Paw K. v. Christian G. , 32 Neb. Ct. App. 317 ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/17/2023 08:06 AM CDT
- 317 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
PAW K. V. CHRISTIAN G.
Cite as 32 Neb. App. 317Paw K., appellee, v.
Christian G., appellant.
___ N.W.2d ___
Filed October 17, 2023. No. A-23-195.
1. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence
Rules commit the evidentiary question at issue to the discretion of the
trial court, an appellate court reviews the admissibility of evidence for
an abuse of discretion.
2. Judgments: 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 matters submitted for disposition.
3. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings
under the residual hearsay exception, an appellate court reviews for
clear error the factual findings underpinning a trial court’s hearsay rul-
ing and reviews de novo the court’s ultimate determination to admit
evidence over a hearsay objection.
4. Motions to Vacate: Time: Appeal and Error. The decision to vacate
an order 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.
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: Waiver. Generally speaking, the filing of a general
appearance which does not preserve an objection to personal jurisdiction
constitutes a waiver of personal jurisdiction.
7. Records: Appeal and Error. It is incumbent upon the appellant to pre­
sent a record supporting the errors assigned.
8. Judgments: Records: Presumptions: Evidence: Appeal and Error.
In the absence of a record of the evidence considered by the court, it
- 318 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
PAW K. V. CHRISTIAN G.
Cite as 32 Neb. App. 317is presumed on appeal that the evidence supports the trial court’s orders
and judgment.
9. Trial: Evidence: Affidavits. Generally, an affidavit is not admissible to
establish facts material to the issue being tried.
10. Affidavits: Legislature: Statutes. The Legislature may provide
a statutory exception to the general rule regarding the admissibility
of affidavits.
11. Hearsay: Words and Phrases. Hearsay is a statement, 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.
12. Rules of Evidence: Hearsay. Hearsay is not admissible except as pro-
vided by the Nebraska Evidence Rules or elsewhere.
13. Rules of Evidence: Hearsay: Words and Phrases. A written assertion
offered to prove the truth of the matter asserted is a hearsay statement
under Neb. Rev. Stat. § 27-801(3) (Cum. Supp. 2022), unless it falls
within an exception or exclusion under the hearsay rules.
14. Trial: Hearsay: Evidence: Appeal and Error. When the opposing
party objects to evidence as hearsay and the trial court sustains the
objection, the proponent is required to point out the possible hearsay
exceptions in order to preserve the point for appeal.
Appeal from the District Court for Lancaster County: Ryan
S. Post, Judge. Affirmed.
Matt Catlett, of Law Office of Matt Catlett, for appellant.
Courtney R. Ruwe, of Astley Putnam, P.C., L.L.O., for
appellee.
Bishop, Arterburn, and Welch, Judges.
Bishop, Judge.
INTRODUCTION
Christian G. appeals from an order of the district court for
Lancaster County denying his motion to vacate a domestic
abuse protection order. We affirm.
BACKGROUND
On January 20, 2023, Paw K. filed a petition and affidavit
to obtain a domestic abuse protection order pursuant to Neb.
Rev. Stat. § 42-924 (Cum. Supp. 2022). The petition and
- 319 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
PAW K. V. CHRISTIAN G.
Cite as 32 Neb. App. 317affidavit concerned Christian, the father of Paw’s child. Paw
included her address in Lincoln, Nebraska, and gave an Iowa
address for Christian. The petition stated that Paw was a victim
of domestic abuse. In the section regarding other past or cur-
rent court cases involving the parties, Paw listed two separate
case numbers, as well as a previous 2019 incident when “he
was arrested for domestic assault of me.” On the affidavit on
the provided form, Paw described three different incidents of
domestic abuse, which we will quote verbatim. Paw alleged
that on January 10, 2023,
[C]hristian started at 7:15am with abuse texts threatening
me and telling lies about me and our son making false
accusations threat to come to my house and posted on
public facebook lies he has hitbme in the past and im
affaird if he shows up he will again i tell him to stop
haressing me amd to leave me alone and everytime he
gets worse today did not stop until 11:40 all while i was
at work continue to text me i have them attached I get so
stressed I break out in hives and need to get shots. I am
very afraid of him.
