Hawkins v. Delgado

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/01/2021 12:12 AM CDT
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HAWKINS v. DELGADO
Cite as 308 Neb. 301Keeley Brianne Hawkins, appellee,
v. Erick Delgado, appellant.
___ N.W.2d ___
Filed January 29, 2021. No. S-20-417.
1. Protection Orders: Appeal and Error. The grant or denial of a harass-
ment protection order is reviewed de novo on the record.
2. Appeal and Error. The grant or denial of a stay of proceedings is
reviewed for an abuse of discretion.
3. Protection Orders. A show cause hearing in protection order proceed-
ings is a contested factual hearing, in which the issues before the court
are whether the facts stated in the sworn application are true.
4. Protection Orders: Injunction: Proof. A protection order is analogous
to an injunction. A party seeking an injunction must establish by a pre-
ponderance of the evidence every controverted fact necessary to entitle
the claimant to relief.
Appeal from the District Court for Douglas County: Thomas
K. Harmon, County Judge. Affirmed.
David V. Chipman and Carlos A. Monzòn, of Monzòn,
Guerra & Associates, for appellant.
Kristina B. Murphree and Steven J. Riekes, of Marks, Clare
& Richards, L.L.C., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
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HAWKINS v. DELGADO
Cite as 308 Neb. 301Heavican, C.J.
INTRODUCTION
An ex parte harassment protection order was entered by
the trial court against Erick Delgado. Following a hearing, the
order was continued. Delgado appeals. We affirm.
FACTUAL BACKGROUND
Delgado and Keeley Brianne Hawkins are both first lieuten-
ants in the U.S. Air Force. At the relevant time, Hawkins was
stationed at Offutt Air Force Base in Bellevue, Nebraska, and
Delgado was stationed at a base in Tucson, Arizona. The two
dated off and on beginning in September 2017 and through the
end of December 2019. At various points Hawkins tried to end
their relationship, but whenever she did so, Delgado would
threaten to commit suicide or to ruin Hawkins’ career.
Hawkins ultimately ended the relationship on December
28, 2019. Hawkins informed Delgado, via text message, that
he should not contact her and that she would “block him” on
social media if he did so. In response, Delgado again threat-
ened suicide, saying that he had “talked to God” and that he
would leave her his life insurance. The next day, Delgado
apologized and said he would not contact Hawkins.
A few days later, on January 3, 2020, Hawkins alleges that
Delgado placed a video call to her while she was on deploy-
ment abroad. Delgado was in his closet with a noose around
his neck. He told Hawkins that either she could get back
together with him or he would commit suicide. Hawkins was
able to contact a mutual friend who stopped Delgado from sui-
cide. At that time, Hawkins attempted to “block” Delgado on
social media.
A few days later, Hawkins received an email message at
an old email account that she had not blocked. In it, Delgado
expressed concern that others not find out about his most
recent suicide threat. Hawkins did not reply.
Approximately 1 week later, Delgado texted Hawkins,
this time using a “burner” cell phone. In his text message,
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HAWKINS v. DELGADO
Cite as 308 Neb. 301Delgado told Hawkins that he loved her, said he was trying
to get assigned to Offutt Air Force Base, and asked if she had
received the flowers he had sent. Delgado also told Hawkins
that if she blocked the number he was using, he would just
“‘get another burner. Lol.’” Again, Hawkins asked Delgado to
stop contacting her.
Hawkins alleges that Delgado did not stop. A few days later,
on January 18, 2020, he sent her two email messages. One
message read, “‘Time has come. Karma.’” The other message
said, “‘It won’t stop till it all burns. That I promise.’” A day
later, on January 19, Delgado emailed, “‘There is a storm com-
ing. Afterwards there shall be the calm. Keeley you will be free
from yourself and your past.’”
On January 23, 2020, Hawkins sought a no-contact order
through her commanding officer in the Air Force. Reciprocal
no-contact orders were issued on January 31. Within 2 days,
Delgado contacted Hawkins again, telling her that the order
was a “‘[n]ice try’” and threatening to come to Omaha,
Nebraska.
On February 3, 2020, Hawkins sought a harassment protec-
tion order from the Douglas County District Court. In support
of her request, Hawkins related the above instances and further
noted that she had
tried everything to get [Delgado] to leave me alone and
he won’t stop. At this point my entire well-being has dete-
riorated rapidly. My sense of safety is completely gone.
