D.W. v. A.G. , 303 Neb. 42 ( 2019 )

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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
D.W. v. A.G.
Cite as 303 Neb. 42
D.W., appellee and cross-appellant,
v. A.G., appellant and
cross-appellee.
___ N.W.2d ___
Filed May 3, 2019. Nos. S-18-657, S-18-658.
1. Judgments: Injunction: Appeal and Error. A protection order is anal-
ogous to an injunction. Accordingly, the grant or denial of a protection
order is reviewed de novo on the record.
2. Evidence: Appeal and Error. 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.
3. Jurisdiction: Appeal and Error. Subject matter jurisdiction is a ques-
tion of law for the court, which requires an appellate court to reach a
conclusion independent of the lower court’s decision.
4. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the
power of a tribunal to hear and determine a case in the general class or
category to which the proceedings in question belong and to deal with
the general subject matter involved.
5. Due Process: Words and Phrases. While the concept of due process
defies precise definition, it embodies and requires fundamental fairness.
6. Constitutional Law: Due Process. Generally, procedural due process
requires parties whose rights are to be affected by a proceeding to be
given timely notice, which is reasonably calculated to inform the person
concerning the subject and issues involved in the proceeding; a reason-
able opportunity to refute or defend against a charge or accusation; a
reasonable opportunity to confront and cross-examine adverse witnesses
and present evidence on the charge or accusation; representation by
counsel, when such representation is required by constitution or statute;
and a hearing before an impartial decisionmaker.
7. Rules of the Supreme Court: Appeal and Error. Where a party’s brief
fails to comply with Neb. Ct. R. App. P. § 2-109(D)(1) (rev. 2014), an
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appellate court may proceed as though the party failed to file a brief or,
alternatively, examine the proceedings for plain error.
8. Appeal and Error. Plain error is error plainly evident from the record
and of such a nature that to leave it uncorrected would result in damage
to the integrity, reputation, or fairness of the judicial process.
Appeals from the District Court for Douglas County: Darryl
R. Lowe, County Judge. Judgment in No. S-18-657 reversed,
and cause remanded with directions. Judgment in No. S-18-658
affirmed in part, and in part reversed.
Benjamin M. Belmont and Wm. Oliver Jenkins, of Brodkey,
Peebles, Belmont & Line, L.L.P., 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 proce-
dural due process. Accordingly, we affirm in part, and in part
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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 vio-
lated 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, pursu-
ant 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 oth-
erwise 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.
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Show Cause Hearing.
The trial court conducted a show cause hearing at which
both D.W. and A.G. presented evidence and argument. The evi-
dence 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 birth-
day 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 apart-
ment 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 intro-
duced into evidence capture D.W. and A.G. talking to this
acquaintance, who testified that during his brief interaction
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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 inco-
herent 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 peti-
tion 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.
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On the same day, June 8, 2018, the trial court issued a harass-
ment 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 protec-
tion 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
[1,2] 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 fac-
tual findings of the trial court. However, where the credible
evidence is in conflict on a material issue of fact, the appel-
late court considers and may give weight to the circumstances
that the trial judge heard and observed the witnesses and
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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).
[3] Subject matter jurisdiction is a question of law for the
court, which requires an appellate court to reach a conclu-
sion 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.
[4] 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 the proceedings in question belong
and to deal with the general subject matter involved. Village at
North Platte v. Lincoln Cty. Bd. of Equal., 292 Neb. 533, 873
N.W.2d 201 (2016). Because the trial court had the author-
ity to hear and determine cases regarding harassment protec-
tion orders, the court did not lack subject matter jurisdiction
to enter the harassment protection order. See Neb. Rev. Stat.
§ 28-311.09 (Reissue 2016).
Procedural Due Process.
In addition to arguing that the trial court lacked jurisdiction,
A.G. argues that for several reasons, the entry of the harass-
ment protection order was erroneous. We now turn to those
arguments, beginning with his claim that the trial court violated
his right to due process when it entered the harassment protec-
tion order. Here, we agree with A.G.
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[5,6] While the concept of due process defies precise defi-
nition, it embodies and requires fundamental fairness. Zahl
v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007). Generally,
procedural due process requires parties whose rights are to be
affected by a proceeding to be given timely notice, which is
reasonably calculated to inform the person concerning the sub-
ject and issues involved in the proceeding; a reasonable oppor-
tunity to refute or defend against a charge or accusation; a
reasonable opportunity to confront and cross-examine adverse
witnesses and present evidence on the charge or accusation;
representation by counsel, when such representation is required
by constitution or statute; and a hearing before an impartial
decisionmaker. Id.
When it comes to protection orders, we have recognized
that because the intrusion on the respondent’s liberty interests
is relatively limited, “the procedural due process afforded in a
harassment protection hearing is likewise limited.” Mahmood
v. Mahmud, 279 Neb. 390, 397, 778 N.W.2d 426, 432 (2010).
