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PAW K. V. CHRISTIAN G.

Cite as 32 Neb. App. 317

Paw K., appellee, v. 

Christian G., appellant.

___ N.W.2d ___

Filed October 17, 2023. No. A-23-195.

1. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence 

Rules commit the evidentiary question at issue to the discretion of the 

trial court, an appellate court reviews the admissibility of evidence for 

an abuse of discretion.

2. Judgments: 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.

3. 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.

4. Motions to Vacate: Time: Appeal and Error. The decision to vacate 

an order 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.

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: Waiver. Generally speaking, the filing of a general 

appearance which does not preserve an objection to personal jurisdiction 

constitutes a waiver of personal jurisdiction.

7. Records: Appeal and Error. It is incumbent upon the appellant to present a record supporting the errors assigned.

8. Judgments: Records: Presumptions: Evidence: Appeal and Error.

In the absence of a record of the evidence considered by the court, it 

Nebraska Supreme Court Online Library

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

10/24/2023 08:08 AM CDT
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is presumed on appeal that the evidence supports the trial court’s orders 

and judgment.

9. Trial: Evidence: Affidavits. Generally, an affidavit is not admissible to 

establish facts material to the issue being tried.

10. Affidavits: Legislature: Statutes. The Legislature may provide 

a statutory exception to the general rule regarding the admissibility 

of affidavits.

11. Hearsay: Words and Phrases. Hearsay is a statement, other than one 

made by the declarant while testifying at the trial or hearing, offered in 

evidence to prove the truth of the matter asserted.

12. Rules of Evidence: Hearsay. Hearsay is not admissible except as provided by the Nebraska Evidence Rules or elsewhere.

13. Rules of Evidence: Hearsay: Words and Phrases. A written assertion 

offered to prove the truth of the matter asserted is a hearsay statement 

under Neb. Rev. Stat. § 27-801(3) (Cum. Supp. 2022), unless it falls 

within an exception or exclusion under the hearsay rules.

14. Trial: Hearsay: Evidence: Appeal and Error. When the opposing 

party objects to evidence as hearsay and the trial court sustains the 

objection, the proponent is required to point out the possible hearsay 

exceptions in order to preserve the point for appeal.

Appeal from the District Court for Lancaster County: Ryan 

S. Post, Judge. Affirmed.

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

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

appellee.

Bishop, Arterburn, and Welch, Judges.

Bishop, Judge.

INTRODUCTION

Christian G. appeals from an order of the district court for 

Lancaster County denying his motion to vacate a domestic 

abuse protection order. We affirm.

BACKGROUND

On January 20, 2023, Paw K. filed a petition and affidavit 

to obtain a domestic abuse protection order pursuant to Neb. 

Rev. Stat. § 42-924 (Cum. Supp. 2022). The petition and 
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PAW K. V. CHRISTIAN G.

Cite as 32 Neb. App. 317

affidavit concerned Christian, the father of Paw’s child. Paw 

included her address in Lincoln, Nebraska, and gave an Iowa 

address for Christian. The petition stated that Paw was a victim 

of domestic abuse. In the section regarding other past or current court cases involving the parties, Paw listed two separate 

case numbers, as well as a previous 2019 incident when “he 

was arrested for domestic assault of me.” On the affidavit on 

the provided form, Paw described three different incidents of 

domestic abuse, which we will quote verbatim. Paw alleged 

that on January 10, 2023,

[C]hristian started at 7:15am with abuse texts threatening 

me and telling lies about me and our son making false 

accusations threat to come to my house and posted on 

public facebook lies he has hitbme in the past and im 

affaird if he shows up he will again i tell him to stop 

haressing me amd to leave me alone and everytime he 

gets worse today did not stop until 11:40 all while i was 

at work continue to text me i have them attached I get so 

stressed I break out in hives and need to get shots. I am 

very afraid of him.

