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Rosberg v. Rosberg

Court of Appeals of Nebraska

May 1, 2018

Paul A. Rosberg, appellant,
v.
Kelly R. Rosberg, appellee.

1. Judgments: Injunction: Appeal and Error. A protection order is analogous to an injunction. Accordingly, the grant or denial of a protection order is reviewed de novo on the record.
2. Records: Pleadings: Appeal and Error. In the absence of a bill of exceptions, an appellate court examines and considers only the pleadings in conjunction with the judgment reviewed. When a transcript, containing the pleadings and order in question, is sufficient to present the issue for appellate disposition, a bill of exceptions is unnecessary to preserve an alleged error of law regarding the proceedings under review.
3. Records: Pleadings: Presumptions: Appeal and Error. Where there is no bill of exceptions, an appellate court is limited on review to an examination of the pleadings. If they are sufficient to support the judgment, it will be presumed on appeal that the evidence supports the trial court's orders and judgment.
4. Criminal Law: Statutes. Nebraska's stalking and harassment statutes are given an objective construction, and the victim's experience resulting from the perpetrator's conduct should be assessed on an objective basis.
5. Criminal Law: Judgments. Under Nebraska's stalking and harassment statutes, the inquiry is whether a reasonable victim would be seriously terrified, threatened, or intimidated by the perpetrator's conduct.
6. Judgments. When a trial court determines an ex parte temporary harassment protection order is not warranted, an evidentiary hearing is not mandated under the harassment protection order statute.
7. Judgments: Pleadings: Affidavits. In harassment protection order proceedings, a trial court has the discretion to direct a respondent to show cause why an order should not be entered or, alternatively, the court [25 Neb.App. 857] can dismiss the petition if insufficient grounds have been stated in the petition and affidavit.

          Appeal from the District Court for Knox County: James G. Kube, Judge. Affirmed.

          Paul A. Rosberg, pro se.

          No appearance for appellee.

          Riedmann and Bishop, Judges, and Inbody, Judge, Retired.

          Bishop, Judge.

         Paul A. Rosberg (Rosberg) sought a harassment protection order against his wife, Kelly R. Rosberg (Kelly), in the district court for Knox County. Rosberg appeals, pro se, from the district court's order dismissing his petition; he claims that the district court erred by not affording him an opportunity to be heard and that a harassment protection order should have been entered. We affirm.

         BACKGROUND

         On November 4, 2016, Rosberg filed a "Petition and Affidavit to Obtain Harassment Protection Order" against Kelly pursuant to Neb. Rev. Stat. § 28-311.09 (Reissue 2016). He sought a protection order for himself and his five children. His allegations of harassment are summarized as follows: From August 2012 to November 4, 2016, Kelly "lied to [Rosberg's] probation officer 3 times and [Rosberg] had to go to jail for 16 days and pay an attorney $10, 000 and all the fict[it]ious charges they had were drop[p]ed by the federal Judge"; Kelly allows the children to be around a "life time" registered sex offender; Kelly leaves the children for extended periods of time and lets the children "do most anything, " and the children are engaging in problematic behavior; Kelly committed perjury by making up a lie that Rosberg earned $250, 000 per year, which lie resulted in a sentence of jail time for Rosberg; Kelly lied to a Platte County judge so [25 Neb.App. 858] Rosberg "could not see [the] children for one year"; Kelly "harassed all of us by preventing us from having visitation since July 12, 2015"; Kelly makes the children believe her lies by "continually disparaging" Rosberg; Kelly refused to allow the children to attend family weddings; Rosberg is "sure [Kelly] is mentally sick"; Rosberg believes it is unsafe for the children to be around Kelly or her boyfriend, a sex offender, and believes she should only have supervised visitation; and Rosberg is "afraid [Kelly] may have someone or herself plant guns on [him] like she did before when she tried to get [him] railroaded into federal prison for 11 years."

         On November 14, 2016, the district court entered an "Order Dismissing Petition Without Hearing, " which stated, in relevant part:

Upon consideration of the petition and affidavit, the Court finds that the requested relief should be denied and the petition should be dismissed (specific findings, if any, set forth below).
Insufficient allegations to support the entry of a protection order. Also, this [is] a matter which if addressed at all, should be addressed in the pending domestic litigation between the parties.

         IT IS THEREFORE ORDERED that the petition for issuance of a protection order is denied and petition is dismissed without prejudice. On November 17, 2016, Rosberg filed a "Motion requesting Hearing." He requested a hearing to "prove his allegations that [Kelly] ser[i]ously th[r]eatens, endangers, and intim[i]dates [Rosberg and the children]." He added that the children are in danger when Kelly allows them to be around a "registered lifetime sex offender" and that Kelly should not be on his premises "where she or her ...


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