Diedra T. v. Justina R.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/03/2023 09:05 AM CST
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
DIEDRA T. V. JUSTINA R.
Cite as 313 Neb. 417Diedra T. et al., appellees, v.
Justina R., appellant.
___ N.W.2d ___
Filed February 3, 2023. No. S-22-436.
1. Protection Orders: Appeal and Error. 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 fac-
tual 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: Injunction: Proof. A protection order is analo-
gous to an injunction, and a party seeking an injunction must establish
by a preponderance of the evidence every controverted fact necessary
to entitle the claimant to relief.
3. 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.
4. Appeal and Error. When an argument or theory is raised for the first
time on appeal, it will be disregarded inasmuch as a lower court can-
not commit error in resolving an issue that was never presented and
submitted to it for disposition.
5. Due Process: Words and Phrases. While the concept of due process
defies precise definition, it embodies and requires fundamental fairness.
6. Constitutional Law: Due Process. Generally, procedural due process
requires parties whose rights are to be affected by a proceeding to
be given timely notice, which is reasonably calculated to inform the
person concerning the subject and issues involved in the proceed-
ing; a reasonable opportunity to refute or defend against a charge or
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DIEDRA T. V. JUSTINA R.
Cite as 313 Neb. 417accusation; a reasonable opportunity to confront and cross-examine
adverse witnesses and present evidence on the charge or accusation;
representation by counsel, when such representation is required by con-
stitution or statute; and a hearing before an impartial decisionmaker.
7. Constitutional Law: Protection Orders. Because the intrusion on a
respondent’s liberty interests is relatively limited, the procedural due
process afforded in a protection order hearing is likewise limited.
8. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not needed to adjudicate the controversy before it.
Appeal from the District Court for Sarpy County: George
A. Thompson, Judge. Affirmed as modified.
David V. Chipman, of Monzón, Guerra & Chipman, for
appellant.
Annette Farnan, of Heartland Family Service, for appellee
Diedra T.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Funke, J.
I. INTRODUCTION
Justina R. appeals the decision of the district court for Sarpy
County, Nebraska, which continued a harassment protection
order against her in favor of Diedra T. and Diedra’s two minor
children. Justina argues that the evidence was insufficient to
support the order. She also argues that the continuation of the
harassment protection order violated her due process rights
because Diedra sought a domestic abuse protection order, the
district court instead granted an ex parte harassment protec-
tion order, and Diedra renewed her request for a domestic
abuse protection order at the show cause hearing. We affirm
as modified.
II. BACKGROUND
Justina and Diedra met in 2015 and became “best friends.”
Thereafter, Justina, Diedra, and Diedra’s husband began
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DIEDRA T. V. JUSTINA R.
Cite as 313 Neb. 417having sexual relations. Justina and Diedra agree that they never
held themselves out as girlfriends, but disagree as to whether
they described the relationship between Justina, Diedra, and
Diedra’s husband as polyamorous.
On March 30, 2022, Diedra filed a petition and affidavit
to obtain a domestic abuse protection order against Justina
on behalf of herself and her children. The petition alleged
that Diedra ended her sexual relationship with Justina around
March 2021 and “completely cut off” and blocked contact
with Justina on March 15, 2022. Diedra further alleged that
Justina had previously threatened to kill herself if they could
not continue their sexual relationship and became “more
obsessive” after Diedra ended that relationship. Diedra also
alleged that after she cut off contact with Justina, Justina
began texting and calling her from various phone numbers,
begging Diedra to talk to her and threatening to disclose her
relationship with Diedra and Diedra’s husband to Diedra’s
employer and to kill herself. According to Diedra, Justina sent
her 150 or more messages per day.
In addition, the petition alleged that Justina came to Diedra’s
home on March 29, 2022, and refused to leave until police
ordered her to depart. Diedra alleged that she showed police
her phone, which contained 63 texts, as well as missed calls,
from Justina within the past 24 hours. Diedra also alleged that
Justina texted and called her 10 more times on March 29 after
she left Diedra’s home.
The same day that Diedra’s petition was filed, the district
court entered an ex parte harassment protection order against
Justina in favor of Diedra and the children. The order stated
that Justina could request a hearing to “show cause why
this order should not remain in effect” for 1 year. Justina
requested such a hearing.