Paw alleged that on December 22, 2022,

starting at 230 pm he started abuse again because christmas was my court ordered holiday and he was mad he 

could not see [our son] till Dec27th he called me a fucking bitch and went on with his abuse till 340pm.

he had me so scared and up that i damaged 72 parts at 

work valved at $500 each i almost my job cause he not 

leave me alone.

Paw alleged that on December 8 through 9,

starting on the 8th at noon he started demanding extra 

time when i told him the court order said friday at 3pm 

was the pick up time he got mad and start texting and 

haressing me about being a fucking bitch and the court 

order did not mean shit . he then continued it up again 

at noon the next day and again used horrible words he 

always calls me bad words and threaten to co.e to my 

house he say he make me listen I afraid of him.
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Cite as 32 Neb. App. 317

Attached to Paw’s petition and affidavit were 10 additional 

pages of screenshots and notes by Paw regarding other dates 

and incidents.

On the same day the petition and affidavit were filed, 

January 20, 2023, the district court entered an ex parte domestic abuse protection order in favor of Paw, and such order was 

to remain in effect for 1 year unless otherwise modified by 

the court. The ex parte order stated that if Christian wished 

to appear and show cause why the order should not remain in 

effect, he was to return the provided “Request for Hearing” 

form within 10 business days after service upon him. It was 

also ordered that “a copy of this order and a copy of the petition be served on the respondent and a copy of this order be 

mailed to the petitioner(s).”

On January 23, 2023, Christian filed a “Request for Hearing 

- Protection Order.” On the request for hearing form, Christian 

marked the box stating, “I do not agree to receive notification 

by email.”

In its “Order for Hearing” filed on Monday, January 23, 

2023, the district court set a hearing for the following Monday, 

January 30, at 10:30 a.m. The “Certificate of Service” signed 

by the clerk of the court states that on January 24, a copy of 

the foregoing document was served on Christian at an address 

in Iowa “by mailing by United States Mail.”

On January 30, 2023, the district court entered an “Order 

Affirming Domestic Abuse Protection Order” in favor of Paw. 

The order states that Christian did not appear at the hearing 

that day. The order also states that evidence was adduced, and 

the court found that it had jurisdiction of the parties and subject matter. The court further found that Paw had shown that 

Christian: “attempted to cause or intentionally and knowingly 

caused bodily injury with or without a dangerous instrument”; 

“by means of a credible threat, placed the petitioner(s) in fear 

of bodily injury”; or “engaged in sexual contact or sexual 

penetration without consent as defined by Neb. Rev. Stat. 

§ 28-318.”
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Cite as 32 Neb. App. 317

On February 9, 2023, Christian filed a motion to vacate the 

January 30 order

on the ground that the court’s “Order for Hearing” issued 

on January 23, 2023, directing that a hearing be held on 

January 30, 2023, at 10:30 a.m., was not served on the 

respondent until after January 30, 2023, at 10:30 a.m., as 

shown in the attached Affidavit of Christian . . . , and on 

the ground that the court lacks jurisdiction over the person of the respondent.

(Emphasis in original.) In his attached affidavit, Christian 

stated that he “picked up the mail from [his] mailbox,” on 

January 30, 2023, at “approximately 3:30 p.m.,” and among 

the items was the “‘Order for Hearing,’” stating that the hearing would be held on January 30 at 10:30 a.m. Christian stated 

that “[b]ecause it was already 3:30 p.m., it was impossible for 

[him] to attend this hearing.” He also stated:

As further proof that I did not receive this “Order for 

Hearing” until it was too late, attached to this Affidavit 

is a copy of an email that “USPS Informed Delivery” 

transmitted to my email address on January 30, 2023, at 

7:24 a.m., stating, “You have mail and packages arriving 

soon,” and including an image of the front of each envelope that would be “arriving soon.” . . . As can be seen, the 

envelope from “Clerk of the District Court, . . . Lincoln, 

Nebraska . . .” is the second image. This further proves 

that I did not receive the envelope prior to January 30, 

2023. Finally, although the email from “USPS Informed 

Delivery” was transmitted at 7:24 a.m. on January 30, 

2023, I did not access that email until well after that time, 

and even if I had accessed that email at exactly 7:24 a.m. 

