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State of Nebraska, appellee, v. 

Marc J. Bartel, appellant.

___ N.W.2d ___

Filed January 15, 2021. No. S-20-148.

1. Motions for New Trial: Appeal and Error. The standard of review 

for a trial court’s denial of a motion for new trial after an evidentiary 

hearing is whether the trial court abused its discretion in denying 

the motion.

2. Judgments: Words and Phrases. An abuse of discretion occurs when a 

trial court’s decision is based upon reasons that are untenable or unreasonable, or when its action is clearly against justice, conscience, reason, 

or evidence.

3. Criminal Law: Motions for New Trial: Statutes. In Nebraska, limitations on the grounds and timing of a criminal defendant’s motion for 

new trial are controlled by statute.

4. Pleadings: Statutes: Time. In order for a motion to have any effect, it 

must comply with statutory time limitations.

5. Motions for New Trial: Statutes: Time: Appeal and Error. An appellate court does not consider a motion for new trial to the extent that its 

grounds fail to conform to the statutory requirements of timeliness.

6. Motions for New Trial: Time. The time limitation for filing a motion 

for new trial runs from the date on which a verdict is rendered, not the 

date of sentencing.

7. Motions for New Trial: Words and Phrases. “Unavoidably prevented” 

refers to circumstances beyond the control of the party filing the motion 

for new trial.

8. Attorney and Client. The law requires diligence on the part of clients 

and their attorneys, and the mere neglect of either will not entitle a party 

to relief on that ground.

9. Criminal Law: Motions for New Trial: Evidence: Proof. Neb. Rev. 

Stat. § 29-2101(5) (Reissue 2016) imposes on defendants a twoprong burden of proof: First, a criminal defendant must show that the 

Nebraska Supreme Court Online Library

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

04/09/2021 12:09 AM CDT
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evidence at issue has been newly discovered since trial, meaning that 

the evidence could not, with reasonable diligence, have been discovered 

and produced at trial. Second, the defendant also must show that the 

evidence at issue is so substantial that with it, a different verdict would 

probably have been reached at trial.

10. Words and Phrases. Whereas an object is new at the moment that it 

begins to exist, it is newly discovered once it is revealed or found out to 

have previously been in existence.

11. Trial: Evidence: Words and Phrases. Evidence is newly discovered if 

it existed at the time of trial but has been uncovered since the trial.

12. New Trial: Evidence. Evidence newly created after trial does not satisfy 

Neb. Rev. Stat. § 29-2101(5) (Reissue 2016).

13. ____: ____. Evidence of facts happening after trial ordinarily cannot be 

considered as newly discovered evidence on which to justify the granting of a new trial.

14. ____: ____. A new trial will not be granted on the ground of newly 

discovered evidence where it appears that such evidence was not available at the time of the trial, but, rather, the result of changed conditions since.

15. New Trial: Evidence: Verdicts. In any but a very extraordinary case in 

which an utter failure of justice will unequivocally result, a verdict on 

the evidence at the trial will not be set aside and a new trial granted on 

the basis of evidence of facts occurring subsequent to such trial.

16. New Trial: Evidence: Witnesses. To warrant a new trial, newly discovered evidence must involve something other than the credibility of the 

witness who testified at trial.

17. Divorce. Domestic relations cases are civil cases, litigated between 

individuals.

18. ____. Domestic relations litigation often involves considerable negotiation between parties about the terms of divorce.

19. ____. Assuming the parties’ negotiation in a domestic relations case was 

conducted fairly and reasonably, courts give considerable weight to the 

terms agreed upon by the parties.

20. Motions to Dismiss: Motions to Vacate. A nonparty to a case has no 

authority to ask the court to dismiss or vacate it.

21. Stipulations. A legal conclusion is not the proper subject of a 

stipulation.

22. Words and Phrases. Void ab initio means null from the beginning.

23. Judgments: Words and Phrases. An order is void ab initio, rather 

than merely voidable, if the character of the judgment was not such as 

the court had the power to render or because the mode of procedure 

employed by the court was such as it might not lawfully adopt.

