Kudera v. Belina , 32 Neb. Ct. App. 133 ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/25/2023 09:07 AM CDT
- 133 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
KUDERA V. BELINA
Cite as 32 Neb. App. 133Brandy M. Kudera and T.S.K., appellees,
v. Travis Belina, appellant.
___ N.W.2d ___
Filed July 25, 2023. No. A-22-787.
1. Protection Orders: Appeal and Error. The grant or denial of a protec-
tion 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.
2. Protection Orders. A show cause hearing in protection order proceed-
ings is a contested factual hearing, in which the issues before the court
are whether the facts stated in the sworn application are true.
3. Injunction: Proof. A party seeking an injunction must establish by
a preponderance of the evidence every controverted fact necessary to
entitle the claimant to relief.
4. Criminal Law: Statutes. Nebraska’s stalking and harassment statutes
are given an objective construction, and the victim’s experience result-
ing from the perpetrator’s conduct should be assessed on an objec-
tive basis.
Appeal from the District Court for Madison County: Donna
F. Taylor, County Judge. Reversed and remanded with
directions.
Eric M. Hagen, of Berry Law Firm, for appellant.
Brandy M. Kudera, pro se.
Pirtle, Chief Judge, and Moore and Riedmann, Judges.
Riedmann, Judge.
INTRODUCTION
Travis Belina appeals from a harassment protection order
entered by the Madison County District Court sought by
- 134 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
KUDERA V. BELINA
Cite as 32 Neb. App. 133Brandy M. Kudera on behalf of her minor son, T.S.K. We find
that there was insufficient evidence to support continuing the
harassment protection order and, therefore, reverse the order
of the district court and remand the cause with directions to
vacate the protection order.
BACKGROUND
On September 28, 2022, Kudera filed a petition and affidavit
to obtain a harassment protection order against Belina for her
and her son, T.S.K., who was 15 years old. Kudera described
the “dates and facts of the most recent series of acts and the
most severe incident or incident(s) of harassment toward the
person(s) seeking protection” as follows:
Since [Belina] has been arrested there has been phone and
in person contact with [T.S.K.] where he has “promised”
him certain things. Due to the nature of this case and the
fact my son is a minor, and the ongoing criminal case
against [Belina], I do not want the in person and phone
contact to continue as it could affect [T.S.K.] and the
court case.
The district court granted an ex parte harassment protection
order in which T.S.K. was identified as the only protected per-
son. In the district court’s order, it provided Belina the oppor-
tunity to request a hearing to show cause why the order should
not remain in effect for a period of 1 year. Belina requested a
show cause hearing.
At the show cause hearing, Kudera testified that the alle-
gations in the affidavit were true. The petition and affidavit
were then admitted into evidence. Kudera testified that T.S.K.
worked for Belina at a feedlot for roughly 1 year and that
T.S.K. and Belina had regular phone and in-person contact
for roughly 1½ years. T.S.K. initially stopped working at
the feedlot in February 2022, but was allowed to work “on
and off” until June. Since that time, Kudera became aware
that T.S.K. and Belina maintained contact. Kudera believed
that after T.S.K. stopped working for Belina, Belina tried to
- 135 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
KUDERA V. BELINA
Cite as 32 Neb. App. 133coerce T.S.K. to return to work for him. However, Kudera
conceded that since Belina was arrested, T.S.K. and Belina
had both initiated conversations with the other.
Kudera explained her reasoning for seeking the harassment
protection order. She testified that she believed T.S.K. had
worked in unsafe conditions without proper supervision when
he was working for Belina. When T.S.K. worked for Belina,
T.S.K. had issues with his grades and conduct at school, and
there were two incidents when T.S.K. consumed alcohol while
at the feedlot. Additionally, T.S.K. was a potential witness
in a criminal case in which Belina was the defendant, which
Kudera believed could negatively impact T.S.K. at school and
with other children. She concluded by stating that the “open
dialogue, being able — for those two being able to talk is put-
ting [T.S.K.] in an unfair situation for the age that he is.”
After Kudera’s testimony, she rested. Belina moved to dis-
miss the harassment protection order. He argued that Kudera
had not established a course of conduct that would seriously
terrify, threaten, or intimidate a person, which is required
for a harassment protection order. He disputed whether any
of Kudera’s testimony was relevant because Belina was not
conversing with her and her testimony only addressed the
fact that T.S.K. and Belina were communicating, which does
not amount to harassment alone. The district court overruled
Belina’s motion to dismiss the harassment protection order
for T.S.K.
Kudera was then recalled by Belina’s counsel. Belina’s
counsel showed Kudera some screenshots of text message
exchanges between T.S.K. and Belina but they were not offered
into evidence. Kudera stated that the text messages between
Belina and T.S.K. were “intimidating more than anything.”
However, after Kudera was asked which text messages were
intimidating, she discussed only her distaste that Belina, who
was 25 years old, was befriending her son, who was 15
years old, instead of maintaining a healthy employee-employer
- 136 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
KUDERA V. BELINA
Cite as 32 Neb. App. 133relationship. She did not convey the content of any message
she found intimidating.
