In re Change of Name of Whilde , 298 Neb. 510 ( 2017 )


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    Nebraska Supreme Court A dvance Sheets
    298 Nebraska R eports
    IN RE CHANGE OF NAME OF WHILDE
    Cite as 
    298 Neb. 510
    In re Change of Name of Whilde.
    Lillias Delong Dulles Whilde, a minor,
    by and through her mother and next
    friend,H annah Whilde, appellee, v.
    M argaret Whilde, appellant.
    ___ N.W.2d ___
    Filed December 22, 2017.   No. S-17-299.
    1.	 Motions to Vacate: Time. In a civil case, a court has inherent power
    to vacate or modify its own judgments at any time during the term at
    which those judgments are pronounced, and such power exists entirely
    independent of any statute.
    2.	 ____: ____. The decision to vacate an order at 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.
    3.	 Judgments: Words and Phrases. An abuse of discretion occurs when
    the trial court’s decision is based upon reasons that are untenable or
    unreasonable or if its action is clearly against justice or conscience,
    reason, and evidence.
    4.	 Motions to Vacate: Judgments: Time. In the absence of an applicable
    rule to the contrary, a motion asking the court to exercise its inherent
    power to vacate or modify its own judgment does not toll the time for
    taking an appeal.
    Appeal from the District Court for Otoe County: Michael A.
    Smith, Judge. Affirmed.
    Anthony W. Liakos, of Govier, Katskee, Suing & Maxell,
    P.C., L.L.O., for appellant.
    Julie E. Bear, of Reinsch, Slattery, Bear & Minahan, P.C.,
    L.L.O., for appellee.
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    IN RE CHANGE OF NAME OF WHILDE
    Cite as 
    298 Neb. 510
    Heavican, C.J., Miller-Lerman, Cassel, and Stacy, JJ., and
    R iedmann, Judge.
    Miller-Lerman, J.
    NATURE OF CASE
    Margaret Whilde appeals the order of the district court for
    Otoe County, Nebraska, which overruled a motion to vacate
    the court’s earlier order which granted a request to change the
    name of a minor child. She argued that she was entitled to
    notice by certified mail as a “noncustodial parent” under Neb.
    Rev. Stat. § 25-21,271(2) (Reissue 2016), and that because she
    had not received such notice, the order changing the child’s
    name should be vacated. We affirm the district court’s order
    overruling Margaret’s motion to vacate.
    STATEMENT OF FACTS
    The minor child at issue in this case was born in January
    2010. On December 21, 2016, the child’s biological mother,
    Hannah Whilde, filed on behalf of the child a petition under
    § 25-21,271 to change the child’s name. The request was to
    change the child’s two middle names, “Delong Dulles,” to
    two new middle names, “Coco Nadine,” and to change her
    last name from “Whilde” to Hannah’s family name of “Hoch”;
    no request was made to change the child’s first name. After
    Hannah filed the petition, she caused notice of the filing of the
    petition to be published in a newspaper of general circulation
    in Otoe County for 2 consecutive weeks.
    The district court held a hearing on the petition for name
    change on January 24, 2017. At the hearing, Hannah offered
    into evidence proof of publication of the notice. Hannah tes-
    tified at the hearing that she was the natural mother of the
    child, that there was no noncustodial parent with respect to the
    child, and that there was “no natural father” involved because
    the child was “the product of a sperm donation.” Hannah
    further testified regarding the reasons for the name change.
    She testified that the name change was not for the purpose
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    IN RE CHANGE OF NAME OF WHILDE
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    of avoiding creditors or hiding the child. She testified instead
    that the two middle names she proposed were a nickname by
    which the child had generally been known since birth and the
    name of “a beloved great-grandmother” who was “very close
    to” the child. Hannah did not testify at the hearing regarding
    the reasons for changing the child’s last name; however, in
    the petition, Hannah had stated that she wanted the child to
    have Hannah’s family name and that Hannah was changing
    her own last name from “Whilde” back to her family name.
    After Hannah’s testimony, the court stated that it found that
    Hannah had complied with the statute and that there was no
    good reason the order to change the child’s name should not
    be granted.
