Orfa I. Torres, Appellant,
Benjamin H. Morales, Appellee.
Appeal from the
District Court for Lancaster County: STEVEN D. BURNS, Judge. Affirmed in part,
and in part reversed.
Mark T. Bestul, of
Legal Aid of Nebraska, for appellant.
No appearance for appellee.
Wright, Connolly, Stephan, McCormack, Miller-Lerman, and Cassel, JJ.
Syllabus by the Court
1. Injunction: Judgments: Appeal and Error. A protection order pursuant to Neb.Rev.Stat. § 42-924 (Cum.Supp.2012) 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. Constitutional Law: Judgments. Because the intrusion on a respondent's liberty interests is limited, the procedural due process afforded in a protection order hearing is likewise limited.
3. Judges. A judge must be careful not to appear to act in the dual capacity of judge and advocate.
4. Judges: Trial. A judge must be impartial, his or her official conduct must be free from even the appearance of impropriety, and a judge's undue interference in a trial may tend to prevent the proper presentation of the cause of action.
5. Judges: Recusal: Presumptions. A party alleging that a judge acted with bias or prejudice bears a heavy burden of overcoming the presumption of judicial impartiality.
Orfa I. Torres sought a domestic abuse protection order against Benjamin H. Morales. After a show cause hearing, the district court dismissed the case and taxed the costs to Torres. Torres appeals. We affirm in part, and in part reverse.
The Protection from Domestic Abuse Act, Neb.Rev.Stat. § 42-901 et seq. (Reissue 2008 & Cum. Supp. 2012), permits [287 Neb. 588] a victim of domestic abuse to file a petition and affidavit seeking a protection order pursuant to § 42-924.
On January 7, 2013, Torres applied for a protection order against her boyfriend, Morales. Torres described three incidents that she felt warranted the protection order. The district court issued an order to show cause. On January 17, the court held a show cause hearing. Torres appeared with counsel; Morales appeared pro se. The district court judge first called Torres to the witness stand and questioned her regarding the incidents cited in her affidavit.
The first incident Torres described involved an allegedly intoxicated Morales yelling at Torres and her son on Christmas Eve of 2012. Torres testified that after their disagreement, she tried to retrieve her things from Morales' grandparents' home where they had been visiting, but that Morales blocked her in the hallway. Torres pushed Morales, and Morales grabbed Torres' shirt, causing her to fall on top of him. Torres then spit on Morales.
The second incident took place approximately 1 1/2 weeks after the first. Torres described the incident generally as Morales' constantly yelling and calling her names while she tried to avoid him.
The final incident cited by Torres occurred approximately a year prior to the first incident, when Torres was 3 months' pregnant. Torres testified that Morales had been drinking alcohol and that the pair had been arguing. Morales attempted to leave, and, concerned about him driving while intoxicated, Torres came up behind him and held the door closed with her hand. Morales fell backward, on top of Torres. Torres testified that Morales elbowed her in her ribs, so she bit him. Concerned about her pregnancy, Torres went to the emergency room the next morning.
When Torres finished describing the three incidents, the judge called Morales to testify and asked him about the same incidents. Morales recalled the first two events similarly but stated that he was not drinking during the second incident.
At one point during his testimony, Morales admitted, " We have a lot of verbal arguments, and, you know, this might be a good thing for both of us, this order to go in effect." [287 Neb. 589] The court then asked Morales whether he was opposing the order. Morales said that he was not. The court asked Morales if he understood the consequences of the court's issuing the order, and Morales asked what the consequences were. The court listed potential legal consequences, including a prohibition on possessing weapons and a potential effect on future child custody issues. Morales expressed ...