Krystal C. v. John B.

KRYSTAL C., INDIVIDUALLY AND ON BEHALF OF J.C. ET AL., MINOR CHILDREN, APPELLEES, v. JOHN B., APPELLANT.

No. A-19-767.

NEBRASKA COURT OF APPEALS

March 10, 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 Burt County: JOHN E. SAMSON, Judge. Reversed and remanded with directions.

Nicholas E. Wurth, of Law Offices of Nicholas E. Wurth, P.C., for appellant.

No appearance for appellees.

MOORE, Chief Judge, and RIEDMANN and WELCH, Judges.

RIEDMANN, Judge.

INTRODUCTION

John B. appeals a domestic abuse protection order obtained by Krystal C., individually and on behalf of her minor children. Upon our de novo review of the record, we reverse and remand with directions to vacate the protection order.

BACKGROUND

Krystal and John were in an on-and-off romantic relationship from 2014 or 2015 until sometime in April or May 2019. On May 28, 2019, Krystal filed a petition and affidavit to obtain a domestic abuse protection order for herself and her three children against John under Neb. Rev. Stat. § 42-924 (Cum. Supp. 2018). John is not the father of the children. An ex parte domestic abuse protection order was issued the following day. John requested a hearing on the matter pursuant to Neb. Rev. Stat. § 42-925 (Cum. Supp. 2018) to show cause why the protection order should not remain in effect.

At the show cause hearing, the district court received Krystal's petition and affidavit into evidence. Krystal testified that the allegations contained in her affidavit were true and accurate and that she included the most recent concerning behaviors by John in the affidavit. In the affidavit, Krystal generally claimed that John was paranoid and would become physical and violent. She explained that at times he grabbed her arm or hand and "jerked" her down. On one occasion, he choked her in bed, which almost made her pass out and left bruises on her neck. She indicated that the following morning, he pulled her down to lay with him and grabbed her neck.

She also detailed a time where she and her children were at John's house, and she and John began arguing. In the affidavit she wrote that when she walked to the kitchen to get her children who were downstairs, she "ended up" downstairs. At the show cause hearing, Krystal testified that she "mistyped" when she wrote that she "ended up" downstairs and that she meant to say that John pushed her down the stairs. She said that she injured her hand from falling down the stairs and that after she and her children left John's house, she went to the police station but was too afraid to report what happened. She was cited for reckless driving because she had alcohol on her breath and had driven to the police station with her children in the car. She indicated in the affidavit that the incident occurred on November 28, 2018, but after viewing the ticket she received for reckless driving, she acknowledged that she was mistaken and that the incident had actually occurred on January 5, 2018. The ticket was received into evidence at the hearing.

The affidavit and Krystal's testimony also establish that John would repeatedly contact Krystal by text message, phone calls, social media, or by driving by her house. Copies of text messages between them were received into evidence. Krystal indicated that she was afraid of John and that he threatened her. At the time of the show cause hearing, Krystal had a new boyfriend, and he testified that he had seen John drive by Krystal's house. John admitted driving by Krystal's house, and he said he did so to see if anyone was at her house because he believed that she was seeing someone else while they were dating. However, John denied pushing Krystal down the stairs, grabbing her neck, threatening her, or ever causing her physical harm.

At the conclusion of the hearing, the district court stated that the matter came down to a credibility issue. The court noted that Krystal had some issues regarding the exact dates of things, but, given that some of her testimony was corroborated by text messages from John and her boyfriend's testimony, there was sufficient credible evidence to support her testimony. The court therefore extended the protection order for 1 year. John appeals.

ASSIGNMENT OF ERROR

John assigns that the district court erred in affirming the ex parte domestic abuse protection order.

STANDARD OF REVIEW

A protection order pursuant to § 42-924 is analogous to an injunction. Thus, the grant or denial of a protection order is reviewed de novo on the record. In such de novo review, an appellate court reaches conclusions independent of the factual findings of the trial court. However, wherethe 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. Robert M. on behalf of Bella O. v. Danielle O., 303 Neb. 268, 928 N.W.2d 407 (2019).

