Luberski v. Luberski ( 2023 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
LUBERSKI V. LUBERSKI
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).
JEFFREY LUBERSKI ET AL., APPELLEES,
V.
PATRICIA LUBERSKI, APPELLANT.
Filed August 22, 2023. No. A-22-838.
Appeal from the District Court for Platte County: DENISE J. KRACL, Judge. Judgment
vacated, and cause remanded with direction.
William M. Kurtenbach, of Law Office of William M. Kurtenbach, for appellant.
No brief for appellees.
BISHOP, ARTERBURN, and WELCH, Judges.
ARTERBURN, Judge.
INTRODUCTION
Jeffrey Luberski, on behalf of himself and his three minor children, filed a petition for a
domestic abuse protection order against Patricia Luberski, his ex-wife and the mother of his
children. The district court entered an order to show cause, setting a hearing date. After the hearing,
the district court entered a domestic abuse protection order against Patricia and in favor of Jeffrey
and the three children. Patricia appeals from the district court’s order. On appeal, she asserts that
the district court erred in finding sufficient evidence to warrant granting the protection order. For
the reasons set forth herein, we vacate the court’s order granting the protection order and remand
for further proceedings.
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BACKGROUND
On September 20, 2022, Jeffrey filed a petition in the district court requesting a domestic
abuse protection order against Patricia for himself and his three minor children. Attached to
Jeffrey’s petition was an affidavit containing allegations to support his request. The preprinted
form asks the affiant to list the most recent and the most severe incidents of domestic abuse. In
Jeffrey’s affidavit he describes various incidents which occurred from March through September.
In his affidavit Jeffrey first alleges that in July 2022, Patricia was charged with two counts
of “felony child abuse” after their 13-year-old daughter reported to a camp counselor that Patricia
had abused her. Jeffrey does not allege the specific facts giving rise to the child abuse charges,
only explaining that the charges are for incidents which occurred between January and July and
which involved all three of the children. In addition, he states that “[t]here have been other abuse
reports filed for incidents that occurred in Omaha. Over the past several years there has been
continuous physical and verbal abuse on our children. I have multiple complaints filed with CPS
in Alaska, Colorado and in Nebraska for child abuse, alcoholism, and harassment.”
The next incident described in Jeffrey’s affidavit occurred in March 2022. Jeffrey alleges
that at that time, the children were with Patricia and a third person at an undisclosed location. The
third party telephoned Jeffrey to alert him that Patricia was “heavily intoxicated” and attempting
to drive away with the children in the car. When this person tried to stop Patricia from leaving with
the children, Patricia repeatedly crashed her vehicle into his vehicle. Jeffrey indicates that Patricia
was criminally charged with criminal mischief as a result of this incident.
Jeffrey alleges that in late July 2022, the parties’ 13-year-old daughter received three
telephone calls from someone claiming to be employed by Child Protective Services (CPS). This
person questioned their daughter about whether she loved Patricia and whether she knew that
Patricia may go to jail for a long time. These calls made their daughter “uncomfortable.” Jeffrey
alleges that he later learned the caller was not employed by CPS, but he does not allege that the
caller was Patricia or that she was involved with the calls.
Jeffrey alleges three incidents occurred in August 2022. First, Jeffrey indicates that despite
being ordered to have no contact with the children as a result of the pending child abuse charges,
Patricia has continued to go to their school, to contact them through social media and through third
parties, and to appear near his residence. Jeffrey asserts that such conduct is “deeply upsetting to
me and my children.” Relatedly, Jeffrey alleges in his affidavit that on August 30, he and the
children observed Patricia at a gas station near his home which they regularly frequent. He alleges
that the children were surprised to see Patricia there. He also alleges, “I think she is stalking us
because she doesn’t even live in Omaha,” where he resides.
On August 17, 2022, Jeffrey was informed by a friend that the friend had called the local
sheriff’s office to conduct a welfare check on Patricia, who had make suicidal statements. When
law enforcement arrived at Patricia’s home, she initially refused to come out, but subsequently
came out of the house wearing only a bathrobe and refused a breathalyzer test.
