Maria A. on behalf of Leslie G. v. Oscar G. , 301 Neb. 673 ( 2018 )

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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
MARIA A. ON BEHALF OF LESLIE G. v. OSCAR G.
Cite as 301 Neb. 673
M aria A. on behalf of Leslie G., appellant,
v. Oscar G., A ppellee.
___ N.W.2d ___
Filed November 30, 2018. No. S-17-1133.
1. Protection Orders: Injunction: Appeal and Error. A protection order
pursuant to Neb. Rev. Stat. § 42‑924 (Reissue 2016) is analogous to an
injunction. 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.
2. Protection Orders. Whether domestic abuse occurred is a threshold
issue in determining whether an ex parte protection order should be
affirmed; absent abuse as defined by Neb. Rev. Stat. § 42‑903 (Reissue
2016), a protection order may not remain in effect.
3. ____. In considering whether to continue an ex parte domestic abuse
protection order following a finding that domestic abuse has occurred, a
court is not limited to considering only whether the ex parte order was
proper, but may also consider a number of factors pertinent to the likeli-
hood of future harm.
4. 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.
5. Protection Orders: Proof. The petitioner at a show cause hearing fol-
lowing an ex parte order has the burden to prove by a preponderance of
the evidence the truth of the facts supporting a protection order. Once
that burden is met, the burden shifts to the respondent to show cause as
to why the protection order should not remain in effect.
Appeal from the District Court for Saline County: Vicky L.
Johnson, Judge. Affirmed.
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MARIA A. ON BEHALF OF LESLIE G. v. OSCAR G.
Cite as 301 Neb. 673
Sara K. Houston, of Nebraska Coalition, for appellant.
Carlos A. Monzón and David V. Chipman, of Monzón,
Guerra & Associates, for appellee.
Heavican, C.J., Miller‑Lerman, Cassel, Stacy, Funke, and
Papik, JJ., and H all, District Judge.
H all, District Judge.
On behalf of her minor daughter, Leslie G., Maria A.
appeals the order of the district court for Saline County that
rescinded an ex parte domestic abuse protection order against
Leslie’s father, Oscar G. Upon our de novo review of the spe-
cific facts of this case, we cannot say that the district court,
which heard and observed the witnesses as the trier of fact,
erred in finding that the evidence as a whole was sufficient
to show cause why the protection order should not remain in
effect. We affirm.
BACKGROUND
Maria and Oscar are the biological parents of two minor
children involved in this case, Emily G. and Leslie. Maria and
Oscar are not married and do not reside in the same household.
Maria has “[f]ull [c]ustody” of Emily and Leslie, with Oscar
exercising regular parenting time every other weekend. This
appeal arises from an incident that occurred at Oscar’s resi-
dence on June 4, 2017, during his parenting time with Leslie,
then age 10, and Emily, then age 12. It is undisputed that on
that date, Oscar hit Leslie several times on the leg with his
open hand.
On July 3, 2017, Maria filed a petition and affidavit on
Leslie’s behalf to obtain a domestic abuse protection order
against Oscar pursuant to Neb. Rev. Stat. § 42‑924 (Reissue
2016). The standardized form alleged that Maria was “in fear
of domestic abuse” on behalf of Leslie. Maria’s petition and
affidavit also provided facts to support her request for a pro-
tection order. According to Maria, on June 4, Emily called
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MARIA A. ON BEHALF OF LESLIE G. v. OSCAR G.
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her and informed her that Oscar had hit Leslie because Leslie
was involved in breaking her stepbrother’s electronic tablet.
Maria reported that Oscar was angry and that Leslie had run
into her room and locked the door to avoid being hit by Oscar.
Maria stated that Oscar then broke the door with his foot and
hit Leslie with his hand. Emily, who was in the room at the
time, shared a video of the incident with Maria and asked her
not to show anyone. Upon viewing the video, Maria said she
was “shocked” by Oscar’s violent actions toward Leslie. Maria
reported that she feared Oscar would hit her daughters in the
future with more violence or become angry that Emily had
shown her the video. As a result, Maria immediately reported
the incident to law enforcement. The record shows that Oscar
was arrested and charged with child abuse pursuant to Neb.
Rev. Stat. § 28‑707 (Reissue 2016), but our record does not
contain the disposition of that charge.
On the same day that Maria filed her petition and affidavit,
the district court found that Maria had stated facts showing
that Oscar had committed abuse as defined in Neb. Rev. Stat.
§ 42‑903 (Reissue 2016) and that there was immediate danger
of abuse before the matter could be heard on notice. Therefore,
the district court entered an ex parte domestic abuse protec-
tion order, barring Oscar from any contact with Leslie. Oscar
requested a hearing on the matter pursuant to Neb. Rev. Stat.
§ 42‑925 (Reissue 2016) to show cause why the protection
order should not remain in effect.
At the show cause hearing, the district court received
Maria’s petition and affidavit. Oscar’s counsel called Maria
to testify, and she confirmed the allegations. Maria further
confirmed that minor children, other than Emily and Leslie,
remained in Oscar’s home. The district court also received the
9‑second video recorded by Emily and referenced in the peti-
tion and affidavit. It shows Oscar breaking through the door,
lunging at Leslie, and striking her five times with an open
hand while Leslie is on a bed on her side with her legs drawn
up. Emily and Leslie can be heard screaming, and Oscar can
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MARIA A. ON BEHALF OF LESLIE G. v. OSCAR G.