I am living in fear each day, scared of what [Delgado]
might do next. He knows where I live and could possibly
have access to a key to my home. It had become clear to
me that he had no intention of respecting my decisions,
boundaries, or safety. The fear and stress of the situation
has affected my ability to fall and stay asleep, my appetite
is gone, and long periods of concentration is [sic] now
nearly impossible.
I am scheduled to deploy in two weeks. I have to
remain hypervigilant because I do not know what he
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HAWKINS v. DELGADO
Cite as 308 Neb. 301is capable of. I have had my locks re-keyed, I have noti-
fied my neighbors to call the police if he shows up at
my house, and I am getting a security system installed
this Thursday.
An ex parte order was issued that day.
On February 20, 2020, Delgado, in his own behalf, sought a
hearing on whether the ex parte order should be continued. A
hearing was set for March 19. Delgado also retained counsel,
who entered an appearance on March 4.
Meanwhile, on February 28, 2020, Hawkins filed a motion to
continue the hearing under a provision of the Servicemembers
Civil Relief Act (SCRA). 1 That motion was granted, and the
hearing was delayed to April 30, then to May 7.
The hearing took place on May 7, 2020. Hawkins and her
counsel appeared in person. Delgado did not appear, but was
represented by counsel. During the hearing, Hawkins asked
that Delgado’s request for a hearing be dismissed because
Delgado did not appear in person. Delgado’s counsel indicated
that Delgado was on base in Arizona, could not appear in per-
son, and but for Hawkins’ objection, could have appeared tele-
phonically or by video conference. Counsel for Delgado also
verbally requested a stay under the SCRA. Finally, Delgado’s
counsel argued that the ex parte harassment protection order
was unnecessary because of the military’s no-contact order.
Following the hearing, the trial court entered an order gen-
erally finding that the ex parte order should continue in effect.
Specifically, the court found that because Delgado appeared
via counsel, he did not fail to appear, and that therefore,
Hawkins’ motion to dismiss should be denied. The court also
found that (1) Delgado’s oral motion was not a proper request
for a stay under the SCRA and accordingly denied the motion
for a stay; (2) the military no-contact order had expired on
March 31, 2020, and thus the court need not determine issues
relating to whether it and a harassment protection order could
1
50 U.S.C. § 3932 (Supp. V 2018).
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HAWKINS v. DELGADO
Cite as 308 Neb. 301both be issued; and (3) there was good cause to extend or con-
tinue the harassment protection order until 1 year from the date
of the original order—or February 3, 2021.
Delgado appeals.
ASSIGNMENTS OF ERROR
Delgado assigns that the trial court erred in (1) finding suffi-
cient support to order the ex parte harassment protection order
and (2) not staying the show cause hearing.
STANDARD OF REVIEW
[1] The grant or denial of a harassment protection order is
reviewed de novo on the record. 2
[2] The grant or denial of a stay of proceedings is reviewed
for an abuse of discretion. 3
ANALYSIS
Harassment Protection Order.
Delgado first assigns that the trial court erred in allowing the
continuation of the ex parte order, contending that there was
insufficient evidence to support the grant of the order.
Harassment protection orders are governed by Neb. Rev.
Stat. § 28-311.09 (Supp. 2019):
(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 as provided in subsection (3)
of this section. . . .
(2) The petition for a harassment protection order shall
state the events and dates or approximate dates of acts
constituting the alleged harassment, including the most
recent and most severe incident or incidents.
Neb. Rev. Stat. § 28-311.02(2)(a) (Reissue 2016) defines
“[h]arass” as engaging in a “knowing and willful course of
2
Richards v. McClure, 290 Neb. 124, 858 N.W.2d 841 (2015).
3
See Schuessler v. Benchmark Mktg. & Consulting, 243 Neb. 425, 500
N.W.2d 529 (1993).
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HAWKINS v. DELGADO
Cite as 308 Neb. 301conduct directed at a specific person which seriously terrifies,
threatens, or intimidates the person and which serves no legiti-
mate purpose.” Section 28-311.02(2)(b) defines “[c]ourse of
conduct” as a “pattern of conduct composed of a series of acts
over a period of time, however short, evidencing a continuity
of purpose, including a series of acts of following, detain-
ing, restraining the personal liberty of, or stalking the person
or telephoning, contacting, or otherwise communicating with
the person.”
