William P. v. Jamie P. ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/03/2023 12:05 AM CST
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
WILLIAM P. V. JAMIE P.
Cite as 313 Neb. 378William P., appellee, v.
Jamie P., appellant.
___ N.W.2d ___
Filed January 27, 2023. No. S-22-199.
1. Protection Orders: Appeal and Error. Ordinarily, 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, 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.
2. Records: Appeal and Error. The responsibility for filing a bill of
exceptions for appellate review rests with the appellant.
3. Records: Pleadings: Appeal and Error. When there is no bill of excep-
tions, an appellate court examines and considers only the pleadings in
conjunction with the judgment reviewed.
4. Judgments: Records: Presumptions: Evidence: Appeal and Error.
In the absence of a record of the evidence considered by the court, it is
presumed on appeal that the evidence supports the trial court’s orders
and judgment.
5. Police Officers and Sheriffs: Service of Process: Presumptions. A
sheriff’s return of service is presumed to be correct.
6. Public Officers and Employees: Presumptions. In the absence of evi-
dence to the contrary, it may be presumed that public officers faithfully
performed their official duties and that absent evidence showing miscon-
duct or disregard of law, the regularity of official acts is presumed.
7. Police Officers and Sheriffs: Service of Process: Proof. An offi-
cer’s return on a summons is prima facie proof of the service therein
indicated.
- 379 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
WILLIAM P. V. JAMIE P.
Cite as 313 Neb. 3788. Records: Proof: Appeal and Error. In appellate proceedings, unless
there is proof to the contrary, a duly authenticated record of the trial
court imports absolute verity.
9. Records: Evidence: Appeal and Error. Offering of a bill of exceptions
is necessary if the appellate court is to consider errors assigned by the
appellant which require a review of the evidence that was received by
the tribunal from which the appeal is taken.
10. Records: Evidence: Notice: Appeal and Error. An appellant may not
successfully assert that the evidence was insufficient to support a lower
court’s order when the record on appeal affirmatively demonstrates that
sufficient evidence was considered by the lower court, with notice to
and without objection by the appellant.
Appeal from the District Court for Douglas County:
Stephanie R. Hansen, Judge. Affirmed.
Jamie P., pro se.
Michael W. Milone, Benjamin L. Bramblett, and Emily
Fehringer, Senior Certified Law Student, of Koukol, Johnson
& Schmit, L.L.C., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
NATURE OF CASE
The district court for Douglas County entered a domestic
abuse protection order against appellant, Jamie P., in favor of
her father, William P., following a hearing at which Jamie did
not appear. Jamie appeals. In the absence of a bill of excep-
tions, on the limited record presented, we presume that the
uncontradicted sheriff’s return of service on Jamie is accurate,
and the evidence adduced before the district court to which
reference was made in the court’s order was sufficient to
support the issuance of the domestic abuse protection order.
We affirm.
- 380 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
WILLIAM P. V. JAMIE P.
Cite as 313 Neb. 378STATEMENT OF FACTS
On February 15, 2022, William filed a petition and affidavit
to obtain a domestic abuse protection order pursuant to Neb.
Rev. Stat. § 42-924 (Cum. Supp. 2022). The petition and affi-
davit concerned his daughter, Jamie, who was then 38 years old
and resided at his address. The petition stated that William was
a victim of domestic abuse, and on the handwritten affidavit
on the provided form, William alleged that on February 15,
2022, he
[a]sked police (911) to come to home and remove daugh-
ter from house. Verbally abusive and refusing to leave at
officers request. Officers recorded encounter. Accusing
of giving out false information, conspiring against her
in custody issues, keeping her from her children (2 are
adults, and one is in foster care, [d]oesn’t acknowledge
son is in foster care in Kansas due to issues of neglect.
Claiming our residence is “partially” hers. (On tape of
responding officers.)
William also alleged that similar incidents had occurred on
other, unspecified dates.
On the same day, the district court entered an order to show
cause and ordered that a copy of the order and petition be
served on Jamie. The district court set a hearing for February
24, 2022. A return of service shows that the sheriff attempted
service and left a “card” on February 16, and later recorded
successful personal service on Jamie at the parties’ shared
home on February 22.
Jamie did not appear at the show cause hearing. The district
court entered a domestic abuse protection order against her
on February 24, 2022, under Neb. Rev. Stat. § 42-925 (Cum.
Supp. 2022). The order states that the order was based on
“[e]vidence . . . adduced.”
Jamie appeals. Jamie filed appellate motions for leave to file
a praecipe for bill of exceptions out of time, which were over-
ruled. Thus, although we have a transcript, we do not have the
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
WILLIAM P. V. JAMIE P.
Cite as 313 Neb. 378benefit of a bill of exceptions of the evidence received at the
hearing to show cause. The record is created by the trial court
and cannot be compiled by the appellate courts.
ASSIGNMENTS OF ERROR
Jamie asks, summarized and restated, that this court reverse
the domestic abuse protection order because she claims she
was not properly served and because the evidence to support
the order was not sufficient.