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be heard yelling in a language that is not English and strik-
ing Leslie. During the encounter, Leslie’s facial expression is
not discernible.
When Maria testified that Emily and Leslie were in the
courthouse, the district court advised the parties that they
could be called as witnesses. Oscar called Emily to testify.
Emily testified, questioned only by the district court in cham-
bers and with counsel present, but outside the presence of the
parents. She stated that after Leslie broke the electronic tablet,
Leslie ran to the bedroom they shared and locked the door.
Emily testified that Oscar screamed at Leslie to open the door
and that Leslie refused. Emily testified that she could not recall
whether Oscar threatened to hit someone at that point, but in
an earlier interview at the Child Advocacy Center in Lincoln,
Nebraska (CAC), summarized by the sheriff’s report offered
by Oscar and received into evidence along with the probable
cause affidavit for Oscar’s arrest, both Emily and Leslie stated
that when Oscar was outside the door, he threatened to hit
Leslie. According to Leslie, Oscar yelled, “‘Open the door,
then I am going to hit you.’” Emily reported that Oscar threat-
ened to hit Leslie if she did not open the door.
At the hearing, Emily testified that Oscar next broke the
door, entered the room, and hit Leslie on the leg. Emily stated
that after she told Oscar to stop, he left the room and went
to the kitchen to prepare food for the family. Sometime after
Oscar left the room, Emily text messaged Maria and asked her
to pick up her and Leslie because Emily did not want to be
there anymore.
Emily testified that on the day of the incident, she “wasn’t
really afraid” of Oscar, but that she was afraid for Leslie
because she thought that Leslie “would have gotten more in
trouble.” Emily explained that by “more in trouble” she meant
that Leslie “could get grounded or get her stuff taken away.”
She testified that she was not afraid of Oscar on the day of the
hearing. The district court had the following exchange with
Emily at the end of her testimony:
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[Court:] . . . I can see you’re kind of upset. Can you
tell me why you’re upset? Just take a big breath. Okay?
All right. Can you tell me why you’re upset?
[Emily:] Because I miss my dad and my brothers.
Q. Okay. I understand that. Do you think you would be
safe with your dad?
A. ([Emily] nodded affirmatively.)
Q. She is nodding her head yes. Was that a yes?
A. Yes.
Leslie did not testify. However, the parties stipulated that
if she had, she would have testified that “she was afraid [on]
the day of [the incident], but she has also said that she is
not afraid of her dad at this time.” Additionally, the parties
stipulated that Leslie’s testimony as to the facts of the incident
would have been “substantially similar” to Emily’s testimony.
In her interview with the CAC, Leslie reported that when
Oscar asked her who had broken the electronic tablet and
referred to her calling Oscar “‘[s]tupid’” during a family out-
ing to a lake the night before, she ran to her room because she
was scared of being in trouble.
The probable cause affidavit stated that Leslie had no “marks
or bruises of any kind.” However, in her interview at the CAC
the next day, Leslie reported “a little mark on her leg.” Leslie
also stated during that interview that Oscar had hit her in the
past, but that she could not recall the circumstances. Emily
stated during her CAC interview that Oscar had not previously
used hitting as a consequence, but, rather, “‘grounds’” them or
takes items away.
According to the probable cause affidavit, on the day of the
incident, Oscar admitted to law enforcement that he had hit
Leslie because, in addition to breaking the electronic tablet,
she had called him “‘[s]tupid’” the night before. He further
reported that the door to the bedroom was previously broken
before he barged through it and that he did not believe he hit
Leslie “too hard.”
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MARIA A. ON BEHALF OF LESLIE G. v. OSCAR G.
Cite as 301 Neb. 673
The district court entered an order rescinding the ex parte
domestic abuse protection order pertaining to Leslie. See
§ 42‑925. The district court stated:
1. No evidence of bodily injury (no testimony of pain
or evidence of bruising).
2. Neb. Rev. Stat. §28‑1413 (1)(a) and (b) allows a par-
ent to use physical discipline so long as no extreme pain
or serious bodily harm.
3. The only threat was perceived to be additional disci-
pline, such as grounding.
Maria now appeals.
ASSIGNMENTS OF ERROR
Maria assigns, condensed and restated, (1) that based upon
the evidence presented at the show cause hearing, the district
court erred in rescinding the ex parte domestic abuse protec-
tion order, and (2) that the district court erred in assigning
weight to Neb. Rev. Stat. § 28‑1413 (Reissue 2016).
STANDARD OF REVIEW
[1] A protection order pursuant to § 42‑924 is analogous to
an injunction. 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 evi-
dence 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. Torres v. Morales,
287 Neb. 587, 843 N.W.2d 805 (2014).
ANALYSIS
Issue Is Whether Ex Parte Domestic Abuse Order
Should Remain in Effect, and Here, District Court
Did Not Err in Finding That It Should Not.
We begin our analysis by reviewing the statutes pertinent
to the procedural aspects of this case. The Protection from
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MARIA A. ON BEHALF OF LESLIE G. v. OSCAR G.
