Lethcoe v. Lethcoe

1

Katie Lethcoe, appellee, v. Tory Lethcoe, appellant.

No. A-24-072

Court of Appeals of Nebraska

November 26, 2024

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 Sarpy County: Nathan B. Cox Judge.

Aimee S. Melton and Megan E. Shupe, of Reagan, Melton &amp Delaney, L.L.P., for appellant.

Katie Lethcoe, pro se.

Pirtle, Bishop, and Arterburn, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL (MEMORANDUM WEB OPINION)

Bishop, Judge.

I. INTRODUCTION

Tory Lethcoe appeals the decision of the Sarpy County District Court which modified but maintained an ex parte harassment protection order against him in favor of his wife, Katie Lethcoe. Tory argues that there was not sufficient evidence to support the order. He also argues that the district court incorrectly shifted the burden of proof to him. We find that there was not sufficient evidence to show a harassing "course of conduct." We therefore reverse the judgment of the district court and remand the cause with directions to vacate the harassment protection order.

II. BACKGROUND

Tory and Katie were married in 2009 and had three children. Katie filed a complaint for dissolution of marriage on August 17, 2023. The parties continued to live together until Tory moved out of the family's home on December 1.

1. Pleadings and Ex Parte Order

On December 15, 2023, Katie filed a petition and affidavit to obtain a harassment protection order against Tory on behalf of herself and the three minor children (ages 13, 11, and 8, according to the petition). The petition alleged that she and Tory had been or were currently involved in two other court cases together, a "divorce" and "contract." Katie alleged the following acts of harassment:

A.12/14/23 at 6:26 p.m.

Tory was bringing [the youngest child] to the house after soccer practice. He was told the garage was open for [the child] to enter the house. Tory called Katie and said he was coming in and he has every right to come in the house based on his attorney. I let Tory know that he could not come in as I have to leave to pick up [the oldest child] from practice. We had predetermined he would not enter the property without notifying me and being given permission and that I would be home. He has his own residence . . . since December 1st. He then told me he was entering to see [the youngest child's] bedroom. I again told him no. I shut the door and locked it as he was trying to force open the door. He then told me he was calling law enforcement, as I had already dialed 911 to get assistance. He stayed in the garage and refused to move. I stayed on the line with the dispatcher and gave her information that [the oldest child] needed picked up from practice and I was unable to do so with Tory on property. At 6:40 Tory backed up his truck and began to leave. I went to shut the garage and he shouted out, "I'm leaving so you can pick up [the oldest child]." He did not leave the area as he went down the block to a neighbor's house. Once the sheriff showed up and I was talking with them, Tory came walking down the street to talk to them. At this point I went back in the garage away from him. He was told that he has no reason to enter the property and that if he needed belongings he needed to schedule a time to do so. Sarpy County Deputies completed the report. . . . Report is not available to the public at this time.

Tory then sent a text message at 6:24 a.m. on 12/15 stating he wanted to schedule a time this weekend to get the remainder of his belongings. A time had already been set up per previous messaging that 5:00 on 12/17 he could get the remainder of his things so there was no reason for him to contact me at 6:30 in the morning.

B.12/13/2023 at 9:40 p.m.

Tory requested that we talk about Christmas again. I called him at 9:40 after I had the kids all in bed for the night. We disagreed on keeping traditions versus not keeping traditions. He was upset that he would not have extra time with them for the holidays as it was his parenting time anyways. I offered to allow him to keep the kids an extra 3 or 4 hours on Christmas Eve so they would come back with me around 8 or 9 p.m. He became angry and started screaming at me on the phone. He then told me I need to agree because otherwise it will cost us too much money in court. He wanted them on Christmas and told me traditions need to change. I let him know that things need to stay consistent for the kids. After this point, I could not speak as he was screaming on the phone about how that is not the way it is going to be and that the kids need to have new traditions. At this point I said, "I am going to end this call as I do not need to listen to him scream at me." I repeated this three times before hanging up the phone. He immediately called me back. I declined the call. I then sent a message stating I will not talk to him when he is screaming and that we can try communicating again tomorrow. He continued to message and I repeated, "We can try again tomorrow" two more times.