After a continuance, a show cause hearing was held on
May 5, 2022. At the start of the hearing, the district court
admitted Diedra’s petition and affidavit into evidence. It
also advised the parties that it was considering whether to
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Cite as 313 Neb. 417issue a domestic abuse protection order, continue the ex
parte harassment protection order, or dismiss the matter. The
district court then asked Diedra if she requested that the “ex
parte [order] remain in its current fashion.” Diedra responded,
“Yes,” and added that she was “requesting . . . that the [c]ourt
consider this to be a domestic abuse protection order.” Justina
sought dismissal.
The district court subsequently questioned Diedra and
Justina about the events described in the domestic abuse
protection order petition and affidavit. Diedra testified that
the information contained therein was and is true and correct
and that Justina continued to contact her after the protection
order was entered. Justina, in turn, testified that she went
to Diedra’s home on March 29, 2022, to retrieve personal
belongings. Justina stated that she and Diedra had little con-
tact while she was at Diedra’s home that day, although she
admitted to texting Diedra after she left. Justina also testified
that she did not know exactly how many times a day she con-
tacted Diedra, but it was fewer than 150. According to Justina,
she was “very close” and an “aunt” to Diedra’s children. As
to whether she had a legitimate purpose for contacting Diedra
or the children, Justina indicated that she had belongings at
Diedra’s home and that she did not “want to lose [the chil-
dren] from [her] life.”
Subsequently, upon direct examination by her counsel and
cross-examination by Diedra’s counsel, Justina answered a
series of questions concerning her and Diedra’s relationship
and whether she ever physically assaulted or threatened Diedra
and the children. Justina testified that she had not assaulted
or threatened them. She also testified that she was a “nanny”
to the children and that she never felt her relationship with
Diedra and Diedra’s husband was polyamorous.
Thereafter, the district court indicated that it was going
to treat the domestic abuse and harassment protection orders
“simultaneous[ly].” It invited Justina to present any witnesses
or evidence that she had to contradict Diedra’s allegations.
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Cite as 313 Neb. 417Justina stated that she had none, but that she had questions
for Diedra.
Then, on direct examination by Justina’s counsel and cross-
examination by her own counsel, Diedra testified that Justina
sent texts describing the relationship as polyamorous and
asserting rights to the children based on that relationship.
She also testified that there was no reason for further con-
tact and renewed her request for a domestic abuse protec
tion order.
In concluding, the district court asked if Diedra had any
evidence that she wished to offer as to the domestic abuse
protection order. Diedra indicated that she did not but asked
that the court consider the testimony previously presented.
The district court then requested that the parties provide briefs
with their closing arguments. In so doing, the district court
observed that there are “two burdens [of proof] here at the
same time.”
Subsequently, in her brief, Justina argued that Diedra failed
to establish that they had an intimate relationship or that
Diedra and the children suffered domestic abuse. Diedra, in
turn, urged the court to issue a domestic abuse protection
order. Diedra indicated that she sought a protection order to
bar Justina from specific addresses. However, she argued that,
alternatively, the harassment protection order should be contin-
ued because Justina did “not materially dispute the affidavit”
or provide any new evidence.
The district court ruled in Diedra’s favor as to the harass-
ment protection order. It found that she had shown that Justina
contacted her repeatedly and that police assistance was needed
to “address the situation,” while Justina failed to rebut or
“impugn the credibility” of Diedra’s allegations. However, it
found that Diedra failed to meet her burden of proof as to the
domestic abuse protection order. The district court ordered that
the harassment protection order remain in effect for 1 year
from March 30, 2022.
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DIEDRA T. V. JUSTINA R.
Cite as 313 Neb. 417Justina appealed to the Nebraska Court of Appeals, and we
moved the matter to our docket.
III. ASSIGNMENTS OF ERROR
Justina assigns, restated and consolidated, that (1) the dis-
trict court erred in finding that Diedra met her burden of
proof for the issuance of a harassment protection order and
(2) Justina was deprived of due process when the district
court continued the harassment protection order after Diedra
renewed her request for a domestic abuse protection order.
Justina also argues that her appeal should not be found to
be moot if the protection order expires before our decision
on appeal.
