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GREEN v. SEIFFERT

Cite as 304 Neb. 212

Aubrie Green, appellant, v. 

Bryce Seiffert, appellee.

___ N.W.2d ___

Filed October 4, 2019. No. S-18-1125.

1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question 

that does not involve a factual dispute is determined by an appellate 

court as a matter of law, which requires the appellate court to reach a 

conclusion independent of the lower court’s decision.

2. Jurisdiction: Time: Notice: Appeal and Error. Under Neb. Rev. Stat. 

§ 25-1912 (Cum. Supp. 2018), to vest an appellate court with jurisdiction, a party must timely file a notice of appeal.

3. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the 

power of a tribunal to hear and determine a case in the general class or 

category to which the proceedings in question belong and to deal with 

the general subject matter involved.

Appeal from the District Court for Scotts Bluff County: Leo

P. Dobrovolny, Judge. Appeal dismissed.

Adolfo Daniel Reynaga, of Legal Aid of Nebraska, for 

appellant.

No appearance for appellee.

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

Papik, and Freudenberg, JJ.

Papik, J.

After the district court dismissed Aubrie Green’s petition 

for renewal of a domestic abuse protection order, Green filed 

a motion asking the court to vacate the order of dismissal. The 

court denied that motion, and Green filed this appeal. Green 

Nebraska Supreme Court Online Library

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

11/01/2019 09:07 AM CDT
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Cite as 304 Neb. 212

acknowledges that because her notice of appeal was filed more 

than 30 days after the initial order dismissing the petition 

and because her motion to vacate did not extend or suspend 

the statutory deadline for filing an appeal, she did not timely 

appeal the order dismissing her petition. Green maintains, however, that we have jurisdiction to review the order denying her 

motion to vacate.

We disagree. While an order denying a motion to vacate 

or modify is appealable if it is based on grounds that make it 

independently final and appealable, Green’s motion to vacate 

merely contended that the order she sought to vacate was 

erroneous. Because we do not have jurisdiction to review the 

denial of such a motion, we must dismiss the appeal.

BACKGROUND

Initial Domestic Abuse Protection 

Order and Request to Renew.

On August 31, 2017, Green filed a petition and affidavit 

requesting a domestic abuse protection order against Bryce 

Seiffert, the father of her minor child. In the petition and affidavit, Green alleged that Seiffert had abused her physically. 

The following day, the district court entered an ex parte protection order. Seiffert later challenged the protection order, but, 

after a hearing, the district court ordered that the protection 

order should remain in effect for 1 year from the date of its 

original issuance.

On August 31, 2018, when the original protection order was 

about to expire, Green filed a petition and affidavit to renew it 

pursuant to Neb. Rev. Stat. § 42-924 (Reissue 2016), which the 

Legislature has subsequently amended. See 2019 Neb. Laws, 

L.B. 532, § 3 (changes operative January 1, 2020). Green was 

not represented by counsel when she requested renewal, and 

the petition and affidavit are relatively sparse. Green stated the 

following as the reasons for seeking renewal of the protection 

order: “[Pressuring] full custody of [her daughter]. [Afraid] for 

safety [continues] as the case [continues]. All other reasons on 

first protection order.”
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GREEN v. SEIFFERT

Cite as 304 Neb. 212

Later in the day on August 31, 2018, the district court 

entered an order dismissing the petition for renewal of the protection order without a hearing.

Motion to Vacate.

On September 27, 2018, Green, now represented by counsel, 

filed a motion to vacate the order dismissing the petition to 

renew the protection order. In the motion, Green asked that the 

order of dismissal be vacated and that the court hold a hearing 

on her request for renewal of the protection order.

On November 5, 2018, the district court held a hearing on 

Green’s motion to vacate. At that hearing, Green’s counsel 

argued that, based on the allegations in the petition and affidavit seeking renewal of the protection order, the court should 

have entered a renewed order. Alternatively, counsel contended 

that the district court was obligated to hold an evidentiary hearing before denying the petition to renew the protection order 

and that the court should vacate the dismissal and hold a hearing on the petition.