Kudera cited an example of when T.S.K. was not allowed
to work one night because his grades faltered, so T.S.K. texted
Belina that he was upset with his mother for not allowing him
to go to work. Kudera found Belina’s response of “‘Just hold
your head high’” as being too friendly when he should have
responded by saying “‘Yes, you need to follow the rules.’”
She conceded that Belina never told T.S.K. not to follow his
mother’s rules or that she was incorrect; rather, he just said
“encouraging things.”
Kudera emphasized that Belina had created an inappropri-
ate environment where T.S.K. felt Belina was more of a friend
than an employer. Furthermore, she testified that Belina often
reached out to T.S.K. between 8 and 10 p.m. and after Belina
had been drinking alcohol. Belina subsequently rested.
The court noted that the criminal information filed against
Belina listed T.S.K. as a potential witness and that it appeared
Belina was facing serious charges. It stated it was unable to
locate Belina’s bond conditions that may include a no contact
order with the witnesses but surmised “that can be taken up in
the District Court, if necessary.” The court then continued the
protection order, finding that Belina was “absolutely adamant”
that he wanted to have contact with T.S.K. “in spite of what his
mother believes.” It further explained that although Belina may
not be intending to terrorize T.S.K., it thought Belina “know[s]
that it has bothered him, it’s causing him problems and so I’m
going to continue the Protection Order.” Belina appeals.
ASSIGNMENTS OF ERROR
Belina assigns two errors: The district court erred by (1)
continuing the harassment protection order because the evi-
dence presented was insufficient and (2) continuing the previ-
ously issued ex parte harassment protection order after finding
that one of the material elements was not met and basing the
continuation on a lower standard than permitted by law.
- 137 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
KUDERA V. BELINA
Cite as 32 Neb. App. 133STANDARD OF REVIEW
[1] The grant or denial of a protection order is reviewed de
novo on the record. Diedra T. v. Justina R., 313 Neb. 417, 984
N.W.2d 312 (2023). In such de novo review, an appellate court
reaches conclusions independent of the factual findings of the
trial court. Id.ANALYSIS
[2,3] A show cause hearing in protection order proceedings
is a contested factual hearing, in which the issues before the
court are whether the facts stated in the sworn application
are true. Hawkins v. Delgado, 308 Neb. 301, 953 N.W.2d 765(2021). A protection order is analogous to an injunction. Id.A party seeking an injunction must establish by a preponder-
ance of the evidence every controverted fact necessary to
entitle the claimant to relief. Id. But the ex parte order does
not relieve the petitioner of its burden at the show cause hear-
ing. See Prentice v. Steede, 28 Neb. App. 423, 944 N.W.2d
323 (2020).
Under Neb. Rev. Stat. § 28-311.09(2) (Cum. Supp. 2022),
a petition for a harassment protection order shall state the
events and dates or approximate dates of acts constituting the
alleged harassment, including the most recent and severe inci-
dent. Neb. Rev. Stat. § 28-311.02(2)(a) (Reissue 2016) defines
“[h]arass” as engaging in “knowing and willful course of
conduct directed at a specific person which seriously terrifies,
threatens, or intimidates the person and which serves no legiti-
mate purpose.” Section 28-311.02(2)(b) defines “[c]ourse of
conduct” as a “pattern of conduct composed of a series of acts
over a period of time, however short, evidencing a continuity
of purpose, including a series of acts of following, detain-
ing, restraining the personal liberty of, or stalking the person
or telephoning, contacting, or otherwise communicating with
the person.”
[4] In analyzing § 28-311.02, the Nebraska Supreme
Court has concluded that Nebraska’s stalking and harassment
- 138 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
KUDERA V. BELINA
Cite as 32 Neb. App. 133statutes are given an objective construction and that the
victim’s experience resulting from the perpetrator’s conduct
should be assessed on an objective basis. See In re Interest
of Jeffrey K., 273 Neb. 239, 728 N.W.2d 606 (2007). Thus,
the inquiry is whether a reasonable person would be seriously
terrified, threatened, or intimidated by the perpetrator’s con-
duct. See id.In Prentice v. Steede, supra, this court reversed a district
court’s order extending a harassment protection order because
the evidence at the show cause hearing was insufficient to sup-
port the harassment protection order. At the show cause hear-
ing, the affidavit and petition were not admitted into evidence,
so our review was limited to the testimony of the parties. The
petitioners testified they received text messages that threatened
to burn down their church and that indicated they were from
the respondent. The district court relied upon the content of
the text messages that it had “‘reviewed,’” but those messages
were not offered into evidence for review by this court. Id. at
436, 944 N.W.2d at 332. We held that the testimony about the
text messages was not enough to support a harassment protec-
tion order.