    The court filed an order that same day in which it stated,
    inter alia, that it found “statutory notice to have been given
    pursuant to [§] 25-21,271(2),” that no objection had been
    filed, that there was no reason to deny the requested name
    change, and that it was in the child’s best interests to have
    her name changed. The court therefore on January 24, 2017,
    ordered the child’s name to be changed to the name requested
    by Hannah.
    On February 7, 2017, Margaret filed a motion asking the
    court to vacate its January 24 order changing the child’s
    name. Margaret stated in the motion that she was filing the
    motion pursuant to Neb. Rev. Stat. § 25-2001 (Reissue 2016).
    She alleged as follows: Pursuant to an order filed in the
    district court for Travis County, Texas, on September 27,
    2012, Margaret had been appointed “Temporary Non-Parent
    Possessory Conservator” of the child and, as a result of such
    status, had been awarded certain rights and duties with respect
    to the child. In a modification of custody case separate from
    the instant name change action, on June 6, 2014, Hannah had
    filed in the district court for Otoe County an application to
    register the Texas judgment and a complaint to modify said
    judgment. After a trial at which both Hannah and Margaret
    appeared in August 2016 in the modification of custody case,
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    IN RE CHANGE OF NAME OF WHILDE
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    the district court on December 16 had filed an opinion and
    order of modification in which it found that “an in loco paren-
    tis relationship did exist at one time between” Margaret and
    the child. The court, however, had ultimately ordered that
    sole legal and physical custody of the child be awarded to
    Hannah and that Margaret be granted no rights of custody or
    visitation with the child. On January 10, 2017, Margaret filed
    a notice of appeal of the district court’s December 16, 2016,
    order modifying the child’s custody. No supersedes bond or
    other stay of the modification and custody ruling in the other
    action had been implemented. At the time Margaret filed the
    motion to vacate in this name change case, the appeal of the
    custody order was pending in the Nebraska Court of Appeals.
    That appeal was moved to the docket of this court as case
    No. S-17-045.
    Margaret further alleged that at no time prior to the January
    24, 2017, hearing in this case had she been provided notice of
    the request to change the child’s name. She argued that she was
    a “noncustodial parent” of a child who was under 19 years of
    age and that she should have been provided notice pursuant to
    § 25-21,271(2), which provides as follows:
    Notice of the filing of the [name change] petition shall
    be published in a newspaper in the county, and if no
    newspaper is printed in the county, then in a newspaper
    of general circulation therein. The notice shall be pub-
    lished (a) once a week for four consecutive weeks if the
    petitioner is nineteen years of age or older at the time the
    action is filed and (b) once a week for two consecutive
    weeks if the petitioner is under nineteen years of age at
    the time the action is filed. In an action involving a peti-
    tioner under nineteen years of age who has a noncustodial
    parent, notice of the filing of the petition shall be sent
    by certified mail within five days after publication to the
    noncustodial parent at the address provided to the clerk
    of the district court pursuant to subsection (1) of section
    42-364.13 for the noncustodial parent if he or she has
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    IN RE CHANGE OF NAME OF WHILDE
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    provided an address. The clerk of the district court shall
    provide the petitioner with the address upon request.
    Margaret alleged that if she had been provided notice of the
    petition, she would have filed an objection and would have
    appeared at the hearing to oppose the name change. Margaret
    therefore requested that the order changing the child’s name
    be vacated and that no further action be taken regarding the
    requested name change until the pending appeal in the modifi-
    cation and custody case was decided.
    Hannah filed a resistance to Margaret’s motion to vacate the
    name change order. She alleged that the following facts were
    undisputed: Hannah and Margaret had been an unmarried cou-
    ple living together in Texas at the time that the child, who was
    conceived through a sperm donor, was born in January 2010.