24. Fraud: Proof. The standard for showing fraud is high.
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Appeal from the District Court for Douglas County, Marlon 

A. Polk, Judge, on appeal thereto from the County Court 

for Douglas County, Darryl R. Lowe, Judge. Judgment of 

District Court affirmed.

Michael J. Wilson, of Berry Law Firm, for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Heavican, C.J.

I. INTRODUCTION

In October 2016, a jury found Marc J. Bartel guilty of violating a domestic abuse protection order. Bartel filed a motion 

for new trial based on a stipulated order, entered in June 2017 

in his separate domestic case, that purported to render the 

original protection order “void ab initio.”

The county court denied Bartel’s motion, and the district 

court found no abuse of discretion. We affirm.

II. FACTS

1. Domestic Abuse 

Protection Order

In 2015, Bartel and his then-wife, M.B., were experiencing 

marital problems. Pursuant to Neb. Rev. Stat. § 42-924 (Reissue 

2016), M.B. petitioned for a domestic abuse protection order 

against Bartel. On September 16, after hearing oral arguments 

and receiving evidence, the district court for Douglas County 

made a finding that “a credible threat was made [by Bartel] 

that would put [M.B.] in fear of bodily injury.” Based on these 

findings, the district court issued a protection order, effective 

for “one year from the date of” the order, “unless modified by 

order of the court.”
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Under the protection order, Bartel was “enjoined and prohibited from imposing any restraint upon the person or liberty 

of [M.B.]”; “enjoined and prohibited from threatening, assaulting, molesting, attacking, or otherwise disturbing the peace of 

[M.B.]”; “enjoined and prohibited from telephoning, contacting, or otherwise communicating with [M.B.]”; and “ordered to 

stay away from” M.B.’s home and work addresses.

Within the protection order, the district court also made specific allowances for Bartel to continue visitations with his two 

daughters at least 1 day every week. The district court ordered: 

“The children will be exchanged at [a church near M.B.’s 

house]. [Bartel is] to remain in vehicle except to assist children 

from car seats.” Despite his general prohibition against having any contact with M.B., Bartel was permitted “to notify her 

by text message that he [is] unable to pick up [the] children” 

for visitation.

At the September 16, 2015, hearing on M.B.’s petition for 

a protection order, the district court specifically asked Bartel 

whether he understood that “violation of this order is an 

arrestable offense.” Bartel responded, “Yes.”

2. Conviction for Violation 

of Protection Order

Saturday, October 31, 2015, was scheduled to be a regular 

visitation day between Bartel and his daughters. Prior to picking up the girls that morning, Bartel texted M.B. and asked if 

she would agree to let him pick up their daughters 30 minutes 

earlier than usual. Bartel wished to take the daughters with him 

to a funeral in a town an hour away.

M.B. agreed, but asked that on this day only Bartel park 

on the street in front of her house to pick up the girls. M.B. 

testified that because the pickup time was earlier than usual, 

she believed it would be easier to ready the girls for their day 

if she did not need to drive them to the court’s ordered site of 

dropoff at the church.
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Just after the agreed-upon time, Bartel arrived in front of 

M.B.’s home. He texted M.B. that he was there and remained 

in his car. The girls emerged from the house, and Bartel exited 

his car to help load them into car seats.

Bartel became angry because he believed that his daughters 

appeared “disheveled.” He had purchased dresses and tights 

for them to wear to the funeral, but they were wearing casual 

shirts and leggings instead. M.B. testified that she had dressed 

the girls in leggings to make them comfortable during the 

drive and that their dresses were packed in a sack carried by 

one of the girls. Taking the girls’ sack and ordering the girls 

back inside the house to change, Bartel marched behind them, 

toward M.B.’s front door.

M.B., still standing on her front stoop, became concerned 

when she observed Bartel striding toward her house “like a 

freight train.” M.B. reminded Bartel that he was prohibited by 

the protection order from approaching her house. He responded 

that he was coming in to have the girls change their clothes. 

Alarmed, M.B. ushered her daughters inside the house and 

slammed the front door shut, locking it with a deadbolt.

