Rosberg v. Rosberg , 916 N.W.2d 62 ( 2018 )

Nebraska Supreme Court Online Library
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05/01/2018 08:09 AM CDT
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ROSBERG v. ROSBERG
Cite as 25 Neb. Ct. App. 856
Paul A. Rosberg, appellant, v.
K elly R. Rosberg, appellee.
___ N.W.2d ___
Filed May 1, 2018. No. A-17-341.
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. Records: Pleadings: Appeal and Error. In the absence of a bill of
exceptions, an appellate court examines and considers only the plead-
ings in conjunction with the judgment reviewed. When a transcript,
containing the pleadings and order in question, is sufficient to present
the issue for appellate disposition, a bill of exceptions is unneces-
sary to preserve an alleged error of law regarding the proceedings
under review.
3. Records: Pleadings: Presumptions: Appeal and Error. Where there
is no bill of exceptions, an appellate court is limited on review to an
examination of the pleadings. If they are sufficient to support the judg-
ment, it will be presumed on appeal that the evidence supports the trial
court’s orders and judgment.
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.
5. Criminal Law: Judgments. Under Nebraska’s stalking and harassment
statutes, the inquiry is whether a reasonable victim would be seriously
terrified, threatened, or intimidated by the perpetrator’s conduct.
6. Judgments. When a trial court determines an ex parte temporary harass-
ment protection order is not warranted, an evidentiary hearing is not
mandated under the harassment protection order statute.
7. Judgments: Pleadings: Affidavits. In harassment protection order pro-
ceedings, a trial court has the discretion to direct a respondent to show
cause why an order should not be entered or, alternatively, the court
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ROSBERG v. ROSBERG
Cite as 25 Neb. Ct. App. 856
can dismiss the petition if insufficient grounds have been stated in the
petition and affidavit.
Appeal from the District Court for Knox County: James G.
Kube, Judge. Affirmed.
Paul A. Rosberg, pro se.
No appearance for appellee.
R iedmann and Bishop, Judges, and Inbody, Judge, Retired.
Bishop, Judge.
Paul A. Rosberg (Rosberg) sought a harassment protection
order against his wife, Kelly R. Rosberg (Kelly), in the dis-
trict court for Knox County. Rosberg appeals, pro se, from the
district court’s order dismissing his petition; he claims that the
district court erred by not affording him an opportunity to be
heard and that a harassment protection order should have been
entered. We affirm.
BACKGROUND
On November 4, 2016, Rosberg filed a “Petition and
Affidavit to Obtain Harassment Protection Order” against
Kelly pursuant to Neb. Rev. Stat. § 28-311.09 (Reissue 2016).
He sought a protection order for himself and his five chil-
dren. His allegations of harassment are summarized as fol-
lows: From August 2012 to November 4, 2016, Kelly “lied
to [Rosberg’s] probation officer 3 times and [Rosberg] had
to go to jail for 16 days and pay an attorney $10,000 and all
the fict[it]ious charges they had were drop[p]ed by the fed-
eral Judge”; Kelly allows the children to be around a “life
time” registered sex offender; Kelly leaves the children for
extended periods of time and lets the children “do most any-
thing,” and the children are engaging in problematic behavior;
Kelly committed perjury by making up a lie that Rosberg
earned $250,000 per year, which lie resulted in a sentence of
jail time for Rosberg; Kelly lied to a Platte County judge so
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Rosberg “could not see [the] children for one year”; Kelly
“harassed all of us by preventing us from having visitation
since July 12, 2015”; Kelly makes the children believe her
lies by “continually disparaging” Rosberg; Kelly refused to
allow the children to attend family weddings; Rosberg is “sure
[Kelly] is mentally sick”; Rosberg believes it is unsafe for the
children to be around Kelly or her boyfriend, a sex offender,
and believes she should only have supervised visitation; and
Rosberg is “afraid [Kelly] may have someone or herself plant
guns on [him] like she did before when she tried to get [him]
railroaded into federal prison for 11 years.”