    On November 26, 2011, Hannah took the child and moved to
    her parents’ home in Nebraska City, Nebraska. On November
    28, Margaret filed a petition in the district court in Texas. After
    the Texas court heard the case, it entered a temporary order in
    which it determined that Margaret was a “‘non-parent posses-
    sory conservator’” and awarded her periods of visitation with
    the child. Hannah noted in her resistance that the Texas court’s
    order “put no restriction and made no reference of any change
    of name for” the child. The Texas order further provided that
    Hannah had certain exclusive rights, which included, inter
    alia, “the right to represent the child in legal action[s] and
    to make other decisions of substantial legal significance con-
    cerning the child.” After Hannah filed her petition in 2014 to
    register the Texas order in the district court for Otoe County,
    the Nebraska court conferred with the Texas court, as required
    by the applicable uniform act, and determined that the Texas
    court would relinquish jurisdiction of the modification and
    custody case to the Nebraska court. Hannah further alleged
    that when Margaret filed her notice of appeal of the district
    court’s December 16, 2016, order modifying custody of the
    child, Margaret did not request a stay of the order and did not
    file a supersedeas bond.
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    IN RE CHANGE OF NAME OF WHILDE
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    298 Neb. 510
    Hannah asserted in her resistance to Margaret’s motion to
    vacate that Margaret had no right to notice by certified mail
    under § 25-21,271(2). She argued that Margaret was not a
    “noncustodial parent” under that statute, because both the
    Texas court and the Nebraska court had found that Margaret
    was not a biological or adoptive parent of the child, and that
    the Texas court had designated her only as a “‘non-parent
    possessory conservator,’” while it designated Hannah as the
    “‘parent sole managing conservator.’” She noted that nothing
    in the Texas court’s order gave Margaret rights regarding the
    child’s legal name. She further argued that after the Nebraska
    court filed its modification and custody order on December 16,
    2016, Hannah had sole legal and physical custody of the child,
    while Margaret had no rights of visitation or custody, and that
    therefore Margaret was clearly not a “noncustodial parent” at
    the time Hannah filed the petition on December 21 to change
    the child’s name.
    The district court heard arguments on Margaret’s motion
    to vacate on February 21, 2017, and on that day, the court
    entered in its notes a ruling that it denied the motion. Margaret
    filed a notice of appeal of the ruling on March 20. The
    Nebraska Court of Appeals on April 17 issued an order to
    show cause in which it noted that there had been no signed,
    file-stamped order entered regarding the motion to vacate
    from which an appeal could be taken. The district court
    filed a signed and file-stamped order on April 20 in which
    it denied Margaret’s motion to vacate the January 24 name
    change order. After a copy of the order was filed in the
    Court of Appeals, the Court of Appeals found that cause
    had been shown. The Court of Appeals ordered the appeal
    to proceed, and the appeal was later moved to our docket on
    our motion.
    ASSIGNMENTS OF ERROR
    Margaret claims that the district court erred in its January
    24, 2017, order when it granted Hannah’s request to change
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    IN RE CHANGE OF NAME OF WHILDE
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    the child’s name and abused its discretion when it overruled
    her motion to vacate its January 24 order.
    STANDARDS OF REVIEW
    [1] Although Margaret cited § 25-2001 as the authority for
    her motion to vacate, we note that in a civil case, a court has
    inherent power to vacate or modify its own judgments at any
    time during the term at which those judgments are pronounced,
    and such power exists entirely independent of any statute.
    Kibler v. Kibler, 
    287 Neb. 1027
    , 
    845 N.W.2d 585
    (2014).
    The district court for Otoe County is in the Second Judicial
    District, and under Rules of Dist. Ct. of Second Jud. Dist. 2-1
    (rev. 1995), the regular term of the court runs from January
    1 through December 31 of each calendar year. Therefore,
    Margaret’s February 7, 2017, motion to vacate was filed within
    the same term as the district court’s January 24 order, and
    § 25-2001 is not applicable. See Kibler v. 
    Kibler, supra
    .
    [2,3] The decision to vacate an order at 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. 
    Id. An abuse
    of discretion occurs when the trial court’s decision is
    based upon reasons that are untenable or unreasonable or if
    its action is clearly against justice or conscience, reason, and
    evidence. 
    Id. ANALYSIS Margaret’s
    Notice of Appeal From the District
    Court’s January 24, 2017, Name Change
    Order Was Not Timely Filed.
    As urged by Hannah, we note as an initial matter that
    Margaret’s notice of appeal filed on March 20, 2017, was not
    timely to appeal the court’s January 24 name change order.