In his affidavit, Jeffrey alleges that on September 14, 2022, an employee at their 9-year-old
son’s elementary school pulled him into a closet and told him to say, “I love you, mom” while she
filmed him. Jeffrey explains that this employee is a friend of Patricia’s, but does not otherwise
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explain how Patricia was involved with this incident. Jeffrey also alleges that three days after this
incident, on September 17, Patricia texted him and accused him of “kidnapping” their children.
At the end of his affidavit, Jeffrey generally alleges, without providing any specific dates
or facts, that Patricia has a history of substance abuse and a pattern of abusive and harassing
behavior. He asks the court to award he and the children a protection order “for our safety, peace
of mind, and to keep the harassment from continuing.”
Based on Jeffrey’s petition and affidavit, the district court entered an order to show cause,
but did not enter an ex parte protection order. The order to show cause set a hearing date and
indicated that Patricia “may appear and show why a domestic abuse protection order should not
be issued . . . as requested by [Jeffrey].” It also directs Jeffrey as follows: “You must appear at the
place, date and time shown to show cause why a Protection Order should be entered. Failure to
appear may result in the Protection Order not being issued.”
On October 6, 2022, the show cause hearing was held. Jeffrey appeared pro se at the
hearing and Patricia appeared with counsel. At the start of the hearing, the district court received
into evidence a copy of Jeffrey’s petition and affidavit requesting a domestic abuse protection
order. The court then asked Patricia if she had any evidence to show why the domestic abuse
protection order should not be issued in this case. Patricia indicated her intent to call Jeffrey to
testify. Prior to Jeffrey’s testimony, the district court granted Patricia’s motion to sequester
potential witnesses and asked two of the parties’ children who were present in the courtroom to
wait outside. The court noted that “[p]art of the allegations involve or have to do with the kids and
so they potentially could be witnesses.”
During Jeffrey’s testimony, Patricia’s counsel asked him about each allegation of abuse
contained in his affidavit, except the allegation relating to Patricia’s pending child abuse charges.
When asked about the incident that occurred in March 2022, when Jeffrey was informed that
Patricia attempted to drive with the children while she was intoxicated, Jeffrey testified that he did
not personally witness this incident and was only informed about it through others, including his
children. Because Jeffrey did not have personal knowledge of the incident, the court explained to
him that someone with personal knowledge, like the children, would have to testify about the
things that they actually saw and heard.
As to the July 2022 incident when the parties’ daughter received multiple telephone calls
from someone claiming to be employed by CPS, Jeffrey testified that while he believed the calls
were made by Patricia or at her behest, he had no actual proof of her involvement. The person on
the telephone never identified themselves as Patricia and the calls came from a blocked phone
number. Jeffrey did testify that Patricia has engaged in similar behavior prior to these telephone
calls. Ultimately, Jeffrey indicated that despite whether Patricia was involved in the telephone
calls, there were no threats made during the calls and no one suffered physical harm as a result of
the calls.
Jeffrey testified that Patricia’s appearance at the gas station near his home on August 30,
2022, was unexpected because Patricia does not live anywhere near that gas station. However, he
also testified that the gas station is open to the public and that Patricia did not make any threats or
cause any physical harm while present at the gas station.
When asked about the incident that occurred at the parties’ youngest son’s elementary
school in September 2022, Jeffrey testified that he could not definitively say that Patricia was
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involved with the employee’s actions when she pulled their son into a closet and recorded him, but
he strongly believes Patricia had a role in the incident. Jeffrey further testified that while their son
felt really bad after the incident, he was not threatened in any way and the only physical harm
came from the school employee grabbing his arm.
As to the text message that Jeffrey alleged Patricia sent to him on September 17, 2022,
accusing him of kidnapping the children, Jeffrey testified that Patricia used an “anonymous” phone
number when sending the text message. He also indicated that the message did not contain a threat
of physical harm.
At the end of his testimony, Jeffrey testified that, ultimately, he was hoping to be awarded
full custody of the parties’ three children on a permanent basis. In addition, he was hoping that in
the next few years, he and the children could move away from Nebraska.
After Patricia’s counsel finished questioning Jeffrey, Patricia rested her case. The district
court then asked Jeffrey if there was any other evidence that he intended to offer “[b]ased solely
on the information that you have written in the protection order. . . .” Jeffrey responded, “Yes.
