In re Interest of Luz P.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/10/2017 09:11 AM CST
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE INTEREST OF LUZ P. ET AL.
Cite as 295 Neb. 814
In re Interest of Luz P.
et al., children under
18
years of age.
State of Nebraska, appellee,
v. Lucia V., appellant.
___ N.W.2d ___
Filed February 10, 2017. Nos. S-16-534 through S-16-538.
1. Judgments: Jurisdiction. A jurisdictional issue that does not involve a
factual dispute presents a question of law.
2. 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, even where no party
has raised the issue.
3. ____: ____. Appellate jurisdiction of a case cannot be conferred upon a
court by action of the parties thereto, and the absence of such jurisdic-
tion may be asserted at any time during the pendency of the litigation.
4. ____: ____. An appellate court does not acquire jurisdiction over an
appeal if a party fails to properly perfect it.
5. Constitutional Law: Statutes: Jurisdiction: Time: Appeal and Error.
The appellate jurisdiction of a court is contingent upon timely compli-
ance with constitutional or statutory methods of appeal.
6. Courts: Jurisdiction. Both juvenile courts and county courts have the
power to vacate or modify their own judgments and orders during or
after the term in which they were made in the same manner as provided
for district courts.
7. Judgments. The purpose of an order nunc pro tunc is to correct clerical
or formal errors in order to make the record correctly reflect the judg-
ment actually rendered by the court.
8. ____. A nunc pro tunc order reflects now what was actually done before,
but was not accurately recorded.
9. ____. The office of an order nunc pro tunc is to correct a record which
has been made so that it will truly record the action had, which through
inadvertence or mistake was not truly recorded.
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Nebraska Supreme Court A dvance Sheets
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IN RE INTEREST OF LUZ P. ET AL.
Cite as 295 Neb. 814
10. ____. It is not the function of an order nunc pro tunc to change or revise
a judgment or order, or to set aside a judgment actually rendered, or to
render an order different from the one actually rendered, even though
such order was not the order intended.
11. ____. An order nunc pro tunc cannot be used to enlarge the judgment as
originally rendered or to change the rights fixed by it.
12. ____. The proper function of a nunc pro tunc order is not to correct,
change, or modify some affirmative action previously taken. Rather, its
purpose is to correct the record which has been made so that it will truly
record the action taken, which, through inadvertence or mistake, has not
been truly recorded.
13. Judgments: Time: Appeal and Error. An order nunc pro tunc does not
change the time to appeal the order or judgment that it amends, because
it only corrects clerical or formal errors. But where an order or judgment
is amended in a material and substantial respect, the time for appeal runs
from the date of the amendment.
14. ____: ____: ____. A nunc pro tunc order cannot extend the time for a
party to appeal the order or judgment which the nunc pro tunc order
corrects.
15. Courts: Judgments: Legislature: Time: Appeal and Error. Courts
have the power to vacate or modify their own judgments and orders at
any time during the term at which they were pronounced. But this power
may not be used to circumvent the Legislature’s power to fix the time
limit to take an appeal.
16. Courts: Judgments: Time: Appeal and Error. A court may not vacate
an order or judgment and reinstate it at a later date just for the purpose
of extending the time for appeal.
Appeals from the County Court for Buffalo County: John P.
R ademacher, Judge. Appeals dismissed.
D. Brandon Brinegar, of Ross, Schroeder & George, L.L.C.,
for appellant.
Mandi J. Amy, Deputy Buffalo County Attorney, for
appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
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IN RE INTEREST OF LUZ P. ET AL.
Cite as 295 Neb. 814
Wright, J.
NATURE OF CASE
To perfect an appeal, a party must file a notice of appeal
within 30 days from the final order or judgment. Without
timely filed notices of appeal, this court is without appellate
jurisdiction and must dismiss these consolidated appeals.
In the case at bar, the trial court issued an order nunc pro
tunc purporting to vacate its prior order, which had terminated
the appellant’s parental rights to her five children. The intent
of the court’s nunc pro tunc order was to vacate the prior order
and then reinstate the order in its entirety for the express pur-
pose of extending the appellant’s time to appeal. The appellant
filed notices of appeal within 30 days of the order nunc pro
tunc but more than 30 days after the original order. Without
evidence in the record that a party did not receive notice of
the prior order, an order vacating and reinstating a prior order
cannot be used to extend the time for appeal. In the absence of
timely filed notices of appeal, this court is without jurisdiction.
