Castillo v. Smith ( 2020 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
CASTILLO V. SMITH
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).
TAMMY D. CASTILLO, APPELLANT,
V.
JERRY L. SMITH, JR., APPELLEE.
Filed November 10, 2020. No. A-20-286.
Appeal from the District Court for Douglas County: W. RUSSELL BOWIE III, Judge.
Affirmed.
Katelyn Cherney and Christopher A. Mihalo, of Milton R. Abrahams Legal Clinic, for
appellant.
No appearance for appellee.
PIRTLE, Chief Judge, and MOORE and RIEDMANN, Judges.
RIEDMANN, Judge.
INTRODUCTION
Tammy D. Castillo applied for a domestic abuse protection order against Jerry L. Smith,
Jr., on behalf of herself and her minor child. The district court for Douglas County issued an ex
parte protection order, and then after a show cause hearing, the court declined to extend the
domestic abuse protection order but instead issued a harassment protection order on behalf of
Castillo but not her child. Castillo appeals. Upon our de novo review of the record, we affirm.
BACKGROUND
On February 10, 2020, Castillo filed a petition and affidavit to obtain a domestic abuse
protection order for herself and her minor child, K.S., against Smith under Neb. Rev. Stat. § 42-924
(Supp. 2019). Smith is the father of K.S. The district court issued an ex parte domestic abuse
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protection order the same day. Smith 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 Castillo’s petition and affidavit into
evidence. Castillo testified that the allegations contained in her affidavit were true and accurate.
The affidavit details an incident that occurred on February 8, 2020, where Castillo alleged that
Smith was drinking alcohol at K.S.’ basketball game and then later took K.S., age 8, into a bar
with him. The affidavit alleges that later that evening, Smith left a voicemail for Castillo, telling
her that he was going to “dig [her] a hole” and “bury [her] in the ground.” Smith then continued
to send text messages to Castillo, in which he told her that he wished she would “just pass away.”
In the affidavit, Castillo described her ongoing concerns with Smith’s alcohol consumption
and mental health issues. She claimed that Smith is prescribed medication, but refuses to take it.
She also indicated that he was living with a “felon” and another person who had recently been
incarcerated. Castillo wrote that she was concerned that something might happen to her or K.S.
because of Smith’s drinking or the people with whom he associates.
At the show cause hearing, Castillo additionally explained that Smith has told her “to go
jump off a bridge” and that he wishes she was dead, and called her names. She said that she is
afraid for K.S.’ well-being because Smith told her that if she takes K.S. from him, neither one of
them will have K.S.
Castillo also testified that she did not know what Smith might do as a result of his heavy
drinking, mental health issues, and refusal to take his medication. She stated that she fears for her
own safety and that of K.S. She was asked what she thought Smith might do to K.S. and she said
she did not know, citing his “mental state,” heavy drinking, poor decisions, people with whom he
associates, and the fact that he drinks and drives with K.S. in the vehicle.
Smith also testified at the hearing and denied the allegations in Castillo’s petition. He
denied drinking at K.S.’ basketball game and said that he took K.S. bowling and then they stopped
at a bar to see the owners. He did not recall any specific text messages he sent to Castillo, but
stated that Castillo “always texts” him and they text back and forth, saying “rotten things” to each
other.
At the conclusion of the hearing, the district court took the matter under advisement. It
subsequently issued a written order declining to extend the domestic abuse protection order. The
court took judicial notice of the pleadings in a pending custody case involving the parties. It noted
that in that case, Smith was seeking joint legal custody of K.S. but only parenting time, not physical
custody, and observed that the parties had been unable to mediate a parenting plan. However,
relying upon State ex rel. Grape v. Zach, 247 Neb. 29, 524 N.W.2d 788 (1994), the court found
that the natural mother in a paternity case has automatic custody of a minor child and that custody
can be modified at a later date; it therefore determined that K.S. need not be included in a protection
order. Finding that the evidence presented at the hearing was sufficient to issue a harassment
protection order, the district court did so on behalf of Castillo only. Castillo appeals.
ASSIGNMENTS OF ERROR
Castillo assigns that the district court erred in (1) rescinding the ex parte domestic abuse
protection order, (2) taking judicial notice of the paternity action and using that as grounds to deny
the domestic abuse protection order, and (3) removing K.S. as a protected party in the order.
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STANDARD OF REVIEW
A protection order is analogous to an injunction. D.W. v. A.G., 303 Neb. 42, 926 N.W.2d
651 (2019). 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
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.
Id.
ANALYSIS
Castillo argues that the district court erred when it rescinded its ex parte domestic abuse
protection order because the evidence was sufficient to extend it. We disagree.
Before examining the evidence before the district court, we note that the change in the
language of Neb. Rev. Stat. § 42-925(7) (Supp. 2019) which authorizes a court to treat a petition
for a domestic abuse protection order as a petition for a harassment protection order distinguishes
this case from prior case law that addressed whether a trial court’s issuance of a protection order
of a type other than the type requested was proper. See, e.g., D.W. v. A.G., supra; Sherman v.
Sherman, 18 Neb. Ct. App. 342, 781 N.W.2d 615 (2010). We therefore need not address the court’s
authority to do so.
Turning to the merits of Castillo’s argument, we conclude that the district court did not err
in declining to extend the ex parte domestic abuse protection order because the evidence does not
meet the statutory definition of abuse.
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., 303 Neb. 268, 928
N.W.2d 407 (2019).