Well, could I call on Patricia Luberski?” After a five minute recess, the court denied Jeffrey’s
request to call Patricia as a witness:
I took a moment to just go back and do some legal research. I believe that all the
evidence that the Court needs in order to make a proper decision in this case has been
submitted, so [Jeffrey], we’re not gonna allow you to call [Patricia] to the stand.
Um, so this – the entry of evidence is concluded. No, we’re not even talking about
it. Entry of evidence is concluded. I’m gonna give you each about a two minute summation
and that’s it.
During Jeffrey’s summation, he told the court,
Um, I would very much like the opportunity to have people victimized by [Patricia]
be able to make statements. These are – my children have been routinely brutalized,
traumatized by her for years. I would very much appreciate if they could be heard for what
they have to say.
....
We went over today and the only thing that was established by the defense is that
on a couple of different days, [Patricia] didn’t hurt [the children]. Well, there was plenty
of other days that she did. And she wants to do that from now going forward. The closer
she gets to them, the more in danger they are. And they will tell you that and they want to
tell you that. That’s why they’re here.
After the hearing, on October 11, 2022, the district court entered an order granting Jeffrey’s
request for a domestic abuse protection order against Patricia and on behalf of Jeffrey and the
children. The order enjoined and prohibited Patricia from threatening, attacking, or otherwise
disturbing the peace of Jeffrey and the children; from telephoning or otherwise communicating
with Jeffrey and the children; and from visiting Jeffrey’s home or the children’s schools. In
addition, Jeffrey was awarded temporary custody of the children until at least November 11, 2022.
Patricia appeals from the district court’s order granting the domestic abuse protection order
against her.
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ASSIGNMENT OF ERROR
On appeal, Patricia asserts that the district court erred in determining that Jeffrey produced
sufficient evidence to grant the protection order against her.
STANDARD OF REVIEW
A domestic abuse protection order is analogous to an injunction. See Robert M. on behalf
of Bella O. v. Danielle O., 303 Neb. 268, 928 N.W.2d 407 (2019). Thus, 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. Maria A. on behalf of Leslie G. v. Oscar G., 301 Neb.
673, 919 N.W.2d 841 (2018).
ANALYSIS
Before proceeding to Patricia’s arguments, we briefly review the law governing domestic
abuse protection orders. Under the Protection from Domestic Abuse Act (the Act), Neb. Rev. Stat.
§ 42-901 et seq. (Reissue 2016 & Cum. Supp. 2022), “[a]ny 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. See Maria A. on behalf of
Leslie G. v. Oscar G., supra. See, also, Linda N. v. William N., 289 Neb. 607, 856 N.W.2d 436(2014).
For purposes of the Act, “[a]buse” is defined by § 42-903(1) as 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 former spouses, children, and persons who have a child in
common. § 42-903(3).
On appeal, Patricia alleges that the petition and affidavit filed by Jeffrey fails to establish
any abuse as defined by § 42-903:
None of the specific dates listed in the [p]etition provide grounds for the [district] court to
consider the conduct of [Patricia] as abuse. The [p]etition fails to state that on any of the
occasions that [Patricia] attempted to cause or intentionally and knowingly caused bodily
injury, placed, by means of credible threat, another person in fear of bodily injury, or
engaged in sexual contact or sexual penetration without consent.
Brief for appellant at 12. Upon our review, we find that Patricia’s assertion has merit.
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Even if we were to assume that each of the allegations in Jeffrey’s petition and affidavit
were true, such allegations simply do not rise to the level of “abuse,” as that term is contemplated
in § 42-903. Jeffrey does not allege that Patricia caused any physical harm to him or the children
or that she engaged in any inappropriate behavior which could be construed as a credible threat of
bodily injury. In fact, during Jeffrey’s testimony at the show cause hearing, he explicitly indicated
that the incidents described in his petition and affidavit did not involve Patricia making credible
threats of bodily injury or her causing bodily injury. The assertions in the petition and affidavit
appear more akin to incidents of harassment, rather than incidents of domestic abuse.