We dismiss the appeals for lack of jurisdiction.
BACKGROUND
The appellant, Lucia V., lived in Kearney, Nebraska, with
her children Luz P., Jonathan V., Esvin C., and Lindsey C.,
and her boyfriend, Enrique C. Enrique is the father of Esvin,
Lindsey, and Eva D. (who was born after Lucia was incar-
cerated). Jonathan’s father lives near Kearney; Luz’ father
is deceased.
Lucia came to the United States when Luz was 2 years old.
Lucia left Luz and Luz’ older brother behind in Guatemala
with relatives who raised them. Luz was 14 when she moved
to Nebraska from Guatemala to live with Lucia, Enrique, and
her younger siblings. Jonathan, Esvin, and Lindsey were born
in the United States after Lucia moved from Guatemala.
A few months after Luz arrived from Guatemala, Enrique
began making sexual advances toward her. He would do this
on Saturdays while Lucia was at work. In the first three
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IN RE INTEREST OF LUZ P. ET AL.
Cite as 295 Neb. 814
instances, Luz was able to get away from Enrique and avoid
his advances. Eventually, Enrique raped her on several differ-
ent occasions.
At some point in October 2014, Lucia became suspicious
when she noticed how Enrique was looking at Luz. Lucia
eventually convinced Luz to tell her of the sexual assaults.
Lucia told Luz that she did not believe her. Later, Lucia made
Luz sit down with her and Enrique and repeat the allegations.
Enrique denied sexually assaulting Luz. Lucia became angry
and hit Luz with a mop handle. She called Luz a liar, called her
other names, and continued to hit her with the mop. According
to Luz, “[Lucia] said I was a dog, a bitch, and she said that
she cursed the day that I was born.” Lucia also pulled Luz
to the ground by her hair, which pulled out some of her hair.
The next day, Lucia slapped and beat Luz with a bent wire
clothes hanger.
The day after this assault, Lucia threw Luz down to the
floor, forcibly pulled off Luz’ pants and underwear, and sat on
her. She then forcibly spread Luz’ legs and put her fingers into
Luz’ vagina. According to Luz, Lucia was calling her a bitch
and Enrique was watching and laughing. Lucia stated that she
put her fingers in Luz’ vagina “only to find out if indeed she
had been having sexual relations with him.” She stated she did
this “[b]ecause that is the custom . . . in Guatemala, for what
we do with girls who are out of control.”
After this assault, Luz stayed at home that night. Luz said
the next morning, Lucia woke her up and “threw [her] out of
the house.” Lucia stated that Luz left on her own after Lucia
went to work that morning. Lucia did not call the police when
Luz left home and did not return.
Shortly afterward, Lucia went to Luz’ high school in order to
“unenroll” her. The school officials had a difficult time under-
standing what she wanted and convinced her to come back the
following week when an interpreter could be present. When
Lucia came back, she spoke to Pat McLaughlin, the resource
police officer. Lucia told McLaughlin that “[her] daughter had
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IN RE INTEREST OF LUZ P. ET AL.
Cite as 295 Neb. 814
run away, did not want to come to school, [and] was being
uncooperative at home.” She told McLaughlin that Luz had
“tried to have sex with” her husband, Enrique. McLaughlin
completed a runaway report and communicated with other
officers about the search for Luz. Lucia did not disclose that
she had a brother who lived in Kearney, but instead said that
Luz did not have any family and that she did not know where
Luz would go. Lucia did not contact the police department to
check on the status of its search for Luz, nor did she provide
any additional information.
McLaughlin and another officer attempted to follow up with
Lucia to gain more information to aid their search for Luz.
McLaughlin contacted Kearney Public Schools and learned
that Luz had a sibling, Jonathan, who was enrolled in the
school system. McLaughlin spoke to a school guidance coun-
selor at Jonathan’s elementary school. The counselor spoke
with Jonathan and learned that he had an uncle that lived in
Kearney. Lucia subsequently disclosed to the police that she
had a brother in Kearney and led police to his residence.