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Domestic Abuse Act, Neb. Rev. Stat. § 42‑901 et seq. (Reissue
2016) (the Act), provides that a victim of domestic abuse
may file a petition and affidavit for a protection order with
the clerk of the district court. § 42‑924. For the purposes of
the Act, abuse is defined by § 42‑903(1) as the occurrence of
one or more of the following acts between family or house-
hold members:
(a) Attempting to cause or intentionally and know-
ingly causing bodily injury with or without a dangerous
instrument;
(b) Placing, by means of credible threat, another per-
son in fear of bodily injury. For purposes of this subdi-
vision, credible threat means a verbal or written threat,
including a threat performed through the use of an elec-
tronic communication device, or a threat implied by a
pattern 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 tar-
get of the threat to reasonably fear for his or her safety
or the safety of his or her family. It is not necessary to
prove that the person making the threat had the intent to
actually carry out the threat. The present incarceration
of the person making the threat shall not prevent the
threat from being deemed a credible threat under this
section; or
(c) Engaging in sexual contact or sexual penetration
without consent as defined in section 28‑318.
Section 42‑924(1) states that upon the filing of a petition for
a protection order by any victim of domestic abuse and affi-
davit in support thereof, “the court may issue a protection
order without bond,” enjoining the respondent from varying
degrees of contact with the petitioner, awarding petitioner tem-
porary custody of any minor children, enjoining the respondent
from possessing or purchasing a firearm, or “[o]rdering such
other relief deemed necessary to provide for the safety and
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welfare of the petitioner and any designated family or house-
hold member.”
Section 42‑925(1) provides that a domestic abuse protection
order under § 42‑924 may be issued ex parte prior to a hear-
ing if it reasonably appears from the specific facts included in
the affidavit that the petitioner will be in immediate danger of
abuse before the matter can be heard on notice. If a court issues
a domestic abuse protection order ex parte:
[S]uch order is a temporary order and the court shall
forthwith cause notice of the petition and order to be
given to the respondent. The court shall also cause a form
to request a show‑cause hearing to be served upon the
respondent. . . . If the respondent appears at the hearing
and shows cause why such order should not remain in
effect, the court shall rescind the temporary order. If the
respondent does not so appear and show cause, the tem-
porary order shall be affirmed and shall be deemed the
final protection order.
§ 42‑925(1).
If grounds do not exist for issuance of an ex parte domestic
abuse protection order, the court must schedule an evidentiary
hearing within 14 days. § 42‑925(2). If the respondent does not
appear and show cause why the protection order should not be
issued, the court shall issue a final protection order. Id.
Here, Maria appeals from the order of the district court that
rescinded an ex parte domestic abuse protection order fol-
lowing a show cause hearing requested by Oscar pursuant to
§ 42‑925(1). Maria’s appellate brief focuses mainly on whether
Oscar committed abuse as defined by § 42‑903. She argues that
if such abuse occurred, the district court erred in rescinding the
ex parte protection order. However, as we will explain, based
on the procedural framework of this case and the above‑quoted
statutory language, the inquiry before the district court was
whether the ex parte order ought to have remained in effect
once it was in place. See § 42‑925(1). In addressing this
question, the district court was not guided exclusively by the
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definition of abuse in § 42‑903, as Maria’s brief implies, or
by whether the ex parte order was permissible at its inception.
Instead, the district court could also consider other factors
in its determination as to whether the ex parte order should
remain in effect to prevent future harm.
[2] As noted above, § 42‑925(1) provides, “If the respondent
appears at the hearing and shows cause why such [ex parte]
order should not remain in effect, the court shall rescind the
temporary order. If the respondent does not so appear and show
cause, the temporary order shall be affirmed . . . .” (Emphasis
supplied.) 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 pro-
tection order may not remain in effect. See §§ 42‑903, 42‑924,
and 42‑925. See, also, Linda N. on behalf of Rebecca N. v.
William N., 289 Neb. 607, 856 N.W.2d 436 (2014) (reversing
order that affirmed ex parte domestic abuse protection order
where respondent’s conduct did not meet definition of abuse
under § 42‑903). But even when domestic abuse as defined by
§ 42‑903 has occurred, the language of § 42‑925(1) suggests
a wider inquiry in deciding whether to affirm or rescind an
ex parte protection order. Section 42‑925(1) frames the issue
as whether the protection order should remain in effect and
thus orients the court’s view toward the future and the goal of
domestic abuse protection orders, which is to protect victims of
domestic abuse from further harm. See Introducer’s Statement
of Intent, L.B. 310, Judiciary Committee, 102d Leg., 1st Sess.
(Jan. 26, 2011). See, also, 25 Am. Jur. 2d Domestic Abuse and
Violence § 31 (2014).
[3] Therefore, in considering whether to continue an ex
parte domestic abuse protection order following a finding
that domestic abuse has occurred, a court is not limited to
considering only whether the ex parte order was proper, but
may also consider a number of factors pertinent to the likeli-
hood of future harm. Those factors might include, but are not
limited to, the remoteness, severity, nature, and frequency of
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past abuse; past or pending credible threats of harm; the psy-
chological impact of domestic abuse; the potential impact on
the parent‑child relationship; and the nuances of household
relationships.
The principles governing injunctions support this prospec-
tive, or forward‑looking, approach. Our jurisprudence has
consistently analogized domestic abuse protection orders to
injunctions. See, e.g., Linda N. on behalf of Rebecca N. v.