Paw alleged that on December 22, 2022,
starting at 230 pm he started abuse again because christ-
mas was my court ordered holiday and he was mad he
could not see [our son] till Dec27th he called me a fuck-
ing bitch and went on with his abuse till 340pm.
he had me so scared and up that i damaged 72 parts at
work valved at $500 each i almost my job cause he not
leave me alone.
Paw alleged that on December 8 through 9,
starting on the 8th at noon he started demanding extra
time when i told him the court order said friday at 3pm
was the pick up time he got mad and start texting and
haressing me about being a fucking bitch and the court
order did not mean shit . he then continued it up again
at noon the next day and again used horrible words he
always calls me bad words and threaten to co.e to my
house he say he make me listen I afraid of him.
- 320 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
PAW K. V. CHRISTIAN G.
Cite as 32 Neb. App. 317Attached to Paw’s petition and affidavit were 10 additional
pages of screenshots and notes by Paw regarding other dates
and incidents.
On the same day the petition and affidavit were filed,
January 20, 2023, the district court entered an ex parte domes-
tic abuse protection order in favor of Paw, and such order was
to remain in effect for 1 year unless otherwise modified by
the court. The ex parte order stated that if Christian wished
to appear and show cause why the order should not remain in
effect, he was to return the provided “Request for Hearing”
form within 10 business days after service upon him. It was
also ordered that “a copy of this order and a copy of the peti-
tion be served on the respondent and a copy of this order be
mailed to the petitioner(s).”
On January 23, 2023, Christian filed a “Request for Hearing
- Protection Order.” On the request for hearing form, Christian
marked the box stating, “I do not agree to receive notification
by email.”
In its “Order for Hearing” filed on Monday, January 23,
2023, the district court set a hearing for the following Monday,
January 30, at 10:30 a.m. The “Certificate of Service” signed
by the clerk of the court states that on January 24, a copy of
the foregoing document was served on Christian at an address
in Iowa “by mailing by United States Mail.”
On January 30, 2023, the district court entered an “Order
Affirming Domestic Abuse Protection Order” in favor of Paw.
The order states that Christian did not appear at the hearing
that day. The order also states that evidence was adduced, and
the court found that it had jurisdiction of the parties and sub-
ject matter. The court further found that Paw had shown that
Christian: “attempted to cause or intentionally and knowingly
caused bodily injury with or without a dangerous instrument”;
“by means of a credible threat, placed the petitioner(s) in fear
of bodily injury”; or “engaged in sexual contact or sexual
penetration without consent as defined by Neb. Rev. Stat.
§ 28-318.”
- 321 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
PAW K. V. CHRISTIAN G.
Cite as 32 Neb. App. 317On February 9, 2023, Christian filed a motion to vacate the
January 30 order
on the ground that the court’s “Order for Hearing” issued
on January 23, 2023, directing that a hearing be held on
January 30, 2023, at 10:30 a.m., was not served on the
respondent until after January 30, 2023, at 10:30 a.m., as
shown in the attached Affidavit of Christian . . . , and on
the ground that the court lacks jurisdiction over the per-
son of the respondent.
(Emphasis in original.) In his attached affidavit, Christian
stated that he “picked up the mail from [his] mailbox,” on
January 30, 2023, at “approximately 3:30 p.m.,” and among
the items was the “‘Order for Hearing,’” stating that the hear-
ing would be held on January 30 at 10:30 a.m. Christian stated
that “[b]ecause it was already 3:30 p.m., it was impossible for
[him] to attend this hearing.” He also stated:
As further proof that I did not receive this “Order for
Hearing” until it was too late, attached to this Affidavit
is a copy of an email that “USPS Informed Delivery”
transmitted to my email address on January 30, 2023, at
7:24 a.m., stating, “You have mail and packages arriving
soon,” and including an image of the front of each enve-
lope that would be “arriving soon.” . . . As can be seen, the
envelope from “Clerk of the District Court, . . . Lincoln,
Nebraska . . .” is the second image. This further proves
that I did not receive the envelope prior to January 30,
2023. Finally, although the email from “USPS Informed
Delivery” was transmitted at 7:24 a.m. on January 30,
2023, I did not access that email until well after that time,
and even if I had accessed that email at exactly 7:24 a.m.