Upon arriving at Lucia’s brother’s residence, the officers
learned that Luz had been staying there for 2 weeks. During
this time, she did not attend school. Lucia had never checked
if Luz was staying there.
Luz was interviewed at a child advocacy center in Kearney.
Lucia was also interviewed by a police officer. Lucia told the
officer that “she believed her daughter was addicted to sex.”
After the interview, while she was still in the interview room,
Lucia was overheard speaking on her cell phone, “‘if the police
talk to you, tell them that you went to Guatemala to see your
mother for heart surgery.’” Lucia had previously told the police
that Enrique had gone to Guatemala to see his mother. She
later admitted that she had called Enrique while at the advo-
cacy center.
After Luz and Lucia had been separately interviewed, they
were allowed to sit together in the interview room. Luz told
Lucia that the only thing that she told law enforcement was
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IN RE INTEREST OF LUZ P. ET AL.
Cite as 295 Neb. 814
that Enrique had put his arm around her. Lucia was unhappy
and told Luz that she should have never said that Enrique put
his arm around her but should have said that he never touched
her. Lucia told Luz that she should take the blame for what
happened with Enrique, saying, “‘You need to take responsi-
bility because they won’t do anything to you. You’re a minor.
He is an adult. He will get in trouble.’” Lucia later admitted
that she instructed Luz to lie and that she was trying to protect
Enrique. Lucia also said that she had Jonathan trained not to
talk to law enforcement.
Lucia told Luz that if she had to undergo a physical exami-
nation and was asked why she was so big “down there,” that
she should say that she uses a sexual “apparatus” and that
Lucia got it for her.
After the police heard Lucia coaching Luz on what to say
to police and talking on a cell phone with whom they believed
to be Enrique, they seized her cell phone and obtained arrest
and search warrants for Lucia and her home. A search of the
residence disclosed a bent wire hanger and a “Swiffer [broom]”
that police believed were used to beat Luz. They found hair
in the trash can which was believed to have been pulled from
Luz’ head by Lucia. Lucia admitted that the broom was used
to beat Luz.
Enrique was believed to have fled the country. Lucia testi-
fied that she last saw Enrique the day she beat Luz. Police dis-
covered that he had bought an airplane ticket and left Kearney
on October 24, 2014.
Luz, Jonathan, Esvin, and Lindsey were taken by the
Department of Health and Human Services (DHHS) and placed
with a foster parent who had been providing childcare for
the children.
Lucia was charged with tampering with a witness, a
Class IV felony; felony child abuse, a Class IIIA felony; and
first degree sexual assault of a child, a Class IB felony. Lucia
pled no contest to tampering with a witness and felony child
abuse. The sexual assault charge was dismissed. She was
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IN RE INTEREST OF LUZ P. ET AL.
Cite as 295 Neb. 814
sentenced to 4 months’ imprisonment on the witness tamper-
ing conviction and 1 year’s imprisonment on the felony child
abuse conviction. She was released in August 2015 and subse-
quently deported to Guatemala.
The State filed petitions seeking to adjudicate the children
under Neb. Rev. Stat. § 43-247(3)(a) (Supp. 2013). In exchange
for amending the petitions to state the children “lack[ed] proper
parental care through no fault or habits of his or her parent,”
Lucia did not contest the petitions. The court heard testimony
and determined that Luz, Jonathan, Esvin, and Lindsey lacked
proper parental care under § 43-247(3)(a).
In April 2015, while Lucia was incarcerated, she gave birth
to a daughter, Eva. After she was born, Eva was placed in the
same foster home as her siblings. The State filed a petition
alleging that Eva was under § 43-247(3)(a) as a juvenile “who
lacks proper parental care by reason of the fault or habits of his
or her parent,” based on Lucia’s abuse and obstruction of the
sexual abuse investigation, leading to her incarceration. Lucia
pled no contest to this allegation.
In August 2015, the State filed motions for termination
of Lucia’s parental rights to all five children. The statutory
basis for the termination under Neb. Rev. Stat. § 43-292
(Reissue 2016) were subsections (1), (2), and (9)—abandon-
ment, neglect, and aggravated circumstances, respectively. The
petitions also alleged that termination of Lucia’s parental rights
was in the best interests of the children.