IV. STANDARD OF REVIEW
[1] The grant or denial of a protection order is reviewed
de novo on the record. 1 In such de novo review, an appellate
court reaches conclusions independent of the factual findings
of the trial court. 2 However, where the credible evidence is in
conflict on a material issue of fact, the appellate court consid-
ers and may give weight to the circumstances that the trial
judge heard and observed the witnesses and accepted one ver-
sion of the facts rather than another. 3
V. ANALYSIS
1. Sufficiency of Evidence
Justina argues that the district court erred in continuing
the harassment protection order because her conduct does
not constitute “harass[ment]” as defined in Neb. Rev. Stat.
§ 28-311.02 (Reissue 2016). She argues that a “certain vol-
ume of calls or texts” does not in itself constitute harassment
and that there was no evidence she harmed or threatened to
1
Garrison v. Otto, 311 Neb. 94, 970 N.W.2d 495 (2022).
­  2
Id.3
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Cite as 313 Neb. 417harm Diedra or the children. 4 Diedra counters that Justina’s
threats to disclose her sexual relationship with Diedra and
Diedra’s husband to Diedra’s employer and to kill herself if
she could not continue her sexual relationship with Diedra
were threats under § 28-311.02.
[2,3] Before reaching the merits of the parties’ arguments,
we briefly review the law governing show cause hearings
and harassment protection orders. 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. 5 A protection order
is analogous to an injunction, and a party seeking an injunc-
tion must establish by a preponderance of the evidence every
controverted fact necessary to entitle that party to relief. 6 As
such, the petitioner at a show cause hearing following an ex
parte order has the burden to prove by a preponderance of the
evidence the truth of the facts supporting a protection order. 7
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. 8
Under Neb. Rev. Stat. § 28-311.09 (Cum. Supp. 2022),
“[a]ny victim who has been harassed as defined by section
28-311.02 may file a petition and affidavit for a harassment
protection order . . . .” Section 28-311.02(2)(a), in turn,
defines the term “harass” to mean “to engage in a know-
ing and willful course of conduct directed at a specific per-
son which seriously terrifies, threatens, or intimidates the
person and which serves no legitimate purpose.” The lan-
guage “seriously terrifies, threatens, or intimidates” is applied
4
Brief for appellant at 9.
5
Hawkins v. Delgado, 308 Neb. 301, 953 N.W.2d 765 (2021).
6
Id.7
Maria A. on behalf of Leslie G. v. Oscar G., 301 Neb. 673, 919 N.W.2d
841 (2018).
8
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Cite as 313 Neb. 417objectively, and “the evidence should therefore be assessed on
the basis of what a reasonable person under the circumstances
would experience.” 9 Thus, the inquiry is whether a reasonable
person would be seriously terrified, threatened, or intimidated
by the conduct at issue. 10
(a) Evidence as to Diedra
We agree with Diedra that there was sufficient evidence
to support continuing the harassment protection order in her
favor, although our reasoning differs somewhat from that of
the district court. 11 The district court emphasized Justina’s
“repeated contact” with Diedra when continuing the harass-
ment protection order, finding that that contact was seri-
ously threatening and intimidating and served no legitimate
purpose. We agree with Justina that a certain number of
texts or calls does not in itself constitute harassment under
§ 28-311.02. However, we disagree that the record here
reflects only repeated, unwanted communications that “dis-
turbed Diedra’s peace.” 12
Instead, the record shows threats by Justina to “out Diedra
as a queer woman to [Diedra’s] employer” and to kill herself
if they could not continue their sexual relationship. 13 The
record also shows that Justina’s texts and calls to Diedra
continued after the ex parte harassment protection order was
entered against Justina. 14 They were not limited to the 2
weeks immediately after Diedra broke off contact, as Justina
9
In re Interest of Jeffrey K., 273 Neb. 239, 245, 728 N.W.2d 606, 612
(2007).
10
Richards v. McClure, 290 Neb. 124, 858 N.W.2d 841 (2015).
11
See, e.g., Edwards v. Estate of Clark, ante p. 94, 982 N.W.2d 788 (2022)
(appellate court may affirm lower court’s ruling that reaches correct result,
albeit based on different reasoning).
12
Brief for appellant at 12.