on January 30, 2023, it would have made no difference to 

my ability to attend the hearing in the Matter that day at 

10:30 a.m., because, obviously, the email only contains 

an image of the front of the envelope. In other words, 

I did not have, and would not have had, any idea what 

document was inside the envelope until I opened it, which 
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Cite as 32 Neb. App. 317

I did not do until I picked up the mail from my mailbox at 

approximately 3:30 p.m. that day.

(Emphasis in original.) A copy of an email from “USPS 

Informed Delivery” dated January 30, 2023, at 7:24 a.m. was 

attached to Christian’s affidavit.

A hearing on Christian’s motion to vacate was held on 

March 3, 2023. In support of the motion to vacate, Christian’s 

counsel offered into evidence exhibit 2, “an affidavit that was 

attached to the motion.” Paw’s counsel objected on “foundation 

and hearsay.” Paw’s counsel then stated, “I would also like to 

bring to the Court’s attention, that the affidavit that was just 

handed to me, [sic] notates [Christian’s] email address on the 

USPS attachment. But on that, that was filed with the Court, an 

email address does not appear.”

The district court asked Christian’s counsel why exhibit 2 

was not hearsay, and counsel responded, “[T]his is not a trial or 

a formal evidentiary hearing on a complaint or a petition. This 

is a motion to vacate. So, there is no oral testimony; the rules 

of evidence don’t apply.” Counsel further stated, “The strict 

rules of evidence do not apply . . . on a motion to vacate what 

is, effectively, a default judgment in this particular case. That’s 

— that’s how that’s done.” As to foundation, counsel stated, “I 

don’t know what foundation is lacking. . . . It’s an affidavit.” 

The following colloquy was then had on the record.

[Paw’s counsel:] On the original affidavit that was filed 

with this Court, no email address is contained on this 

USPS alleged proof that he didn’t get service. And now, 

all of the sudden, he has an affidavit that shows that email 

address. He wouldn’t have foundation to testify to that. 

And it, certainly, is hearsay.

And I’m unaware of any rule that says that the rules of 

evidence don’t apply here at a motion to vacate.

THE COURT: Further response?

[Christian’s counsel:] No. I mean, I don’t — there is 

an email address that’s visible on one that wasn’t on the 

other. I’m not sure. Maybe it was redacted — that was 
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redacted. I don’t know. I don’t have any idea. I don’t 

know. That doesn’t mean that there’s no foundation.

THE COURT: Okay. Let me take just a brief moment 

to see if I can find anything that would support your argument, as it relates to the rules of evidence not applying. 

I’m just not aware why they wouldn’t apply. I’m not seeing anything in the statute on a motion to vacate that says 

they don’t apply.

[Christian’s counsel:] Well, it’s like a motion for summary judgment. It’s like a, I mean, it’s a motion to vacate 

a final order. There’s no oral testimony, there’s no rules 

of evidence that apply. There’s — that’s what happens. 

These are based on affidavits.

(Pause in proceedings.)

THE COURT: I’ll say, the first case that popped up, 

there is evidence offered on a motion to vacate.

For record purposes, I’m not aware of any case that 

says the rules of evidence don’t apply in this proceeding.

I’ve had an opportunity to review the case law, as 

well as the statute, related to vacating orders or judgments. Specifically, I looked at 25-2001. And I’m not 

seeing anything that indicates that the rules of evidence 

do not apply, and so, the hearsay objection is going to 

be sustained.

(Emphasis supplied.)