M.B. and Bartel each called the police. M.B. testified at 

trial that she had been afraid for her life and that until the 

police arrived several minutes later, she held a baseball bat for 

protection. M.B.’s mother, who was visiting from out of state, 

gathered the girls in a back bedroom to keep them away from 

the altercation.

Bartel continuously knocked at M.B.’s front door for several 

minutes, cursing. He then returned to his car and began pacing 

alongside it until police arrived.

Two Omaha police officers arrived on the scene. They 

separately spoke with M.B. and Bartel. One of the officers then 

searched police records and discovered the protection order 

requiring Bartel to stay away from M.B.’s home address. The 

officers arrested Bartel for violation of the protection order and 

took him into police custody.
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On October 7, 2016, at a trial in the county court for 

Douglas County, M.B. testified as a witness against Bartel. She 

averred that the protection order had been in effect and that 

Bartel had violated it on October 31, 2015. A jury convicted 

Bartel of having knowingly violated the protection order, a 

Class I misdemeanor. 1 The county court later sentenced Bartel 

to 12 months’ probation, a $250 fine, and a suspended sentence 

of 2 days in jail.

3. Motion for New Trial

In June 2017, while his direct appeal was still pending, 

Bartel moved to dismiss the appeal and filed a motion for new 

trial. 2 He requested that the county court vacate his conviction 

because of an order entered in another case.

In M.B. and Bartel’s separate domestic relations case, on 

June 5, 2017, the district court for Douglas County entered an 

order holding that its “September 16, 2015[,] Protection Order 

shall be deemed void ab initio, and shall be considered void 

from the date of entry of this Order.” The order stated that “the 

parties acknowledge and specifically intend and anticipate that 

this Order will vacate or void [Bartel’s] conviction of violating 

the Protection Order.” At that time, M.B. also agreed not to 

object if Bartel moved for new trial in county court after his 

conviction for violation of the protection order.

In January 2018, at the county court’s hearing on Bartel’s 

motion for new trial, Bartel offered the June 2017 order and 

asserted that it was newly discovered evidence relevant to his 

defense at trial. He also alleged that M.B.’s stipulation to the 

district court not to object to a motion for new trial implied that 

she had perpetrated a fraud against the county court by testifying for the State at trial. Finally, Bartel contended that because 

his conviction was premised on a protection order that was 

now void ab initio, his conviction was an error of law.

1 See § 42-924(4).

2 See Neb. Rev. Stat. § 29-2103 (Reissue 2016).
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The county court orally issued an order denying Bartel’s 

motion for new trial. Sitting as an intermediate appellate 

court, 3 the district court for Douglas County affirmed, reasoning that the June 2017 order in the domestic relations case 

reflected the parties’ negotiations after trial based on thenexisting circumstances and was not newly discovered evidence 

relevant to Bartel’s criminal trial. The district court further 

found no error in the jury’s conviction or the county court’s 

sentence and denied Bartel’s motion for new trial.

Bartel filed a timely notice of appeal, and we moved the 

appeal to our docket. 4

III. ASSIGNMENT OF ERROR

On appeal, Bartel assigns only one error: that it was error 

for the district court to uphold the county court’s denial of 

Bartel’s motion for new trial in the 2016 criminal case, considering the stipulated June 2017 order in his domestic relations case.

IV. STANDARD OF REVIEW

[1,2] The standard of review for a trial court’s denial of a 

motion for new trial after an evidentiary hearing is whether 

the trial court abused its discretion in denying the motion. 5

An abuse of discretion occurs when a trial court’s decision 

is based upon reasons that are untenable or unreasonable, or 

when its action is clearly against justice, conscience, reason, 

or evidence. 6

V. ANALYSIS

More than 8 months after he was convicted in 2016 of 

violating a domestic abuse protection order, Bartel filed a 

3 See Neb. Rev. Stat. § 25-2733 (Reissue 2016).

4 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).

5 See State v. Price, 306 Neb. 38, 944 N.W.2d 279 (2020).

6 See id.
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motion for new trial based on the June 2017 order, which 

purported to render the protection order void ab initio. Bartel 

alleged that the stipulated order had effectively turned back 

the clock 8 months to nullify the protection order and, with it, 

the conviction.