On November 14, 2016, the district court entered an “Order
Dismissing Petition Without Hearing,” which stated, in rel-
evant part:
Upon consideration of the petition and affidavit, the
Court finds that the requested relief should be denied and
the petition should be dismissed (specific findings, if any,
set forth below).
Insufficient allegations to support the entry of a protec-
tion order. Also, this [is] a matter which if addressed at
all, should be addressed in the pending domestic litigation
between the parties.
IT IS THEREFORE ORDERED that the petition for
issuance of a protection order is denied and petition is
dismissed without prejudice.
On November 17, 2016, Rosberg filed a “Motion request-
ing Hearing.” He requested a hearing to “prove his allega­
tions that [Kelly] ser[i]ously th[r]eatens, endangers, and
intim[i]dates [Rosberg and the children].” He added that the
children are in danger when Kelly allows them to be around
a “registered lifetime sex offender” and that Kelly should not
be on his premises “where she or her coh[o]rts can plant guns
in fu[r]ther attemp[t]s to railroad [him] into jail like she had
done in the past.”
On December 13, 2016, Rosberg filed a “precape” for sub-
poenas to compel two of his children to appear and testify in
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ROSBERG v. ROSBERG
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district court on December 20. Also on December 13, Rosberg
filed a “Notice of Threat and additional facts.” On December
23, Rosberg filed a “Motion to Reconsider.”
According to a “Journal Entry” filed January 3, 2017, both
parties had appeared before the court without counsel on
December 20, 2016. The journal entry addressed Rosberg’s
“motion for hearing,” noting arguments were made by the
parties. The court denied Rosberg’s motion. The court also
addressed Kelly’s “motion to dismiss” and stated that “there
are insufficient facts regarding the basis for the motion to dis-
miss and the Court deemed the motion to dismiss moot.”
A “Journal Entry” filed January 31, 2017, indicates the case
was before the court that day for hearing; Rosberg was present
without counsel, and Kelly was not present (she filed a waiver
of appearance that same day). The journal entry notes that
Rosberg offered “Exhibit 1, Motion to Reconsider, specifically
pages 35 through 173, which has been received by the Court.”
Rosberg provided argument, and the court took the matter
under advisement.
On February 22, 2017, Rosberg filed a “Notice of Additional
Information Unavailable at Time of Hearing.” Rosberg alleged
that an order was made in his divorce case denying his
request for a protection order. Rosberg claimed that since
the judge handling his divorce would not issue a protec-
tion order, then “it is most certainly up to [the judge in this
case] to hear all the evidence and make a decision regarding
[Rosberg’s] request for an exparte protection order against
Kelly.” (Emphasis omitted.)
The district court entered an order on February 28, 2017,
which stated:
This matter came on to be heard on January 31, 2017,
upon [Rosberg’s] “Motion Requesting Hearing” which
the Court interprets as a motion to reconsider its Order of
November 14, 2016, denying the plaintiffs their request
for a protection order and dismissing the same with-
out prejudice. [Rosberg] appeared personally. No other
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plaintiffs appeared nor were they represented by coun-
sel. [Kelly] did not appear, nor was she represented
by counsel.
Upon consideration of the arguments presented as well
as the information contained in Exhibit 1 the Court denies
said request to reconsider. The Court will stand on its
Order of November 14, 2016, dismissing this matter with-
out hearing.
Rosberg appeals from this order.
ASSIGNMENTS OF ERROR
Rosberg’s brief does not properly contain an assignments of
error section; however, the brief lists six questions under the
heading “Issues to be Addressed.” He asks, restated: (1) Did
the district court err by not having a hearing on the requested
protection order?; (2) Did the district court err by finding there
were insufficient allegations to support entry of a protection
order?; (3) Does the Nebraska constitution apply to him?; (4)
Did the district court evade its responsibilities by not allowing
Rosberg to present evidence?; (5) Did the district court “vio-
late 33 C.J. 1135, sec. 84 when [it] made judgment without
any kind of trial?”; and (6) Did the district court “use proper
discretion after being made aware that [Rosberg] was not a
member of the Bar Club Association and understanding case
law Haines vs. Kerner 1972, 404 U.S. 519?”