Christian’s counsel then addressed the “other part” of the 

motion to vacate, that the district court lacked personal jurisdiction “to enter a final protection order against a non-resident 

respondent.” The court noted that Christian requested the hearing, and then said, “Didn’t he submit himself to the jurisdiction 

of the Court at that point?” Counsel responded:

Certainly not. So, the request for hearing, all it says is 

that if you don’t want this to — ex parte to remain in 

effect, you have to request a hearing. And so, what you 

don’t know is the basis for wanting to not have that ex 
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Cite as 32 Neb. App. 317

parte remain in effect. So that could be personal jurisdiction and certainly what it was.

Moreover, there’s the rule. The rule is, 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.

This is, of course, what the Nebraska Supreme Court 

says. What it means is — what the Third Circuit said 

in Bel-Ray Company v. Chemrite, 181 F.3d, 435, 1999, 

submission to personal jurisdiction based on seeking 

affirmative relief is implicated only when a court, quote, 

considers the merits or quasi-merits of controversy.

The other reason that this does not constitute a waiver 

of any objection to personal jurisdiction is because the 

Court doesn’t have any discretion. The — in fact, the act 

of a hearing being held is ministerial. So, under the statute, it has to be done.

Whereas on, let’s say, a 12(b)(6) motion, where somebody is served with a complaint, and they file a 12(b)(6) 

motion, and they don’t assert personal jurisdiction, then 

they have waived it because they’re asking the Court to 

rule on something. But it is a discretionary matter for 

the Court. The Court doesn’t have to grant it. The Court 

uses its discretion in determining whether to grant the 

12(b)(6) motion.

This is — there is no discretion here. There has to be 

a hearing. [Christian] doesn’t seek affirmative relief from 

the Court by requesting a hearing that just says, I don’t 

want this to remain in effect, so I request a hearing.

Christian’s counsel noted that when a respondent is served with 

an ex parte protection order, attached to that order is a request 

for hearing that the respondent must send in. He then stated:

The statute provides that there has to be, then, a hearing and it’s got to be, you know, within — whatever it 

is. I think it says 30 days. That is a ministerial act. It’s 
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— you’re not — he’s not invoking the Court’s jurisdiction on something that the Court has, right, the authority or discretion to deny. There has to be a hearing if he 

requests it.

Moreover, the request for hearing form doesn’t say, 

you know, personal jurisdiction. It just says request for 

hearing. So how does this Court know that he doesn’t 

want to have a hearing so that he can challenge personal jurisdiction.

. . . .

. . . I mean, how does one challenge personal jurisdiction without a hearing.

The court noted that Christian requested a hearing but did not 

show up for the hearing. Christian’s counsel’s response was 

that the court “improperly granted a hearsay objection” regarding the affidavit in support of the motion to vacate, which 

claimed he was not served. Counsel then stated, “[Y]ou get 30 

days to order a hearing. Seven days for somebody who is out 

of state . . . almost seems maybe intentional. But I’m not saying that.”

Paw’s counsel argued that Christian could have challenged 

personal jurisdiction by filing a motion to dismiss and requesting a hearing within that motion. Counsel also contended that 

under Neb. Rev. Stat. § 25-536 (Reissue 2016), Christian had 

sufficient contacts with the State of Nebraska to warrant personal jurisdiction. Counsel stated that the acts that led Paw to 

file a protection order “were all actions that would stem here 

in Nebraska”; “[t]he case law is pretty clear that it’s not from 

the state where the person sends these texts or messages, it’s 

where the person receives them. And that’s here in the state of 

Nebraska.” Counsel also reminded the court about the parties’ 

paternity/custody case and said that Christian was “ordered to 

come here to Nebraska to pick up his child to bring him back 

to Iowa every other weekend,” “[s]o, he continually is having 

contact with this state.” Additionally, Christian’s affidavit was 

notarized in the State of Nebraska.
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At the conclusion of the hearing, the district court orally 

denied Christian’s motion to vacate. The court’s written order 

was subsequently entered on March 8, 2023.

Christian appeals.