Viewing that passage of time differently in the light of our 

statutes, the State argues that Bartel’s grounds for new trial 

are both too little and too late to warrant a new trial following 

Bartel’s conviction. We agree.

[3] In Nebraska, limitations on the grounds and timing of 

a criminal defendant’s motion for new trial are controlled by 

statute. 7 The grounds on which a trial court may order a new 

trial after a criminal conviction has been entered are specified 

in Neb. Rev. Stat. § 29-2101 (Reissue 2016). 8

Bartel, in support of his motion for new trial before the 

county court, offered the June 2017 order from his domestic 

relations case and cited each of three grounds listed within 

§ 29-2101. He argued first that a new trial was warranted under 

§ 29-2101(1) because M.B.’s stipulation to the June 2017 order 

implied that she had perpetrated a fraud against the district 

court and county court during her prior testimony. Second, 

Bartel contended that because his conviction was premised on 

a protection order that was now void ab initio according to 

the June 2017 order, his conviction was an error of law under 

§ 29-2101(4). Third, Bartel alleged that under § 29-2101(5), 

the June 2017 order was newly discovered evidence that would 

have been relevant to his defense at trial.

The county court denied Bartel’s motion for new trial, 

and the district court affirmed. Bartel assigns that the district 

court’s affirmance was in error because the county court had 

abused its discretion in denying his motion for new trial. We 

find no such abuse of discretion and affirm the decision of 

7 See State v. Avina-Murillo, 301 Neb. 185, 917 N.W.2d 865 (2018).

8 See id.
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the district court below to uphold the county court’s denial of 

Bartel’s motion for new trial.

1. Timeliness of Bartel’s 

Motion for New Trial

[4,5] We begin by considering whether Bartel’s motion for 

new trial was timely. In order for a motion to have any effect, 

it must comply with statutory time limitations. 9 An appellate 

court does not consider a motion for new trial to the extent 

that its grounds fail to conform to the statutory requirements 

of timeliness. 10 The time limitations for motions for new trial 

are set forth in § 29-2103. 11

(a) 10-Day Limit

[6] The time limitation for filing a motion for new trial runs 

from the date on which a verdict is rendered, not the date of 

sentencing. 12 Thus, under § 29-2103(3), for Bartel’s arguments 

for a new trial based on § 29-2101(1) and (4) to have any 

effect, they needed to be filed within 10 days after the jury rendered its verdict in his criminal case on October 7, 2016. Yet 

Bartel did not file a motion for new trial until June 23, 2017, 

more than 8 months after the jury’s verdict.

[7,8] Further, Bartel has failed to allege, nor does the 

record show, that timely filing was somehow unavoidably 

prevented for 8 months. “‘[U]navoidably prevented’ as used 

in § 29-2103(3) refers to circumstances beyond the control of 

the party filing the motion for new trial.” 13 The law requires 

diligence on the part of clients and their attorneys, and the 

mere neglect of either will not entitle a party to relief on that 

9 See id.

10 See id.

11 Id.

12 See id. See, also, State v. Lacy, 195 Neb. 299, 237 N.W.2d 650 (1976).

13 Avina-Murillo, supra note 7, 301 Neb. at 195, 917 N.W.2d at 873.
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ground. 14 Because Bartel’s motion for new trial was untimely 

without justification, it was ineffective insofar as it rested on 

the first two grounds alleged under § 29-2101(1) and (4). We 

thus do not consider those grounds in our analysis below.

(b) Within Reasonable Time 

After Discovery

Bartel’s third ground for new trial was that under 

§ 29-2101(5), he had newly discovered evidence that would 

have been relevant to his defense at trial. Like the first two 

grounds for a new trial alleged by Bartel, this ground was 

also filed 8 months after the jury rendered a guilty verdict in 

Bartel’s criminal case. But under § 29-2103(4), a motion based 

on newly discovered evidence is timely so long as it was filed 

within a reasonable time, generally not to exceed 5 years, after 

discovery of that new evidence. 15

Because we conclude below that the evidence at issue was 

not newly discovered, we need not determine here whether 

Bartel’s motion, based on the ground specified in § 29-2101(5), 

was timely filed.