on January 30, 2023, it would have made no difference to
my ability to attend the hearing in the Matter that day at
10:30 a.m., because, obviously, the email only contains
an image of the front of the envelope. In other words,
I did not have, and would not have had, any idea what
document was inside the envelope until I opened it, which
- 322 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
PAW K. V. CHRISTIAN G.
Cite as 32 Neb. App. 317I did not do until I picked up the mail from my mailbox at
approximately 3:30 p.m. that day.
(Emphasis in original.) A copy of an email from “USPS
Informed Delivery” dated January 30, 2023, at 7:24 a.m. was
attached to Christian’s affidavit.
A hearing on Christian’s motion to vacate was held on
March 3, 2023. In support of the motion to vacate, Christian’s
counsel offered into evidence exhibit 2, “an affidavit that was
attached to the motion.” Paw’s counsel objected on “foundation
and hearsay.” Paw’s counsel then stated, “I would also like to
bring to the Court’s attention, that the affidavit that was just
handed to me, [sic] notates [Christian’s] email address on the
USPS attachment. But on that, that was filed with the Court, an
email address does not appear.”
The district court asked Christian’s counsel why exhibit 2
was not hearsay, and counsel responded, “[T]his is not a trial or
a formal evidentiary hearing on a complaint or a petition. This
is a motion to vacate. So, there is no oral testimony; the rules
of evidence don’t apply.” Counsel further stated, “The strict
rules of evidence do not apply . . . on a motion to vacate what
is, effectively, a default judgment in this particular case. That’s
— that’s how that’s done.” As to foundation, counsel stated, “I
don’t know what foundation is lacking. . . . It’s an affidavit.”
The following colloquy was then had on the record.
[Paw’s counsel:] 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, certainly, is hearsay.
And I’m unaware of any rule that says that the rules of
evidence don’t apply here at a motion to vacate.
THE COURT: Further response?
[Christian’s counsel:] No. I mean, I don’t — there is
an email address that’s visible on one that wasn’t on the
other. I’m not sure. Maybe it was redacted — that was
- 323 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
PAW K. V. CHRISTIAN G.
Cite as 32 Neb. App. 317redacted. I don’t know. I don’t have any idea. I don’t
know. That doesn’t mean that there’s no foundation.
THE COURT: Okay. Let me take just a brief moment
to see if I can find anything that would support your argu-
ment, as it relates to the rules of evidence not applying.
I’m just not aware why they wouldn’t apply. I’m not see-
ing anything in the statute on a motion to vacate that says
they don’t apply.
[Christian’s counsel:] Well, it’s like a motion for sum-
mary judgment. It’s like a, I mean, it’s a motion to vacate
a final order. There’s no oral testimony, there’s no rules
of evidence that apply. There’s — that’s what happens.
These are based on affidavits.
(Pause in proceedings.)
THE COURT: I’ll say, the first case that popped up,
there is evidence offered on a motion to vacate.
For record purposes, I’m not aware of any case that
says the rules of evidence don’t apply in this proceeding.
I’ve had an opportunity to review the case law, as
well as the statute, related to vacating orders or judg-
ments. Specifically, I looked at 25-2001. And I’m not
seeing anything that indicates that the rules of evidence
do not apply, and so, the hearsay objection is going to
be sustained.
(Emphasis supplied.)
Christian’s counsel then addressed the “other part” of the
motion to vacate, that the district court lacked personal juris-
diction “to enter a final protection order against a non-resident
respondent.” The court noted that Christian requested the hear-
ing, and then said, “Didn’t he submit himself to the jurisdiction
of the Court at that point?” Counsel responded:
Certainly not. So, the request for hearing, all it says is
that if you don’t want this to — ex parte to remain in
effect, you have to request a hearing. And so, what you
don’t know is the basis for wanting to not have that ex
- 324 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
PAW K. V. CHRISTIAN G.