In December 2015, the court held a hearing on the State’s
motions to terminate Lucia’s parental rights. The witnesses at
the hearing were two police officers who worked on the case,
two DHHS children and family service specialists who worked
on the case, a therapist that worked with Luz and Jonathan, the
children’s foster mother, Luz, and Lucia.
One of the DHHS specialists testified that termination would
be in the children’s best interests because of the effect of the
abuse on the children. The specialist was concerned with the
physical, sexual, and mental abuse as well as Lucia’s blaming
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IN RE INTEREST OF LUZ P. ET AL.
Cite as 295 Neb. 814
Luz for the abuse by Enrique. She did not believe that Lucia
had taken any accountability for her own actions. The special-
ist testified that the children were bonded together and were
very close. She stated that Jonathan had made some further
disclosures of physical abuse in therapy.
The therapist testified that he believed it was “definitely” in
Luz’ best interests to terminate Lucia’s parental rights because
of all of the trauma from Lucia’s abuse and because there was
not a bond between the two since Luz was raised by relatives
in Guatemala, not by Lucia. As for Jonathan, the therapist
was concerned about what he saw as manipulative behavior
by Lucia. He said that Lucia focused a lot on herself in her
letters to Jonathan. He opined that because Lucia was manipu-
lative and Jonathan was so submissive, it would not be good
for Jonathan to continue the relationship. He also testified that
he believed if the younger children were to be with Lucia,
her manipulative behavior would continue toward them in the
future. The therapist also testified that Jonathan disclosed in
therapy “how his mom was abusive with him in the past, how
she would hit him, pull his ear, scream at him,” and would take
out her stress on him.
The children’s foster mother testified that the children were
very scared when they first came to her, but that they were
doing much better now. She stated she would be willing to
provide permanency for the children, including adoption.
Luz testified that she wanted to stay with her foster mother
and did not want to go back with Lucia. She stated that if she
went back to Guatemala, she would be afraid that she would
see Enrique and would be afraid that “they would kill me.”
Lucia testified by telephone from Guatemala. She testified
that she was living with her oldest son in Guatemala and that
she was seeing a counselor on a weekly basis for post-traumatic
stress disorder. She had a job doing cleaning and maintenance
at a school and had started a small computer business.
When asked whether she believed it would be in her chil-
dren’s best interests for her parental rights to remain intact and
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IN RE INTEREST OF LUZ P. ET AL.
Cite as 295 Neb. 814
for them to be reunited with her, Lucia said, “Yes, that’s right.
I am the mother, and I really need them to be here. I don’t have
anybody else in the world. They are my children, and I need us
to be together.”
The county court granted the State’s motions to termi-
nate Lucia’s parental rights. The court agreed that Lucia had
subjected each of the children or a sibling of the children to
“aggravated circumstances” under § 43-292(9) and substantial
and repeated neglect under § 43-292(2). It found that Lucia
had abandoned Luz under § 43-292(1). The court concluded
that termination of Lucia’s parental rights was in the children’s
best interests and found that Lucia “is unfit based upon her
abusive treatment of Luz and Jonathan and that such a personal
deficiency and incapacity has prevented and will probably pre-
vent, performance of reasonable parental obligations in child
rearing in the future.”
The court’s consolidated order was issued on April 4, 2016.
The order notes that a copy should be sent to the State’s attor-
ney, Lucia’s attorney, Jonathan’s father’s attorney, the court-
appointed special advocate, and DHHS. The certificate of
service for the order indicates that the clerk sent notice of the
order to the court-appointed special advocate; the Guatemalan
consulate in Denver, Colorado; the guardian ad litem; and the
State’s attorney. The certificate of service does not indicate
whether notice was sent to Lucia or her attorney.
On April 28, 2016, the court issued a consolidated order
nunc pro tunc, which stated, in relevant part:
The Court has been informed by the staff and has
confirmed with the various attorneys that due to a design
flaw in the “E-Filing” system of the Courts, that neither
the mother’s attorney nor father, Enrique, received notice
of the Court’s decision. Due to the failure of the attorney
and father to receive notice, their right to possibly appeal
the Court’s decision has been severely compromised in
that the time for the same has almost expired as they are
now just finding out about the Court’s decision.
