Courtney v. Jimenez

25 Neb.App. 75

903 N.W.2d 41

Alexandra COURTNEY, Appellant,

v.Rene JIMENEZ, Appellee.

No. A-16-868

Court of Appeals of Nebraska.

Filed September 26, 2017

Jeff T. Courtney, Courtney Law, P.C., L.L.O., Omaha, for appellant.

Hugh I. Abrahamson, Abrahamson Law Office, Omaha, for appellee.

Moore, Chief Judge, and Pirtle and Bishop, Judges.

Bishop, Judge.

INTRODUCTION

An ex parte domestic abuse protection order was entered by the Douglas County District Court in favor of Alexandra Courtney and against Rene Jimenez. Jimenez did not request a hearing to challenge the ex parte order within 5 days as set forth in Neb. Rev. Stat. § 42-925(1) (Reissue 2016); however, Jimenez subsequently filed a motion to vacate the order. Courtney appeals from the district court's order vacating the ex parte order. We affirm.

BACKGROUND

Courtney filed a petition and affidavit for an ex parte domestic abuse protection order on May 6, 2016. The petition indicates that Courtney and Jimenez have a 3-year-old child together, that a "Paternity/Custody" case was pending between them, and that another protection order against Jimenez (in favor of Courtney) was set to expire on May 8. Where the form requested the facts of the most recent incidents of domestic abuse, Courtney described the following incidents: First, she alleged that on April 29, 2016, Jimenez sent her a text message " "about our daughter and death," which she took as a death threat to her (Courtney). In a second incident, on October 16, 2015, Jimenez told a mediator that "the protection order would be over soon [and] ‘he'll be able to handle this himself.’ " Courtney said that "[t]his made me very afraid because of the way I know that he handles things." Courtney next listed as an incident of domestic abuse, "See previous affidavit submitted on 5/7/2015." Finally, Courtney alleged that on May 6, 2016, after she spoke to the county attorney about Jimenez' April 29 text message, she was informed that the text message had become part of a " ‘warrant case’ "; she thought this would "further provoke" Jimenez.

The district court entered an ex parte domestic abuse protection order against Jimenez on May 6, 2016. The order stated:

If the respondent wishes to appear and show cause why this order should not remain in effect for a period of one year, he or she shall affix his or her current address, telephone number, and signature on the Request for Hearing form provided and return it to the clerk of the district court within five (5) days after service upon him or her.

(Emphasis in original.)

Jimenez was served on May 17, 2016, but did not return the "Request for Hearing" form within 5 days thereafter. Instead, Jimenez filed a "Motion to Dismiss Protection Order" on August 1. He requested that the district court vacate the protection order because "reading [Courtney's] Petition and Affidavit to Obtain Domestic Abuse Protection Order in the most favorable light to [her], it is readily apparent that [she] has failed to allege the facts necessary" for the court to issue a protection order. While the document was titled "Motion to Dismiss Protection Order," we will refer to it as a motion to vacate because it asked the court to vacate the protection order and because the district court's later order referred to it as a motion to vacate.

The district court held a hearing on Jimenez' motion to vacate on August 9, 2016. At the hearing, Jimenez' counsel argued that the allegations in Courtney's petition and affidavit did not meet the statutory criteria for a domestic abuse protection order because the text message was not threatening and Jimenez was only seeking suggestions on how to explain a family death to their daughter. Jimenez' counsel stated:

The only reason I can think that there would be a protection order here is to try and provoke my client, and that's not the use of a protection order. My client has done nothing that would warrant the issuance of a protection order, and I'd ask that you set it aside.

Courtney's counsel responded:

The problem, Judge, is that there is probably more of a record that would have been created in support of the protection order, at least through the testimony of my client and any of her witnesses, but there was no hearing and nothing was placed on the record because ... Jimenez did not ask for a hearing.

Courtney's counsel further argued that Courtney's fears were justified because of her past experiences with Jimenez, and her counsel asked that a hearing be held on the merits of the petition and affidavit, wherein Courtney could "fill in the gaps" with her testimony.

