Allen v. Allen

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/04/2023 09:06 AM CDT
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
ALLEN V. ALLEN
Cite as 31 Neb. App. 728Kara M. Allen, appellee, v.
Bradley J. Allen, appellant.
___ N.W.2d ___
Filed April 4, 2023. No. A-22-389.
1. Protection Orders: Appeal and Error. The grant or denial of a protec-
tion order is reviewed de novo on the record.
2. ____: ____. In a de novo review of a protection order, an appellate
court reaches conclusions independent of the factual findings of the
trial court.
3. Evidence: Appeal and Error. Where 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.
4. Protection Orders. A protection order upon renewal, just as at its incep-
tion, is oriented toward the future with the goal to protect victims of
domestic abuse from further harm.
5. ____. The renewal of a protection order shares the same fundamental
characteristics of the original protection order.
6. ____. The court at a hearing on a petition for renewal of a protec-
tion order must reevaluate the likelihood of harm over the course of
another year in which it would be in effect if the petition for renewal
is granted.
7. ____. In determining if a contested renewal of the protection order is
justified in light of the likelihood of future harm, the court considers all
the surrounding circumstances, including the passage of time since the
abuse that was found in relation to the original order and all the factors
relating to its severity, nature, frequency, and impact.
8. ____. The court may consider, in determining whether to renew a pro-
tection order, whether any new domestic abuse has occurred during the
period of the original protection order and its severity, nature, frequency,
and impact.
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
ALLEN V. ALLEN
Cite as 31 Neb. App. 7289. ____. In determining the likelihood of future harm based on past domes-
tic abuse, as well as on any abuse during the duration of the original
protection order, the court may consider evidence of the relationship
of the parties as demonstrated by their behavior both before and since
the issuance of the original protection order and by their testimony at
the hearing.
Appeal from the District Court for Sarpy County: George
A. Thompson, Judge. Affirmed.
Renee L. Mathias, of Berry Law Firm, for appellant.
Matthew Stuart Higgins and Andrew T. Braun, of Higgins
Law, for appellee.
Pirtle, Chief Judge, and Riedmann and Arterburn,
Judges.
Riedmann, Judge.
INTRODUCTION
Bradley J. Allen appeals the renewal of a domestic abuse
protection order against him. He argues that the district court
erred in “automatically” renewing the order without reevaluat-
ing the likelihood of harm over the course of another year and
that it erred in renewing the protection order. Based on our de
novo review, we find the district court did not err in renewing
the domestic abuse protection order. We affirm.
BACKGROUND
On March 31, 2020, Kara M. Allen was granted a 1-year
ex parte domestic abuse protection order against her spouse,
Bradley. In her petition and affidavit seeking the order, Kara
stated that on March 24, she spoke with a lawyer about
divorcing Bradley, whom she had discovered was “cheat-
ing” on her “again with the neighbor.” Bradley called her
“screaming and threatening to destroy [her]” and told her that
he was “going to bury [her]” and that “no one was going to
find” her body. On March 30, Kara discovered that Bradley
had allowed their two children to play with the neighbor and
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
ALLEN V. ALLEN
Cite as 31 Neb. App. 728her children, even though Kara and Bradley had protection
orders against the neighbor and her children. Kara told Bradley
she did not want their children introduced into that environ-
ment and she wanted their children to see a therapist.
When Kara told Bradley she planned to get lawyers involved,
he started to “rage” and made “jabbing actions” with a sharp-
ened pencil, saying that he was going to kill her and destroy
her and that “he was going to get nasty.” Bradley restrained
her from leaving by grabbing her arms and moving her back
into the room, then he shut the door and stood in front of it.
Kara was scared and felt the circumstances were “elevating”;
she called her mother to pick up their children and then called
the 911 emergency dispatch service. Kara’s affidavit stated
Bradley had acted out in rage and gotten physical multiple
times throughout their marriage, called her vile names, and left
bruises on her body from physically restraining her or “throw-
ing [her] around.” The district court for Sarpy County entered
an ex parte domestic abuse protection order based upon the
allegations of the affidavit, which order was to remain in effect
for 1 year.
On March 26, 2021, Kara filed a petition and affidavit to
renew the protection order. Kara stated she was seeking renewal
at that time because Bradley’s behavior and actions scared her
and she was concerned about them escalating. She described
the situation that occurred when she attended Bradley’s sen-
tencing for third degree assault, when Bradley “stared [her]
down” and rolled his eyes at her. When the judge asked Kara
a question, Bradley turned to her with his hands on his hips
and his chest “puffed out” to intimidate her. The judge saw this
and asked Bradley to turn around. Kara also stated that Bradley
was staying at the house next door to her. He paced in front of
the neighbor’s front windows, peeked through the blinds that
look out to the front of her house, made his presence known,
and watched their activities.
Based upon the allegations of the affidavit, the court entered
an ex parte order renewing the protection order for 1 year.