The “Argument” section of Rosberg’s brief consists of four
paragraphs which address only the first two “questions” noted
above. Accordingly, our review will be limited to address-
ing those two questions as alleged errors. To be considered
by an appellate court, an alleged error must be both specifi-
cally assigned and specifically argued in the brief of the party
asserting the error. Fetherkile v. Fetherkile, 299 Neb. 76, 907
N.W.2d 275 (2018).
STANDARD OF REVIEW
[1] A protection order is analogous to an injunction.
Accordingly, the grant or denial of a protection order is
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reviewed de novo on the record. Mahmood v. Mahmud, 279
Neb. 390, 778 N.W.2d 426 (2010).
ANALYSIS
As set forth above, we address only the two errors alleged
and argued by Rosberg, which are (1) whether the district
court erred in not providing a hearing on his protection order
request and (2) whether there was sufficient evidence to sup-
port entry of a protection order. Rosberg argues, “Basically,
[the court] closed the door, preventing [Rosberg] from hav-
ing the issues addressed in court.” Brief for appellant at 7.
He claims the court made a decision without allowing him to
present the facts. At the same time, he also claims “the evi-
dence presented in the petition and the exhibits presented in
the courtroom were sufficient allegations to call for a protec-
tion order hearing and most likely an immediate exparte [sic]
protection order.” Id.
[2,3] We first note that no bill of exceptions has been filed
in this appeal. In the absence of a bill of exceptions, we exam-
ine and consider only the pleadings in conjunction with the
judgment reviewed. See Murphy v. Murphy, 237 Neb. 406, 466
N.W.2d 87 (1991). When a transcript, containing the plead-
ings and order in question, is sufficient to present the issue
for appellate disposition, a bill of exceptions is unnecessary
to preserve an alleged error of law regarding the proceedings
under review. Id. Where there is no bill of exceptions, an
appellate court is limited on review to an examination of the
pleadings. Id. If they are sufficient to support the judgment,
it will be presumed on appeal that the evidence supports the
trial court’s orders and judgment. Id. We conclude the tran-
script is sufficient for this court’s disposition of Rosberg’s
alleged errors.
Harassment Protection Orders.
We begin our analysis with a review of the statutes appli-
cable to harassment protection orders. Section 28-311.09 pro-
vides in relevant part:
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(1) Any victim who has been harassed as defined
by section 28-311.02 may file a petition and affidavit
for a harassment protection order . . . . Upon the filing
of such a petition and affidavit in support thereof, the
court may issue a harassment protection order without
bond enjoining the respondent from (a) imposing any
restraint upon the person or liberty of the petitioner, (b)
harassing, threatening, assaulting, molesting, attacking,
or otherwise disturbing the peace of the petitioner, or (c)
telephoning, contacting, or otherwise communicating with
the petitioner.
(Emphasis supplied.)
The purpose of § 28-311.09, and the definition of certain
terms, are contained in Neb. Rev. Stat. § 28-311.02 (Reissue
2016), which provides in relevant part:
(1) It is the intent of the Legislature to enact laws
dealing with stalking offenses which will protect vic-
tims from being willfully harassed, intentionally terrified,
threatened, or intimidated by individuals who intention-
ally follow, detain, stalk, or harass them or impose any
restraint on their personal liberty and which will not pro-
hibit constitutionally protected activities.
(2) For purposes of sections 28-311.02 to 28-311.05,
28-311.09, and 28-311.10:
(a) 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;
(b) Course of conduct means a pattern of conduct
composed of a series of acts over a period of time, how-
ever short, evidencing a continuity of purpose, including
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.
[4,5] Application of the law governing harassment protec-
tion orders has been summarized as follows:
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“Nebraska’s stalking and harassment statutes are given
an objective construction and . . . the victim’s experi-
ence resulting from the perpetrator’s conduct should be
assessed on an objective basis. In re Interest of Jeffrey K.,
273 Neb. 239, 728 N.W.2d 606 (2007). Thus, the inquiry
is whether a reasonable [victim] would be seriously terri-
fied, threatened, or intimidated by the perpetrator’s con-
duct. Id.”