Cite as 32 Neb. App. 317parte remain in effect. So that could be personal jurisdic-
tion and certainly what it was.
Moreover, there’s the rule. The rule is, 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.
This is, of course, what the Nebraska Supreme Court
says. What it means is — what the Third Circuit said
in Bel-Ray Company v. Chemrite, 181 F.3d, 435, 1999,
submission to personal jurisdiction based on seeking
affirmative relief is implicated only when a court, quote,
considers the merits or quasi-merits of controversy.
The other reason that this does not constitute a waiver
of any objection to personal jurisdiction is because the
Court doesn’t have any discretion. The — in fact, the act
of a hearing being held is ministerial. So, under the stat-
ute, it has to be done.
Whereas on, let’s say, a 12(b)(6) motion, where some-
body is served with a complaint, and they file a 12(b)(6)
motion, and they don’t assert personal jurisdiction, then
they have waived it because they’re asking the Court to
rule on something. But it is a discretionary matter for
the Court. The Court doesn’t have to grant it. The Court
uses its discretion in determining whether to grant the
12(b)(6) motion.
This is — there is no discretion here. There has to be
a hearing. [Christian] doesn’t seek affirmative relief from
the Court by requesting a hearing that just says, I don’t
want this to remain in effect, so I request a hearing.
Christian’s counsel noted that when a respondent is served with
an ex parte protection order, attached to that order is a request
for hearing that the respondent must send in. He then stated:
The statute provides that there has to be, then, a hear-
ing and it’s got to be, you know, within — whatever it
is. I think it says 30 days. That is a ministerial act. It’s
- 325 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
PAW K. V. CHRISTIAN G.
Cite as 32 Neb. App. 317— you’re not — he’s not invoking the Court’s jurisdic-
tion on something that the Court has, right, the author-
ity or discretion to deny. There has to be a hearing if he
requests it.
Moreover, the request for hearing form doesn’t say,
you know, personal jurisdiction. It just says request for
hearing. So how does this Court know that he doesn’t
want to have a hearing so that he can challenge per-
sonal jurisdiction.
....
. . . I mean, how does one challenge personal jurisdic-
tion without a hearing.
The court noted that Christian requested a hearing but did not
show up for the hearing. Christian’s counsel’s response was
that the court “improperly granted a hearsay objection” regard-
ing the affidavit in support of the motion to vacate, which
claimed he was not served. Counsel then stated, “[Y]ou get 30
days to order a hearing. Seven days for somebody who is out
of state . . . almost seems maybe intentional. But I’m not say-
ing that.”
Paw’s counsel argued that Christian could have challenged
personal jurisdiction by filing a motion to dismiss and request-
ing a hearing within that motion. Counsel also contended that
under Neb. Rev. Stat. § 25-536 (Reissue 2016), Christian had
sufficient contacts with the State of Nebraska to warrant per-
sonal jurisdiction. Counsel stated that the acts that led Paw to
file a protection order “were all actions that would stem here
in Nebraska”; “[t]he case law is pretty clear that it’s not from
the state where the person sends these texts or messages, it’s
where the person receives them. And that’s here in the state of
Nebraska.” Counsel also reminded the court about the parties’
paternity/custody case and said that Christian was “ordered to
come here to Nebraska to pick up his child to bring him back
to Iowa every other weekend,” “[s]o, he continually is having
contact with this state.” Additionally, Christian’s affidavit was
notarized in the State of Nebraska.
- 326 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
PAW K. V. CHRISTIAN G.
Cite as 32 Neb. App. 317At the conclusion of the hearing, the district court orally
denied Christian’s motion to vacate. The court’s written order
was subsequently entered on March 8, 2023.
Christian appeals.