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
ALLEN V. ALLEN
Cite as 31 Neb. App. 728Bradley requested a show cause hearing at which Kara testi-
fied that she had seen Bradley peering through the windows,
giving her what she considered to be threatening looks, and
staring over at her backyard, and that on phone calls with their
children, he stated that he knew what the children were doing
outside in the front yard. Kara was still in fear of Bradley and
asked that the protection order be renewed. The district court
granted the renewal for 1 year.
On March 17, 2022, Kara again filed a petition and affida-
vit to renew the protection order. Kara stated she was seeking
renewal as she still lived in fear for many reasons. She stated
that Bradley was still on probation for violent criminal convic-
tions where she was the victim, that he was awaiting sentenc-
ing for violating his probation by possessing firearms, and
that through discovery, he knew she was the one who reported
him for possessing firearms that led to his probation violation
charge. She also stated that their divorce was still pending and
was highly contentious due to Bradley’s actions and behav-
ior. Kara stated that she was in fear for her life and requested
that the protection order be renewed. An ex parte domestic
abuse protection order was granted. Bradley filed a request for
a hearing.
At the hearing on the petition for renewal, both Kara and
Bradley testified. It was clarified that Bradley was not await-
ing sentencing for violating his probation; rather, he had been
arrested for violating his probation but had not yet been found
to have actually violated his probation. Kara also confirmed
that due to Bradley’s probation and their divorce, Bradley was
not permitted to have contact with her and he had not had
contact with her since January 2021. She also confirmed that
Bradley is precluded from having firearms, but in the last year,
his home was raided by police and a collection of firearms
was found.
Bradley testified that he was still opposed to the protec-
tion order. Based upon the advice of counsel, he refused to
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ALLEN V. ALLEN
Cite as 31 Neb. App. 728answer the only question posed to him by Kara’s counsel, that
being whether he has possessed firearms within the last year.
At the close of the hearing on the renewal of the protection
order, the court stated that “[t]here is a question about renew-
als.” It advised the parties that it was leaving the record open
for receipt of closing arguments on the standard to be applied
in protection order renewals, commenting:
[T]here is a question when the legislature changed the
statute. And even the judiciary doesn’t understand the
standard by which we would look at this. And if it
appears that renewals are automatic, I think that’s the way
the legislature wrote it, but I think there’s an argument to
be made.
So I would hold the record open for the receipt of
any closing arguments that you would have. You’re not
required to do that. Um, just cite appropriate case law
on it.
The district court affirmed the renewal of the protection order
on April 21, 2022, using a preprinted form. Bradley appeals.
ASSIGNMENTS OF ERROR
Bradley argues that the district court erred in automatically
renewing the protection order without reevaluating the likeli-
hood of harm over the course of another year if the petition for
renewal was granted and that the district court erred in renew-
ing the domestic abuse protection order.
STANDARD OF REVIEW
[1-3] A protection order pursuant to Neb. Rev. Stat. § 42-924(Cum. Supp. 2022) is analogous to an injunction. Garrison
v. Otto, 311 Neb. 94, 970 N.W.2d 495 (2022). Thus, the
grant or denial of a protection order is reviewed de novo on
the record. Id. In such de novo review, an appellate court
reaches conclusions independent of the factual findings of
the trial court. Id. However, where credible evidence is
in conflict on a material issue of fact, the appellate court
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
ALLEN V. ALLEN
Cite as 31 Neb. App. 728considers, 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. Id.ANALYSIS
Bradley assigns that the court erred in “automatically renew-
ing the protection order without reevaluating the likelihood of
harm.” However, the order renewing the protection order does
not indicate that the court entered it automatically without
considering the likelihood of harm. The district court indicated
on the record that it was its understanding that the Legislature
intended renewals to be automatic, but it left the record open
for the attorneys to submit closing arguments on the issue. Our
record does not include any arguments submitted, nor does the
preprinted form make specific factual findings. Rather, it finds
that Kara has shown that Bradley attempted to cause or inten-
tionally and knowingly caused bodily injury, or by means of a
credible threat, placed her in fear of bodily injury; or engaged
in sexual contact without consent. Notwithstanding, given our
de novo review, we find no error in the court’s order renewing
the protection order.
Section 42-924 provides in part that any victim of domes-
tic abuse may file a petition and affidavit for a protection
order and that the petition shall state the events and dates or
approximate dates of acts constituting the alleged domestic
abuse, including the most recent and most severe incident or
incidents. Section 42-924(3)(b) further provides that a victim
of domestic abuse may file a petition and affidavit to renew
a protection order, which shall be filed any time within 45
days before the expiration of the previous order. The protec-
tion order may be renewed on the basis of the petitioner’s
affidavit stating that there has been no material change in
relevant circumstances since the entry of the order and stat-
ing the reason for the requested renewal, if (a) the petitioner
seeks no modification of the order and (b) the respondent
has been properly served and fails to appear at the hearing
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
ALLEN V. ALLEN
Cite as 31 Neb. App. 728or indicates that he or she does not contest the renewal.