On November 6, 2018, the district court entered a written 

order denying the motion to vacate. Green filed a notice of 

appeal on November 29.

ASSIGNMENT OF ERROR

Green assigns one error on appeal. She contends that the 

district court erred by not vacating its order dismissing the 

petition to renew the protection order.

STANDARD OF REVIEW

[1] A jurisdictional question that does not involve a factual 

dispute is determined by an appellate court as a matter of law, 

which requires the appellate court to reach a conclusion independent of the lower court’s decision. Simms v. Friel, 302 Neb. 

1, 921 N.W.2d 369 (2019).

ANALYSIS

Before reaching the legal issues presented for review, it is 

our duty to determine whether we have jurisdiction to decide 
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them. Simms, supra. This is the case regardless of whether the 

issue is raised by the parties. See State v. Uhing, 301 Neb. 768, 

919 N.W.2d 909 (2018). We find it necessary to exercise that 

duty here.

[2] Under Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2018), to 

vest an appellate court with jurisdiction, a party must timely 

file a notice of appeal. Bryson L. v. Izabella L., 302 Neb. 145, 

921 N.W.2d 829 (2019). The notice of appeal must be filed 

within 30 days of the judgment, decree, or final order from 

which the party is appealing unless that time is terminated by 

the filing of a qualifying motion. See id.

Green does not dispute that the district court’s August 31, 

2018, order dismissing the petition requesting a renewed protection order was final and appealable. She also acknowledges 

that because her motion to vacate was filed more than 10 days 

after the order dismissing her petition, it does not qualify as 

a motion to alter or amend a judgment, which would have 

terminated the time in which a notice of appeal must be filed. 

See id. Having made these concessions, Green is also forced 

to concede that she did not timely appeal the order dismissing 

her petition.

While Green admits that she failed to timely appeal the 

order dismissing her petition, she maintains that we have 

jurisdiction to review her case by another means. She asserts 

that we may review the order denying her motion to vacate. 

She contends that she timely filed a notice of appeal within 

30 days of that order and that such orders are appealable. 

Green argued in her initial brief on appeal that our opinion in 

Capitol Construction v. Skinner, 279 Neb. 419, 778 N.W.2d 

721 (2010), overruled on other grounds, McEwen v. Nebraska 

State College Sys., 303 Neb. 552, 931 N.W.2d 120 (2019), 

holds that orders denying a motion to vacate or modify a final 

order affect a substantial right upon a summary application 

in an action after judgment and are thus appealable under 

§ 25-1902.

In Capitol Construction, a defendant appealed a decision 

from the county court to the district court. The district court 
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Cite as 304 Neb. 212

dismissed the appeal when the defendant did not reply to a 

progression letter from the court. The defendant later filed a 

motion to reinstate, contending that the court did not send the 

progression letter to its appellate counsel. The district court 

denied the motion to reinstate, and the defendant appealed 

to the Nebraska Court of Appeals. On petition for further 

review, we held that while the Court of Appeals did not have 

jurisdiction to consider the merits of the order of dismissal 

because the defendant did not timely appeal, the Court of 

Appeals did have jurisdiction to review the denial of the 

motion to reinstate. Green’s initial brief contended that the 

order denying her motion to vacate is reviewable for the same 

reasons the denial of the motion to reinstate was appealable in 

Capitol Construction.

After the filing of Green’s initial brief, however, we had 

occasion in McEwen, supra, to address essentially the same 

argument regarding the scope of Capitol Construction. In 

McEwen, the appellant argued that even if we lacked jurisdiction to review a district court order denying his petition 

in error because it was not timely appealed, we nonetheless 

had appellate jurisdiction to review a subsequent denial of 

a motion to vacate that order under Capitol Construction. 

We disagreed.