Richards v. McClure, 290 Neb. 124, 132, 858 N.W.2d 841,
847 (2015) (quoting Glantz v. Daniel, 21 Neb. Ct. App. 89, 837
N.W.2d 563 (2013)).
With this law in mind, we now address the errors claimed
by Rosberg.
Right to Hearing.
Rosberg claims he was denied an opportunity for a hearing
on his petition for a harassment protection order. However,
the record does not support that assertion. It is true that on
November 14, 2016, the district court entered an order dis-
missing Rosberg’s petition without a hearing. On November
17, Rosberg filed a “Motion requesting Hearing” to “prove his
allegations.” The January 31, 2017, journal entry informs us
that a hearing did take place on January 31. And the February
28 order explains that the January 31 hearing was “upon
[Rosberg’s] ‘Motion Requesting Hearing,’” which the court
interpreted as a motion to reconsider its November 14, 2016,
order denying Rosberg’s request for a protection order.
At the January 31, 2017, hearing, Rosberg was present with-
out counsel and Kelly was not present (she filed a waiver of
appearance). Importantly, the journal entry states that Rosberg
offered “Exhibit 1, Motion to Reconsider, specifically pages
35 through 173, which has been received by the Court.”
Rosberg also “provided argument” and the court “took the
matter under advisement.” Therefore, contrary to Rosberg’s
assertion, he did in fact have an opportunity to offer evidence
(exhibit 1) in support of his petition, and it was received by
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the court. Rosberg also had an opportunity to make an argu-
ment before the court.
The district court subsequently entered an order on February
28, 2017, which stated it considered the arguments presented
on January 31, as well as the information contained in exhibit
1, and chose to “stand on its Order of November 14, 2016, dis-
missing this matter without a hearing.” Although the November
14 order did in fact dismiss Rosberg’s petition “without a
hearing,” Rosberg has, since that time, succeeded in having a
hearing on January 31, 2017, at which time his exhibit 1 was
offered and received, and arguments were made. Accordingly,
we conclude this alleged error is without merit.
For the sake of completeness, to the extent Rosberg is argu-
ing that the mere filing of a petition and affidavit for a harass-
ment protection order requires a trial court to schedule a hear-
ing before dismissing the petition, we conclude otherwise.
There may be some confusion as to the mandatory nature of
a protection order hearing, because the statutory language
detailing procedures for domestic abuse protection orders
and harassment protection orders are not identical, and where
one statutory scheme requires a hearing before the dismissal
of a petition, the other does not. Specifically, when a party
seeks a protection order under the Protection from Domestic
Abuse Act, if the trial court reviewing a petition determines a
domestic abuse ex parte temporary protection order need not
be issued, the court “shall immediately schedule an eviden-
tiary hearing” on the petition to be held within 14 days, with
notice given to the petitioner and the respondent. See Neb.
Rev. Stat. § 42-925(2) (Supp. 2017). See, also, Sarah K. v.
Jonathan K., 23 Neb. Ct. App. 471, 873 N.W.2d 428 (2015) (if
grounds do not exist for issuance of domestic abuse ex parte
temporary protection order, court must schedule evidentiary
hearing within 14 days).
However, for harassment protection orders sought under
§ 28-311.09, as in this case, the statutory scheme does not
contain the same mandatory hearing language found in the
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domestic abuse protection order statute set forth above. Rather,
as noted previously, upon the filing of a petition and affida-
vit for a harassment protection order, “the court may issue a
harassment protection order.” § 28-311.09(1) (emphasis sup-
plied). The statute does not mandate the issuance of such an
order, nor does the statute require a hearing upon the court
concluding the petition fails to state sufficient grounds for
entry of an order. Additionally, the harassment protection order
statute provides:
If the specific facts included in the affidavit (a) do not
show that the petitioner will suffer irreparable harm, loss,
or damage or (b) show that, for any other compelling
reason, an ex parte order should not be issued, the court
may forthwith cause notice of the application to be given
to the respondent stating that he or she may show cause,
not more than fourteen days after service, why such order
should not be entered.
§ 28-311.09(7) (emphasis supplied).