William N., supra; Torres v. Morales, 287 Neb. 587, 843
N.W.2d 805 (2014); Elstun v. Elstun, 257 Neb. 820, 600
N.W.2d 835 (1999). An injunction is a tool of equity, to be
implemented on a case‑by‑case basis as justice and fairness
require. See ConAgra Foods v. Zimmerman, 288 Neb. 81, 846
N.W.2d 223 (2014). This court has described an injunction
as “‘an extraordinary remedial process which is granted, not
as a matter of right, but in the exercise of the sound discre-
tion of the court, to be determined on a consideration of all
the circumstances of each case . . . .’” Daugherty v. Ashton
Feed and Grain Co., Inc., 208 Neb. 159, 164, 303 N.W.2d
64, 68 (1981). The purpose of an injunction is not to pun-
ish past actions but to prevent future mischief. See, Nesbitt
v. Frakes, 300 Neb. 1, 911 N.W.2d 598 (2018); Conrad v.
Kaup, 137 Neb. 900, 291 N.W. 687 (1940). And a court has
the discretion to withhold injunctive relief “when it is likely
to inflict greater injury than the grievance complained of.”
City of Omaha v. Rubin, 177 Neb. 314, 318, 128 N.W.2d 814,
816 (1964).
A prospective approach in deciding whether to rescind
ex parte domestic abuse protection orders is also consistent
with other provisions of the Act. The language of § 42‑924
does not limit the court to considering only whether abuse
has occurred in deciding whether to issue a protection order.
Section 42‑924(1) provides that upon the filing of a petition
and affidavit for a protection order by a victim of domestic
abuse, the court “may issue a protection order.” (Emphasis
supplied.) Giving the word “may” its ordinary, permissive, and
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discretionary meaning, see Livingston v. Metro. Utilities Dist.,
269 Neb. 301, 692 N.W.2d 475 (2005), the court’s analysis can
be more expansive than finding that abuse occurred pursuant to
§ 42‑903. The Nebraska Court of Appeals acknowledged this
wider analysis in Sarah K. v. Jonathan K., 23 Neb. App. 471,
873 N.W.2d 428 (2015).
In Sarah K. v. Jonathan K., supra, the Court of Appeals
affirmed an order granting domestic abuse protection orders
pursuant to § 42‑924, even though the instances of alleged
abuse were remote in time. It noted that neither § 42‑903(1)(a)
nor § 42‑924(1) imposes any limitation on the time during
which a victim of domestic abuse may file a petition and
affidavit seeking a protection order. However, the Court of
Appeals acknowledged that the remoteness of past abuse may
be considered by the court in deciding whether a protection
order is warranted and that a remote incident of abuse may
not always support the issuance of a domestic abuse protec-
tion order. It further cited authority that “‘[d]ifferent remedies
are required when there has been an isolated act of abuse that
is unlikely to recur, as compared to an egregious act of abuse
preceded by a pattern of abuse.’” Id. at 480, 873 N.W.2d at
434, quoting Coburn v. Coburn, 342 Md. 244, 674 A.2d 951
(1996). In concluding that the protection orders in Sarah K. v.
Jonathan K., supra, were warranted despite the remoteness of
the abuse, the Court of Appeals reasoned that the petitioner had
a present fear of future abuse due to the history and pattern of
past abuse. As Sarah K. v. Jonathan K. illustrates, the approach
we have described for deciding whether an ex parte domestic
abuse protection order should remain in effect is in harmony
with the provisions for non‑ex‑parte protection orders issued
under § 42‑924.
In addition, in the context of modification, the Act does
not limit the court to considering only whether there has been
abuse. Section 42‑925(4) provided, “An order issued under
subsection (1) of section 42‑924 shall remain in effect for a
period of one year from the date of issuance, unless dismissed
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or modified by the court prior to such date.” The court can
only decide whether an order should be modified or dismissed
by evaluating the parties’ situation at the time modification or
dismissal is sought. This suggests a consideration of the initial
determination that abuse pursuant to § 42‑903 has occurred
along with facts that emerge later and show that a protection
order, as originally issued, is no longer necessary. While dis-
missal or modification under § 42‑925(4) occurs at a different
procedural stage than affirming or rescinding an ex parte order
pursuant to § 42‑925(1), engaging in such an analysis at either
stage is not meaningfully different.
Having framed the issue as whether the domestic abuse
protection order should have remained in effect, we now turn
to the evidence presented at the show cause hearing. It is at
this point that our dissenting colleague parts ways with us: We
disagree on whether the record properly before us supports the
district court’s order rescinding the ex parte protection order.
As our discussion below explains, the majority cannot say that
the district court, having heard and observed the witnesses
as the trier of fact, erred in finding cause why the ex parte
order should not remain in effect. But as an initial matter, we
address the burdens of proof.
[4] 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 Mahmood v. Mahmud, 279 Neb. 390, 778 N.W.2d
426 (2010). See, also, Hronek v. Brosnan, 20 Neb. Ct. App. 200,
823 N.W.2d 204 (2012). As noted above, a protection order
is analogous to an injunction. See Torres v. Morales, 287
Neb. 587, 843 N.W.2d 805 (2014). A party seeking an injunc-
tion must establish by a preponderance of the evidence every
controverted fact necessary to entitle the claimant to relief.
