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Yancer v. Kaufman

Court of Appeals of Nebraska

September 2, 2014

DEBORAH ANN YANCER, APPELLEE,
v.
MICHAEL KAUFMAN, APPELLANT

Page 641

[Copyrighted Material Omitted]

Page 642

Appeal from the District Court for Lancaster County: GALE POKORNY, County Judge.

Tregg Lunn, of Law Office of Tregg Lunn, for appellant.

Kristina M. Morris, of Bowman & Krieger, for appellee.

IRWIN, RIEDMANN, and BISHOP, Judges. BISHOP, Judge, dissenting.

OPINION

Page 643

[22 Neb.App. 321] Riedmann, Judge.

INTRODUCTION

Michael Kaufman appeals from an order of the district court for Lancaster County granting Deborah Ann Yancer a harassment protection order against him. Because we find that the protection order has, by its terms, expired, and because we find no reason to apply an exception to the mootness doctrine, the appeal is dismissed as moot.

BACKGROUND

On January 18, 2013, Yancer filed a petition and affidavit to obtain a harassment protection order against Kaufman. Yancer alleged in the petition that despite repeated requests that Kaufman stop, he continued to send her letters, e-mails, and text messages. In December 2012, she contacted an attorney who sent Kaufman a cease and desist letter. Kaufman continued to contact her, and according to the petition and its attachments, the continued contact caused Yancer to fear for her safety.

On January 18, 2013, the court entered an ex parte harassment protection order, pursuant to Neb. Rev. Stat. § 28-311.09 [22 Neb.App. 322] (Cum. Supp. 2012). The court specified that based on § 28-311.09, the protection order was to remain in effect for a period of 1 year unless modified by order of the court.

On January 25, 2013, Kaufman filed a request for hearing, which request was granted. A hearing was scheduled for February 13. Kaufman testified that the week before the hearing, he contacted the clerk's office and requested that the hearing be postponed because his witness was unavailable, but his request was denied. The transcript reveals that a letter dated February 11, 2013, was filed with the court requesting a continuance of the February 13 hearing and that the continuance request was denied on the date it was received.

Yancer appeared with counsel at the hearing, and Kaufman appeared pro se. Yancer testified that she had been in a romantic relationship with Kaufman, but that she had ended it on August 22, 2012. After the breakup, Kaufman continued to contact her through various means. According to Yancer, some of the communications were " sexually explicit" and it made her feel " very frightened." While most of the letters were mailed to her, she received a particular letter which she described as " very upsetting" because it was " sexually explicit and very detailed." She also explained that Kaufman personally, or someone acting on his behalf, had entered her property, come to her front door, opened the mailbox contained in her front door, and slid the detailed and sexually explicit letter inside her home. All of this happened sometime in the dark, during night hours. As a result, Yancer hired an attorney to send Kaufman a cease and

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desist letter. Kaufman continued to send communications, including letters and poems, which prompted Yancer to file the petition for a protection order.

At trial, Yancer's attorney offered the petition and affidavit, but the court refused the offer, stating that it would take judicial notice of them. Yancer's counsel questioned Yancer about each of the documents to which she had referred in her petition, and Kaufman was given an opportunity to cross-examine her.

Kaufman testified that he had " incurred considerable expenses as a result of [his] relationship with . . . Yancer" [22 Neb.App. 323] and that he believed he was entitled to " some form of restitution for the work" he did for her. In an attempt to substantiate his claim, he submitted a spreadsheet of time and labor he expended on Yancer's home, which the court marked but never specifically received. Kaufman also submitted a spreadsheet of funds he expended on Yancer, which the court once again marked, but did not specifically receive. Kaufmann also submitted a letter from his unavailable witness, which the court agreed to " look at" without explicitly receiving it.

The court allowed Kaufman to deliver a narrative regarding his relationship with Yancer. In the end, the court stated that it was going to continue the protection order on the basis that Yancer sad Kaufman was disturbing her peace and quiet, and the court agreed. The protection order was extended 1 year from January 18, 2013. Kaufman timely filed this appeal.

ASSIGNMENTS OF ERROR

Kaufman assigns that the district court erred in granting Yancer's request for a protection order because the evidence was insufficient and because he was denied his due process rights, his right to an impartial judge, and his right to call a nonparty witness.

STANDARD OF REVIEW

Mootness does not prevent appellate jurisdiction. But, because mootness is a justiciability doctrine that operates to prevent courts from exercising jurisdiction, we have reviewed mootness determinations under the same standard of review as other jurisdictional questions. State v. York, 278 Neb. 306, 770 N.W.2d 614 (2009). A jurisdictional question that does not involve a factual dispute is determined by an appellate court as a matter ...


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