We note that in the petition and affidavit, Jeffrey does allege that Patricia was recently
criminally charged with two counts of felony child abuse as a result of certain behaviors involving
the parties’ three children. Such an allegation could demonstrate “abuse” pursuant to § 42-903, but
because Jeffrey does not allege the specific facts and circumstances underlying these charges, we
cannot discern whether such acts would be sufficient to warrant the entry of a domestic abuse
protection order. Specifically, we are unable to discern whether Patricia’s criminal charges for
child abuse were the result of Patricia’s negligent or intentional bad acts. See Neb. Rev. Stat.
§ 28-707 (Cum. Supp. 2022). We are also unable to discern if Patricia’s behavior which gave rise
to the criminal charges resulted in any of the children suffering bodily injury. See id.Because Jeffrey failed to sufficiently demonstrate any evidence of domestic abuse pursuant
to § 42-903, we cannot affirm the decision of the district court to enter the protection order against
Patricia. However, our inquiry does not end there. At the show cause hearing, the district court
declined to allow Jeffrey to present any evidence beyond the petition and affidavit to support his
request for the domestic abuse protection order. The district court made this ruling despite
previously informing Jeffrey in the order to show cause that he needed to appear at the hearing
prepared to “show cause why a Protection Order should be entered;” despite the court’s asking
Jeffrey if he had any other evidence to present; and despite Jeffrey’s clear indication to the court
that, at a minimum, he wished to call three witnesses to the stand, Patricia and the two children
that were present at the hearing.
Jeffrey has not filed a brief in this appeal and, as a result, he does not contest the district
court’s decision to deny him the opportunity to present further evidence in favor of issuing the
protection order. Nevertheless, we find the district court’s denial of Jeffrey’s request to present
further evidence to be plain error. The decision to proceed on plain error is at the discretion of the
appellate court. Steffy v. Steffy, 287 Neb. 529, 843 N.W.2d 655 (2014). 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. Id.Here, the district court did not issue an ex parte domestic abuse protection order based on
Jeffrey’s initial request. Rather, the district court held a show cause hearing so that both Jeffrey
and Patricia could offer evidence regarding whether the entry of a domestic abuse protection order
against Patricia was warranted. 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. See Hawkins v. Delgado, 308 Neb. 301, 953 N.W.2d 765 (2021). At
the show cause hearing, the court received into evidence the petition and affidavit authored by
Jeffrey and allowed Patricia to present evidence in opposition to the entry of the protection order.
However, the court then denied Jeffrey an opportunity to present further evidence to support his
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request for the protection order. This decision by the district court is particularly confounding
given the court’s implicit finding that an ex parte protection order was not warranted on the basis
of the petition and affidavit alone and given Jeffrey’s explicit request to call Patricia to the stand
and his indication to the court that his children were present, ready, and willing to testify about
their experiences with Patricia. Jeffrey had agreed to abide by the court’s instructions to limit his
presentation of evidence to the allegations raised in the petition and affidavit. Nonetheless, he was
denied any ability to present further evidence regarding these allegations.
As we noted above, in Jeffrey’s petition and affidavit, he alleged that Patricia had recently
been criminally charged with two counts of felony child abuse. Because Jeffrey was not permitted
to offer any evidence at the show cause hearing beyond the petition and affidavit, he was unable
to provide any additional facts regarding these charges. Such additional facts could have
demonstrated that Patricia had threatened the children with bodily injury or that she had inflicted
bodily injury on the children in some manner. Such evidence would clearly be relevant to whether
the domestic abuse protection order against Patricia should have been issued. Accordingly, we find
that the district court committed plain error in denying Jeffrey the opportunity to present evidence
at the show cause hearing.
CONCLUSION
Based on our de novo review of the evidence presented both in the petition and affidavit
and at the show cause hearing, we find that the district court erred in granting Jeffrey the domestic
abuse protection order against Patricia. We, thus, vacate that order. However, we also find plain
error in the district court’s decision to deny Jeffrey the opportunity to present evidence beyond his
petition and affidavit at the show cause hearing. As such, we remand the cause back to the district
court for further proceedings where Jeffrey can present evidence in favor of his request for a
domestic abuse protection order. Based upon this evidence, the district court should consider
whether a protection order is warranted.
JUDGMENT VACATED, AND CAUSE REMANDED
WITH DIRECTION.
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