ASSIGNMENTS OF ERROR
Christian assigns that the district court erred in (1) refus-
ing to receive his affidavit and (2) denying his “‘Motion to
Vacate’” the “‘Order Affirming Domestic Abuse Protection
Order’” when he sought to vacate on the grounds that (a) he
was not served with the “‘Order for Hearing’” until after the
hearing had occurred and (b) the court did not have personal
jurisdiction over him.
STANDARD OF REVIEW
[1,2] Where the Nebraska Evidence Rules commit the evi-
dentiary question at issue to the discretion of the trial court,
an appellate court reviews the admissibility of evidence for an
abuse of discretion. Hernandez v. Dorantes, 314 Neb. 905, 994
N.W.2d 46 (2023). 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 deny-
ing just results in matters submitted for disposition. Schaaf v.
Schaaf, 312 Neb. 1, 978 N.W.2d 1 (2022).
[3] Apart from rulings under the residual hearsay excep-
tion, we review for clear error the factual findings underpin-
ning a trial court’s hearsay ruling and review de novo the
court’s ultimate determination to admit evidence over a hear-
say objection. State v. Draganescu, 276 Neb. 448, 755 N.W.2d
57 (2008).
[4] The decision to vacate an order 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. Schaaf v.
Schaaf, supra.- 327 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
PAW K. V. CHRISTIAN G.
Cite as 32 Neb. App. 317ANALYSIS
Personal Jurisdiction
Christian argues that the district court did not have personal
jurisdiction over him when it entered the “Order Affirming
Domestic Abuse Protection Order” and that therefore, the
court erred in denying his motion to vacate that order. More
specifically, he argues that the court did not have personal
jurisdiction over him
because there was nothing in [Paw’s] “Petition and
Affidavit to Obtain Domestic Abuse Protection Order”
alleging or averring any act of abuse by Christian, as
that term is defined in Neb. Rev. Stat. § 42-903(1),
because Paw . . . affirmatively alleged that Christian
was not a resident of Nebraska, and because Paw . . .
did not make a prima facie showing at the hearing on
Christian’s “Motion to Vacate” that the district court
had personal jurisdiction over him to issue its “Order
Affirming Domestic Abuse Protection Order.”
Brief for appellant at 25.
[5,6] Upon receipt of the ex parte domestic abuse protec-
tion order, Christian neither filed a motion to dismiss for lack
of personal jurisdiction nor specifically stated in his request
for hearing on the protection order that he was challenging
personal jurisdiction. See, Neb. Ct. R. Pldg. § 6-1112(b)(2)
(defense of lack of jurisdiction over person shall be asserted
in responsive pleading or made by motion; if pleading sets
forth claim for relief to which adverse party is not required
to serve responsive pleading, adverse party may assert at
trial any defense in law or fact to that claim for relief);
§ 6-1112(h)(1)(B) (defense of lack of jurisdiction over per-
son is waived if neither made by motion under this rule nor
included in responsive pleading). Because Christian neither
filed a motion to dismiss for lack of personal jurisdiction nor
specifically stated in his request for hearing on the protec-
tion order that he was challenging personal jurisdiction, he
waived personal jurisdiction. See, In re Estate of Marsh, 307
- 328 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
PAW K. V. CHRISTIAN G.
Cite as 32 Neb. App. 317Neb. 893, 951 N.W.2d 486 (2020) (one who invokes power
of court on issue other than court’s jurisdiction over one’s
person makes general appearance so as to confer personal
jurisdiction); Burns v. Burns, 293 Neb. 633, 879 N.W.2d 375(2016) (it does not take much to make general appearance;
party will be deemed to have appeared generally if, by motion
or other form of application to court, he or she seeks to bring
its powers into action on any matter other than question of
jurisdiction over that party; and even motion for continuance
constitutes general appearance that confers jurisdiction over
moving party); Clark v. Clark, 26 Neb. App. 289, 918 N.W.2d
336 (2018) (generally speaking, filing of general appearance
which does not preserve objection to personal jurisdiction
constitutes waiver of personal jurisdiction).