    We further note that pursuant to Neb. Rev. Stat. § 25-1912(2)
    (Reissue 2016), Margaret’s notice of appeal from the order
    denying the motion to vacate is treated as having been filed
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    IN RE CHANGE OF NAME OF WHILDE
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    on April 20, the date the district court entered a signed, file-
    stamped order overruling the motion. Therefore, this appeal
    will be limited to consideration of the error Margaret assigned
    regarding the order which overruled her motion to vacate.
    [4] Under § 25-1912, a party has 30 days from the entry
    of judgment to appeal the decision of a district court unless a
    party has filed a motion which tolls the appeal period. In the
    absence of an applicable rule to the contrary, a motion asking
    the court to exercise its inherent power to vacate or modify its
    own judgment does not toll the time for taking an appeal. State
    v. Hausmann, 
    277 Neb. 819
    , 
    765 N.W.2d 219
    (2009). A party
    can move the court to vacate or modify a final order, but if the
    court does not grant the motion, a notice of appeal must be
    filed within 30 days of the entry of the earlier final order if the
    party intends to appeal it. 
    Id. Thus, to
    the extent Margaret assigns error to the January 24,
    2017, order, she did not timely appeal that order and we do
    not consider such assignment of error. However, Hannah does
    not argue, and as we have indicated above we do not find, that
    Margaret failed to timely appeal the district court’s order over-
    ruling her motion to vacate. We therefore consider Margaret’s
    assignment of error regarding the order of the court which
    overruled her motion to vacate.
    District Court Did Not Abuse Its Discretion When
    It Overruled Margaret’s Motion to Vacate the
    District Court’s January 24, 2017,
    Name Change Order.
    Margaret contends that she is a “noncustodial parent” under
    § 25-21,271(2) and that she was entitled to receive notice of
    the proposed name change by certified mail. She claims that
    the district court erred when it concluded that she was not
    a “noncustodial parent” entitled to certified mail notice and
    overruled her motion to vacate the January 24, 2017, name
    change order. We conclude that at the time notice was required
    to be given in this name change action, Margaret was not a
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    “noncustodial parent” within the meaning of § 25-21,271(2),
    and we therefore conclude that the district court did not err
    when it overruled her motion to vacate the January 24 name
    change order.
    Section 25-21,271(3) requires that before a court can order
    a name change, the court must be “duly satisfied by proof in
    open court” that, inter alia, “notice of the filing of the petition
    has been given as required by this section.” No challenge has
    been made to the adequacy of the published notice. However,
    if it were shown that another type of notice required by law
    had not been given, such failure could be a valid reason to
    vacate an order granting a name change.
    Section 25-21,271(2) requires that, in addition to the gen-
    eral notice that must be given by publication, “[i]n an action
    involving a petitioner under nineteen years of age who has a
    noncustodial parent, notice of the filing of the petition shall
    be sent by certified mail within five days after publication to
    the noncustodial parent . . . .” Whether Margaret was entitled
    to notice by certified mail, and therefore whether notice was
    given as required by the statute in this case, depends on
    whether she was a “noncustodial parent” within the mean-
    ing of the statute at the time notice was required to be given.
    The meaning of “noncustodial parent” under § 25-21,271(2)
    is a question of law which we decide independently of the
    trial court. See Davis v. State, 
    297 Neb. 955
    , 
    902 N.W.2d 165
    (2017) (statutory interpretation presents question of law which
    we review independently).
    Hannah argues that Margaret was not a “noncustodial par-
    ent” when Hannah filed the petition to change the child’s name
    on December 21, 2016, because any rights Margaret had with
    respect to the child had been terminated by the district court’s
    December 16 order in the separate modification and custody
    action. Hannah notes that Margaret did not file a notice of
    appeal of the December 16 order until January 10, 2017, and
    as we have noted, Margaret did not post a supersedeas bond or
    seek a stay of the order.
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    Margaret argues that because the December 16, 2016,
    order terminating her custody and visitation rights was being
    appealed at the time she filed the motion to vacate on February
    7, 2017, the district court should have looked to the temporary
    Texas court order to determine her status. Margaret claims
    that her Texas status as a “Temporary Non-Parent Possessory
    Conservator” conferred rights that equate to a “noncustodial
    parent” entitled to certified mail notice under § 25-21,271(2).