13
Brief for appellee at 11.
14
Compare Hawkins, supra note 5 (respondent’s contacts with petitioner
ceased once ex parte harassment protection order was issued).
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Cite as 313 Neb. 417argues. Further, those texts and calls came from various phone
numbers, with the apparent intent of evading Diedra’s attempts
to block them. In addition, the record shows that Diedra came
to Justina’s home on March 29, 2022, and refused repeated
requests to leave. Law enforcement responded and ordered
Justina to leave. However, although she departed, Justina
subsequently texted or called Diedra multiple times later that
same day.
It is true that Justina did not physically harm or threaten to
physically harm Diedra. However, § 28-311.02 is not limited
to threats of physical violence; it merely refers to conduct
which “seriously . . . threatens.” 15 Further, § 28-311.02 also
encompasses conduct that is seriously terrifying or intimidat-
ing, as well as that which is seriously threatening. As such,
viewed objectively, Justina’s statements—and in particular,
her statements about disclosing the details of her sexual
relationship with Diedra and Diedra’s husband to Diedra’s
employer—could be read as threatening nonphysical harm to
Diedra, as well as being intimidating. Courts in other juris-
dictions have treated similar statements, expressing an intent
to disclose embarrassing information if the victim refused to
continue a relationship or take other action, as threats. 16 In
fact, in some cases, the courts have found that such threats
constitute extortionate communications unprotected by the
First Amendment. 17
As to Justina’s argument that her threat to disclose her sex-
ual relationship with Diedra and Diedra’s husband to Diedra’s
employer is not an “actionable ‘threat’ under [§] 28-311.02”
because “[i]t is a true statement,” there is no merit. 18 The
only case that Justina cites in support of that proposition,
15
See id.
16
See, e.g., U.S. v. Hobgood, 868 F.3d 744 (8th Cir. 2017); U.S. v. Petrovic,
701 F.3d 849 (8th Cir. 2012).
17
See Hobgood, supra note 16; Petrovic, supra note 16.
18
Reply brief for appellant at 4.
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Cite as 313 Neb. 417R. A. V. v. St. Paul, 19 is silent on the matter, and courts in other
jurisdictions have taken the opposite view.
For example, in Altafulla v. Ervin, 20 a California appel-
late court rejected the respondent’s argument that because his
emails to his partner’s employer and other statements about
her affair were “literally true,” they were not abusive and
could not form the basis for a domestic violence restraining
order. The court disagreed, finding that the “use of arguably
accurate information in a manner that causes severe emotional
distress” can constitute abuse. 21 An Illinois appellate court
took a similar view in People v. Hubble, 22 finding that in a
prosecution for intimidation, it was “immaterial whether the
facts threatened to be disclosed are true.” We find those opin-
ions persuasive here; it was Justina’s use of the information
against Diedra, and not the truth or falsity of the information,
that made Justina’s statement a threat.
Justina’s argument that her threats to kill herself should
also be disregarded, because “there was no mention of [such
threats] at the [s]how [c]ause [h]earing,” is similarly with-
out merit. 23 Justina’s threats to kill herself if she and Diedra
could not continue the sexual relationship were discussed in
Diedra’s petition and affidavit for a domestic abuse protec-
tion order, which was admitted into evidence at the show
cause hearing. Additionally, Diedra testified at that hearing
that the information in her petition and affidavit was and is
true and correct. Justina submitted nothing contradicting that
evidence. Justina observes on appeal that the district court
19
R. A. V. v. St. Paul, 505 U.S. 377, 112 S. Ct. 2538, 120 L. Ed. 2d 305(1992).
20
Altafulla v. Ervin, 238 Cal. App. 4th 571, 578, 189 Cal. Rptr. 3d 316, 321
(2015).
21
Id.22
People v. Hubble, 81 Ill. App. 3d 560, 564, 401 N.E.2d 1282, 1285, 37 Ill.
Dec. 189, 192 (1980).
23
Reply brief for appellant at 5.