ASSIGNMENTS OF ERROR

Christian assigns that the district court erred in (1) refusing to receive his affidavit and (2) denying his “‘Motion to 

Vacate’” the “‘Order Affirming Domestic Abuse Protection 

Order’” when he sought to vacate on the grounds that (a) he 

was not served with the “‘Order for Hearing’” until after the 

hearing had occurred and (b) the court did not have personal 

jurisdiction over him.

STANDARD OF REVIEW

[1,2] Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, 

an appellate court reviews the admissibility of evidence for an 

abuse of discretion. Hernandez v. Dorantes, 314 Neb. 905, 994 

N.W.2d 46 (2023). 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. Schaaf v. 

Schaaf, 312 Neb. 1, 978 N.W.2d 1 (2022).

[3] Apart from rulings under the residual hearsay exception, we review for clear error the factual findings underpinning a trial court’s hearsay ruling and review de novo the 

court’s ultimate determination to admit evidence over a hearsay objection. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 

57 (2008).

[4] The decision to vacate an order 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. Schaaf v. 

Schaaf, supra.
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ANALYSIS

Personal Jurisdiction

Christian argues that the district court did not have personal 

jurisdiction over him when it entered the “Order Affirming 

Domestic Abuse Protection Order” and that therefore, the 

court erred in denying his motion to vacate that order. More 

specifically, he argues that the court did not have personal 

jurisdiction over him

because there was nothing in [Paw’s] “Petition and 

Affidavit to Obtain Domestic Abuse Protection Order” 

alleging or averring any act of abuse by Christian, as 

that term is defined in Neb. Rev. Stat. § 42-903(1), 

because Paw . . . affirmatively alleged that Christian 

was not a resident of Nebraska, and because Paw . . . 

did not make a prima facie showing at the hearing on 

Christian’s “Motion to Vacate” that the district court 

had personal jurisdiction over him to issue its “Order 

Affirming Domestic Abuse Protection Order.”

Brief for appellant at 25.

[5,6] Upon receipt of the ex parte domestic abuse protection order, Christian neither filed a motion to dismiss for lack 

of personal jurisdiction nor specifically stated in his request 

for hearing on the protection order that he was challenging 

personal jurisdiction. See, Neb. Ct. R. Pldg. § 6-1112(b)(2) 

(defense of lack of jurisdiction over person shall be asserted 

in responsive pleading or made by motion; if pleading sets 

forth claim for relief to which adverse party is not required 

to serve responsive pleading, adverse party may assert at 

trial any defense in law or fact to that claim for relief); 

§ 6-1112(h)(1)(B) (defense of lack of jurisdiction over person is waived if neither made by motion under this rule nor 

included in responsive pleading). Because Christian neither 

filed a motion to dismiss for lack of personal jurisdiction nor 

specifically stated in his request for hearing on the protection order that he was challenging personal jurisdiction, he 

waived personal jurisdiction. See, In re Estate of Marsh, 307 
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Neb. 893, 951 N.W.2d 486 (2020) (one who invokes power 

of court on issue other than court’s jurisdiction over one’s 

person makes general appearance so as to confer personal 

jurisdiction); Burns v. Burns, 293 Neb. 633, 879 N.W.2d 375 

(2016) (it does not take much to make general appearance; 

party will be deemed to have appeared generally if, by motion 

or other form of application to court, he or she seeks to bring 

its powers into action on any matter other than question of 

jurisdiction over that party; and even motion for continuance 

constitutes general appearance that confers jurisdiction over 

moving party); Clark v. Clark, 26 Neb. App. 289, 918 N.W.2d 

336 (2018) (generally speaking, filing of general appearance 

which does not preserve objection to personal jurisdiction 

constitutes waiver of personal jurisdiction).