Abboud v. Lakeview, Inc., 237 Neb. 326, 466 N.W.2d 442
(1991). In Mahmood v. Mahmud, supra, we cited this author-
ity in the context of harassment protection orders pursuant to
Neb. Rev. Stat. § 28‑311.09 (Reissue 2016) and stated that an
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ex parte order does not relieve the petitioner of the burden to
establish by a preponderance of the evidence the truth of the
facts supporting a protection order.
[5] Given that domestic abuse protection orders are a
species of injunction and given the procedural similarities
between § 28‑311.09 and § 42‑925 as they relate to show
cause hearings following ex parte orders, we now apply the
burden of proof we articulated in Mahmood v. Mahmud, supra.
Such application is in line with the analytical framework set
forth above, in which the occurrence of abuse defined by
§ 42‑903 is a threshold consideration in deciding whether to
affirm or rescind an ex parte domestic abuse protection order.
Accordingly, the petitioner at a show cause hearing following
an ex parte order has the burden to prove by a preponder-
ance of the evidence the truth of the facts supporting a pro-
tection order. Once that burden is met, the burden shifts to
the respond­ent to show cause as to why the protection order
should not remain in effect. § 42‑925(1).
The dissenting opinion would have us overrule or disap-
prove our previous holdings to the extent that they suggest that
the truth of the facts supporting a protection order is the only
issue at a show cause hearing under § 43‑925(1). However,
our holding here does not change our interpretation of that
section or our existing precedent. More precisely, our majority
opinion speaks directly to the procedures and considerations at
the show cause hearing, and our analysis does not abrogate our
prior cases.
We turn now to the facts of this case, which are contained
in the record to which our review is confined. See Hulse v.
Schelkopf, 220 Neb. 617, 371 N.W.2d 673 (1985) (evidence
which does not appear in record cannot be considered by
this court on appeal). Assuming without deciding that Maria
sustained her burden of proof, we cannot say that the district
court erred in finding that Oscar met his burden of proof and
showed cause why the ex parte domestic abuse protection
order should not remain in effect.
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The primary evidence before us for consideration relates to
the events of June 4, 2017, when Oscar broke through the door
to Leslie’s room, entered the room, and hit her several times
on the leg with his open hand. We acknowledge that the video
footage of this incident is disturbing. We are not insensitive to
its emotional impact, and we do not condone or intend to mini-
mize Oscar’s conduct. However, the 9‑second video depicts
only a piece of the larger family dynamic at play in this case.
That family dynamic is fleshed out more thoroughly by the
documentary and testimonial evidence, which the district court
heard and observed as the trier of fact. After hearing this evi-
dence, the district court implicitly determined that it was not
necessary to keep the domestic abuse protection order in place
to prevent future harm.
There was no documentary or testimonial evidence that
Emily or Leslie feared for Leslie’s physical safety on June
4, 2017, or in the future. On the day of the incident, Emily’s
concern was not for Leslie’s physical well‑being but for the
potential loss of privileges, which was the consequence Oscar
typically imposed. The parties are bound by their stipulation
that Leslie was “afraid [on] the day of [the incident].” See
Shearer v. Shearer, 270 Neb. 178, 700 N.W.2d 580 (2005). But
the stipulation does not specify that Leslie feared present or
future physical harm on that day. Further, according to Emily’s
testimony and the parties’ stipulation, neither child feared
Oscar at the time of the show cause hearing. To the contrary,
Emily volunteered that she missed Oscar and testified that she
thought she would be safe with him.
There was some evidence that Oscar may have threatened
to hit Leslie before he broke through the door. Both Emily and
Leslie stated during the CAC interview that Oscar threatened
to hit Leslie at that point, but Emily testified at the show cause
hearing that she could not remember whether Oscar made
such a threat. Either way, moments after breaking through the
door, Oscar hit Leslie. A protection order at the time of the
show cause hearing could not have prevented that outcome,
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and Maria concedes that Leslie suffered no bodily injury as
a result.
Further, the evidence does not show any pending threat of
future harm or a pattern of abuse foreshadowing future harm.
Oscar offered the probable cause affidavit and evidence of the
CAC interview to demonstrate that the events on June 4, 2017,
were a single incident and not part of a pattern of using physi-
cal force. In her affidavit supporting her request for a protec-
tion order, Maria herself affirmed that she was “shocked”
by Oscar’s actions, suggesting that he had not behaved this
way in the past. While Leslie reported in the CAC interview
that Oscar had hit her in the past, she could not recall the
circumstances, and Emily denied that Oscar had previously
used hitting as a consequence. Further, at the time of the
show cause hearing, other minor children remained in Oscar’s
home, despite pending child abuse charges, the disposition of
which is not in our record. The foregoing evidence suggests
that the events of June 4 were an isolated incident not likely
to recur and that a protection order was not needed to prevent
future harm.
As Oscar’s counsel emphasized in his closing remarks, the
district court was faced with deciding whether it should enter a
final protection order, which had the potential to inflict greater
“lasting damage” than the conduct that prompted the ex parte
order. Had the district court affirmed the ex parte protection
order, Oscar would have been enjoined from contact with
Leslie for 1 year, absent modification. See §§ 42‑924(3)(a)
and 42‑925(4). As noted, while the parties stipulated that
Leslie was afraid on the day of the incident, the stipulation
did not specify whether she was afraid of bodily injury on
that day, which Maria concedes did not occur; for her future
physical safety; or of the prospect of appropriate discipli­
nary measures. And the parties stipulated that Leslie did not
fear Oscar in any way on the day of the show cause hear-
ing. Further, Emily’s testimony indicated that they typically
received appropriate consequences from Oscar, whom she
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stated she misses and feels safe with. According to the record,
Oscar had been a regular fixture in his daughters’ lives,
exercising parenting time for 4 days every 2 weeks at his
residence, where Emily and Leslie had their own room and
where Oscar played a role in their care and leisure activities.
