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S.B. v. Pfeifler

Court of Appeals of Nebraska

October 23, 2018

S.B., appellee,
v.
Paul Pfeifler, appellant.

         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. Judgments: Appeal and Error. In a 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.

         3. Injunction: Proof. A party seeking an injunction must establish by a preponderance of the evidence every controverted fact necessary to entitle the claimant to relief.

         4. Sexual Assault: Proof. A party seeking a sexual assault protection order pursuant to Neb. Rev. Stat. § 28-311.11 (Supp. 2017) must prove a sexual assault offense by a preponderance of the evidence.

          Appeal from the District Court for Lancaster County: Lori A. Maret, Judge. Affirmed.

          Seth W. Morris, of Berry Law Firm, for appellant.

          David W. Watermeier, of Morrow, Poppe, Watermeier & Lonowski, P.C., L.L.O., for appellee.

          Pirtle, Bishop, and Arterburn, Judges.

          Bishop, Judge.

         S.B. was granted a sexual assault protection order against Paul Pfeifler by the district court for Lancaster County. Pfeifler [26 Neb.App. 449] claims the evidence was insufficient to support granting the protection order; we affirm.

         BACKGROUND

         S.B. filed a "Petition and Affidavit to Obtain Sexual Assault Protection Order" (petition) on September 29, 2017, in the district court pursuant to Neb. Rev. Stat. § 28-311.11 (Supp. 2017). She claimed that after a work event on September 22, she and a "group of girls" went out for drinks. They were with two doctors initially, one who joined them at their table and another who left. S.B alleged that she "got up to get a drink from the bar and upon returning to the table, [Pfeifler], who [she] barely [knew], smacked [her] butt while [she] was setting [her] drink down on the table." S.B. "was shocked and offended that this doctor, who [she] didn't know, assaulted [her] in this way in front of [her] co-workers." Since she and Pfeifler are part "of the same practice group" and have to attend weekend seminars at times where she would see Pfeifler, S.B. was "concerned that [Pfeifler would] continue this kind of behavior." An "Order to Show Cause Sexual Assault" was entered by the district court setting the matter for hearing on October 6. On that day, Pfeifler personally appeared and indicated he had been served the day before; he requested a continuance, which was granted.

         On October 24, 2017, S.B., who was not represented by an attorney, and Pfeifler, who was now represented by an attorney, appeared for the hearing. S.B.'s petition was marked as an exhibit and received by the court. S.B. was sworn in to testify and was asked if the allegations contained in the petition were true; she replied, "Yes." Pfeifler was then sworn in to testify, and the court proceeded to ask him questions. The court asked Pfeifler to look at the paragraph of the petition which contained the allegations related to the incident on September 22 and to tell the court what was true in that statement. Pfeifler answered, "Yes, we were with a group of people. Yes, we were in a booth. No, I did not slap her [26 Neb.App. 450] or smack her." When asked if he touched S.B. in any way. Pfeifler responded, "Yes. I did bump her with the back of my hand." He explained:

We were at a bar. It was a tight, tight booth. She was shuffling between. I was watching the entertainment that was on the bar as well as in the aisle. She had stopped in front of me to put down drinks. I reached forward with the back of my hand and gave her a slight bump with the back of my hand - I'm not exactly sure where I contacted her, to my recollection - so that way she would move so I could continue watching the entertainment at the bar.

         The court asked, "So it was your intent to touch [S.B.]?" Pfeifler responded, "Yes, I did bump her to have her move out of the way." Pfeifler did not recall anything being said and stated that it "was the only contact or communication that ...


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