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IN RE INTEREST OF LUZ P. ET AL.
Cite as 295 Neb. 814
Therefore, in an effort to correct that problem, the
Court hereby vacates its previous Order filed on April 4th,
2016, and now reissues that Order in all respects under
today’s date, so that those parties will have an appropriate
amount of time to contemplate and perhaps file an appeal
of the Court’s decision.
It does not appear from our record that any party moved to
vacate the April 4 order. It also does not appear that any evi-
dence was admitted, by affidavit, testimony, or otherwise, to
show that Lucia and her attorney did not receive notice of the
court’s April 4 order. On May 23, Lucia filed notices of appeal
from the court’s April 28 order nunc pro tunc.
The Nebraska Court of Appeals directed the parties “to
include in their briefing the potential jurisdictional problem
caused by the juvenile court’s vacating its prior order nunc
pro tunc and reissuing the same order for the purpose of
extending a party’s time to appeal.” Thereafter, we moved
the cases to our docket on our own motion pursuant to our
statutory authority to regulate the caseloads of the appellate
courts of this state pursuant to Neb. Rev. Stat. § 24-1106(3)
(Reissue 2016).
ASSIGNMENT OF ERROR
Lucia’s sole assignment of error is that the county court
erred in finding by clear and convincing evidence that it was
in her children’s best interests to terminate her parental rights.
STANDARD OF REVIEW
[1] A jurisdictional issue that does not involve a factual dis-
pute presents a question of law.1
ANALYSIS
[2,3] 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, even where no party has
1
In re Interest of LeVanta S., ante p. 151, 887 N.W.2d 502 (2016).
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IN RE INTEREST OF LUZ P. ET AL.
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raised the issue.2 Appellate jurisdiction of a case cannot be
conferred upon a court by action of the parties thereto, and the
absence of such jurisdiction may be asserted at any time during
the pendency of the litigation.3
[4,5] An appellate court does not acquire jurisdiction over
an appeal if a party fails to properly perfect it.4 The appellate
jurisdiction of a court is contingent upon timely compliance
with constitutional or statutory methods of appeal.5
To perfect an appeal, Neb. Rev. Stat. § 25-1912(1) (Reissue
2016) requires that a notice of appeal be filed “within thirty
days after the entry of such judgment, decree, or final order”
appealed from. We have held that the timely filing of a notice
of appeal is a jurisdictional requirement.6
The order terminating Lucia’s parental rights was entered
on April 4, 2016. On April 28, the court entered an order nunc
pro tunc purporting to vacate the April 4 order and to reinstate
it in all respects as of that date in order to preserve Lucia’s
opportunity to appeal the order. Lucia filed her notices of
appeal on May 23. Lucia’s notices of appeal were therefore
filed within 30 days of the April 28 order nunc pro tunc and
not within 30 days of the April 4 order terminating her paren-
tal rights.
Whether we have jurisdiction in this case depends on
whether Lucia satisfied the requirement of § 25-1912(1) that
her notices of appeal be filed within 30 days. This, in turn,
depends on whether the April 28, 2016, order nunc pro tunc
was a valid order by the court which extended the time for
Lucia to appeal.
2
See, In re Interest of L.T., ante p. 105, 886 N.W.2d 525 (2016); Schlake v.
Schlake, 294 Neb. 755, 885 N.W.2d 15 (2016).
3
Harms v. County Board of Supervisors, 173 Neb. 687, 114 N.W.2d 713
(1962).
4
In re Interest of L.T., supra note 2.
5
Id.
6
Id.
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[6] Both juvenile courts and county courts have the power
to vacate or modify their own judgments and orders during or
after the term in which they were made in the same manner as
provided for district courts.7 District courts have the power to
vacate and modify their judgments and orders under Neb. Rev.
Stat. § 25-2001 (Reissue 2016). Section 25-2001(3) allows
courts to issue nunc pro tunc orders:
Clerical mistakes in judgments, orders, or other parts of
the record and errors therein arising from oversight or
omission may be corrected by the court by an order nunc
pro tunc at any time on the court’s initiative or on the
motion of any party and after such notice, if any, as the
court orders.