[7,8] Even if Christian did not waive personal jurisdiction,
it appears Paw established that the district court had personal
jurisdiction over Christian at the January 30, 2023, show
cause hearing that Christian did not attend. See Wheelbarger
v. Detroit Diesel, 313 Neb. 135, 983 N.W.2d 134 (2023)
(because our long-arm statute, § 25-536, confers personal
jurisdiction over nonresidents to fullest extent constitution-
ally permitted, inquiry is whether defendant had sufficient
minimum contacts with Nebraska so that exercise of personal
jurisdiction would not offend traditional notions of fair play
and substantial justice). Christian did not request the inclusion
of that January 30 show cause hearing in his “Request for Bill
of Exceptions,” and therefore, it is not contained in our record.
It is incumbent upon the appellant to present a record support-
ing the errors assigned. William P. v. Jamie P., 313 Neb. 378,
984 N.W.2d 285 (2023). In the absence of a record of the evi-
dence considered by the court, it is presumed on appeal that
the evidence supports the trial court’s orders and judgment.
Id. In this case, the court’s order affirming the domestic abuse
protection order following the January 30 hearing states in rel-
evant part, “Evidence was adduced, and the court, being fully
advised, finds that this court has jurisdiction of the parties[.]”
- 329 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
PAW K. V. CHRISTIAN G.
Cite as 32 Neb. App. 317We are required to presume that the evidence supports the
district court’s finding that it had personal jurisdiction of
Christian. Accordingly, Christian’s claim that the district court
did not have personal jurisdiction of him fails.
Finally, Christian asserts that Paw failed to make a
prima facie showing of personal jurisdiction at the hearing
on Christian’s motion to vacate. However, Paw notes that
Christian’s request for hearing on the ex parte protection order
constituted a general appearance and a waiver of jurisdiction.
She further contends that she had already established that the
district court had personal jurisdiction of Christian at the show
cause hearing. We have addressed both issues previously and
found that the district court did have personal jurisdiction
over Christian when it entered its order affirming the domestic
abuse protection order. As Paw correctly states, “[Paw] is not
required to establish a prima facie case for personal jurisdic-
tion at each hearing on a matter” and “to assert anything to
the contrary would be preposterous.” Brief for appellee at 17.
Personal jurisdiction having previously been established, Paw
was not again required to establish personal jurisdiction at the
hearing on Christian’s motion to vacate.
Refusal to Receive
Christian’s Affidavit
Christian assigns that the district court erred by refusing to
receive his affidavit. He argues that the court erred in sustain-
ing Paw’s foundation and hearsay objections to his affidavit
“because it was an affidavit, which is always admissible in
support of a motion.” Brief for appellant at 18 (emphasis in
original). He also seems to argue that the Nebraska Rules
of Evidence do not apply to a court hearing on his motion
to vacate.
Neb. Rev. Stat. § 25-1244 (Reissue 2016) states, “An affi-
davit 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
- 330 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
PAW K. V. CHRISTIAN G.
Cite as 32 Neb. App. 317proceedings, or upon a motion, and in any other case permitted
by law.” (Emphasis supplied.) Christian cites to TransCanada
Keystone Pipeline v. Nicholas Family, 299 Neb. 276, 283, 908
N.W.2d 60, 66 (2018), which states, “[U]nder . . . § 25-1244
. . . , an affidavit is admissible in certain enumerated situa-
tions, including ‘motion practice,’ which includes the use of
affidavits relating to preliminary, collateral, and interlocutory
matters.” But the question in TransCanada Keystone Pipeline
was whether individual landowners were entitled to attorney
fees under Neb. Rev. Stat. § 76-726 (Reissue 2009) (costs,
expenses, and fees in condemnation action), and the Nebraska
Supreme Court held that “[a]ffidavits are generally admissible
in collateral matters, and a motion for attorney fees under
§ 76-726 is such a collateral matter.” TransCanada Keystone
Pipeline v. Nicholas Family, 299 Neb. at 284, 908 N.W.2d at
66. Paw contends that TransCanada Keystone Pipeline “does
not in any stretch of the imagination hold that affidavits are
always admissible and does not support Christian’s argument.”