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Cite as 313 Neb. 417sua sponte marked Diedra’s petition and affidavit as an exhibit
and entered it into evidence, with the apparent implication that
that was improper. However, Justina assigned no error to the
court’s doing so, 24 and the Legislature amended § 28-311.09(7)
in 2019 to provide that the petition and affidavit shall be
deemed to have been offered into evidence in any show cause
hearing and shall be admitted into evidence unless specifically
excluded by the court. 25
[4] As to Justina’s argument that her texts and calls are
protected by the First Amendment to the U.S. Constitution and
thus “cannot be sanctioned,” 26 it is conceivable that situations
could arise in which a person might say something that would,
in some sense, “intimidate” or “threaten” a reasonable person,
yet is protected by the First Amendment. 27 However, the ques-
tion of whether § 28-311.02 can be constitutionally applied to
conduct like Justina’s, which included threats to disclose the
details of her sexual relationship with Diedra and Diedra’s
husband to Diedra’s employer, is not properly before the court
in this case. Justina did not raise her First Amendment argu-
ment before the trial court. As such, we decline to consider
it. When an argument or theory is raised for the first time
on appeal, it will be disregarded inasmuch as a lower court
cannot commit error in resolving an issue that was never pre-
sented and submitted to it for disposition. 28
24
See Buttercase v. Davis, ante p. 1, 982 N.W.2d 240 (2022) (to be
considered by appellate court, alleged error must be both specifically
assigned and specifically argued in brief of party asserting error).
25
See 2019 Neb. Laws, L.B. 532.
26
Brief for appellant at 13.
27
See, e.g., U.S. v. Sryniawski, 48 F.4th 583, 587 (8th Cir. 2022) (noting that
“[t]he Free Speech Clause protects a variety of speech that is intended
to trouble or annoy, or make another timid or fearful” and collecting
cases); U.S. v. Yung, 37 F.4th 70, 78 (3d Cir. 2022) (noting that “[t]he
First Amendment protects at least some speech that persistently annoys
someone and makes him fearful or timid” and collecting cases).
28
Buttercase, supra note 24.
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Cite as 313 Neb. 417(b) Evidence as to Children
The situation is different as to the children; here, we agree
with Justina that there was insufficient evidence. The record
on appeal contains almost nothing regarding the children.
Diedra’s petition and affidavit for a domestic abuse protection
order stated only that she removed Justina from the list of per-
sons authorized to pick up the children from daycare because
she was “worried/scared what [Justina] may do to them as
[she does not] know what [Justina’s] capable of.” The peti-
tion and affidavit did not specifically articulate any basis for
those concerns. Nor did Diedra’s testimony at the show cause
hearing note any specific concerns about the children beyond
Justina’s threat to assert rights to the children based on her
polyamorous relationship with Diedra and Diedra’s husband.
Justina, in contrast, testified that she had a close relationship
with the children, was effectively their aunt and nanny, and
never harmed or threatened them. Justina’s testimony here
was uncontroverted, even if the district court found Justina to
be generally less credible than Diedra. This evidence would
not cause a reasonable person to be seriously terrified, threat-
ened, or intimidated.
Diedra argues that under Robert M. on behalf of Bella O.
v. Danielle O., 29 children are eligible for protection orders
where their mother is “a target of a credible threat that causes
a reasonable fear for their safety.” 30 Diedra is correct that
in Robert M. on behalf of Bella O., we affirmed the entry
of a protection order in favor of a minor child even though
there was “minimal” evidence that the respondent’s conduct
was targeted or directed at the child. 31 However, Robert M.
on behalf of Bella O. involved a domestic abuse protection
29
Robert M. on behalf of Bella O. v. Danielle O., 303 Neb. 268, 928 N.W.2d
407 (2019).
30
Brief for appellee at 11.
31
Robert M. on behalf of Bella O., supra note 29, 303 Neb. at 275, 928
N.W.2d at 413.
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Cite as 313 Neb. 417order under the Protection from Domestic Abuse Act, Neb.
Rev. Stat. § 42-901 et seq. (Reissue 2016 & Cum. Supp.