[7,8] The purpose of an order nunc pro tunc is to correct
clerical or formal errors in order to make the record correctly
reflect the judgment actually rendered by the court.8 The term
“‘[n]unc pro tunc’” is a Latin phrase that means “‘now for
then.’”9 A nunc pro tunc order reflects now what was actually
done before, but was not accurately recorded.10 The power to
issue nunc pro tunc orders is not only conveyed by statute, but
is inherent in the power of the courts.11
[9-12] An order nunc pro tunc differs from an order sub-
stantively amending or vacating a court’s prior order.12 In
Continental Oil Co. v. Harris,13 we explained:
7
See Neb. Rev. Stat. §§ 25-2720.01 and 43-2,106.02 (Reissue 2016). See,
also, Neb. Rev. Stat. § 43-245(12) (Reissue 2016).
8
See, State v. Sims, 277 Neb. 192, 761 N.W.2d 527 (2009); Calloway v.
Doty, 108 Neb. 319, 188 N.W. 104 (1922); Van Etten v. Test, 49 Neb. 725,
68 N.W. 1023 (1896).
9
46 Am. Jur. 2d Judgments § 130 at 487 (2006). See, also, 49 C.J.S.
Judgments § 155 (2009).
10
See id.
11
Van Etten v. Test, supra note 8.
12
See Continental Oil Co. v. Harris, 214 Neb. 422, 333 N.W.2d 921 (1983).
13
Id. at 424, 333 N.W.2d at 923.
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[T]he office of an order nunc pro tunc is to correct a
record which has been made so that it will truly record
the action had, which through inadvertence or mistake
was not truly recorded. It is not the function of an order
nunc pro tunc to change or revise a judgment or order,
or to set aside a judgment actually rendered, or to render
an order different from the one actually rendered, even
though such order was not the order intended. An order
nunc pro tunc cannot be used to enlarge the judgment as
originally rendered or to change the rights fixed by it.
Neither can it be employed where the fault in the original
judgment is that it is wrong as a matter of law, nor can
it be employed to allow the court to review and reverse
its action with respect to what it formerly did or refused
to do.
In Ferry v. Ferry,14 we said:
The proper function of a nunc pro tunc order is not to
correct, change, or modify some affirmative action previ-
ously taken. Rather, its purpose is to correct the record
which has been made so that it will truly record the action
taken, which, through inadvertence or mistake, has not
been truly recorded.
[13,14] An order nunc pro tunc does not change the time
to appeal the order or judgment that it amends, because it
only corrects clerical or formal errors.15 But where an order
or judgment is amended in a material and substantial respect,
the time for appeal runs from the date of the amendment.16
Because an order nunc pro tunc merely makes the record
reflect what the court actually decided in the original order
or judgment and does not make any substantive or material
change to the order or judgment, the order relates back to the
14
Ferry v. Ferry, 201 Neb. 595, 600-01, 271 N.W.2d 450, 454 (1978).
15
See Interstate Printing Co. v. Department of Revenue, 236 Neb. 110, 459
N.W.2d 519 (1990).
16
See id.
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date of the original order or judgment.17 Thus, a nunc pro tunc
order cannot extend the time for a party to appeal the order or
judgment which the nunc pro tunc order corrects.18
The court’s April 28, 2016, order did not extend Lucia’s
time to appeal the termination of her parental rights, because a
nunc pro tunc order exists for the purpose of correcting clerical
errors in the court records and its effect relates back to the time
of the original order.
While the court’s April 28, 2016, order is labeled “Order
Nunc Pro Tunc,” it also expressly states that it vacates the
original order and reinstates it in whole as of that date. The
stated intent of this was to extend the time to appeal, a sub-
stantive change in the rights of a party. By definition, this is
something that an order nunc pro tunc cannot do. The order’s
stated intent makes clear that the label “Order Nunc Pro Tunc”
is a misnomer. Rather, the order is one substantively amending,
by vacating and reinstating, the earlier order.
[15,16] Courts have the power to vacate or modify their own
judgments and orders at any time during the term at which
they were pronounced.19 But this power may not be used to
circumvent the Legislature’s power to fix the time limit to take
an appeal.20 A court may not vacate an order or judgment and
reinstate it at a later date just for the purpose of extending the
time for appeal.21 Where a later order or judgment modifies,
vacates, amends, or contradicts a prior order or judgment,
the time for appeal from that portion of the later order which
17
See id.