Brief for appellee at 13. We agree.
[9,10] Pursuant to Neb. Rev. Stat. § 27-1101 (Reissue
2016), the Nebraska Evidence Rules apply generally to all
civil and criminal proceedings except as otherwise noted.
Nowhere in § 25-1244 does it say that the rules of evidence
do not apply to the use of affidavits. Nor does Neb. Rev. Stat.
§ 25-2001 (Reissue 2016) (district court’s power to vacate or
modify judgments or orders) mention the rules of evidence
not applying. See, also, Banks v. Metropolitan Life Ins. Co.,
142 Neb. 823, 834, 8 N.W.2d 185, 191 (1943) (predecessor
to § 25-1244 provides that affidavit may be used “‘upon a
motion,’” but “[t]his provision clearly relates to preliminary,
collateral and interlocutory matters”; “general rule is that
affidavits are not admissible to establish facts material to the
issue”). But, see, Schaneman v. Wright, 238 Neb. 309, 470
N.W.2d 566 (1991) (Legislature may provide exception to
general rule regarding admissibility of affidavits by specific
statute). At the hearing on the motion to vacate, Christian’s
- 331 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
PAW K. V. CHRISTIAN G.
Cite as 32 Neb. App. 317attorney suggested his motion to vacate was “like a motion
for summary judgment. . . . There’s no oral testimony, there’s
no rules of evidence that apply. . . . These are based on affi-
davits.” However, using affidavits for summary judgment
motions is specifically authorized by statute. See Neb. Rev.
Stat. § 25-1332 (Cum. Supp. 2022). We have found no author-
ity, nor does Christian cite us to any, that states the rules of
evidence do not apply to the use of affidavits at a hearing on
a motion to vacate. Certainly, parties may stipulate to the use
of affidavits, or an opponent may choose not to object, but
as pointed out by the district court, “sometimes there’s not
an evidentiary objection and then the evidence comes in, but
today there [was].”
Christian erroneously asserts that the district court failed to
rule on Paw’s hearsay objection to the affidavit at the hearing.
Contrary to Christian’s assertion, the court sustained Paw’s
hearsay objection to the affidavit on the record at the hearing,
as seen in the emphasized portion of the colloquy on this issue
set forth earlier in this opinion.
[11-13] Hearsay is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evi-
dence to prove the truth of the matter asserted. Neb. Rev. Stat.
§ 27-801(3) (Cum. Supp. 2022). The statement can be an oral
or written assertion. § 27-801(1)(a). Hearsay is not admissible
unless otherwise provided for in the Nebraska Evidence Rules
or elsewhere. See Elbert v. Young, 312 Neb. 58, 977 N.W.2d
892 (2022). See, also, State v. Draganescu, 276 Neb. 448, 755
N.W.2d 57 (2008) (written assertion offered to prove truth
of matter asserted is hearsay statement unless it falls within
exception or exclusion under hearsay rules).
[14] 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 on the show cause hearing until after the hearing had
already occurred. Accordingly, Christian’s affidavit was hear-
say, and the district court properly sustained Paw’s hearsay
- 332 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
PAW K. V. CHRISTIAN G.
Cite as 32 Neb. App. 317objection. In his brief, Christian notes that the document
attached to his affidavit (i.e., the printout of the email from
the “USPS Informed Delivery”) was part of the affidavit and
did not constitute hearsay because it fell within an exception
under Neb. Rev. Stat. § 27-803(8) (Cum. Supp. 2022) (records,
reports, statements, or data compilations made by public offi-
cial or agency of facts required to be observed and recorded
pursuant to duty imposed by law). However, Christian did
not point out that exception, or any exception, to the district
court and thus did not preserve that point for appeal. See State
v. Ferguson, 301 Neb. 697, 919 N.W.2d 863 (2018) (when
opposing party objects to evidence as hearsay and trial court
sustains objection, proponent required to point out possible
hearsay exceptions in order to preserve point for appeal).