Section 28-311.09(7) grants the trial court the discretion to
take further action when it determines an ex parte temporary
protection order should not be issued; it does not mandate fur-
ther action. The trial court may direct the respondent to show
cause why an order should not be entered, but the court is not
required to do so. If the face of the petition and affidavit fail to
set forth a sufficient basis to warrant the issuance of a harass-
ment protection order, the trial court may, in its discretion,
dismiss the petition without burdening the court with holding
an evidentiary hearing where the sole purpose is to prove up
on the petition. Notably, a contested factual hearing in a pro-
tection order proceeding is a show cause hearing, in which the
fact issues before the court are whether the facts stated in the
sworn application are true. Mahmood v. Mahmud, 279 Neb.
390, 778 N.W.2d 426 (2010). Such proceedings are summary
in nature, and a court is justified in excluding evidence if its
probative value is substantially outweighed by considerations
of undue delay, waste of time, or needless presentation of
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cumulative evidence; however, for a court to issue a protection
order, some evidence must be presented. See id.
The Legislature has providently granted the trial courts the
discretion to filter between those petitions and affidavits which
properly allege facts qualifying for harassment protection
under the statute from those alleging facts, even if presumed
true, which fail to qualify for protection under the statute. This
is certainly consistent with the notion that a trial court can
summarily dismiss a petition on its own motion when “not a
fact stated” entitles the party to the relief sought. Van Etten v.
Test, 64 Neb. 407, 408, 89 N.W. 1052, 1053 (1902) (litigant’s
attempt to circumvent prior judgment against her by filing
new action should have been summarily dismissed by trial
court because such attempts “should not be permitted to bur-
den courts or clog the wheels of justice”).
[6,7] Accordingly, when a trial court determines an ex parte
temporary harassment protection order is not warranted, an
evidentiary hearing is not mandated under the harassment pro-
tection order statute like it is under the domestic abuse protec-
tion order statute. In harassment protection order proceedings,
a trial court has the discretion to direct a respondent to show
cause why an order should not be entered or, alternatively,
the court can dismiss the petition if insufficient grounds have
been stated in the petition and affidavit. Although the district
court in this instance decided to grant Rosberg a hearing so
he could offer evidence and make arguments to the court after
the court’s initial dismissal of Rosberg’s petition, the harass-
ment protection order statute did not require the court to hold
such a hearing.
Sufficiency of Allegations.
Rosberg argues that “the evidence presented in the petition
and the exhibits presented in the courtroom were sufficient
allegations to call for a protection order hearing and most
likely an immediate exparte [sic] protection order.” Brief for
appellant at 7.
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As explained earlier, where there is no bill of exceptions,
an appellate court is limited on review to an examination of
the pleadings. See Murphy v. Murphy, 237 Neb. 406, 466
N.W.2d 87 (1991). If they are sufficient to support the judg-
ment, it will be presumed on appeal that the evidence sup-
ports the trial court’s orders and judgment. Id. We conclude
that the pleadings are sufficient to support the district court’s
order, and therefore, we presume the evidence (exhibit 1)
considered by the district court supported its decision to dis-
miss Rosberg’s petition seeking a harassment protection order
against Kelly.
We agree with the district court that the issues complained
about by Rosberg do not rise to the type of conduct contem-
plated by the harassment protection order statute. As set forth
previously, the inquiry is whether a reasonable victim would
be seriously terrified, threatened, or intimidated by the per-
petrator’s conduct. Richards v. McClure, 290 Neb. 124, 858
N.W.2d 841 (2015). Rosberg’s allegations about Kelly consist
of her lying, allowing the children to be around a registered
sex offender, letting the children do anything they want, pre-
venting certain parenting time from taking place, denying the
children’s attendance at family weddings, disparaging Rosberg,
and possibly “plant[ing] guns” on Rosberg to get him in
trouble. Additionally, Rosberg claims that Kelly is “mentally
sick” and should only have supervised parenting time. While
Rosberg may very well have valid reasons to be concerned,
upset, angry, or frustrated by the circumstances evolving in
the course of his marriage dissolution, as noted by the district
court, these are matters to be addressed in that separate action
and not through a harassment protection order.
CONCLUSION
The district court’s February 28, 2017, order is affirmed.
A ffirmed.