[3,4] 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. 4 A protection order is analogous to an injunction. 5 A party
seeking an injunction must establish by a preponderance of the
evidence every controverted fact necessary to entitle the claim-
ant to relief. 6
Given the language of Nebraska’s stalking and harassment
statutes and the purpose announced by the Legislature for
enacting the statutes, an objective construction of the statutes
is appropriate, and the victim’s experience resulting from
the perpetrator’s conduct should be assessed on an objec-
tive basis. 7
Delgado directs this court to Glantz v. Daniel, 8 Yancer v.
Kaufman, 9 and Casaday v. Winterstein 10 to support his conten-
tion that his conduct was insufficient to support the continuation
4
Maria A. on behalf of Leslie G. v. Oscar G., 301 Neb. 673, 919 N.W.2d
841 (2018).
5
Id.6
Id.7
See In re Interest of Jeffrey K., 273 Neb. 239, 728 N.W.2d 606 (2007).
8
Glantz v. Daniel, 21 Neb. App. 89, 837 N.W.2d 563 (2013).
9
Yancer v. Kaufman, 22 Neb. App. 320, 854 N.W.2d 640 (2014).
10
Casaday v. Winterstein, No. A-17-1246, 2018 WL 4042863 (Neb. App.
Aug. 16, 2018) (selected for posting to court website).
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HAWKINS v. DELGADO
Cite as 308 Neb. 301of the ex parte order. More specifically, Delgado argues that
the interactions he had with Hawkins did not amount to harass-
ment under § 28-311.02(2)(a) because he did not threaten her
with physical violence, or indeed threaten her in any way. In
addition, Delgado essentially suggests that his actions against
Hawkins were so infrequent as to not qualify as a course of
conduct under § 28-311.02(2)(b).
As an initial matter, we disagree with Delgado’s assertion
that he did not threaten physical violence. In two different
messages sent on January 18, 2020, Delgado told Hawkins,
“‘Time has come. Karma,’” and also, “‘It won’t stop till it all
burns. That I promise.’” The next day, Delgado sent another
email that said, “‘There is a storm coming. Afterwards there
shall be the calm. Keeley you will be free from yourself and
your past.’”
Viewed objectively, these messages—in particular Delgado’s
statement that Hawkins will be “‘free from yourself’”—could
be read as threatening physical harm. Contributing to the
interpretation is that these messages were preceded by other
messages in which Delgado threatened suicide on multiple
occasions, wondered about how it was that he became a manip-
ulator and abuser, and further indicated that he would come
to Omaha. It was after these messages on January 18 and 19,
2020, that Hawkins sought a military no-contact order.
In any case, the definition of “[h]arass” in § 28-311.02(2)(a)
is not limited to threats of physical violence—it also includes
conduct that “seriously terrifies” or “intimidates.” In fact,
physical violence is only implicitly referenced in the definition
of the word “harass,” via the term “threatens.”
We have reviewed the cases relied upon by Delgado and find
them distinguishable. In two of those cases, due to mootness
and an insufficient record, the merits of the appeals were not
fully considered. The third case was both factually distinct as
well as unpublished.
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HAWKINS v. DELGADO
Cite as 308 Neb. 301Nor does it matter that Delgado’s messages were of a lesser
frequency than in, for example, In re Interest of Jeffrey K., 11
which included approximately 200 instances of verbal abuse.
The plain language of the definition of “[c]ourse of conduct”
in § 28-311.02(2)(b) notes that it includes “a series of acts over
a period of time, however short.”
Hawkins’ application indicated that Delgado had threatened
suicide prior to her ending their relationship on December 28,
2019. Thereafter, beginning on December 29, Delgado texted,
emailed, or called Hawkins every few days. After Hawkins
attempted to block communications from Delgado, he managed
to contact her via an older email account and a “burner” phone.
Hawkins then obtained a no-contact order through the military;
Delgado’s response was to email her to say “‘[n]ice try’” and
threaten to come to Omaha.
Though these exchanges lasted just over a month, they
occurred every few days. Delgado went out of his way to con-
tact Hawkins even after she blocked him and had a no-contact
order entered. The contact ceased only after Hawkins obtained
the ex parte harassment protection order. This constitutes a
“[c]ourse of conduct”—a “series of acts” performed over the
course of over 1 month, “evidencing a continuity of purpose,”
as required by §§ 28-311.02(2)(b) and 28-311.09.
There was sufficient evidence to support the continuation of
the ex parte order. Delgado’s first assignment of error is with-
out merit.
Stay.
