Darcy V. v. DeWolf

DARCY V., APPELLEE, v. DYLAN P. DEWOLF, APPELLANT.

No. A-20-325.

NEBRASKA COURT OF APPEALS

December 22, 2020

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Nemaha County: CURTIS L. MASCHMAN, Judge. Affirmed.

Ryan K. McIntosh, of Brandt, Horan, Hallstrom & Stilmock, for appellant.

Darcy V., pro se.

BISHOP, ARTERBURN, and WELCH, Judges.

WELCH, Judge.

INTRODUCTION

Dylan P. DeWolf appeals the Nemaha County District Court's April 9, 2020, modified domestic abuse protection order and the order overruling his motion to dismiss. For the reasons set forth herein, we affirm.

STATEMENT OF FACTS

On January 8, 2020, Darcy V. filed a petition and affidavit to obtain a domestic abuse protection order against DeWolf on behalf of herself and the parties' 5-month-old son. Her petition and affidavit alleged that on December 24, 2019, while Darcy was dropping off the parties' son at DeWolf's apartment, DeWolf became "aggressive and verbally controlling and sexually assaulted me." Darcy alleged that she had this incident on a recording "because I have been afraid lately of [DeWolf's] actions towards me and he is much bigger than I am. I can provide this recording if needed. My concern at this point is the [safety] of my child and myself." She further alleged that on January 3, 2020, while meeting to exchange the parties' son, she:

Realized [DeWolf] had no intentions of returning my son to me so I tried to get my son out of their car, but the doors were locked. I asked [DeWolf] and his mother to unlock the door so I could get my son, [DeWolf] told his mom to "go", she started to drive on the highway, as I was trying to get my son out of the car he told his mom to "floor it", she started to drive faster, and the car began to drag me because I was already leaning in to get my son. After being dragged for a bit I became numb and dropped to the ground and that is when she ran over me. She ran the stop sign as seen in the footage. I at some point became unconscious but was told she called the police because there were people there that had witnessed the incident. His behavior has been increasingly abusive. I was encouraged by the police to get a protection order for my son and [myself]. I know that [DeWolf] is angry and I am unsure of what he will do when he sees me again. I am scared for my life and for my son's.

On January 9, 2020, the Nemaha County District Court entered the ex parte domestic abuse protection order on behalf of Darcy and the parties' son. The ex parte order was served on DeWolf on January 25, which was 16 days after entry of the ex parte order.

On January 27, 2020, DeWolf filed a motion to dismiss for lack of personal jurisdiction, insufficiency of process, and insufficiency of service of process. Following a hearing, the court overruled the motion to dismiss. DeWolf then requested a show cause hearing which was held on February 27. At the beginning of the hearing, DeWolf renewed his motion to dismiss which was again denied by the district court. Both Darcy and DeWolf testified at the hearing and the court received into evidence Darcy's petition and supporting affidavit; the ex parte domestic abuse protection order, and the return of service; text message conversations between the parties; a complaint for paternity, custody, parenting time and child support filed by Darcy on December 30, 2019; a temporary order in the paternity case filed on January 26, 2020; and a video recording from DeWolf of the January 3, 2020, incident.

Darcy testified that the events that she included in her petition and affidavit were true and correct. Darcy testified that on the evening of December 24, 2019, she took the parties' son to DeWolf's apartment so that DeWolf could spend Christmas Eve and Christmas morning with their son. Darcy testified that on December 24, DeWolf sexually assaulted her and that she screamed for him to stop but he continued assaulting her. She further testified that as a result of the events alleged in her affidavit, she has to see a doctor and take medication. Conversely, DeWolf testified that during the December 24, 2019, incident, the parties "had the beginnings of sexual interaction," but when Darcy told him to stop, he "[s]topped."

After the first day of the hearing was concluded, Darcy was granted leave to submit a digital recording of the December 24, 2019, incident. DeWolf was granted until March 18, 2020, to review the digital recording submitted by Darcy and to request an additional hearing in the matter. On March 16, DeWolf "request[ed] a further hearing in order to submit objections to the digital recording" which hearing was held on March 31. At the March 31 hearing, DeWolf objected to the digital recording submitted by Darcy in the form of a flash drive on the grounds of relevance, hearsay, and foundation. The court received the flash drive as exhibit 11 over DeWolf's objections.Darcy's testimony describing unwanted sexual contact after her repeatedly telling DeWolf to "stop" is corroborated by exhibit 11.