Considering this evidence, the harm occasioned by separating
Leslie and Oscar potentially could have been greater than the
harm caused by the isolated incident that precipitated the ex
parte protection order. See City of Omaha v. Rubin, 177 Neb.
314, 128 N.W.2d 814 (1964) (court has discretion to withhold
injunctive relief when it is likely to inflict greater injury than
grievance complained of).
Although the dissenting opinion states that it subscribes to
the analytical framework articulated by the majority, its reason-
ing seems to suggest that an ex parte protection order should
never be rescinded if it was warranted at its inception. This is
not correct. We recognize that in many, if not most, instances,
a showing of abuse under § 42‑903 is sufficient to merit the
affirmation of an ex parte protection order; but as we have
explained, it is not the only consideration in resolving the issue
presented: whether an ex parte protection order should remain
in effect to prevent future harm. We agree with the dissenting
opinion that protecting victims of domestic abuse is of the
utmost importance, but courts do not have license to assume
future risk where the record does not support such a finding.
Our dissenting colleague relies heavily on statements con-
tained in the probable cause affidavit and suggests that these
averments point to a future risk of harm. However, the dissent
ignores altogether the testimony at the show cause hearing
that countered such a conclusion. The district court apparently
found this testimony to be credible in assessing the risk of
future harm. And we give weight to the circumstances that the
trial judge heard and observed the witnesses and accepted one
version of the facts rather than another. See Torres v. Morales,
287 Neb. 587, 843 N.W.2d 805 (2014).
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After giving due deference to the fact that the trial judge
heard and observed the witnesses and relying exclusively on
the record before us, we cannot say upon our de novo review
of the specific facts of this case that the district court erred in
finding that the evidence as a whole was sufficient to show
cause why the protection order should not remain in effect.
Consequently, we conclude that the district court did not err in
rescinding the ex parte domestic abuse protection order. In so
holding, we express no opinion on Maria’s addressing Oscar’s
conduct through other avenues.
We Need Not Consider Whether
District Court Erred in
Referencing § 28‑1413.
Finally, we conclude by addressing Maria’s contention that
the district court incorrectly relied on § 28‑1413(1)(a) and (b),
which provides that a parent’s use of physical discipline on
his or her child under certain circumstances is a justifiable use
of force under the criminal code. At common law, a parent,
or one standing in the relation of parent, was not liable either
civilly or criminally for moderately and reasonably correcting
a child, but it was otherwise if the correction was immoder-
ate and unreasonable. See Clasen v. Pruhs, 69 Neb. 278, 95
N.W. 640 (1903). Section 28‑1413(1)(a) is the codification of
the common-law rule. We have held that § 28‑1413 does not
create or confer an affirmative right to use physical or cor-
poral punishment, but, rather, only provides a defense against
criminal liability. See Cornhusker Christian Ch. Home v. Dept.
of Soc. Servs., 227 Neb. 94, 416 N.W.2d 551 (1987). Thus,
§ 28‑1413(1)(a) reflects the common‑law policy of allowing
parents some latitude in disciplining their children. However,
having determined that the district court did not err in rescind-
ing the ex parte protection order, we do not address the appli-
cability of § 28‑1413 to this case.
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CONCLUSION
For the foregoing reasons, we conclude that the district court
did not err in rescinding the ex parte domestic abuse protection
order against Oscar, and we affirm.
A ffirmed.
Miller‑Lerman, J., dissenting.
I respectfully dissent. For purposes of this dissent, although
I do not necessarily subscribe to the burden‑shifting frame-
work announced by the court today, I will employ it. However,
contrary to the majority opinion, given this record and our
de novo review thereof, I would accord greater credence to
the known observed facts which, I believe, established the
propriety of the temporary order, and less credence to future
imagined evidence on which the majority relies to support its
determination that a protection order is not warranted. Thus, I
would find that the temporary order was properly entered and,
because Oscar’s evidence does not show that he cares more
for the well-being of his young daughter than his electronic
device, to protect the child, it should not have been rescinded.
I would reverse the order of the district court.
In the context of the show cause hearing from which this
appeal is taken, as I see it, courts should focus on the language
of Neb. Rev. Stat. § 42‑925(1) (Reissue 2016), which describes
the issue at the show cause hearing, i.e., whether the respond­
ent has shown that the temporary order should be rescinded.
This is not a motion to dismiss or for modification under
§ 42‑925(4); so, contrary to the majority, I resist reliance on
this inapplicable statute. Of course, Oscar can seek dismissal
or modification at a future stage.
Before today’s gloss, we have said that the fact issue before
the court deciding whether to rescind an ex parte domestic
abuse protection order at a show cause hearing is whether the
plaintiff proved the truth of the facts of abuse as stated in the
sworn domestic violence protection order application. Torres v.
Morales, 287 Neb. 587, 843 N.W.2d 805 (2014); Mahmood v.