Delgado next assigns that the trial court erred in not granting
his request for a stay.
We turn first to the provisions of the SCRA. The SCRA gen-
erally provides a stay in “any civil action or proceeding” where
the plaintiff or defendant “is in military service or is within
11
In re Interest of Jeffrey K., supra note 7.
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HAWKINS v. DELGADO
Cite as 308 Neb. 30190 days after termination of or release from military service”
and “has received notice of the action or proceeding.” 12
In order for an application for a stay to be granted, such a
request “shall include” a “letter or other communication set-
ting forth facts stating the manner in which current military
duty requirements materially affect the servicemember’s abil-
ity to appear and stating a date when the servicemember will
be available to appear,” and a “letter or other communication
from the servicemember’s commanding officer stating that the
servicemember’s current military duty prevents appearance and
that military leave is not authorized for the servicemember at
the time of the letter.” 13
We have limited case law on the SCRA. In Carmicheal
v. Rollins, 14 this court found no error in the district court’s
denial of a stay under the SCRA even where all requirements
of the SCRA were met. There, despite filings that indicated
the applicant was not available, the record showed that the
applicant had, in fact, appeared at the hearing in question;
thus, her ability to appear was not materially affected by her
military service.
More recently, the Nebraska Court of Appeals decided
Rickert v. Rickert. 15 That court found the requirements of the
SCRA were not met where the letter from the applicant’s
commanding officer did not state that “current military duty
prevented [the applicant] from appearing and did not state that
military leave was not authorized.” 16 The Court of Appeals
concluded that the district court did not err in denying the
application for a stay where the applicant failed to comply with
the requirements set forth in the SCRA.
12
50 U.S.C. § 3932.
13
Id.14
Carmicheal v. Rollins, 280 Neb. 59, 783 N.W.2d 763 (2010).
15
Rickert v. Rickert, 27 Neb. App. 533, 934 N.W.2d 384 (2019).
16
Id. at 541-42, 934 N.W.2d at 391.
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Cite as 308 Neb. 301In addressing an argument raised by the applicant in Rickert,
the Court of Appeals acknowledged that “[c]ourts inherently
possess the power to stay civil proceedings when required by
the interests of justice.” 17 The Court of Appeals, which had
already rejected the applicant’s argument on appeal for failure
to comply with the SCRA, concluded that there was likewise
no abuse of discretion in not granting an SCRA stay under the
court’s inherent authority.
A review of the record shows that Delgado did not com-
ply with the requirements of the SCRA. Counsel referenced
the SCRA at the hearing on the continuance of the ex parte
order, but no written application was filed—only a verbal
request was made that was limited to a reference to the
SCRA. Counsel made no specific allegations about Delgado’s
availability, except to note that he was not present and could
not travel, apparently due to travel restrictions. These ver-
bal representations do not comply with the requirements of
the SCRA.
For similar reasons, we reject any suggestion that the court
should have granted a stay under the SCRA in the absence of
compliance with the statute. The record supports a conclusion
that such a stay was not sought until the day of the hearing
and, as noted, that such a request was only made orally and
was not accompanied by any explanation as to why Delgado
could not appear, aside from a general assertion that he was
stationed in Arizona and was unable to travel, apparently due
to travel restrictions. While the provisions of the SCRA might
be entitled to a liberal construction, such liberal construction is
not a license to fail to comply with the primary requirements
of the SCRA.
While there is some suggestion that Delgado sought per-
mission to appear telephonically or by video conference, there
17
Id. at 543, 934 N.W.2d at 392, citing Schuessler v. Benchmark Mktg. &
Consulting, supra note 3.
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Cite as 308 Neb. 301is no request for such an appearance in the record. Moreover,
at the relevant time, Neb. Rev. Stat. § 24-734 (Reissue 2016),
which has since been amended, required the other party to
give consent to such an appearance; apparently, no consent
was given. In addition, the record before this court is devoid
of any information about what Delgado might have testified to
had he been allowed to appear by telephone or video confer-
ence. As such, we cannot tell what prejudice, if any, Delgado
suffered as a result of his inability to appear.
Finally, we note that Delgado did not seek a continuance
under any other provision of Nebraska law. 18
We find no abuse of discretion in the trial court’s denial of
an SCRA stay. Delgado’s second assignment of error is with-
out merit.
CONCLUSION
The decision of the trial court is affirmed.
Affirmed.
18
See Neb. Rev. Stat. § 25-1148 (Reissue 2016).