2022). That act expressly defines the term “abuse” to include
threats that “cause the person who is the target of the threat
to reasonably fear for his or her safety or the safety of his or
her family.” 32 We relied upon that statutory language in con-
cluding that not only is the recipient or target of a credible
threat a “victim” of abuse eligible for a domestic abuse pro-
tection order under § 42-924, so too are those family members
for whose safety the target reasonably fears because of the
threat. 33 However, we also found that the respondent’s threat
in that case actually caused the targets or recipients to reason-
ably fear for the child’s safety. 34
Here, in contrast, we are dealing with a harassment protec-
tion order under §§ 28-311.02 and 28-311.09. Those statutes
do not include the same language about fears for the safety of
family members that appears in the Protection from Domestic
Abuse Act. Rather, they focus upon whether a reasonable
person would be seriously terrified, threatened, or intimidated
by the conduct at issue, and as we previously indicated, that
standard is not met as to the children given the record here.
Accordingly, we modify the harassment protection order on de
novo review to exclude Diedra’s minor children.
2. Procedural Due Process
Justina also relies on our decision in Yerania O. v. Juan
P. 35 to argue that her due process rights were violated when
the district court continued the harassment protection order
against her. Justina argues that her situation was like that of
the respondent in Yerania O., in that she was “not aware . . .
32
§ 42-903(1)(b).
33
Robert M. on behalf of Bella O., supra note 29.
34
Id.
35
Yerania O. v. Juan P., 310 Neb. 749, 969 N.W.2d 121 (2022).
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Cite as 313 Neb. 417a harassment protection order was still on the table” 36 after
Diedra “elected” to pursue a domestic abuse protection order
at the show cause hearing. 37 Diedra counters that Justina had
notice and an opportunity to be heard regarding a harass-
ment protection order. Given the record before us, we agree
with Diedra.
[5,6] While the concept of due process defies precise
definition, it embodies and requires fundamental fairness. 38
Generally, procedural due process requires parties whose
rights are to be affected by a proceeding to be given timely
notice, which is reasonably calculated to inform the person
concerning the subject and issues involved in the proceeding;
a reasonable opportunity to refute or defend against a charge
or accusation; a reasonable opportunity to confront and cross-
examine adverse witnesses and present evidence on the charge
or accusation; representation by counsel, when such repre-
sentation is required by constitution or statute; and a hearing
before an impartial decisionmaker. 39
[7] With harassment protection hearings specifically,
because the intrusion on the respondent’s liberty interests is
relatively limited, the procedural due process afforded is like-
wise limited. 40 Nonetheless, while the procedures required in
a harassment protection order proceeding may not reflect the
full panoply of procedures common to civil trials, due proc­
ess does impose some basic procedural requirements. 41 Our
decision in Yerania O. reviewed those requirements before
reiterating that procedural due process in harassment pro-
tection hearings includes notice of the “ultimate theory” on
36
Brief for appellant at 15.
37
Id. at 14.
38
Yerania O., supra note 35.
39
Id.
40
Id.
41
Id.
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Cite as 313 Neb. 417which the protection order is based and a “fair opportunity to
address” that theory. 42
We decided Yerania O. after the Legislature amended
§ 28-311.09(7) in 2019 to require that the notices given to
respondents regarding harassment protection orders include
notification that the court may treat a petition for a harassment
protection order as a petition for a sexual assault or domestic
abuse protection order, if it appears from the facts that such
order is more appropriate, and that the respondent shall have
an opportunity to show cause why such order should not be
entered. 43 The notice given to the respondent in Yerania O.
included the statutorily required notification. 44 Nonetheless,
we found that the respondent’s due process rights were vio-
lated when the district court sua sponte entered a harassment
protection order after the petitioner sought, and the district
court heard, oral arguments regarding a sexual assault protec-
tion order. 45
Specifically, we found in Yerania O. that the notice pro-
vided to the respondent did not make clear that the court
could treat the petition as a request for a harassment protection
order where an ex parte sexual assault protection order had
already been entered against him in favor of the petitioner.
Instead, the notice appeared to indicate that such action was
applicable only if the parties had an opportunity to present
evidence prior to the entry of the order. 46 We similarly found
that the respondent had no opportunity to be heard regard-
ing the harassment protection order because the show cause
42
Id. at 766, 969 N.W.2d at 132. See, also, D.W. v. A.G., 303 Neb. 42, 926
N.W.2d 651 (2019); Linda N. v. William N., 289 Neb. 607, 856 N.W.2d
436 (2014); Mahmood v. Mahmud, 279 Neb. 390, 778 N.W.2d 426 (2010);
Sherman v. Sherman, 18 Neb. App. 342, 781 N.W.2d 615 (2010).
