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Kahm v. Wiester

Court of Appeals of Nebraska

September 3, 2013

Jennifer C. Kahm, appellee,
v.
Jonathan Wiester, appellant.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the District Court for Lancaster County: Andrew R. Jacobsen, Judge.

Bernard J. Glaser, Jr., for appellant.

No appearance for appellee.

Inbody, Chief Judge, and Irwin and Riedmann, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Inbody, Chief Judge.

INTRODUCTION

Jonathan Wiester appeals the continuation of a harassment protection order against him. He contends that the evidence was insufficient to support the continuance of the protection order for 1 year because no evidence was presented at the contested hearing, which he requested, but at which he failed to appear.

STATEMENT OF FACTS

On October 8, 2012, Jennifer C. Kahm filed a petition and affidavit to obtain a domestic abuse protection order against Wiester, alleging that in May or June 2012, Wiester had yelled and screamed at her and the parties' daughter; threatened Kahm's life; and threatened to pick up the parties' daughter from daycare, even though he had been banned from the daycare for a past incident when he had screamed profanities at Kahm while she was teaching a class at the daycare. She alleged that in August 2012, while Wiester was intoxicated and angry, he threw Kahm's cellular telephone at her, nearly hitting her and shattering it, even though it was in a protective case. Police were called after he was breaking glass and throwing items. She further alleged that in October 2012, at a visitation with the parties' daughter, Kahm became scared and attempted to leave with the child in her vehicle when Wiester and a friend used their vehicle to attempt to swerve at her vehicle while yelling at her, causing Kahm to fear for her and her daughter's safety. Kahm's affidavit stated that Wiester had used methamphetamines in the past, that he looked "strung out, " and that she was not certain what Wiester was capable of. Based on the allegations contained in Kahm's petition and affidavit, on October 9, the district court entered an ex parte harassment protection order pursuant to Neb. Rev. Stat. § 28-311.09 (Cum. Supp. 2012). Wiester was served that same day, and 3 days later, on October 12, he filed a request for a hearing, which was set for November 6 at 8:30 a.m. The certificate of service stated that both Kahm and Wiester were served the notice of the hearing by U.S. mail, postage prepaid, at their respective addresses shown in the request for the hearing and petition.

The hearing was held as scheduled on November 6, 2012, commencing at 8:44 a.m. Kahm appeared, but Wiester did not. The district court asked Kahm if she wished for the protection order to remain in place, and she stated that she did. No evidence was adduced at the hearing. The district court stated that "[based on [Wiester's] failure to appear, the harassment protection order will remain in effect for a period of one year" and thereafter entered an order to the effect that the harassment protection order issued on October 9 shall remain in effect for 1 year from the date of the original order. Wiester has timely appealed to this court.

ASSIGNMENTS OF ERROR

Wiester's claim on appeal, restated, is that the evidence presented at the factual hearing was insufficient to support the continuance of the harassment protection order for 1 year. He further claims that the continuation of the harassment protection order, ...


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