Following the March 31, 2020, hearing, the district court entered a modified domestic abuse protection order in favor of Darcy against DeWolf to remain in effect until January 9, 2021, and provided that DeWolf was enjoined and prohibited from imposing any restraint upon Darcy's person or liberty and that DeWolf was enjoined and prohibited from telephoning, contacting, or otherwise communicating with Darcy. The court found that DeWolf did not pose a threat of physical harm to the parties' son; therefore, the modified order did not include their son.

ASSIGNMENTS OF ERROR

On appeal, DeWolf contends that the district court erred (1) in finding that it had personal jurisdiction over him, (2) in finding sufficiency of process regarding the ex parte order, (3) in finding sufficiency of service of process regarding the ex parte order, and (4) in entering the modified protection order.

STANDARD OF REVIEW

A domestic abuse protection order is analogous to an injunction. Robert M. on behalf of Bella O. v. Danielle O., 303 Neb. 268, 928 N.W.2d 407 (2019). Thus, the grant or denial of a protection order is reviewed de novo on the record. Id. In such de novo review, an appellate court reaches conclusions independent of the factual findings of the trial court. Id. 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. Id.

ANALYSIS

ALLEGATIONS REGARDING PERSONAL JURISDICTION,

SUFFICIENCY OF PROCESS, AND SERVICE OF PROCESS

First, DeWolf has alleged that the district court erred in finding that it had personal jurisdiction over him, in finding sufficiency of process regarding the ex parte order, and in finding sufficiency of service of process regarding the ex parte order. Although DeWolf alleged three assignments of error regarding claimed errors by the district court regarding personal jurisdiction, sufficiency of process, and sufficiency of service of process, the argument in his brief is limited to his claim that the protection order was not served within 14 days of its issuance as required by Neb. Rev. Stat. § 42-926 (Supp. 2019).

Accordingly, we will analyze DeWolf's assignment of error governing insufficient service of process. Dycus v. Dycus, 307 Neb. 426, 949 N.W.2d 357 (2020) (appellate court will only review matters assigned and argued).

Section 42-926(1) provides:

Upon the issuance of a temporary ex parte or final protection order under section 42-925, the clerk of the court shall forthwith provide the petitioner, without charge, with two certified copies of such order. The clerk of the court shall also forthwith provide the local police department or local law enforcement agency and the local sheriff's office, without charge, with one copy each of such order and one copy each of the sheriff's return thereon.

The clerk of the court shall also forthwith provide a copy of the protection order to the sheriff's office in the county where the respondent may be personally served together with instructions for service. Upon receipt of the order and instructions for service, such sheriff's office shall forthwith serve the protection order upon the respondent and file its return thereon with the clerk of the court which issued the protection order within fourteen days of the issuance of the protection order. If any protection order is dismissed or modified by the court, the clerk of the court shall forthwith provide the local police department or local law enforcement agency and the local sheriff's office, without charge, with one copy each of the order of dismissal or modification. If the respondent has notice as described in subsection (2) of this section, further service under this subsection is unnecessary.

(Emphasis supplied.) Because DeWolf was not served with the protection order until 16 days following issuance of the order, DeWolf argues that there was insufficient service of process here, that insufficient service of process must be strictly construed, and that the court erred by failing to grant his motion to dismiss on that basis.

We agree that by failing to serve DeWolf within 14 days of the court's issuance of its protection order, DeWolf was not effectively served with process in accordance with § 42-926(1), however, we do not deem that failure dispositive of this case.

Neb. Rev. Stat. § 25-516.01(2) (Supp. 2019) separately provides:

A defense of lack of personal jurisdiction, insufficiency of process, or insufficiency of service of process may be asserted only under the procedure provided in the pleading rules adopted by the Supreme Court. If any of those defenses are asserted either by motion or in a responsive

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