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Richards v. McClure

Supreme Court of Nebraska

February 13, 2015

ALISON RICHARDS ON BEHALF OF MAKAYLA C., APPELLEE,
v.
DUSTIN McCLURE, APPELLANT

Appeal from the District Court for Scotts Bluff County: Leo Dobrovolny, Judge.

Page 842

Lindsay R. Snyder, of Smith, Snyder & Petitt, a general partnership, for appellant.

No appearance for appellee.

HEAVICAN, C.J., CONNNNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ. Wright, J., participating on briefs.

OPINION

Page 843

[290 Neb. 125] Miller-Lerman, J.

NATURE OF CASE

In December 2013, Alison Richards, the appellee, on behalf of her minor child Makayla C., filed a petition and affidavit for a harassment protection order against Makayla's boyfriend, Dustin McClure, the appellant, in the district court for Scotts Bluff County. An ex parte harassment protection order was filed bye the district court on December 31, 2013, and McClure requested a show cause hearing. After the hearing, the district court filed its order on January 21, 2014, in which it ruled that the harassment protection order shall remain in effect for 1 year. McClure appeals. Because we determine that exhibits 1 and 6 were improperly received into evidence and that there was insufficient evidence to support the issuance of the harassment protection order, we reverse, and remand with directions to vacate the harassment protection order.

STATEMENT OF FACTS

On December 30, 2013, Richards, on behalf of her minor child Makayla, filed a petition and affidavit (hereinafter the pleading) to obtain a harassment protection order against McClure. The pleading alleged that Makayla was 17 years old. Cell phone records listing dates and times of text messages between McClure and Makayla from December 24 through [290 Neb. 126] 28 were attached to the pleading. Richards alleged that the cell phone records list shows " the obsessiveness of contacts" between McClure and Makayla. Also attached to the pleading are printed screenshots of text messages between McClure and Makayla, which the pleading alleged show " the content of each text" in the cell phone records list.

On December 31, 2013, the court filed an ex parte harassment protection order

Page 844

against McClure. On January 2, 2014, McClure requested a hearing.

An evidentiary hearing was held on January 15, 2014. At the hearing, Richards, on behalf of Makayla, was present but without counsel. Richards made numerous arguments as to why the harassment protection order should be entered, but she was not called as a witness, nor were her assertions made under oath. Makayla was also present at the hearing, but she did not testify.

The court asked Richards if she had evidence to present, and Richards stated that she wanted to present evidence of the cell phone records list and screenshots of the text messages that were attached to the pleading. The court asked if she had copies of the documents with her to offer at the hearing, and Richards responded that she did not.

Richards stated that she obtained the cell phone records list through her online account with the telephone company and that she pays for Makayla's cell phone. To get the pictures of the actual text messages, Richards stated that she took " screenshot[s] on [Makayla's] phone," which " shows the actual screen of the text messages," and she then e-mailed those pictures to herself and printed them out.

McClure's counsel objected to the offer of the cell phone records list and the screenshots of the text messages on the bases that they were not properly marked and presented as evidence at the hearing and lack of foundation.

The court made a ruling conditionally receiving the list and messages and stated to Richards:

I will make a few concessions for you because you are not an attorney, but not many. But, I will consider the attachments to the petition . . . .
. . . .
[290 Neb. 127]. . . I will consider that as Exhibit No. 1. After the hearing, ma'am, you will have to make arrangements to get these documents copied --
. . . .
. . . so we have a proper record. And, you can't bring your other copies because what we are using is these ones in the court file. So you will have to make arrangements with the Clerk of [the] Court to actually copy these ones that are in here.

McClure contends that Richards did not follow through on the court's direction regarding exhibit 1. Exhibit 1 is not included in the bill of exceptions.

Following discussion regarding exhibit 1, Richards stated that she did not have any witnesses to call to testify. McClure moved for a directed ...


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