The district court said that it understood both parties' positions, but determined that Courtney's petition and affidavit failed to allege enough facts to support the protection order. The court acknowledged the possibility of other evidence but told the parties that "in a hearing on a protection order, the Court is confined to what's alleged in the Petition."

Although the court decided the protection order should be vacated, it informed Courtney she could refile for an order, and the court further directed that an order would be entered in the pending paternity case that Jimenez was to have "absolutely no contact" with Courtney whatsoever. Courtney filed a timely appeal.

ASSIGNMENTS OF ERROR

Courtney assigns, restated, that the district court erred when it vacated the domestic abuse protection order against Jimenez because (1) Jimenez' motion to vacate was untimely and was not a proper pleading under the domestic abuse protection order statutes and (2) Courtney alleged facts sufficient to support the issuance of the protection order.

STANDARD OF REVIEW

A protection order is analogous to an injunction. Mahmood v. Mahmud, 279 Neb. 390, 778 N.W.2d 426 (2010). Accordingly, the grant or denial of a protection order is reviewed de novo on the record. Id.

Statutory interpretation presents a question of law, which an appellate court resolves independently of the trial court. Glantz v. Daniel, 21 Neb.App. 89, 837 N.W.2d 563 (2013).

Mootness does not prevent appellate jurisdiction. But, because mootness is a justiciability doctrine that operates to prevent courts from exercising jurisdiction, an appellate court reviews mootness determinations under the same standard of review as other jurisdictional questions. Id. When a jurisdictional question does not involve a factual dispute, its determination is a matter of law, which requires an appellate court to reach a conclusion independent of the decisions made by the lower courts. Id.

ANALYSIS

Mootness.

Before reaching the legal issues presented for review, an appellate court must determine whether it has jurisdiction.

In re Interest of Jamyia M., 281 Neb. 964, 800 N.W.2d 259 (2011). 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. Hron v. Donlan, 259 Neb. 259, 609 N.W.2d 379 (2000). In the absence of an actual case or controversy requiring judicial resolution, it is not the function of the courts to render a judgment that is merely advisory. Glantz v. Daniel, supra. Therefore, we first consider whether this appeal is moot, since the protection order in this case would have already expired had it not been vacated.

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. See id. As a general rule, a moot case is subject to summary dismissal. Id.

The district court entered a temporary ex parte protection order on May 6, 2016. Jimenez was served with the order on May 17. Jimenez did not request a show cause hearing within 5 days of service, so the temporary order became a final ex parte protection order, valid until May 6, 2017. See § 42-925(1). The district court vacated the protection order on August 9, 2016, after a hearing on Jimenez' motion to vacate. Courtney filed a notice of appeal on September 8; however, she did not send a copy of the praecipe for bill of exceptions to the court reporter as required by appellate court rules. This resulted in a delay in the preparation of the appellate record, which was followed by multiple extensions of brief dates filed by Courtney. These delays have contributed to this appeal coming before this court after what would have been the expiration date of the protection order, had it not been vacated. Since this court cannot reinstate an expired protection order, this appeal is moot.

However, under certain 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. Glantz v. Daniel, supra. When determining whether a case involves a matter of public interest, an appellate court considers (1) the public or private nature of the question presented, (2) the desirability of an authoritative adjudication for future guidance of public officials, and (3) the likelihood of future recurrence of the same or a similar problem. Id.

This case is similar to Glantz v. Daniel, 21 Neb.App. 89, 837 N.W.2d 563 (2013), where we applied the public interest exception to a moot case concerning an ex parte harassment protection order. Individuals subject to an ex parte harassment protection order have 5 days from the date of service to request a hearing to show cause why the order should not remain in effect for 1 year. See Neb. Rev. Stat. § 28-311.09(7) (Reissue 2016). In Glantz, a hearing was requested more than 5 days after service of the ex parte order, but the district court nevertheless allowed the hearing and dismissed the ex parte harassment protection order. On appeal, it was argued that the district court erred by allowing the show cause hearing when it had not been requested within the 5 days specified by statute. Courtney makes a similar argument in the present appeal,...