STANDARDS OF REVIEW
[1] Ordinarily, the grant or denial of a protection order is
reviewed de novo on the record. Robert M. on behalf of Bella
O. v. Danielle O., 303 Neb. 268, 928 N.W.2d 407 (2019).
In such de novo review, an appellate court reaches conclu-
sions 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.[2-4] In this case, no bill of exceptions was properly filed in
this appeal. The responsibility for filing a bill of exceptions for
appellate review rests with the appellant. See Neb. Rev. Stat.
§ 25-1140 (Reissue 2016). When there is no bill of exceptions,
we examine and consider only the pleadings in conjunction
with the judgment reviewed. See Rosberg v. Rosberg, 25 Neb.
App. 856, 916 N.W.2d 62 (2018) (citing Murphy v. Murphy,
237 Neb. 406, 466 N.W.2d 87 (1991)). In the absence of a
record of the evidence considered by the court, it is presumed
on appeal that the evidence supports the trial court’s orders and
judgment. See In re Estate of Baer, 273 Neb. 969, 735 N.W.2d
394 (2007).
ANALYSIS
As set forth above, we address the two errors argued by
Jamie, to wit: (1) the district court erred when it held a show
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
WILLIAM P. V. JAMIE P.
Cite as 313 Neb. 378cause hearing for which Jamie claims she did not receive
notice, and (2) the district court erred when it found that
William was entitled to a domestic abuse protection order.
Service of Process.
Jamie first argues that the show cause hearing was improper
because she claims she was not served with prior notice. On
the record presented, we reject this argument.
[5-8] It is well-established that a sheriff’s return of service
is presumed to be correct. See State v. County of Kimball, 164
Neb. 479, 82 N.W.2d 854 (1957). In the absence of evidence to
the contrary, it may be presumed that public officers faithfully
performed their official duties and that absent evidence show-
ing misconduct or disregard of law, the regularity of official
acts is presumed. State v. Hess, 261 Neb. 368, 622 N.W.2d 891(2001). An officer’s return on a summons is prima facie proof
of the service therein indicated. State v. County of Kimball,
supra. In appellate proceedings, unless there is proof to the
contrary, a duly authenticated record of the trial court imports
absolute verity. Ginger Cove Common Area Co. v. Wiekhorst,
296 Neb. 416, 893 N.W.2d 467 (2017).
The transcript in this case contains a return of service that
shows the sheriff recorded personal service on Jamie at the par-
ties’ shared home and served her with, inter alia, the complaint
for domestic abuse protection order and the order to show cause
which set the hearing date. Absent any evidence before us to
support Jamie’s claim to the contrary, we presume this return
of service in the trial court record is accurate. Accordingly, this
assignment of error is without merit.
Sufficiency of Evidence for Domestic
Abuse Protection Order.
[9,10] As we noted above, Jamie did not file a bill of
exceptions in this appeal. It is incumbent upon the appellant
to present a record supporting the errors assigned. Rodriguez
v. Surgical Assocs., 298 Neb. 573, 905 N.W.2d 247 (2018).
- 383 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
WILLIAM P. V. JAMIE P.
Cite as 313 Neb. 378In the absence of a complete bill of exceptions, an appellate
court presumes that the issues of fact in the order of the trial
court were supported by the evidence and were correctly deter-
mined. See Stewart v. Heineman, 296 Neb. 262, 892 N.W.2d
542 (2017); In re Estate of Baer, supra. Offering of a bill of
exceptions is necessary if the appellate court is to consider
errors assigned by the appellant which require a review of
the evidence that was received by the tribunal from which
the appeal is taken. Stewart v. Heineman, supra. An appellant
may not successfully assert that the evidence was insufficient
to support a lower court’s order when the record on appeal
affirmatively demonstrates that sufficient evidence was consid-
ered by the lower court, with notice to and without objection
by the appellant. Id.Turning to the transcript which this court has received,
William filed a petition and an affidavit to obtain a domestic
abuse protection order against Jamie on the form petition
provided to him. The order of the district court states that
at the hearing to show cause, “[e]vidence [was] adduced,”
and the court found that William was entitled to a protection
order. We therefore understand that, in addition to the petition
and affidavit, the district court considered evidence. Echoing
the elements of domestic abuse, as “abuse” is defined by
Neb. Rev. Stat. § 42-903(1) (Cum. Supp. 2022), the district
court’s order states that it found William had shown that
Jamie attempted to cause, or intentionally, knowingly, or
recklessly caused, bodily injury to William; Jamie, by means
of a credible threat, placed William in fear of bodily injury;
or Jamie engaged in sexual contact or sexual penetration
without consent as defined by Neb. Rev. Stat. § 28-318 (Cum.
Supp. 2022).
Although we lack a record of the evidence adduced and
considered by the district court, we are required to presume
that this evidence supports the district court’s order granting
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
WILLIAM P. V. JAMIE P.
Cite as 313 Neb. 378a protection order against Jamie. See Stewart v. Heineman,
supra. Accordingly, this assignment of error is without merit.
CONCLUSION
For the foregoing reasons, we conclude that the district
court did not err when it granted a domestic abuse protection
order. We affirm.
Affirmed.