“Abuse” as used in Neb. Rev. Stat. § 42-903(1) (Cum. Supp. 2018) 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
section 28-318.
Family or household members include persons who have a child in common whether or not they
have been married or have lived together at any time. § 42-903(3).
There were no allegations or evidence that would support a finding of abuse under
§ 42-903(1)(a) or (c); thus, in order to justify extending the domestic abuse protection order,
Castillo was required to prove that Smith placed her in fear of bodily injury, by means of credible
threat. Section 42-903(1)(b) defines credible threat as a verbal or written threat, including a threat
performed through the use of an electronic communication device, or a threat implied by a pattern
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of conduct or a combination of verbal, written, or electronically communicated statements and
conduct that is made by a person with the apparent ability to carry out the threat so as to cause the
person who is the target of the threat to reasonably fear for his or her safety or the safety of his or
her family. “Threat” is not further defined, so our basic principles of statutory interpretation require
us to give the word its plain and ordinary meaning. Robert M. on behalf of Bella O. v. Danielle O.,
supra. The plain and ordinary meaning of “threat” is a communication, declaration, or expression
of an intention to inflict harm or damage. Id.
The evidence in this case generally establishes Castillo’s concerns regarding Smith’s
drinking and mental health issues, including her claims that he is not taking medication that he is
prescribed and is surrounding himself with undesirable people. Castillo indicated that Smith has
communicated to her that he is “not all there,” that she “better watch out,” that he was “going to
dig [her] a hole” and “bury [her] in the ground,” that he wished she would “just pass away,” and
that she should “go jump off a bridge.” She also generally alleged that Smith has threatened her
and indicated that she has “plenty of threats via text.” She did not expand on the nature of these
threats, however.
We conclude that the above described evidence is insufficient to support a finding of a
credible threat of harm. The vast majority of Smith’s comments to Castillo, while inappropriate
and undesirable, do not communicate an intent to harm her or K.S. Wishing that she were dead or
telling her to jump off a bridge do not evidence Smith’s intent to harm Castillo. Even if we interpret
the voicemail of burying Castillo in a hole in the ground as a threat to inflict harm on her, this
single threat, alone, is insufficient to justify the extension of the domestic abuse protection order.
See Maria A. on behalf of Leslie G. v. Oscar G., 301 Neb. 673, 919 N.W.2d 841 (2018) (single
incident of violence with no pattern of physical force insufficient to support extending domestic
abuse protection order). The evidence of Smith’s alcohol consumption and unmedicated mental
health issues are concerning and it is understandable that Castillo would want to protect herself
and K.S. from them; however, this evidence does not meet the definition of domestic abuse to
support extending the domestic abuse protection order. The district court therefore did not err in
this regard.
Castillo also argues that the district court erred in taking judicial notice of the pending
paternity action between the parties and using that as grounds to deny the domestic abuse
protection order. Having found that the evidence was insufficient to establish domestic abuse, the
district court did not err in declining to extend the domestic abuse protection order on behalf of
Castillo or K.S.
Finally, Castillo claims that the court erred in removing K.S. as a protected party when it
issued the harassment protection order. We disagree.
The harassment protection order was issued pursuant to Neb. Rev. Stat. § 28-311.09 (Supp.
2019), which provides that any victim who has been harassed as defined by § 28-311.02 may file
a petition and affidavit for harassment protection order. For purposes of § 28-311.09, harass means
to engage in a knowing and willful course of conduct directed at a specific person which seriously
terrifies, threatens, or intimidates the person and which serves no legitimate purpose. Neb. Rev.
Stat. § 28-311.02(2)(a) (Reissue 2016). Course of conduct means a pattern of conduct composed
of a series of acts over a period of time, however short, evidencing continuity of purpose, including
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a series of acts of following, detaining, restraining the personal liberty of, or stalking the person or
telephoning, contacting, or otherwise communicating with the person. § 28-311.02(2)(b).
The evidence in the present case does not establish that Smith harassed K.S. as that term is
defined in § 28-311.02. Castillo did not claim that Smith ever followed, detained, or restrained
K.S. or that he repeatedly contacted K.S. The evidence Castillo presented regarding K.S. indicates
that Smith has a history of not taking him to school and that Smith does nothing with or for K.S.
when they are together. Further, Castillo testified at the show cause hearing that Smith drinks
alcohol and drives with K.S. in the vehicle. As acknowledged above, while Smith’s behavior is
certainly concerning and we understand Castillo’s desire to protect K.S., these actions are
insufficient to establish that Smith is harassing K.S. to support inclusion of K.S. in the harassment
protection order. As a result, the district court did not err in declining to include K.S. in the
harassment protection order it issued in favor of Castillo.
We observe that Castillo argues that because the district court did not put forth the
harassment protection order theory until after the close of evidence at the show cause hearing, she
did not have an opportunity to present evidence as to whether K.S. was seriously terrified,
threatened, or intimidated by Smith’s conduct and, thus, a victim of harassment. However, as stated
at the outset of our analysis, Castillo did not assign this as error. Consequently, we do not address
her argument. See Adair Holdings v. Johnson, 304 Neb. 720, 936 N.W.2d 517 (2020) (to be
considered by appellate court, alleged error must be specifically assigned and specifically argued
in brief of party asserting error).
CONCLUSION
The district court did not err in declining to extend the domestic abuse protection order or
failing to include K.S. in the harassment protection order. The court’s order is therefore affirmed.
AFFIRMED.
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