    She further notes that in the modification and custody case, the
    district court determined that her status under the Texas order
    had been similar to in loco parentis status under Nebraska law.
    Margaret contends that in loco parentis status is the equivalent
    of a noncustodial parent.
    Margaret’s arguments overlook the fact that the Texas order
    specifically referred to Margaret as a “Non-Parent” and gave
    certain rights exclusively to Hannah; most notably, Hannah
    was given the exclusive right “to represent the child in legal
    action[s] and to make other decisions of substantial legal
    significance concerning the child.” Furthermore, we have rec-
    ognized that in loco parentis status is not equivalent to the
    status of a legal parent and does not entitle a person to all the
    same rights that a legal parent would enjoy. See Windham v.
    Griffin, 
    295 Neb. 279
    , 286, 
    887 N.W.2d 710
    , 715-16 (2016)
    (stating “unlike biological and adoptive parenthood, the sta-
    tus of in loco parentis is temporary, flexible, and capable of
    being both suspended and reinstated”; “an individual stand-
    ing in loco parentis, which is temporary in nature, is not the
    functional equivalent of a lawful parent for all purposes or in
    all contexts”).
    The critical fact in our determination of whether Margaret
    was a “noncustodial parent” for purposes of requiring certi-
    fied mail service under § 25-21,271(2) is that as of the date
    of the December 16, 2016, order in the modification and
    custody case, Hannah was awarded sole legal and physical
    custody of the child and Margaret was awarded no rights to
    the child.
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    The district court’s December 16, 2016, order extinguished
    any rights Margaret may have had with respect to the child
    as a result of the Texas order or her previous in loco parentis
    status. As noted, Margaret did not move to stay the modifica-
    tion and custody order pending its appeal, and therefore, the
    order was effective from the time it was entered and during
    the pendency of its appeal. See Hall v. Hall, 
    176 Neb. 555
    ,
    
    126 N.W.2d 839
    (1964) (stating that appeal does not operate
    as stay of proceedings unless appellant shall have superseded
    judgment or final order in manner provided by law; where
    decree awarding custody of minor child has not been super-
    seded, such order will be enforced as in case of any other non-
    superseded judgment). See, also, Kula v. Kula, 
    180 Neb. 893
    ,
    
    146 N.W.2d 384
    (1966), and Kricsfeld v. Kricsfeld, 8 Neb.
    App. 1, 
    588 N.W.2d 210
    (1999).
    The order extinguishing Margaret’s rights of custody and
    visitation was effective at all times relevant to this action,
    including when Hannah filed the name change petition, when
    she published notice, when the petition was considered and
    granted by the district court, and when Margaret filed her
    motion to vacate the name change order and the court over-
    ruled Margaret’s motion. Although it is not determinative of
    our resolution of this issue in this appeal, we note parentheti-
    cally that in Whilde v. Whilde, ante p. 473, ___ N.W.2d ___
    (2017), we affirmed the district court’s December 16, 2016,
    modification of custody order in the separate case.
    We give the word “parent,” under the language of
    § 25-21,271(2), its plain and ordinary meaning, and Margaret
    was not a “parent” for purposes of the name-changing provi-
    sion in § 25-21,271(2). Because Margaret had no legal rights
    to custody or visitation or otherwise with regard to the child at
    all relevant times during the pendency of this action to change
    the child’s name, it is clear that she was not a “noncustodial
    parent” under § 25-21,271(2) and that she was not entitled to
    notice by certified mail as afforded to a noncustodial parent
    under the statute. The district court’s finding in the January 24,
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    2017, order that the required statutory notice had been given
    was therefore not erroneous. We conclude that the district
    court did not abuse its discretion when it overruled Margaret’s
    motion to vacate the January 24 name change order based on
    the alleged failure to provide certified mail notice.
    CONCLUSION
    We conclude that Margaret did not timely appeal the
    January 24, 2017, name change order, and we therefore do not
    consider her assignment of error regarding that order. We fur-
    ther conclude that the district court did not abuse its discretion
    when it overruled Margaret’s subsequent motion to vacate the
    name change order, and we therefore affirm the district court’s
    order overruling the motion to vacate.
    A ffirmed.
    Wright, K elch, and Funke, JJ., not participating.