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Mahmud, 279 Neb. 390, 778 N.W.2d 426 (2010). To the extent
that past cases suggest that the truth of the application is the
only issue at a show cause hearing under § 42‑925(1) where the
respondent appears, they should be overruled or at least disap-
proved by the majority. Torres v. Morales, supra; Mahmood v.
Mahmud, supra. See, also, Rosberg v. Rosberg, 25 Neb. Ct. App.
856, 916 N.W.2d 62 (2018); Hronek v. Brosnan, 20 Neb. Ct. App.
200, 823 N.W.2d 204 (2012); Zuco v. Tucker, 9 Neb. Ct. App. 155,
609 N.W.2d 59 (2000).
Maria Showed That Oscar Abused Leslie,
as Defined by Statute, and the Temporary
Protection Order Was Properly Entered.
For purposes of this dissent, I employ the majority’s
­burden‑shifting framework. In so doing, I would find that Maria
carried her burden on the “threshold question” of whether
abuse occurred as defined by Neb. Rev. Stat. § 42‑903(1)
(Reissue 2016), thus supporting the temporary protection order.
According to both Emily and Leslie, the video of the incident,
and the affidavit of Deputy John Hensel, the evidence showed
that Oscar threatened to hit his 10‑year‑old daughter Leslie;
that Oscar kicked open her bedroom door with a force so great
as to destroy the door; that Oscar rushed at Leslie and hit her
multiple times, enraged and screaming at her; and that Leslie
hid from Oscar in her room, assumed a defensive posture, and
screamed as he approached and hit her.
Deputy Hensel swore in a probable cause affidavit filed in
Oscar’s corresponding criminal case that the video filmed by
Emily shows: “a bedroom with children in it; then the bedroom
door is broken in half . . . and an adult male [Oscar] is seen
running in and hitting one of the children with an open hand
multiple times very aggressively while another child screams
and cries in the background.” Oscar’s strikes are forceful, and
they are audible in the video. Leslie reported to Deputy Hensel
that Oscar had hit her before, but could not remember when or
how it happened.
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The evidence established that Leslie feared for her physi-
cal safety on the day Oscar hit her. There is no evidence that
Leslie did not fear Oscar; on the contrary, the parties actually
stipulated that Leslie was afraid of Oscar on the day of this
incident, and this is fully supported by the record.
Thus, I believe that the preponderance of the evidence at
the hearing was that Oscar made a “credible threat” which
placed Leslie “in fear of bodily injury,” meeting the definition
of abuse under § 42‑903(1)(b). The temporary protection order
was properly entered.
Oscar Did Not Establish by Evidence That
There Was No Risk of Future Harm and
Therefore Failed to Show Cause Why
the Temporary Order Properly
Entered Should Be Rescinded.
As stated above, for purposes of this dissent, I employ the
burden‑shifting framework announced by the majority today.
In so doing, I look to the evidence presented by Oscar and
jurisprudence which inform the assessment of future harm. I do
not believe that Oscar demonstrated that a protection order was
not needed to protect Leslie against future harm.
Under § 42‑925(1), when the respondent, in this case Oscar,
requests a show cause hearing, “the court shall immediately
schedule a show-cause hearing.” The statute continues: “If the
respondent appears at the hearing and shows cause why such
order should not remain in effect, the court shall rescind the
temporary order.” As I read the statute, there is a statutory
presumption that the temporary order properly entered should
be continued‑‑and Oscar’s evidence did not overcome the pre-
sumption. Of course, even if the ex parte protection order was
warranted, it can be rescinded based on the evidence presented
by the respondent at the show cause hearing.
Several factors are relevant in evaluating the likelihood
of future harm to the subject of a protection order, such as
Leslie. Those factors might include, but are not limited to, the
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remoteness, severity, nature, and frequency of past abuse; past
or pending credible threats of harm; the psychological impact
of domestic abuse; and the nuances of household relation-
ships. I note that some jurisdictions list the relevant factors
statutorily. See, e.g., 725 Ill. Comp. Stat. Ann. 5/112A‑14(c)
(LexisNexis Cum. Supp. 2009). In these jurisdictions, the
courts consider the pattern and consequences of past abuse
and consider the danger that any minor child will be abused,
neglected, or improperly removed from the jurisdiction or
improperly separated from the child’s primary caretaker. Id.
Applying the many factors listed above, Oscar did not show
by the preponderance of the evidence that the protection order
should be rescinded.
The district court received only limited testimony from
Emily and no testimony from Oscar or his partner and other
children to “flesh out” the larger family dynamic at play
in this case. I reviewed the testimony and the other limited
evidence, and it does not weigh in favor of Oscar. I agree
with the majority that the “family dynamic” is an important
consideration. And while I agree with the majority’s subtext
in support of family reunification, Oscar did not necessarily
establish the profile of “unity” the majority hopes to create.
According to this record, Maria, Leslie’s mother, has full
custody of Leslie, and Oscar has parenting time every other
weekend. Oscar and Maria are not married, and Oscar did not
demonstrate, such as by a court order, that his parenting is
formalized. In any event, the object of the current case is to
protect the child.
Turning to the evidence, approximately 3 months passed
between the June 4, 2017, incident captured on video and
the September 11 show cause hearing; this abuse was not
remote. Oscar, who carried the burden to show cause at this
hearing, failed to create a record which would demonstrate
that his conduct was a one‑time lapse of judgment. On the
contrary, the record indicates that Oscar was angry because his
investment in an electronic device was lost. His unrestrained
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reaction suggests a lack of control, not a pattern of thought-
ful discipline.