But while the procedures required in a harassment protection
order proceeding may not “reflect the full panoply of proce-
dures common to civil trials,” we have held that due process
does impose some basic requirements. Id. at 398, 778 N.W.2d
at 433. For example, we have held that testimony at a show
cause hearing in a protection order proceeding must be under
oath and documents must be admitted into evidence before
being considered. See id.
We further discussed procedural due process requirements
in protection order proceedings in Linda N. v. William N.,
289 Neb. 607, 856 N.W.2d 436 (2014). In that case, we
reversed the entry of a domestic abuse protection order upon
the respond­ent’s appeal. The petitioner also filed a cross-appeal
and argued, for the first time on appeal, that a harassment
protection order was warranted. We rejected the petitioner’s
argument for a number of reasons. In doing so, we discussed
and distinguished Sherman v. Sherman, 18 Neb. Ct. App. 342, 781
N.W.2d 615 (2010), a Nebraska Court of Appeals decision.
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In Sherman, the court held that when a trial court is pre-
sented with a case in which a petitioner seeks a domestic abuse
protection order but the evidence would only support a harass-
ment protection order, the judge should explain the require-
ments for both types of protection orders, allow the petitioner
to choose which theory to pursue, and, grant the respondent a
continuance, if requested. We explained in Linda N. that the
procedure outlined in Sherman allowed a petitioner to elect
to change theories, but that “[t]he change must be initiated
before the trial court makes a final decision.” Linda N., 289
Neb. at 619, 856 N.W.2d at 446. We further observed that the
procedure outlined in Sherman protected the due process rights
of both parties “by trying the case only on the theory elected
by the petitioner.” Linda N., 289 Neb. at 618, 856 N.W.2d at
446. Conversely, we said that to allow a petitioner to change
the theory on which a protection order was sought on appeal
would violate due process.
Inherent in both Linda N. and Sherman is a recognition that
a respondent in a protection order proceeding must be noti-
fied of the grounds upon which a protection order is sought
and provided with an opportunity to respond to those grounds
at the show cause hearing. This should come as no surprise.
Notice and an opportunity to be heard are, after all, basic
requirements of procedural due process. See, e.g., Cleveland
Board of Education v. Loudermill, 470 U.S. 532, 546, 105 S.
Ct. 1487, 84 L. Ed. 2d 494 (1985) (“[t]he essential require-
ments of due process . . . are notice and an opportunity to
respond”); Fuentes v. Shevin, 407 U.S. 67, 80, 92 S. Ct. 1983,
32 L. Ed. 2d 556 (1972) (“[f]or more than a century the central
meaning of procedural due process has been clear: ‘Parties
whose rights are to be affected are entitled to be heard; and
in order that they may enjoy that right they must first be noti-
fied’”) (quoting Baldwin v. Hale, 68 U.S. (1 Wall.) 223, 17 L.
Ed. 531 (1863)).
In this case, we conclude that A.G. was not provided with
sufficient notice and an opportunity to be heard regarding a
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harassment protection order. D.W.’s initial petition sought a
sexual assault protection order. She submitted a form petition
for a sexual assault protection order, which asked her to list
the date, time, and a description of the alleged sexual assault.
On a page attached to the petition, D.W. alleged that A.G.
sexually assaulted her. The trial court thereafter entered an ex
parte sexual assault protection order. A.G. requested a show
cause hearing on whether the sexual assault protection order
should remain in place. At that hearing, both parties focused
on whether a sexual assault had occurred. At no time did D.W.
request that a harassment protection order be entered or make
allegations sufficient to give A.G. fair notice that she sought
such an order. And at oral argument, D.W.’s counsel could not
identify any evidence introduced at the show cause hearing that
tended to show that A.G. harassed D.W.
Despite all this, the trial court apparently saw some basis
for a harassment protection order. That the trial court seems
to have brought up the harassment protection order on its own
initiative raises questions of its own. See Sherman v. Sherman,
18 Neb. Ct. App. 342, 781 N.W.2d 615 (2010) (holding that by
electing which theory to pursue, rather than allowing petitioner
to make choice, trial judge crossed line into advocacy). But
even if the source of the harassment protection order theory is
set to the side, the late hour at which the theory was raised—
after the close of evidence—presents a procedural due process
problem. A.G. requested a show cause hearing as to whether
a sexual assault protection order should remain in effect. By
the time that A.G. learned that a harassment protection order
was under consideration, he no longer had the opportunity
to present a case to the trial court that such an order was
not warranted.
In this respect, the procedure followed in this case is not
meaningfully different from the procedure we found to be
inconsistent with procedural due process in Linda N. v. William
N., 289 Neb. 607, 856 N.W.2d 436 (2014). Whether a new
theory for a protection order is asserted for the first time on
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appeal or after the close of evidence at the show cause hear-
ing, the respondent does not have an opportunity to defend
against the entry of the protection order on the new theory and
is denied procedural due process.
The trial court appears to have correctly sensed that there
was something standing in the way of its entering a harassment
protection order in the case filed by D.W. We can discern no
other reason why the trial court would take the puzzling step
of sua sponte refiling D.W.’s initial petition under a new case
number and then entering the harassment protection order in
that case. The trial court’s sua sponte refiling of D.W.’s petition
in a new case was hardly capable, however, of remedying the
due process problem outlined above.