[7,8] Even if Christian did not waive personal jurisdiction, 

it appears Paw established that the district court had personal 

jurisdiction over Christian at the January 30, 2023, show 

cause hearing that Christian did not attend. See Wheelbarger 

v. Detroit Diesel, 313 Neb. 135, 983 N.W.2d 134 (2023) 

(because our long-arm statute, § 25-536, confers personal 

jurisdiction over nonresidents to fullest extent constitutionally permitted, inquiry is whether defendant had sufficient 

minimum contacts with Nebraska so that exercise of personal 

jurisdiction would not offend traditional notions of fair play 

and substantial justice). Christian did not request the inclusion 

of that January 30 show cause hearing in his “Request for Bill 

of Exceptions,” and therefore, it is not contained in our record. 

It is incumbent upon the appellant to present a record supporting the errors assigned. William P. v. Jamie P., 313 Neb. 378, 

984 N.W.2d 285 (2023). In the absence of a record of the evidence considered by the court, it is presumed on appeal that 

the evidence supports the trial court’s orders and judgment. 

Id. In this case, the court’s order affirming the domestic abuse 

protection order following the January 30 hearing states in relevant part, “Evidence was adduced, and the court, being fully 

advised, finds that this court has jurisdiction of the parties[.]” 
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We are required to presume that the evidence supports the 

district court’s finding that it had personal jurisdiction of 

Christian. Accordingly, Christian’s claim that the district court 

did not have personal jurisdiction of him fails.

Finally, Christian asserts that Paw failed to make a 

prima facie showing of personal jurisdiction at the hearing 

on Christian’s motion to vacate. However, Paw notes that 

Christian’s request for hearing on the ex parte protection order 

constituted a general appearance and a waiver of jurisdiction. 

She further contends that she had already established that the 

district court had personal jurisdiction of Christian at the show 

cause hearing. We have addressed both issues previously and 

found that the district court did have personal jurisdiction 

over Christian when it entered its order affirming the domestic 

abuse protection order. As Paw correctly states, “[Paw] is not 

required to establish a prima facie case for personal jurisdiction at each hearing on a matter” and “to assert anything to 

the contrary would be preposterous.” Brief for appellee at 17. 

Personal jurisdiction having previously been established, Paw 

was not again required to establish personal jurisdiction at the 

hearing on Christian’s motion to vacate.

Refusal to Receive 

Christian’s Affidavit

Christian assigns that the district court erred by refusing to 

receive his affidavit. He argues that the court erred in sustaining Paw’s foundation and hearsay objections to his affidavit 

“because it was an affidavit, which is always admissible in 

support of a motion.” Brief for appellant at 18 (emphasis in 

original). He also seems to argue that the Nebraska Rules 

of Evidence do not apply to a court hearing on his motion 

to vacate.

Neb. Rev. Stat. § 25-1244 (Reissue 2016) states, “An affidavit may be used to verify a pleading, to prove the service 

of a summons, notice or other process, in an action, to obtain 

a provisional remedy, an examination of a witness, a stay of 
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proceedings, or upon a motion, and in any other case permitted 

by law.” (Emphasis supplied.) Christian cites to TransCanada 

Keystone Pipeline v. Nicholas Family, 299 Neb. 276, 283, 908 

N.W.2d 60, 66 (2018), which states, “[U]nder . . . § 25-1244 

. . . , an affidavit is admissible in certain enumerated situations, including ‘motion practice,’ which includes the use of 

affidavits relating to preliminary, collateral, and interlocutory 

matters.” But the question in TransCanada Keystone Pipeline

was whether individual landowners were entitled to attorney 

fees under Neb. Rev. Stat. § 76-726 (Reissue 2009) (costs, 

expenses, and fees in condemnation action), and the Nebraska 

Supreme Court held that “[a]ffidavits are generally admissible 

in collateral matters, and a motion for attorney fees under 

§ 76-726 is such a collateral matter.” TransCanada Keystone 

Pipeline v. Nicholas Family, 299 Neb. at 284, 908 N.W.2d at 

66. Paw contends that TransCanada Keystone Pipeline “does 

not in any stretch of the imagination hold that affidavits are 

always admissible and does not support Christian’s argument.” 