2. Merit of Bartel’s Motion for 

New Trial Based on Newly 

Discovered Evidence

Bartel assigns that the district court erred in upholding 

the county court’s denial of his motion for new trial under 

§ 29-2101(5). Under that statute, a criminal defendant may be 

granted a new trial if his or her substantial rights were materially affected by “newly discovered evidence material for the 

defendant which he or she could not with reasonable diligence 

have discovered and produced at the trial.” 16

14 Id.

15 See State v. Cross, 297 Neb. 154, 900 N.W.2d 1 (2017).

16 See § 29-2101(5). See, also, Neb. Rev. Stat. § 29-2102(3) (Reissue 2016).
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[9] In our opinions interpreting § 29-2101(5), we have 

found it to impose on defendants a two-prong burden of 

proof: First, a criminal defendant must show that the evidence 

at issue has been newly discovered since trial, meaning that 

the evidence could not, with reasonable diligence, have been 

discovered and produced at trial. 17 Second, the defendant also 

must show that the evidence at issue is so substantial that 

with it, a different verdict would probably have been reached 

at trial. 18

We turn to the first prong. Bartel contends that the evidence 

at issue—the June 2017 order in his domestic relations case—

was newly discovered evidence. He claims that because the 

order was not entered until 8 months after the jury announced 

a guilty verdict following his county court trial, he could not 

possibly have discovered it and produced it at trial, no matter 

how much diligence he would have exercised.

The State responds that our decision in State v. Jackson 19

counsels against Bartel’s position. In Jackson, we contrasted 

newly discovered evidence with newly available evidence. 

The issue was whether the testimony of a codefendant who 

had refused to testify at the defendant’s criminal trial but then 

promised after trial to provide exculpatory testimony warranted 

a new trial. We held that it did not because there was nothing 

about the codefendant’s exculpatory testimony that had been 

newly discovered since trial. What had changed since trial were 

the codefendant’s circumstances and corresponding willingness 

to testify. Such testimony was thus not newly discovered, but 

“newly available evidence which does not provide a basis for 

the granting of a new trial.” 20

17 See State v. Krannawitter, 305 Neb. 66, 939 N.W.2d 335 (2020).

18 Id.

19 State v. Jackson, 264 Neb. 420, 648 N.W.2d 282 (2002).

20 Id. at 433, 648 N.W.2d at 293 (emphasis omitted).
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Unlike in Jackson, the evidence at issue here, the June 2017 

order, did not exist at the time of Bartel’s trial and conviction. 

It had not yet been created. After Bartel’s trial in county court, 

the district court’s 2017 order did not become newly available; 

it was altogether new. But new is not the same as “newly discovered” for purposes of § 29-2101(5).

[10-12] Whereas an object is new at the moment that it 

begins to exist, it is newly discovered once it is “revealed” or 

“found out” to have previously been in existence. 21 We have 

held before that evidence is newly discovered if it existed at 

the time of trial but has been “uncovered since the trial.” 22

Implicit in that holding is that evidence must have existed at 

trial for it to be uncovered after the trial. Evidence newly created after trial does not satisfy § 29-2101(5).

[13-15] This was also our interpretation in a closely analogous context. The Nebraska civil procedure rules similarly 

allow for a new trial to be granted based on “newly discovered 

evidence.” 23 As we have clarified about § 25-1142, however:

“‘[E]vidence of facts happening after trial ordinarily 

cannot be considered as newly discovered evidence on 

which to justify the granting of a new trial.’ [Citation 

omitted.] ‘A new trial will not be granted on the ground 

of newly discovered evidence where it appears that such 

evidence was not available at the time of the trial, but 

rather the result of changed conditions since.’ [Citation 

omitted.] ‘In any but a very extraordinary case in which 

an utter failure of justice will unequivocally result, a 

verdict on the evidence at the trial will not be set aside 

21 Compare “New,” Oxford English Dictionary Online, http://oed.com/view/

Entry/126504 (last visited Jan. 9, 2021), with “Discovered,” Oxford 

English Dictionary Online, http://oed.com/view/Entry/54010 (last visited 

Jan. 9, 2021).