Because the entry of the harassment protection order did not
comply with procedural due process, we reverse it, and remand
the cause with directions to vacate it. Because we reverse the
harassment protection order on these grounds, we decline to
consider A.G.’s remaining assignments of error.
D.W.’s Cross-Appeal.
[7,8] As noted above, D.W.’s brief in support of her cross-
appeal does not include a separate section assigning error. It
does include a heading in the argument section of her brief
stating: “The trial court erred in dismissing the sexual assault
protection order agai[ns]t the appellant.” Brief for appellee
on cross-appeal at 20. We have held, however, that headings
in the argument section of a brief do not satisfy the require-
ments of Neb. Ct. R. App. P. § 2-109(D)(1) (rev. 2014). See,
e.g., In re Interest of Samantha L. & Jasmine L., 286 Neb.
778, 839 N.W.2d 265 (2013). Where a party’s brief fails
to comply with § 2-109(D)(1), we may proceed as though
the party failed to file a brief or, alternatively, examine the
proceedings for plain error. See Estate of Schluntz v. Lower
Republican NRD, 300 Neb. 582, 915 N.W.2d 427 (2018).
Plain error is error plainly evident from the record and of
such a nature that to leave it uncorrected would result in
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damage to the integrity, reputation, or fairness of the judicial
process. Id.
Despite D.W.’s failure to assign error in the manner con-
templated by our rules, the basis for her cross-appeal can be
discerned: She contends that the trial court erred by dismissing
the sexual assault protection order against A.G. For reasons we
will explain, we cannot say that the trial court plainly erred
when it dismissed the sexual assault protection order.
Courts may grant sexual assault protection orders to victims
of sexual assault offenses. § 28-311.11(1). The relevant statute
defines sexual assault offenses by referencing various other
statutes. Section 28-311.11 provides:
(12) For purposes of this section, sexual assault offense
means:
(a) Conduct amounting to sexual assault under section
28-319 or 28-320 or sexual assault of a child under sec-
tion 28-319.01 or 28-320.01 or an attempt to commit any
of such offenses; or
(b) Subjecting or attempting to subject another person
to sexual contact or sexual penetration without his or her
consent, as such terms are defined in section 28-318.
Neb. Rev. Stat. § 28-319(1) (Reissue 2016) states that first
degree sexual assault occurs when any person subjects another
person to sexual penetration either without consent of the
victim or when the person knew or should have known that
“the victim was mentally or physically incapable of resisting
or appraising the nature of his or her conduct” (or under other
circumstances not relevant here).
D.W. contends that the evidence showed either that she was
subjected to sexual penetration without consent or that she was
mentally or physically incapable of resisting or appraising the
nature of her conduct. While A.G. admitted that he engaged in
sexual activity with D.W., he maintained that all such activity
was consensual and that D.W. appeared physically and men-
tally capable of providing consent.
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The evidence at the show cause hearing on whether con-
sent was provided and whether D.W. was capable of provid-
ing consent was, at a minimum, disputed. D.W. admitted to
mutual flirtation between herself and A.G. at the bar, but tes-
tified that her next memory was of being sexually penetrated
by A.G. in her apartment. She testified that she did not recall
consenting to sexual intercourse with him. A.G. testified that
D.W. was not incoherent or stumbling when they returned to
her apartment; that she told him that if they “‘hook[ed] up,’”
he had to promise not to tell her boyfriend; and that D.W.
was a willing participant in the sexual activity. In addition,
the acquaintance testified that just prior to entering her apart-
ment, D.W. did not seem tired, exhausted, or almost ready to
pass out.
After hearing all of this evidence, the trial court explained
its decision not to enter a sexual assault protection order. It
stated that it could not find a lack of consent. It also noted
that it found the acquaintance to be credible and described his
testimony regarding D.W.’s condition just prior to entering
her apartment as the “key element.” Because the evidence on
whether a sexual assault occurred was, at the very least, con-
flicting and required the trial court to make credibility determi-
nations of witnesses, we cannot say that the trial judge commit-
ted plain error by vacating the sexual assault protection order.
See Maria A. on behalf of Leslie G. v. Oscar G., 301 Neb.
673, 678, 919 N.W.2d 841, 846 (2018) (“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”).
CONCLUSION
We find that the trial court violated A.G.’s right to proce-
dural due process by entering a harassment protection order
without providing sufficient notice and an opportunity to
be heard. We therefore reverse the June 8, 2018, order that
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issued the harassment protection order, as well as the June 11
order to the extent that it found evidence sufficient to merit
a harassment protection order. We remand the cause with
directions to vacate the harassment protection order. We find
no plain error in the trial court’s order dismissing the sexual
assault protection order, and we therefore affirm that portion
of the June 11 order.
Judgment in No. S-18-657 reversed, and
cause remanded with directions.
Judgment in No. S-18-658 affirmed in
part, and in part reversed.