D.W. v. A.G.

303 Neb. 42

926 N.W.2d 651

D.W., appellee and cross-appellant,

v.A.G., appellant and cross-appellee.

Nos. S-18-657

S-18-658.

Supreme Court of Nebraska.

Filed May 3, 2019.

Benjamin M. Belmont and Wm. Oliver Jenkins, of Brodkey, Peebles, Belmont & Line, L.L.P., Omaha, for appellant.

Joseph P. Naatz, of Kreikemeier Law, L.L.C., for appellee.

Heavican, C.J., Miller -Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Papik, J.

Based on an allegation that A.G. sexually assaulted her, D.W. sought and obtained an ex parte sexual assault protection order against him. A.G. requested a show cause hearing on whether the sexual assault protection order should remain in effect, at which he denied D.W.’s allegations. After the close of evidence at the hearing, the trial court stated that the sexual assault protection order would not remain in effect, but that it would enter a protection order. The trial court subsequently dismissed the sexual assault protection order and, after sua sponte filing D.W.’s original petition and affidavit under a new case number, entered a harassment protection order in that case.

A.G. appeals the entry of the harassment protection order, and D.W. cross-appeals the order dismissing the sexual assault protection order. We find no basis to reverse the dismissal of the sexual assault protection order, but find that the entry of the harassment protection order violated A.G.’s right to procedural due process. Accordingly, we affirm in part, and in part reverse and remand with directions to vacate the harassment protection order.

BACKGROUND

D.W.’s Initial Petition.

D.W. commenced this action by filing a petition and affidavit to obtain a sexual assault protection order against A.G. under Neb. Rev. Stat. § 28-311.11 (Cum. Supp. 2018). According to D.W.’s affidavit, on the night of October 18, 2017, after she spent an evening drinking with friends and acquaintances, including A.G., he had sexual intercourse with her when she was "incapacitated and not able to give consent." She alleged that A.G. made sexual advances toward her at a bar and that after leaving the bar, he went with D.W. to her apartment and continued to make advances. She stated that she went to her bed, intending to go to sleep, but that her next memory was of being sexually penetrated by A.G.

D.W. further alleged that since the incident, A.G. had violated contact restrictions imposed by the university where they both attended and that his presence on campus was "interfering with [her] educational experience." D.W. stated that A.G. had not shown "consideration for [her] feelings or what he did to [her]." She said she was "in fear that he will continue to harass [her] by his actions."

The matter was assigned to a county court judge, pursuant to § 28-311.11(3) and Neb. Rev. Stat. § 25-2740(2) (Cum. Supp. 2018).

Ex Parte Sexual Assault Protection Order.

After D.W. filed her petition and affidavit, the trial court issued an ex parte sexual assault protection order. It enjoined A.G. from imposing any restraint on D.W.’s person or liberty; harassing, threatening, assaulting, molesting, attacking, or otherwise disturbing the peace of D.W.; and having any contact or communication with D.W.

A.G. requested a show cause hearing on the matter.

Show Cause Hearing.

The trial court conducted a show cause hearing at which both D.W. and A.G. presented evidence and argument. The evidence consisted of testimony and photographs. D.W.’s petition and affidavit were not offered into evidence.

According to the evidence introduced at the show cause hearing, the events at issue occurred in the early morning hours of October 19, 2017. At that time, D.W. was an undergraduate student. D.W. testified that the day before was her 21st birthday and that she engaged in extensive drinking over the course of that day. She consumed several bottles of a malt beverage that afternoon and continued to drink when several friends and acquaintances, including A.G., came over to her apartment that evening. The group later went to and returned from a restaurant. D.W. and others in the group continued to drink at both locations.

Eventually, some members of the group, including both D.W. and A.G., went to a bar. D.W. testified that while at the bar, she engaged in "mutual flirtation" with A.G. and others, but that, after a certain point, she had no further memories of the time at the bar. She testified that her next memory after being at the bar was of having sexual intercourse with A.G. at her apartment. She testified that she did not recall consenting to the sexual intercourse.