In an interview with law enforcement directly following the
June 4, 2017, incident, Leslie reported that Oscar had hit her
in the past. In a contemporaneous interview, Leslie’s sister,
Emily, denied being hit by Oscar. I disagree with the major-
ity that this limited evidence compels the conclusion that the
“events . . . were an isolated incident not likely to recur.” The
burden was on Oscar at this stage, not on Leslie.
As noted, Leslie reported that Oscar had hit her in the past,
Leslie chose to lock herself in her bedroom away from Oscar,
and Emily felt she should videotape Oscar’s display of rage
and send it to Maria by text message. The majority minimizes
the risk of harm of escalating domestic violence and ignores
the possibility that its decision may subject Leslie to future
abuse or a cycle of abuse despite Maria’s attempt to protect
her daughter. In this regard, I note that some states, by statute,
recognize that domestic violence between family members
may include a mother’s justified fear of harm to her child by
that child’s father. E.g., Wash. Rev. Code Ann. § 26.50.010(3)
(West 2016); Rodriguez v. Zavala, 188 Wash. 2d 586, 398 P.3d
1071 (2017). Oscar could have shown this was an isolated
incident unlikely to recur, but he did not do so; the prepon-
derance of the evidence is that he has placed Leslie in fear of
bodily injury, and there is no evidence that he would not do
so again.
This case raises serious concern about the psychological
impact of domestic abuse and the future possible abuse of
Leslie given the nuances of household relationships demon-
strably in place here. Leslie is a 10‑year‑old child and did not
testify at the show cause hearing. The parties stipulated that
“she was afraid [on] the day of [the June 4 incident], but she
has also said that she is not afraid of her dad at this time.”
This change in her reporting should be taken at face value and
stretched no further. It is not uncommon for battered children,
as well as abused partners, to recant their claims or express
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reluctance with proceeding against an abuser. A child’s will-
ingness to return to his or her parent does not discredit the
child’s original report of domestic abuse. The lack of fear at
the time of the show cause hearing may even be evidence the
ex parte protection order has been serving its purpose to pro-
tect the victim.
As one court noted in a case where a mother obtained a
protection order against a father who disciplined a 4‑year‑old
child with a belt and left bruises:
“[The children] were asked if they wanted to see their
father. Of course they do. Children who suffer way more
serious abuse still want to see their abuser. That is not
uncommon. It is not their decision. The Court must decide
for them. In this case, there was no testimony to allow the
Court to believe the father won’t do this again. He has not
participated in any services. He doesn’t even think he did
anything wrong.”
Smith v. Murphy, 2017 Ark. App. 188, at 10, 517 S.W.3d 453,
459 (Mar. 29, 2017).
When a child expresses reluctance to continue with legal
proceedings, as with an adult petitioner, it has been observed
that it is prudent for a court to question the child outside the
presence of the abuser to ascertain fully whether the respondent
is coercing the child victim. See Catherine F. Klein & Leslye
E. Orloff, Providing Legal Protection for Battered Women: An
Analysis of State Statutes and Case Law, 21 Hofstra L. Rev.
801 (1993). We should not automatically exclude a child from
a protection order because she fails to show fear of a potential
harm which she may not fully understand.
I would not discredit the child’s report of abuse which initi-
ated this ex parte protection order. See Bacchus v. Bacchus,
108 So. 3d 712 (Fla. App. 2013) (noting that courts should
consider both circumstances giving rise to protection order
and events occurring after protection order was issued). Nor
should Leslie’s report that Oscar had hit her in the past be
discredited. A person’s past conduct is important evidence in
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predicting his or her future conduct. Likewise, I find it signifi-
cant that Oscar faced legal culpability for his conduct in the
Saline County District Court based on this incident.
I also consider events occurring after the ex parte protec-
tion order was put in place. Despite facing criminal conse-
quences, Oscar did not admit wrongdoing in his approach to
“discipline” toward Leslie. The record is also silent on whether
Oscar acknowledged the psychological effect of his behavior
or whether he had changed his behavior around his children
to assuage their reasonable fears. Oscar reported that he hit
Leslie three times, but Deputy Hensel stated in his report that
the video shows him hitting Leslie five times. Oscar submit-
ted no evidence that he participated in any services, such as
therapy sessions, parenting classes, anger management classes,
or any other remedial measures. See Smith v. Murphy, supra.
He offered no evidence demonstrating a prospect for insight or
change. Without evidence that the event was isolated, or evi-
dence of Oscar’s recent conduct, I cannot find that he showed
that Leslie did not need protection from future harm. “‘[T]here
was no testimony to allow the Court to believe the father won’t
do this again.’” Id. at 10, 517 S.W.3d at 459.
The district court’s decision to rescind the ex parte protec-
tion order did not rest on correct legal principles, and it is not
apparent that the court took into consideration the entirety of
the facts in the record. “‘[A] court need not await certain disas-
ter to come into fruition before taking protective steps in the
interest of a minor child.’” In re Interest of Lilly S. & Vincent
S., 298 Neb. 306, 316, 903 N.W.2d 651, 660 (2017). I conclude
that the district court erred when it found that Oscar had carried
his burden of proof to show that the ex parte domestic abuse
protection order should be rescinded. I would reverse the order
of the district court.