C. 12/12/2023 at 7:51 p.m.

Tory has been using text messaging and contact to harass me while I have the kids. I have communicated that he may not contact me during work hours and that I can have conversations with him after the kids go to bed so this doesn't interfere with the kids. On 12/12/23 he contacted me at 7:51 p.m. stating he wanted to discuss Christmas. This was an issue already discussed and established. I copied and pasted a previous text message that showed what we had already discussed. He then said we did not agree on that. I stated we can discuss when I am not with the kids. He stated that I never want to talk. I stated that kids need to keep traditions as that is what they have done and keep things normal for them. I then asked Tory to stop texting. He continued texting six more times after I asked him to stop. Text messages are included in affidavit supplemental.

He then sent text messages again on Wednesday morning after he was told not to text me while I am at work asking to talk and about kid activities. Kid activity details have already been discussed and agreed upon prior to these texts.

Tory only texts when it is my parenting time with the kids and only wants to discuss matters about custody during that time.

D.12/10/2023 at 4:45 p.m.

Tory stated that he needed to get his things from the house. I allowed this as we were transitioning the kids from his apartment to my house. He kept saying more that he wanted and I told him that it was not agreed upon. He ended up storming out of the house in front of the kids. I messaged him to see why he stormed off.

E. Ongoing Sexual advances to manipulate situations

Tory has made numerous comments verbally about my physical appearance as well as sending text messages. He did hit my butt and when I told him that was not appropriate, he stated, "Well I am human." He asked to have intercourse and said we should as it may be a long time for both of us. I have made it very clear this is not appropriate nor do I have any interest. He continued even though this was communicated clearly.

(Emphasis in original.) Five pages of text messages were also included in Katie's petition and affidavit.

The same day that Katie's petition was filed, the district court entered an ex parte harassment protection order against Tory in favor of Katie and the children. Tory was enjoined from imposing any restraint upon the person or liberty of the protected parties; harassing, threatening, assaulting, molesting, attacking, or otherwise disturbing the peace of the protected parties; or telephoning, contacting, or otherwise communicating with the protected parties. The order stated that Tory could request a hearing to "show cause why this order should not remain in effect for a period of one year."

On December 19, 2023, Tory filed a "Motion and Affidavit for Ex Parte Reconsideration of Ex Parte Order." He alleged the following. Katie filed a complaint for dissolution on August 17. She filed a motion for temporary orders on December 6, pleading for joint legal and joint physical custody of the children; the hearing was scheduled for January 17, 2024. The parties had shared joint custody on a week-on-week-off basis since Tory moved out of the marital residence. The parties were attempting to reach an agreement regarding the Christmas holiday parenting time; there were emails between counsel on December 14, 2023. Katie told Tory that she should have the children every Christmas Eve and Christmas Day and if he would not agree to her requested parenting time for Christmas, she would file a protection order. On December 15, Katie filed for and was granted an ex parte protection order, and no exceptions were granted for parenting time or contact regarding the children; Katie did not allege any harassment or harm to the children. Tory had not yet been served with the protection order, but his counsel found the protection order on JUSTICE. Tory believed that Katie filed solely for the purpose of having the children over Christmas Eve and Christmas Day. Tory asked the district court for an order vacating the ex parte harassment order and scheduling the matter for an evidentiary hearing, or, in the alternative, vacating the order to the extent of excluding the minor children and scheduling the matter for further hearing. That same day, the district court overruled and denied Tory's motion, indicating that Tory could "file a request for hearing for the Court to address the issues raised." The next day, Tory filed a request for hearing.

2. Show Cause Hearing

A show cause hearing was held on January 4, 2024. Katie and Tory both appeared with counsel. Upon questioning...