Brief for appellee at 13. We agree.

[9,10] Pursuant to Neb. Rev. Stat. § 27-1101 (Reissue 

2016), the Nebraska Evidence Rules apply generally to all 

civil and criminal proceedings except as otherwise noted. 

Nowhere in § 25-1244 does it say that the rules of evidence 

do not apply to the use of affidavits. Nor does Neb. Rev. Stat. 

§ 25-2001 (Reissue 2016) (district court’s power to vacate or 

modify judgments or orders) mention the rules of evidence 

not applying. See, also, Banks v. Metropolitan Life Ins. Co., 

142 Neb. 823, 834, 8 N.W.2d 185, 191 (1943) (predecessor 

to § 25-1244 provides that affidavit may be used “‘upon a 

motion,’” but “[t]his provision clearly relates to preliminary, 

collateral and interlocutory matters”; “general rule is that 

affidavits are not admissible to establish facts material to the 

issue”). But, see, Schaneman v. Wright, 238 Neb. 309, 470 

N.W.2d 566 (1991) (Legislature may provide exception to 

general rule regarding admissibility of affidavits by specific 

statute). At the hearing on the motion to vacate, Christian’s 
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attorney suggested his motion to vacate was “like a motion 

for summary judgment. . . . There’s no oral testimony, there’s 

no rules of evidence that apply. . . . These are based on affidavits.” However, using affidavits for summary judgment 

motions is specifically authorized by statute. See Neb. Rev. 

Stat. § 25-1332 (Cum. Supp. 2022). We have found no authority, nor does Christian cite us to any, that states the rules of 

evidence do not apply to the use of affidavits at a hearing on 

a motion to vacate. Certainly, parties may stipulate to the use 

of affidavits, or an opponent may choose not to object, but 

as pointed out by the district court, “sometimes there’s not 

an evidentiary objection and then the evidence comes in, but 

today there [was].”

Christian erroneously asserts that the district court failed to 

rule on Paw’s hearsay objection to the affidavit at the hearing. 

Contrary to Christian’s assertion, the court sustained Paw’s 

hearsay objection to the affidavit on the record at the hearing, 

as seen in the emphasized portion of the colloquy on this issue 

set forth earlier in this opinion.

[11-13] Hearsay is a statement, other than one made by the 

declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Neb. Rev. Stat. 

§ 27-801(3) (Cum. Supp. 2022). The statement can be an oral 

or written assertion. § 27-801(1)(a). Hearsay is not admissible 

unless otherwise provided for in the Nebraska Evidence Rules 

or elsewhere. See Elbert v. Young, 312 Neb. 58, 977 N.W.2d 

892 (2022). See, also, State v. Draganescu, 276 Neb. 448, 755 

N.W.2d 57 (2008) (written assertion offered to prove truth 

of matter asserted is hearsay statement unless it falls within 

exception or exclusion under hearsay rules).

[14] 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 on the show cause hearing until after the hearing had 

already occurred. Accordingly, Christian’s affidavit was hearsay, and the district court properly sustained Paw’s hearsay 
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objection. In his brief, Christian notes that the document 

attached to his affidavit (i.e., the printout of the email from 

the “USPS Informed Delivery”) was part of the affidavit and 

did not constitute hearsay because it fell within an exception 

under Neb. Rev. Stat. § 27-803(8) (Cum. Supp. 2022) (records, 

reports, statements, or data compilations made by public official or agency of facts required to be observed and recorded 

pursuant to duty imposed by law). However, Christian did 

not point out that exception, or any exception, to the district 

court and thus did not preserve that point for appeal. See State 

v. Ferguson, 301 Neb. 697, 919 N.W.2d 863 (2018) (when 

opposing party objects to evidence as hearsay and trial court 

sustains objection, proponent required to point out possible 

hearsay exceptions in order to preserve point for appeal).

