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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, Hannah Whilde, appellee, v. 

Margaret 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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

12/29/2017 08:13 AM CST
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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

Riedmann, 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 testified 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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Cite as 298 Neb. 510

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

Cite as 298 Neb. 510

the district court on December 16 had filed an opinion and 

order of modification in which it found that “an in loco parentis 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 published (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 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 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

Cite as 298 Neb. 510

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 modification 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 couple 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 possessory 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 concerning 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

Cite as 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

Cite as 298 Neb. 510

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 discretion 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

Cite as 298 Neb. 510

on April 20, the date the district court entered a signed, filestamped 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 overruling 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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IN RE CHANGE OF NAME OF WHILDE

Cite as 298 Neb. 510

“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 general 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 meaning 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 parent” 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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IN RE CHANGE OF NAME OF WHILDE

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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 recognized 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 status of in loco parentis is temporary, flexible, and capable of 

being both suspended and reinstated”; “an individual standing 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 certified 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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IN RE CHANGE OF NAME OF WHILDE

Cite as 298 Neb. 510

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 modification 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 superseded, such order will be enforced as in case of any other nonsuperseded 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 overruled Margaret’s motion. Although it is not determinative of 

our resolution of this issue in this appeal, we note parenthetically 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 provision 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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IN RE CHANGE OF NAME OF WHILDE

Cite as 298 Neb. 510

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 further 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.

Affirmed.

Wright, Kelch, and Funke, JJ., not participating.