Paw K. v. Christian G.

1

315 Neb. 781

Paw K., appellee, v. Christian G., appellant.

No. S-23-195

Supreme Court of Nebraska

January 19, 2024

1. Judgments: Appeal and Error. When a jurisdictional question does not involve a factual dispute the issue is a matter of law. An appellate court reviews questions of law independently of the lower court's conclusion.

2. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by these rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility.

3. Judges: Words and Phrases. A judicial abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition.

4. 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 ruling and reviews de novo the court's ultimate determination to admit evidence over a hearsay objection or exclude evidence on hearsay grounds.

5 Jurisdiction. One who invokes the power of the court on an issue other than the court's jurisdiction over one's person makes a general appearance so as to confer on the court personal jurisdiction over that person.

6. Jurisdiction: Pleadings: Parties. A party will be deemed to have appeared generally if, by motion or other form of application to the court, he or she seeks to bring its powers into action on any matter other than the question of jurisdiction over that party.

7. Judgments: Appeal and Error. An appellate court may affirm a lower court's ruling that reaches the correct result, albeit based on different reasoning.

8. Appeal and Error. An appellate court is not obligated to engage in an analysis that is not needed to adjudicate the controversy before it.

9. Affidavits. Affidavits are ordinarily not considered competent evidence because they are not subject to cross-examination, they combine facts and conclusions, and they often omit or distort important facts.

10. ___. An affidavit is competent evidence where authorized by statute or where not objected to on proper grounds by the party against whom it is offered.

11. ___. Under Neb. Rev. Stat. § 25-1244 (Reissue 2016), an affidavit is admissible in motion practice, which includes the use of affidavits relating to preliminary, collateral and interlocutory matters.

12. ___. A statute such as Neb. Rev. Stat. § 25-1244 (Reissue 2016) allow ing an affidavit to be used upon a motion is general, and it leaves to the discretion of the trial judge whether it is appropriate to receive the affidavit into evidence.

13. Trial: Evidence: Appeal and Error. Because it is the proponent's responsibility to separate the admissible and inadmissible parts when offering evidence, an appellate court will ordinarily uphold a court's exclusion of an exhibit if the proponent did not properly limit its offer to the part or parts that are admissible.

Petition for further review from the Court of Appeals, Bishop, Arterburn, and Welch, Judges, on appeal thereto from the District Court for Lancaster County, Ryan S. Post, Judge. Judgment of Court of Appeals affirmed.

Matt Catlett, of Law Office of Matt Catlett, for appellant.

Courtney R. Ruwe, of Astley Putnam, P.C., L.L.O., for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Cassel, J.

INTRODUCTION

The district court overruled Christian G.'s motion to vacate a domestic abuse protection order, and the Nebraska Court of Appeals affirmed.^[1] On further review, he challenges the appellate court's dispositions regarding personal jurisdiction and an evidentiary ruling excluding an affidavit. We conclude that by filing a request for hearing, Christian made a general appearance. And because he did not offer the affidavit without its inadmissible portions, its exclusion was not reversible error. Although our reasoning differs from that of the Court of Appeals, we affirm its decision.

BACKGROUND

DOMESTIC ABUSE PROTECTION ORDER PROCEEDINGS

Paw K. filed a petition and affidavit for a domestic abuse protection order in the district court for Lancaster County. She sought an order against Christian, the father of her child. Paw listed an address in Iowa for Christian.

The same day, the court entered an ex parte domestic abuse protection order. It provided notice to Christian that if he wished to appear and show cause why the order should not remain in effect, he needed to complete the provided "Request for Hearing" form and return it to the clerk of the district court within 10 business days. An information sheet included with the ex parte order stated that the court would schedule a hearing within 30 days after reviewing the request for a hearing.

Three days later, the court received Christian's request for hearing form. Later that day, the court entered an order which set a hearing on Monday, January 30, 2023, at 10:30 a.m. The certificate of service showed that the order was sent to Christian via U.S. mail on January 24.

On January 30, 2023, Christian did not appear for the hearing. The same day, the court entered an order affirming the protection order.

MOTION TO VACATE PROCEEDINGS

Ten days later, Christian filed a motion to vacate the January 30, 2023, order. Christian stated that he was not served with the order setting the hearing date until after the hearing had occurred. He also claimed that the district court lacked personal jurisdiction over him. He attached an affidavit to this motion. The affidavit included an exhibit purporting to be an email from the U.S. Postal Service.

During a hearing on the motion to vacate, Christian asserted that the court lacked personal jurisdiction to enter a final protection order against a nonresident respondent. The court inquired whether Christian submitted himself to the court's jurisdiction when he requested a hearing. Christian argued that no one could know whether he requested a hearing for the purpose of challenging personal jurisdiction. Paw's counsel "remind[ed]" the court that "in the parties' pater-nity/custody case, [Christian was] ordered to come here to Nebraska to pick up his child to bring him back to Iowa every other weekend."

During the hearing, Christian offered his own affidavit with a copy of an email attached to it. The copy of the email differed somewhat from the one attached to his earlier affidavit. Christian's affidavit stated that he did not receive the court's order for hearing until the afternoon of January 30, 2023. He averred that the attached email had been transmitted from "'USPS Informed Delivery'" to his email address at 7:24 a.m. on January 30. The email included an image of the front of an envelope from the clerk of the district court. Paw objected based on foundation and hearsay. Christian argued that the rules of evidence do not apply during a hearing on a motion to vacate. Nonetheless, the court sustained Paw's hearsay objection.

The court subsequently entered an order overruling the motion to vacate. With respect to personal jurisdiction, the court reasoned that "[t]he incidents of abuse occurred in Nebraska and were part of regular contact from [Christian] to [Paw] in Nebraska." Although the bill of exceptions of the hearing on the motion to vacate did not show a ruling on Paw's foundational objection, the order stated that the court sustained "the objections." It further stated that Christian's argument asserting he did not receive notice of the hearing until after it occurred did not address the foundational issue with the attachment to the affidavit.

APPEAL

Christian appealed. He alleged that the district court erred in (1) denying his motion to vacate when the district court did not have personal jurisdiction over him, (2) denying his motion to vacate when he was not served with the order containing the hearing date until after the hearing had occurred, and (3) refusing to receive his affidavit.

In a published opinion,^[2] the Court of Appeals affirmed. It determined that Christian "waived personal jurisdiction"^[3] and that the district court properly sustained Paw's hearsay objection to Christian's affidavit. The appellate court reasoned that "Christian's affidavit was an out-of-court statement offered in evidence to prove the truth of the matter asserted, i.e., that he did not receive, or was not served, the order for hearing . . . until after the hearing had already occurred."^[4] Christian filed a timely petition for further review, which we granted.

ASSIGNMENTS OF ERROR

Christian assigns, reordered, that the Court of Appeals erred in (1) holding that Christian waived personal jurisdiction in the district court by not "'fil[ing] a motion to dismiss for lack of personal jurisdiction'" and not "'specifically stat[ing] in his request for hearing on the protection order that he was challenging personal jurisdiction'"; (2) holding that Christian forfeited the issue of personal jurisdiction on appeal by not requesting a bill of exceptions of the January 30, 2023, hearing; and (3) finding no error in the district court's sustaining Paw's hearsay objection to Christian's affidavit.

STANDARD OF REVIEW

When a jurisdictional question does not involve a factual dispute the issue is a matter of law. An appellate court reviews questions of law independently of the lower court's conclusion.^[5]

In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by these rules judicial discretion is involved only when the rules make discretion a factor in determining...