While we understand Kudera’s reasoning for requesting
the harassment protection order, there is nothing in the record
that shows Belina’s conduct would seriously terrify, threaten,
or intimidate a reasonable person. No text messages were
offered into evidence, and Kudera’s testimony is insufficient
to support a finding that Belina engaged in conduct that would
terrify, threaten, or intimidate a reasonable person. Kudera
testified that working for Belina had negatively impacted
T.S.K.’s grades and that T.S.K. engaged in drinking alcohol at
Belina’s feedlot. She also discussed some concerning conduct,
like Belina’s texting T.S.K. at night and after Belina had been
drinking alcohol, but this conduct does not amount to harass-
ment without more context. When asked at the show cause
hearing what sorts of intimidating comments Belina made
toward T.S.K., Kudera discussed only T.S.K.’s disobedient
- 139 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
KUDERA V. BELINA
Cite as 32 Neb. App. 133conduct and that she did not believe Belina respected the rules
she put in place for T.S.K.
Although Kudera’s testimony centered on the frequency of
text messages sent between T.S.K. and Belina, no text mes-
sages were admitted into evidence. The only text messages
discussed at the hearing were when T.S.K. asked Belina about
a tractor Belina promised him and when T.S.K. told Belina
that he was upset because his mother would not let him
work at the feedlot. Belina responded, “‘Just hold your head
high.’” Kudera testified that most of the text messages sent
between T.S.K. and Belina had been deleted, so there were
many conversations that she did not know about. And the
messages that Belina showed Kudera at the hearing were not
offered into evidence, and their content is not discernible from
the record.
This case is analogous to Prentice v. Steede, 28 Neb. App.
423, 944 N.W.2d 323 (2020), as both cases relied only upon
testimony that discussed text messages broadly between the
two parties but failed to establish that the text messages
amounted to harassment. In Prentice, there was discussion
about text messages threatening to burn down a church, but
the testimony alone could not meet the petitioners’ burden.
Here, there were no text messages in the record, so we are
left to examine the testimony, which fails to set forth either
the content or the gist of those messages. There is nothing
in Kudera’s testimony that reveals conduct on the part of
Belina that was terrifying, threatening, or intimidating to a
reasonable person, unlike the content of the text messages
in Prentice v. Steede, supra, which the parties described to
include violence. Furthermore, Kudera never testified why
Belina’s text messages were intimidating to T.S.K., and con-
sidering that T.S.K. initiated some of those conversations, we
question whether he found Belina’s messages to be intimidat-
ing. Although there was no affidavit and petition admitted into
evidence in Prentice, the affidavit and petition in this case
- 140 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
KUDERA V. BELINA
Cite as 32 Neb. App. 133does not provide any conduct that would be considered terrify-
ing, threatening, or intimidating to a reasonable person.
The court continued the protection order, finding that Belina
was “absolutely adamant” that he wanted to have contact with
T.S.K. “in spite of what his mother believes.” It determined
that although Belina may not have intended to terrorize T.S.K.,
it thought Belina “know[s] that it has bothered him, it’s caus-
ing him problems.” But being “bothered” and experiencing
“problems” does not equate to a finding that Belina engaged
in behavior that was terrifying, threatening, or intimidating.
Therefore, we find there was insufficient evidence to support
an order continuing the harassment protection order.
To be clear, text messages can amount to harassment in cer-
tain cases, just not in this case with the evidence provided. The
Supreme Court held in Hawkins v. Delgado, 308 Neb. 301, 953
N.W.2d 765 (2021), that text and email messages amounted to
harassment because the respondent’s messages could be read
as threatening physical harm. The respondent had sent the
petitioner texts like “Time has come. Karma,” and also, she
will be “free from [her]self.” Id. at 307, 953 N.W.2d at 769
(internal quotation marks omitted). Messages that preceded
these contributed to the interpretation because the respondent
had threated suicide on multiple occasions and had called and
emailed the petitioner over the course of a month, despite
the petitioner’s blocking the respondent’s phone number and
seeking a no-contact order. Unlike Hawkins, there was no tes-
timony in the instant case to provide context to the text mes-
sages that would lead to an interpretation that the messages
would be terrifying, threatening, or intimidating to a reason-
able person. Since the text messages discussed in the testimony
do not show conduct that would amount to harassment, there
was not sufficient evidence to continue the harassment protec-
tion order.
Belina also assigns that the district court erred in continu-
ing the harassment protection order after finding that his
conduct was not knowing and intentional, a material element
- 141 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
KUDERA V. BELINA
Cite as 32 Neb. App. 133of a harassment protection order. Having found that the evi-
dence was insufficient to continue the protection order, we
need not analyze this assigned error. See Nesbitt v. Frakes, 300
Neb. 1, 911 N.W.2d 598 (2018) (appellate court is not obli-
gated to engage in analysis that is not necessary to adjudicate
case and controversy before it).
CONCLUSION
Having conducted a de novo review of the evidence pre-
sented at the show cause hearing, we find that there was
insufficient evidence to support an order continuing the harass-
ment protection order. We therefore reverse the judgment and
remand the cause with directions to vacate the order.
Reversed and remanded with directions.