We have already found that the district court properly
sustained Paw’s hearsay objection, resulting in Christian’s
affidavit and attached document not being received into evi-
dence. Because the affidavit and attached document were not
admissible, we need not address the court’s ruling on Paw’s
foundation objection to the same. See Swicord v. Police Stds.
Adv. Council, 314 Neb. 816, 993 N.W.2d 327 (2023) (appellate
court not obligated to engage in analysis that is not necessary
to adjudicate case and controversy before it).
Service of Order for Hearing
Christian argues that the district court erred in denying his
motion to vacate because his affidavit demonstrated that he
was not served with the “Order for Hearing” until after the
hearing had occurred. However, we have previously found that
Christian’s affidavit was inadmissible hearsay.
Christian contends that even if his affidavit and the docu-
ment attached to it were disregarded entirely, the “Order for
Hearing,” setting hearing for January 30, 2023, was served by
first-class mail, was placed in the mail by the clerk on January
24, and was addressed to a location outside of Nebraska;
thus, “the United States Postal Service would have needed
- 333 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
PAW K. V. CHRISTIAN G.
Cite as 32 Neb. App. 317to function more or less perfectly in order for Christian to
have received the ‘Order for Hearing’ any earlier than he actu-
ally did.” Brief for appellant at 24. There is no evidence in the
record to support Christian’s assertion that the postal service
“needed to function more or less perfectly” for Christian to
have received the order sooner. The record does reflect, how-
ever, that Christian appears to have an email account (Paw’s
petition and affidavit for domestic abuse protection order con-
tains screenshots wherein a teacher of the parties’ child talks
about emailing Christian). But when Christian completed the
form to request a hearing on the protection order, he refused to
receive notification about a hearing date by email. Notification
by email would have allowed for almost immediate notice of
the scheduled hearing date. Christian’s refusal to receive an
email notification from the district court about a hearing date
he was requesting is puzzling, given his willingness to receive
emails from the postal service about his mail.
In addition to suggesting that less than perfect postal service
contributed to his failure to attend the hearing he requested,
Christian is also critical of the district court for scheduling the
hearing too soon. He suggests that if this matter is reversed, “a
different judge should be assigned to preside upon remand,”
noting that “a judge must recuse himself or herself from a
case if a judge’s impartiality might reasonably be questioned.”
Id. at 25. He claims the court’s “repeated mischaracteriza-
tions” of what occurred at the motion to vacate hearing and
its comment about Christian not claiming that he checked his
mail regularly or had experienced delays in receiving mail,
“combined with its decision to order a hearing so quickly after
receipt of Christian’s request, would, under these facts, cause
a reasonable person having knowledge of the circumstances
. . . to question the judge’s impartiality under an objective
standard of reasonableness.” Id. (emphasis in original). There
is nothing in the record before this court to support any of
these claims.
- 334 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
PAW K. V. CHRISTIAN G.
Cite as 32 Neb. App. 317At the hearing on the motion to vacate, Christian did
not produce any admissible evidence to support his alleged
untimely service or receipt of the district court’s “Order for
Hearing.” As noted previously, Christian’s affidavit was inad-
missible hearsay. Once the affidavit was deemed inadmissible,
Christian’s counsel could have asked for a continuance to
allow Christian, who appears not to have been present at the
hearing, an opportunity to appear and personally testify as to
when he received notice of the show cause hearing. However,
a continuance was not requested. Accordingly, the district
court did not abuse its discretion when it denied Christian’s
motion to vacate the order affirming the domestic abuse pro-
tection order. See, generally, In re Interest of Luz P. et al., 295
Neb. 814, 891 N.W.2d 651 (2017) (motion to vacate order
or judgment on basis that clerk failed to provide party with
notice, thereby impairing party’s ability to appeal, must be
supported by some evidence; no affidavits were submitted, nor
was there any testimony offered).
CONCLUSION
For the reasons stated above, we affirm the order of the dis-
trict court denying Christian’s motion to vacate.
Affirmed.