18
See id.
19
Moackler v. Finley, 207 Neb. 353, 299 N.W.2d 166 (1980). See, also,
§ 25-2001(1).
20
Morrill County v. Bliss, 125 Neb. 97, 249 N.W. 98 (1933). See, also,
Fitzgerald v. Fitzgerald, 286 Neb. 96, 835 N.W.2d 44 (2013); In re
Interest of Noelle F. & Sarah F., 249 Neb. 628, 544 N.W.2d 509 (1996);
Ricketts v. Continental Nat. Bank, 169 Neb. 809, 101 N.W.2d 153 (1960).
21
Morrill County v. Bliss, supra note 20.
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IN RE INTEREST OF LUZ P. ET AL.
Cite as 295 Neb. 814
contradicts the earlier order—and that portion only—runs from
the issuance of the later order.22
One exception to this rule against using a court’s power to
vacate as a tool to extend the time for appeal is where a clerk
fails to provide notice of a judgment to a party, thereby impair-
ing the party’s ability to appeal.23 As we said in Nye v. Fire
Group Partnership,24 “the right of a party to move for a new
trial or to appeal cannot ordinarily be defeated by the clerk
of the court’s failure to give the parties notice of the entry of
the judgment.” As the Court of Appeals has noted, “the proper
method of addressing the situation would have been by a
motion to vacate” the original order.25
But a motion to vacate an order or judgment on the basis
that the clerk failed to provide a party with notice, thereby
impairing the party’s ability to appeal, must be supported by
some evidence. Here, the court based its decision because it
“ha[d] been informed by the staff and ha[d] confirmed with
the various attorneys that due to a design flaw in the ‘E-Filing’
system of the Courts, . . . the mother’s attorney [did not]
receive[] notice of the Court’s decision.” The problem is there
was no record made by any of the parties that would support
the court’s finding. The court’s statement is not evidence.
There is simply no evidence in the record from the court staff,
the attorneys, or anyone else to establish that Lucia and her
attorney did not receive notice of the court’s order. No affida-
vits were submitted to this effect, nor was there any testimony
offered. The court is not permitted to make this determina-
tion without some type of evidence to support the finding by
the court.
22
See Manske v. Manske, 246 Neb. 314, 518 N.W.2d 144 (1994).
23
See Nye v. Fire Group Partnership, 263 Neb. 735, 642 N.W.2d 149
(2002).
24
Id. at 740, 642 N.W.2d at 153.
25
TierOne Bank v. Cup-O-Coa, Inc., 15 Neb. Ct. App. 648, 652, 734 N.W.2d
763, 767 (2007).
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE INTEREST OF LUZ P. ET AL.
Cite as 295 Neb. 814
While the certificate of service for the April 4, 2016, order
states that other parties were served with a copy of the order,
it does not state whether Lucia and her attorney were provided
notice. Nor is there any direct evidence in the record that they
were not provided notice of the order. Absent a record, we can-
not assume that the clerk failed to notify an attorney of record
of the court’s order. Moreover, it does appear that Lucia’s attor-
ney was notified of the April 4 order at some point prior to the
April 28 order and within the 30-day window to file notices
of appeal.
Because there is no evidence in the record to establish that
Lucia and her attorney did not receive notice of the court’s
order, the court’s April 28, 2016, order purporting to vacate
and reinstate the April 4 order for the purpose of extending
Lucia’s time to appeal was invalid and, as such, could not
extend the time to appeal established by the Legislature. To
timely perfect her appeals, Lucia was required to file notices
of appeal within 30 days of the April 4 order. Absent a record
that she did not timely receive notice of the April 4 order, the
district court had no authority to issue its April 28 order, which
attempted to extend Lucia’s time to appeal.
CONCLUSION
Because Lucia failed to file notices of appeal within 30 days
of the April 4, 2016, order terminating her parental rights and
because there is no evidence in the record to show that she and
her attorney did not receive notice of the order before the time
to appeal had expired, this court is without jurisdiction and
must dismiss these appeals.
A ppeals dismissed.