43
See 2019 Neb. Laws, L.B. 532.
44
Yerania O., supra note 35.
45
Id.
46
Id.
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Cite as 313 Neb. 417hearing focused solely on whether the ex parte sexual assault
order should be continued. 47 There was testimony and evi-
dence concerning whether sexual assault or sexual harass-
ment occurred, but nothing concerning harassment or domestic
abuse protection orders. 48 Only after the close of evidence
did the district court sua sponte refile the petition under a
new case number and enter the harassment protection order. 49
However, by that time, the respondent no longer had an oppor-
tunity to be heard regarding such an order. 50
Justina’s circumstances are unlike those of the respondent
in Yerania O. in that she had an opportunity to be heard
regarding the continuation of the harassment protection order
against her. It is true that Diedra renewed her request for
a domestic abuse protection order at the show cause hear-
ing. However, the record shows that both the district court
and Diedra indicated that a domestic abuse protection order
was being considered as an alternative to, and not in lieu
of, a harassment protection order. The district court made a
statement to that effect at the start of the show cause hear-
ing. It then asked Diedra if she requested that the “ex parte
[order] remain in its current fashion.” Diedra responded
affirmatively before “add[ing]” that she also requested that
“the [c]ourt consider this to be a domestic abuse protec-
tion order.” The district court subsequently indicated that it
would treat the harassment and domestic abuse protection
orders “simultaneous[ly].” During the hearing, the court on
multiple occasions provided the parties an opportunity to
offer additional evidence. At the conclusion of the hearing, it
reminded the parties that there were “two burdens [of proof]
here,” apparently meaning one burden for each type of order
under consideration. Lastly, Justina did not ask the court for
47
Id.48
Id.49
Id.50
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Cite as 313 Neb. 417a continuance to gather additional evidence to support her
claim that a protection order was not warranted. As such,
Justina’s argument that she was denied an opportunity for
a hearing regarding a harassment protection order is incon­
sistent with the record and, as such, without merit.
There is similarly no merit to Justina’s suggestion that
Yerania O. requires petitioners to elect a single theory and
proceed on that basis. The language that Justina quotes from
Yerania O. about “protect[ing]” the “‘due process rights of
both parties . . . by trying the case only on the theory elected
by the petitioner’” 51 comes from our description of the opinion
of the Nebraska Court of Appeals in Sherman v. Sherman. 52
As such, its use of the singular “theory” should be construed
as reflecting the facts of that case, rather than impliedly pro-
hibiting petitioners from proceeding under multiple theories.
It is inherent in our jurisprudence that a respond­ent in a
protection order proceeding must be notified of the grounds
upon which a protection order is sought and provided with
an opportunity to respond to those grounds at the show cause
hearing. 53 Here, that is what happened.
3. Mootness
Finally, Justina argues that her appeal should not be dis-
missed as moot if the harassment protection order against
her expires before we issue our decision. She argues that the
public interest exception to the mootness doctrine applies
because the district court made an error of law in continuing
the harassment protection order against her and because this
is a case of first impression insofar as the district court con-
tinued the harassment protection order after Diedra renewed
her request for a domestic abuse protection order. Justina
also urges us to adopt the reasoning of other courts that cases
51
Brief for appellant at 15 (quoting Yerania O., supra note 35).
52
See, e.g., Sherman, supra note 42.
53
See, e.g., D.W., supra note 42.
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Cite as 313 Neb. 417involving expired protection orders are not moot because such
orders have negative collateral consequences which persist
after the order expires.
[8] Because the harassment protection order in the present
case has not yet expired, we need not address those questions.
An appellate court is not obligated to engage in an analysis
that is not needed to adjudicate the controversy before it. 54
VI. CONCLUSION
There was sufficient evidence to continue the harassment
protection order in favor of Diedra, and the district court did
not abridge Justina’s due process rights by doing so. However,
because the record shows insufficient evidence to warrant
continuing the harassment protection order as to the children,
we modify the district court’s order on de novo review to
exclude the children.
Affirmed as modified.
54
See Acklie v. Nebraska Dept. of Rev., ante p. 28, 982 N.W.2d 228 (2022).