We have already found that the district court properly 

sustained Paw’s hearsay objection, resulting in Christian’s 

affidavit and attached document not being received into evidence. Because the affidavit and attached document were not 

admissible, we need not address the court’s ruling on Paw’s 

foundation objection to the same. See Swicord v. Police Stds. 

Adv. Council, 314 Neb. 816, 993 N.W.2d 327 (2023) (appellate 

court not obligated to engage in analysis that is not necessary 

to adjudicate case and controversy before it).

Service of Order for Hearing

Christian argues that the district court erred in denying his 

motion to vacate because his affidavit demonstrated that he 

was not served with the “Order for Hearing” until after the 

hearing had occurred. However, we have previously found that 

Christian’s affidavit was inadmissible hearsay.

Christian contends that even if his affidavit and the document attached to it were disregarded entirely, the “Order for 

Hearing,” setting hearing for January 30, 2023, was served by 

first-class mail, was placed in the mail by the clerk on January 

24, and was addressed to a location outside of Nebraska; 

thus, “the United States Postal Service would have needed 
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to function more or less perfectly in order for Christian to 

have received the ‘Order for Hearing’ any earlier than he actually did.” Brief for appellant at 24. There is no evidence in the 

record to support Christian’s assertion that the postal service 

“needed to function more or less perfectly” for Christian to 

have received the order sooner. The record does reflect, however, that Christian appears to have an email account (Paw’s 

petition and affidavit for domestic abuse protection order contains screenshots wherein a teacher of the parties’ child talks 

about emailing Christian). But when Christian completed the 

form to request a hearing on the protection order, he refused to 

receive notification about a hearing date by email. Notification 

by email would have allowed for almost immediate notice of 

the scheduled hearing date. Christian’s refusal to receive an 

email notification from the district court about a hearing date 

he was requesting is puzzling, given his willingness to receive 

emails from the postal service about his mail.

In addition to suggesting that less than perfect postal service 

contributed to his failure to attend the hearing he requested, 

Christian is also critical of the district court for scheduling the 

hearing too soon. He suggests that if this matter is reversed, “a 

different judge should be assigned to preside upon remand,” 

noting that “a judge must recuse himself or herself from a 

case if a judge’s impartiality might reasonably be questioned.” 

Id. at 25. He claims the court’s “repeated mischaracterizations” of what occurred at the motion to vacate hearing and 

its comment about Christian not claiming that he checked his 

mail regularly or had experienced delays in receiving mail, 

“combined with its decision to order a hearing so quickly after 

receipt of Christian’s request, would, under these facts, cause 

a reasonable person having knowledge of the circumstances 

. . . to question the judge’s impartiality under an objective 

standard of reasonableness.” Id. (emphasis in original). There 

is nothing in the record before this court to support any of 

these claims.
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At the hearing on the motion to vacate, Christian did 

not produce any admissible evidence to support his alleged 

untimely service or receipt of the district court’s “Order for 

Hearing.” As noted previously, Christian’s affidavit was inadmissible hearsay. Once the affidavit was deemed inadmissible, 

Christian’s counsel could have asked for a continuance to 

allow Christian, who appears not to have been present at the 

hearing, an opportunity to appear and personally testify as to 

when he received notice of the show cause hearing. However, 

a continuance was not requested. Accordingly, the district 

court did not abuse its discretion when it denied Christian’s 

motion to vacate the order affirming the domestic abuse protection order. See, generally, In re Interest of Luz P. et al., 295 

Neb. 814, 891 N.W.2d 651 (2017) (motion to vacate order 

or judgment on basis that clerk failed to provide party with 

notice, thereby impairing party’s ability to appeal, must be 

supported by some evidence; no affidavits were submitted, nor 

was there any testimony offered).

CONCLUSION

For the reasons stated above, we affirm the order of the district court denying Christian’s motion to vacate.

Affirmed.