A.G. testified that D.W. was aggressively flirting with him at the bar. He testified that while riding from the bar, D.W. was holding his hand, and that when they arrived at her apartment, she invited him to her room. He testified that D.W. appeared coherent when she invited him in. A.G. also testified that as they were walking to D.W.’s room, she told him that if he wanted to " ‘hook up,’ " which he assumed to mean sex, he had to promise not to tell her boyfriend.

As D.W. and A.G. approached D.W.’s apartment, they encountered an acquaintance. Surveillance photographs introduced into evidence capture D.W. and A.G. talking to this acquaintance, who testified that during his brief interaction with D.W. and A.G., D.W. appeared coherent and steady on her feet and was not slurring her words. He acknowledged that he could tell that D.W. and A.G. had been drinking, but that they appeared happy and that he did not suspect anything was wrong or out of the ordinary. The acquaintance testified that D.W. did not seem tired, exhausted, or almost ready to pass out.

A.G. testified that he and D.W. began kissing and touching each other as soon as they entered her apartment. He testified that D.W. then invited him into her bedroom and that they "had sex."

A.G. testified that during the entire evening, D.W. never appeared incoherent and she did not stumble or fall down. He testified that he never had any reason to believe D.W. was unable to give consent.

Trial Court’s Rulings.

After the close of evidence at the show cause hearing, the trial court stated that it would not leave the sexual assault protection order in place. It explained that it could not find that there was a lack of consent. The trial court also focused on the acquaintance’s testimony and noted that it found him to be the most credible of all the witnesses. The trial court described his testimony that D.W. did not appear to be incoherent or unsteady prior to entering her apartment with A.G. as the "key element."

But while the trial court made clear it would not leave the sexual assault protection order in place, it said it would enter a protection order. The trial court made some references to D.W.’s fear of A.G., but did not specify what type of protection order it planned to enter.

Two days after the show cause hearing, D.W.’s initial petition and affidavit for a sexual assault protection order were refiled under a new case number. Although not reflected in the record on appeal, the parties agree that the trial court refiled the petition and affidavit under a new case number sua sponte.

On the same day, June 8, 2018, the trial court issued a harassment protection order in the newly filed case. That order stated that the parties had been present at a hearing with counsel and that the court found a harassment protection order should be issued. It imposed the same restrictions as the previous ex parte sexual assault protection order.

Three days later, on June 11, 2018, the trial court entered an order in the original case, dismissing the sexual assault protection order because it was not supported by sufficient evidence. The order stated that sufficient evidence was adduced to merit a harassment protection order.

A.G. appealed both the harassment protection order in the newly filed case and the order finding that sufficient evidence was adduced to merit a harassment protection order in the original case. D.W. cross-appealed.

ASSIGNMENTS OF ERROR

With regard to the entry of the harassment protection order, A.G. assigns the following errors: (1) the trial court lacked subject matter jurisdiction to enter it, (2) it was entered in violation of his right to procedural due process, (3) it was not supported by the evidence, and (4) the trial court improperly acted as an advocate in entering it.

D.W. filed a cross-appeal, but her brief does not include a separate section assigning error.

STANDARD OF REVIEW

A protection order is analogous to an injunction. Mahmood v. Mahmud , 279 Neb. 390, 778 N.W.2d 426 (2010). Accordingly, the grant or denial of a protection order is reviewed de novo on the record. Id. In such a de novo review, an appellate court reaches conclusions independent of the factual findings of the trial court. However, where the credible evidence is in conflict on a material issue of fact, the appellate court considers and may give weight to the circumstances that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. Maria A. on behalf of Leslie G. v. Oscar G. , 301 Neb. 673, 919 N.W.2d 841 (2018).

Subject matter jurisdiction is a question of law for the court, which requires an appellate court to reach a conclusion independent of the lower court’s decision. Mahmood v. Mahmud, supra .

ANALYSIS

Subject Matter Jurisdiction.

We begin, as we must, with A.G.’s argument that the trial court did not have subject matter jurisdiction to enter the harassment protection order. He argues that the trial court did not have jurisdiction to enter a harassment protection order because D.W. did not seek one.

While we find that the trial court’s entry of a harassment protection order is problematic for reasons discussed in greater detail below, we do not believe the trial court lacked subject matter jurisdiction 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...