We explained in McEwen that in Capitol Construction, our 

finding that an order denying a motion to vacate or modify 

was appealable was predicated on the conclusion that the order 

was “‘independently final and appealable and the merits of 

that order [were] the issue raised on appeal.’” 303 Neb. at 560, 

931 N.W.2d at 127, quoting Capitol Construction, supra. We 

pointed out that unlike the motion to reinstate and subsequent 

appeal in Capitol Construction, the motion to vacate and subsequent appeal in McEwen did not introduce an “intervening 

new matter” and instead merely contended that the initial order 

rejecting plaintiff’s claims was erroneous. 303 Neb. at 561, 931 

N.W.2d at 128.

After the release of our opinion in McEwen, we issued an 

order to show cause, directing Green to address whether her 
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appeal should be dismissed in light of McEwen. Green submitted a supplemental brief in response to the order to show 

cause. In it, she makes three arguments. First, she contends that 

her case is distinguishable from McEwen because she is challenging the district court’s denial of her motion to vacate, as 

opposed to the initial order dismissing her petition. Second, she 

argues that we should review the denial of her motion to vacate 

for reasons of judicial efficiency. And finally, she argues that 

we should review the denial of the motion to vacate because 

the district court’s order dismissing her petition for a protection 

order was void. We take up these arguments in turn, but, as we 

will explain, we find each unpersuasive.

We begin with Green’s argument that her case is distinguishable from McEwen v. Nebraska State College Sys., 303 

Neb. 552, 931 N.W.2d 120 (2019), because she is challenging 

the denial of her motion to vacate and not the order dismissing her petition. While Green attempts to frame her arguments 

as a challenge to only the denial of her motion to vacate, the 

reason she offers for why vacation was required is that the 

district court acted contrary to law when it denied her petition without first providing the opportunity for a hearing. In 

other words, Green contends that the district court should 

have granted her motion to vacate its initial decision because 

that decision was erroneous. So while Green is framing her 

argument as challenging the denial of the motion to vacate, 

Green is, in fact, contending that the order she failed to 

timely appeal was incorrect. Like the appellant in McEwen

and unlike the appellant in Capitol Construction v. Skinner, 

279 Neb. 419, 778 N.W.2d 721 (2010), she has not identified 

any reason why the order denying her motion to vacate was 

“independently final and appealable.” 303 Neb. at 561, 931 

N.W.2d at 128.

Neither are we moved by Green’s invocation of judicial 

efficiency as a basis for appellate jurisdiction. Here, Green 

contends that it is more efficient if litigants in her position 

can ask the district court to reconsider its decision without 

potentially compromising a future appeal. We find Green’s 
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argument is misplaced for multiple reasons. First, appellate 

jurisdiction exists only when conferred by the Legislature; it 

is not controlled by our notions of what might promote judicial efficiency. See, e.g., Heckman v. Marchio, 296 Neb. 458, 

894 N.W.2d 296 (2017). Second, even if addressed on its own 

terms, Green’s argument that a finding of no jurisdiction in 

this case would force litigants to choose between a request for 

reconsideration in the district court and an appeal is simply 

incorrect. As noted above, a timely filed motion to alter or 

amend terminates the time in which a notice of appeal must be 

filed and thus parties may use such motions to seek alteration 

of a final order or judgment in the trial court without concern 

that their time to appeal will expire in the process. Green failed 

to file such a motion in this case.

[3] Finally, we disagree with Green’s contention that we 

have the power to vacate the district court’s order dismissing 

her petition because it was somehow void. While we understand Green’s position that the order dismissing her petition 

was erroneous, we see no basis to conclude that the district 

court lacked the authority to enter it. Subject matter jurisdiction is the power of a tribunal to hear and determine a case 

in the general class or category to which the proceedings in 

question belong and to deal with the general subject matter 

involved. D.W. v. A.G., 303 Neb. 42, 926 N.W.2d 651 (2019). 

The district court plainly had authority to hear and determine requests for the renewal of domestic abuse protection 

orders, a fact Green understood when she filed her petition in 

that court.

CONCLUSION

Because we conclude we lack appellate jurisdiction, we dismiss the appeal.

Appeal dismissed.