22 See Jackson, supra note 19, 264 Neb. at 432, 648 N.W.2d at 293.

23 See Neb. Rev. Stat. § 25-1142(7) (Reissue 2016).
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and a new trial granted on the basis of evidence of facts 

occurring subsequent to such trial.’ . . .” 24

We note that motions for new trial are reviewed against different standards depending on whether they follow a civil or 

a criminal trial. 25 Still, we find the above language instructive 

here, given the similarity of language between the statutory 

grounds for a new trial based on newly discovered evidence in 

the civil and criminal contexts. 26

(a) June 2017 Order in Domestic 

Relations Case

In support of his motion for new trial, Bartel relied on a June 

2017 order from the district court entered in his domestic relations case more than 8 months after the criminal trial. In that 

order, the district court noted that both M.B. and Bartel had 

stipulated that the 2015 protection order should be rendered 

“void as of the date of entry.”

According to the June 2017 order, M.B. understood that 

“it [was] anticipated that [Bartel’s] conviction [would] be dismissed and/or vacated with prejudice.” Further, the June 2017 

order stated that M.B. had agreed not to object if Bartel filed a 

motion for new trial in his criminal case. The June 2017 order 

then asserted that “the . . . 2015 Protection Order shall be 

deemed void ab initio, and shall be considered void from the 

date of entry of this Order.”

We find nothing on the face of this June 2017 order that 

would make it newly discovered evidence under § 29-2101(5) 

concerning facts that existed at Bartel’s criminal trial. To 

24 State ex rel. Douglas v. Bible Baptist Church, 218 Neb. 307, 309, 353 

N.W.2d 20, 22 (1984) (quoting Wagner v. Loup River Public Power 

District, 150 Neb. 7, 33 N.W.2d 300 (1948)). Accord In Interest of S.H., 

L.H., and A.H., 225 Neb. 452, 406 N.W.2d 112 (1987).

25 See Hubbard v. State, 72 Neb. 62, 100 N.W. 153 (1904). See, also, e.g., 

State v. Torrence, 192 Neb. 720, 224 N.W.2d 177 (1974), disapproved on 

other grounds, State v. Harney, 237 Neb. 512, 466 N.W.2d 540 (1991).

26 Compare § 25-1142(7), with § 29-2101(5).
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the contrary, the order did not exist until 8 months after trial. 

At that point, it was newly created by the district court, pursuant at least in part to M.B.’s and Bartel’s stipulation made after 

the county court’s trial.

At oral argument, Bartel conceded that the June 2017 order 

itself did not exist until after his criminal trial. Yet he contended that the order still had legal effect upon the facts that 

existed at trial and, thus, that the order was newly discovered 

evidence under § 29-2101(5). According to Bartel, the order 

implied that M.B. had fraudulently testified to the district court 

in support of the protection order and to the county court in 

support of a conviction. Next, Bartel asserted that the June 

2017 order rendered his protection order retroactively ineffective prior to trial. We disagree.

(b) M.B.’s Testimony

[16] As an initial matter, testimony recanted after trial is 

notoriously unreliable. 27 We have thus long held that to warrant 

a new trial, newly discovered evidence must involve something 

other than the credibility of the witness who testified at trial. 28

Even if M.B.’s stipulation to the June 2017 order did cast doubt 

on her credibility by undermining her prior testimony, that 

would not warrant a new trial under § 29-2101(5).

[17-19] Moreover, Bartel has failed to show that M.B.’s 

stipulation actually undermined her prior testimony. Domestic 

relations cases are civil cases, litigated between individuals. 29 Such litigation often involves considerable negotiation between parties about the terms of divorce. 30 Assuming 

the parties’ negotiation was conducted fairly and reasonably, 

27 See State v. Lotter, 278 Neb. 466, 771 N.W.2d 551 (2009). See, also, 

Jackson, supra note 19.