ANALYSIS

John first argues that the district court erred in affirming the domestic abuse protection order because the evidence presented at the hearing failed to establish that his actions constituted abuse within the meaning of Neb. Rev. Stat. § 42-903 (Cum. Supp. 2018). We disagree.

Any victim of domestic abuse may seek a domestic abuse protection order. § 42-924. Whether domestic abuse occurred is a threshold issue in determining whether an ex parte protection order should be affirmed; absent abuse as defined by § 42-903, a protection order may not remain in effect. § 42-924; Robert M. on behalf of Bella O. v. Danielle O., supra.

"Abuse" as used in § 42-903(1) means the occurrence of one or more of the following acts between family or household members:

(a) Attempting to cause or intentionally and knowingly causing bodily injury with or without a dangerous instrument;

(b) Placing, by means of credible threat, another person in fear of bodily injury. . . . or

(c) Engaging in sexual contact or sexual penetration without consent as defined in [Neb. Rev. Stat.] section 38-318 [Reissue 2016].

Family or household members include persons who have resided together in the past. § 42-903(3). Krystal testified that she and her children had previously cohabited with John.

The district court found that domestic abuse occurred as defined by § 42-903(1). Although the district court did not state which subsection of § 42-903(1) was met, we find the evidence was sufficient to prove that John intentionally and knowingly caused bodily injury under § 42-903(1)(a).

In the affidavit, Krystal wrote that on one occasion, John "choked [her] in bed almost making [her] pass out and left bruises on [her] neck." At the hearing she confirmed that everything she stated in the affidavit was true. She also testified regarding this incident, explaining that John had grabbed ahold of her neck and she could not breathe. The court asked if the incident she had described was included in her affidavit, and she said that it was. The district court found Krystal's testimony to be true, and in our de novo review of the record, we consider and give weight to the circumstances that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. See Robert M. on behalf of Bella O. v. Danielle O., supra. We therefore conclude that Krystal met her burden of proving that John intentionally or knowingly caused her bodily injury in order to establish that domestic abuse had occurred.

Our inquiry does not end here, however. And John argues that even if the evidence was sufficient to establish abuse, the scope, remoteness of abuse, and the relationship of the parties weigh in favor of a dismissal of the protection order because there is no reasonable likelihood of future harm.

The Nebraska Supreme Court has explained that when an ex parte domestic abuse protection order is issued and the respondent requests a show cause hearing, the inquiry before the district court at the hearing is whether the ex parte order ought to remain in effect after it was in place. Maria A. on behalf of Leslie G. v. Oscar G., 301 Neb. 673, 919 N.W.2d 841 (2018). See, also, § 42-925(1). Whether domestic abuse occurred is a threshold issue in determining whether an ex parte protection order should be affirmed; absent abuse as defined by § 42-903, a protection order may not remain in effect. Maria A. on behalf of Leslie G. v. Oscar G., supra. But even when domestic abuse as defined by § 42-903 has occurred, the language of § 42-925(1) suggests a wider inquiry in deciding whether to affirm or rescind an ex parte protection order. Maria A. on behalf of Leslie G. v. Oscar G., supra.

Section 42-925(1) frames the issue as whether the protection order should remain in effect and thus orients the court's view toward the future and the goal of domestic abuse protection orders, which is to protect victims of domestic abuse from further harm. Maria A. on behalf of Leslie G. v. Oscar G., supra. In many, if not most, instances, a showing of abuse under § 42-903 is sufficient to merit the affirmation of an ex parte protection order; but it is not the only consideration in determining whether an ex parte protection order should remain in effect to prevent future harm. Maria A. on behalf of Leslie G. v. Oscar G., supra.

In addressing the question of whether to affirm an ex parte protection order, the district court is not guided exclusively by the definition of abuse in § 42-903 or by whether the ex parte order was permissible at its inception. See Maria A. on behalf of Leslie G. v. Oscar G., supra. Instead, the district court can also consider other factors in its determination as to whether the ex parte order should remain in effect to prevent future harm. Id. Those factors might include, but are not limited...