appellee, v.
Brekk Bird, appellant.
___ N.W.2d ___
Filed September 2, 2014. No. A-13-912.
1. Child Custody: Appeal and Error. Child custody determinations are matters ini-
tially entrusted to the discretion of the trial court, and although reviewed de novo
on the record, the trial court’s determination will normally be affirmed absent an
abuse of discretion.
2. Evidence: Appeal and Error. When evidence is in conflict, an appellate court
considers, and may give weight to, the fact that the trial judge heard and observed
the witnesses and accepted one version of the facts rather than another.
3. Child Custody. Ordinarily, custody of a minor child will not be modified unless
there has been a material change of circumstances showing that the custodial par-
ent is unfit or that the best interests of the child require such action.
4. Modification of Decree: Child Custody: Proof. The party seeking modification
of child custody bears the burden of showing a material change of circumstances
affecting the best interests of a child.
5. Child Custody. In order to prevail on a motion to remove a minor child to
another jurisdiction, the custodial parent must first satisfy the court that he or
she has a legitimate reason for leaving the state. After clearing that threshold, the
custodial parent must also demonstrate that it is in the child’s best interests to
continue living with him or her in the new location.
6. Child Custody: Intent. When a parent sharing joint legal and physical custody
seeks to modify custody and relocate, that parent must first prove a material
change in circumstances affecting the best interests of a child by evidence of
a legitimate reason to leave the state, together with an expressed intention to
do so.