28 See State v. Oliveira-Coutinho, 291 Neb. 294, 865 N.W.2d 740 (2015).

29 See Marshall v. Marshall, 298 Neb. 1, 902 N.W.2d 223 (2017).

30 See, e.g., Bayne v. Bayne, 302 Neb. 858, 925 N.W.2d 687 (2019).
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courts generally give considerable weight to the terms agreed 

upon by the parties. 31

[20,21] That appears to have happened here. Over the course 

of negotiations in M.B. and Bartel’s domestic relations case, it 

appears M.B. accepted that Bartel’s criminal conviction might 

be dismissed or vacated. Because she was not the party prosecuting Bartel’s criminal case, M.B. had no authority, even if 

she had been so inclined, to herself ask the county court to 

dismiss or vacate it. 32 Instead, in the domestic relations case to 

which she was a party, M.B. stipulated that she understood that 

the county court’s criminal case might be dismissed or vacated. 

We note that to the extent M.B. characterized the protection 

order as void ab initio, that characterization was a legal conclusion and thus not the proper subject of a stipulation. 33 The 

district court documented M.B.’s stipulation, as proposed, in 

its 2017 order.

Absent from the June 2017 order, however, is evidence that 

M.B. was recanting her prior testimony. She did not assert that 

her testimony to the county court or district court had been 

false or misconstrued. The district court made no findings that 

M.B.’s prior statements were untrue or fraudulent.

Bartel asserts that M.B.’s stipulation “amounts to an admission by [M.B.] that she misled the jury when she testified that 

the protection orders were based on valid concerns and that 

she ‘fe[lt] the need to seek a domestic abuse protection order’ 

against Bartel.” 34 But M.B. did not stipulate to having misled 

the jury about her fear of Bartel that prompted the protection 

order. Instead, her stipulation appears to reflect her view of 

the facts that occurred after Bartel’s criminal trial and over 

31 See id.

32 See HBI, L.L.C. v. Barnette, 305 Neb. 457, 941 N.W.2d 158 (2020).

33 See Vitalix, Inc. v. Box Butte Cty. Bd. of Equal., 280 Neb. 186, 786 N.W.2d 

326 (2010).

34 Brief for appellant at 14.
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the course of negotiations in the domestic relations case. It 

might well have been true that in 2017, M.B. was no longer as 

afraid of Bartel as she had been when she sought the protection 

order in 2015. Still, that would not change the facts that existed 

in 2015 and at trial. We find no evidence that M.B. explicitly 

refuted or undermined her prior testimony.

That M.B. stipulated to the June 2017 order is not newly 

discovered evidence under § 29-2101(5). We reject Bartel’s 

argument to the contrary.

(c) Void ab Initio

[22,23] We also find no basis for Bartel’s argument that the 

June 2017 order rendered his protection order retroactively 

ineffective at the time of trial. Void ab initio, the term used in 

the June 2017 order, means “[n]ull from the beginning.” 35 As 

courts in other jurisdictions have stated, “[a]n order is void 

ab initio, rather than merely voidable, if ‘the character of the 

judgment was not such as the court had the power to render, 

or because the mode of procedure employed by the court was 

such as it might not lawfully adopt.’” 36

Similarly to those other jurisdictions, we have applied the 

doctrine of void ab initio sparingly, such as when a court’s 

order was entered without personal or subject matter jurisdiction 37 or absent proper procedures. 38 Here, Bartel provides 

no reasoning, nor do we find, that the district court in 2015 

35 Black’s Law Dictionary 1885 (11th ed. 2019). See, also, Salem Grain Co. 

v. City of Falls City, 302 Neb. 548, 924 N.W.2d 678 (2019).

36 Collins v. Shepherd, 274 Va. 390, 402, 649 S.E.2d 672, 678 (2007). See, 

also, Reid v. Indep. Union of All Workers, 200 Minn. 599, 275 N.W. 300 

(1937); Hampshire v. Woolley, 72 Utah 106, 269 P. 135 (1928), overruled 

in part on other grounds, In re Rice’s Estate, 111 Utah 428, 182 P.2d 111 

(1947); 56 Am. Jur. 2d Motions, Rules, and Orders § 47 (2020).

37 See, e.g., Sid Dillon Chevrolet v. Sullivan, 251 Neb. 722, 559 N.W.2d 740 

(1997).

38 See, e.g., Big John’s Billiards v. Balka, 254 Neb. 528, 577 N.W.2d 294 

(1998).
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lacked jurisdiction or failed to follow proper procedures when 

it entered the protection order.

