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Zitterkopf v. Zitterkopf

Citation: Not availableDocket: A-22-152

Court: Nebraska Court of Appeals; February 6, 2023; Nebraska; State Appellate Court

Original Court Document: View Document

Narrative Opinion Summary

This case involves an appeal by a party who sought to vacate a divorce decree and obtain a new trial based on alleged newly discovered evidence and fraud by the opposing party. The appellant argued that his ex-wife committed perjury and misrepresented her relationship with an inmate to secure favorable custody terms. The district court originally awarded joint legal custody to both parties, with the ex-wife receiving physical custody, based on findings concerning the child's best interests. Following the decree, the appellant presented evidence purportedly demonstrating fraud, which the court found insufficient to alter its decision. The district court denied the motion for a new trial, citing both untimeliness and a lack of substantive new evidence. The appellate court upheld this decision, emphasizing the appellant's failure to demonstrate due diligence in obtaining the evidence prior to trial and noting that many documents were dated post-trial. Additionally, claims of judicial bias were not properly raised on appeal. Consequently, the appellate court affirmed the district court's orders, concluding there was no abuse of discretion.

Legal Issues Addressed

Due Diligence in Discovering Fraud

Application: The court found William lacked due diligence in obtaining evidence prior to trial, which could have been discovered with reasonable effort.

Reasoning: William was found to have lacked due diligence in discovering the alleged fraud, with no evidence proving that the information could not have been obtained before the trial.

Fraud in Family Law Proceedings

Application: William alleged fraud by Jennifer in securing custody, but the court found no new evidence supporting this claim and deemed previous findings credible.

Reasoning: William included an affidavit detailing recorded conversations between Jennifer and the inmate, along with email correspondence, asserting that these documents were unavailable until after the trial.

Motion to Vacate Judgment

Application: The district court denied the motion to vacate the divorce decree, finding that William's claim of fraud did not meet the necessary legal standards.

Reasoning: The district court ultimately denied William's motion to vacate the divorce decree and for a new trial, ruling that his motion for a new trial was untimely, having been filed more than ten days after the decree.

Newly Discovered Evidence

Application: William's evidence, including recorded conversations and email correspondence, was deemed not to constitute newly discovered evidence as it was dated post-trial or could have been obtained earlier.

Reasoning: As a result, the court denied his motion. William appealed, asserting three errors related to the court's denial of his motion for a new trial without an evidentiary hearing.

Timeliness of Motion for New Trial

Application: The appellate court affirmed the lower court's ruling that William's motion for a new trial was untimely filed beyond the ten-day limit prescribed by statute.

Reasoning: The relevant statute requires motions for a new trial to be filed within 10 days of judgment, which William failed to meet, having filed his motion over six months later.