§ 42-924.
[4] In Garrison v. Otto, 311 Neb. 94, 970 N.W.2d 495 (2022),
the Nebraska Supreme Court recognized that § 42-924(3)(b)
can be read to suggest that renewal is not automatic when the
respondent contests the renewal. Rather, the Garrison court
explained that when an evidentiary hearing is held, the purpose
of that hearing is to receive evidence so that the court may
reweigh the burdens the order will inflict against its benefits in
light of all the relevant circumstances, including what has or
has not changed since its issuance. Id. A protection order upon
renewal, just as at its inception, is oriented toward the future
with the goal to protect victims of domestic abuse from further
harm. Id.
[5] In Garrison, the court observed that the renewal of
a protection order shares the same fundamental characteris-
tics of the original protection order. The renewed protection
order must, therefore, be supported by the same statutory
and equitable considerations as an original order. Id. Those
considerations include, but are not limited to, the remoteness,
severity, nature, and frequency of past abuse; past or pending
credible threats of harm; the psychological impact of domestic
abuse; the potential impact on the parent-child relationship;
and the nuances of household relationships. Id. But the statu-
tory scheme does not suggest that a new act of abuse is a pre-
requisite for renewal of an existing domestic abuse protection
order. Id. Rather, there must be no material change in relevant
circumstances in order for the protection order to be extended.
See id.
[6-9] Because a protection order upon renewal, just as
at its inception, is oriented toward the future with the goal
to protect victims of domestic abuse from future harm, the
court at a hearing on a petition for renewal must reevalu-
ate the likelihood of harm over the course of another year
in which it would be in effect if the petition for renewal is
granted. Garrison v. Otto, supra. In determining if a contested
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
ALLEN V. ALLEN
Cite as 31 Neb. App. 728renewal of the protection order is justified in light of the like-
lihood of future harm, the court considers all the surrounding
circumstances, including the passage of time since the abuse
that was found in relation to the original order and all the fac-
tors relating to its severity, nature, frequency, and impact. Id.The court may consider, in determining whether to renew a
protection order, whether any new domestic abuse has occurred
during the period of the original protection order and its sever-
ity, nature, frequency, and impact. Id. In determining the like-
lihood of future harm based on past domestic abuse, as well
as on any abuse during the duration of the original protection
order, the court may consider evidence of the relationship of
the parties as demonstrated by their behavior both before and
since the issuance of the original protection order and by their
testimony at the hearing. Id.Given the nature of the form domestic abuse protection
order renewal, we are unable to discern whether the district
court determined that the likelihood of future harm supported
a renewal of the protection order. If it failed to do so, this
would be error, but this does not end our inquiry, because our
review is de novo on the record. See In re Interest of Amber
G. et al., 250 Neb. 973, 554 N.W.2d 142 (1996), disapproved
on other grounds, In re Interest of Lilly S. v. Vincent S., 298
Neb. 306, 903 N.W.2d 651 (2017) (allowing appellate court in
de novo review on record to make determination of sufficiency
of record to support determination even in absence of findings
by trial court). Based upon our review, we find the domestic
abuse protection order was properly renewed.
Here, the original protection order was granted in March
2020, based on Kara’s affidavit stating Bradley had told her
that he would destroy her, that he would bury her, and that no
one was going to find her body. She outlined specific acts that
substantiated her claim that she was fearful for her life and
safety. A year later, the protection order was renewed because
Bradley was staying at a house next door to Kara, and she
had seen him peeking through his home’s blinds and making
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Nebraska Court of Appeals Advance Sheets
31 Nebraska Appellate Reports
ALLEN V. ALLEN
Cite as 31 Neb. App. 728his presence known, giving her threatening looks, staring over
into her backyard, and telling their children that he knew
what they were doing outside in the front yard. Bradley also
attempted to intimidate her at his sentencing hearing, and the
judge saw this and asked Bradley to turn around.
At the time of the most recent renewal, Kara asserted that
there had been no material change in relevant circumstances
since the original protection order was entered. The parties
were still involved in a divorce that Kara stated in her affidavit
was “highly contentious.” Bradley had been arrested for pos-
session of firearms, a violation of his probation, and although
he declined to admit or deny that he possessed firearms, he
knew Kara was the reporting party. Kara testified that Bradley
was still on probation for his conviction of two misdemeanors
in which she was the victim. She confirmed that she “still
live[s] in fear.”
Although there have been no further instances of domestic
abuse, considering Bradley’s actions that necessitated the origi-
nal protection order, his behavior that supported its renewal
in 2021, and the continued conflict between the parties due to
Bradley’s underlying criminal convictions and their divorce
proceedings, we agree that the likelihood of future harm
remains; therefore, it was proper for the court to renew the
domestic abuse protection order.
CONCLUSION
Following our de novo review in which we considered the
likelihood of future harm, we affirm the renewal of the domes-
tic abuse protection order for 1 year.
Affirmed.