Bartel instead claims that the district court’s authority to 

render its protection order void ab initio came from Neb. 

Rev. Stat. § 25-2001(4) (Reissue 2016). Under that statute, 

“[a] district court may vacate or modify its own judgments 

or orders after the term at which such judgments or orders 

were made . . . for fraud practiced by the successful party in 

obtaining the judgment or order.” 39 According to Bartel, the 

district court in 2017 had authority under § 25-2001(4) to render its protection order void ab initio because “the protection 

order was obtained by [M.B.’s] fraud,” practiced in her petition 

to the district court to procure a protection order. 40

But even assuming, arguendo, that § 25-2001 would authorize a district court to go back in time to nullify its protection 

order in the way that Bartel suggests, we find that the statutory 

requirements for such action were not met here. First, a district 

court’s authority under the law to vacate an order after the 

term in which the order was made may be invoked only by “a 

motion filed within six months after the entry of the judgment 

or order.” 41 Because the district court entered the protection 

order on September 16, 2015, the district court’s term ended at 

the end of 2015. 42

Yet after the district court entered the protection order, it 

was not until almost 15 months later, on January 4, 2017, that 

Bartel filed a motion seeking to vacate the protection order 

pursuant to the district court’s authority under § 25-2001. On 

May 26, 2017, Bartel again filed a motion to invoke the district 

court’s authority under § 25-2001. Neither motion was filed 

within the 6 months required under § 25-2001(1).

39 § 25-2001.

40 Brief for appellant at 17.

41 § 25-2001(1).

42 See Eicher v. Mid America Fin. Invest. Corp., 275 Neb. 462, 748 N.W.2d 

1 (2008).
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We note that before its expiration, the protection order 

appears to have been timely withdrawn pursuant to M.B.’s 

motion filed on December 17, 2015. However, that withdrawal 

did not invoke the district court’s authority under § 25-2001. 

The district court’s “Order of Dismissal” entered on January 6, 

2016, did not find that the protection order should never have 

existed, nor that the protection order was vacated pursuant to 

the district court’s § 25-2001 authority. Instead, it appears that 

the district court withdrew the protection order from having 

future effect pursuant to § 42-924. But because no motion to 

vacate the protection order pursuant to § 25-2001 was filed 

within 6 months after the protection order’s issuance, we find 

no authority under § 25-2001(4) for the district court to have 

vacated the protection order with retroactive effect.

[24] Second, even if a motion had been filed within 6 

months, we question whether the district court would have 

had a lawful basis for exercising its authority to vacate the 

protection order under § 25-2001(4). The standard for showing fraud under that statute is high. 43 And, as analyzed above, 

the June 2017 order does not definitively state that M.B. 

wished to recant her prior testimony. Bartel does not identify even a single fact from M.B.’s prior testimony that she 

explicitly refuted or undermined. The district court made no 

findings of fraud, nor do we find evidence of fraud in the 

record. Without statutory authority, the June 2017 order could 

have had no legal effect upon the protection order entered in 

September 2015.

At most, then, the district court’s use of the term “void ab 

initio” in the June 2017 order was a finding of fact about a 

term that M.B. and Bartel had negotiated in their domestic 

relations case. But that term could itself have no legal effect. 44

43 See State on behalf of B.M. v. Brian F., 288 Neb. 106, 846 N.W.2d 257 

(2014).

44 See Vitalix, Inc., supra note 33.
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And, for purposes of the county court’s trial, it was not newly 

discovered evidence under § 29-2101(5).

The district court did not err in upholding the county court’s 

denial of Bartel’s motion for new trial. Bartel’s assignment of 

error is without merit.

VI. CONCLUSION

Bartel was convicted by a jury in county court of violating 

a protection order. We find no merit to Bartel’s contention that 

the subsequent June 2017 order in his domestic relations case 

was newly discovered evidence sufficient to warrant a new trial 

in the criminal case. Finding no abuse of discretion, we affirm 

the decision of the district court upholding the county court’s 

denial of Bartel’s motion for new trial.

Affirmed.