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Maria A. v. Oscar G.

Supreme Court of Nebraska

November 30, 2018

Maria A. on behalf of Leslie G., appellant.
v.
Oscar G., Appellee.

         1. Protection Orders: Injunction: Appeal and Error. A protection order pursuant to Neb. Rev. Stat. § 42-924 (Reissue 2016) 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. Protection Orders. Whether domestic abuse occurred is a threshold issue in determining whether an ex parte protection order should be affirmed; absent abuse as defined by Neb. Rev. Stat. § 42-903 (Reissue 2016), a protection order may not remain in effect.

         3. __ .In considering whether to continue an ex parte domestic abuse protection order following a finding that domestic abuse has occurred, a court is not limited to considering only whether the ex parte order was proper, but may also consider a number of factors pertinent to the likelihood of future harm.

         4. 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.

         5. Protection Orders: Proof. The petitioner at a show cause hearing following an ex parte order has the burden to prove by a preponderance of the evidence the truth of the facts supporting a protection order. Once that burden is met, the burden shifts to the respondent to show cause as to why the protection order should not remain in effect.

          Appeal from the District Court for Saline County: Vicky L. Johnson, Judge. Affirmed.

         [301 Neb. 674] Sara K. Houston, of Nebraska Coalition, for appellant.

          Carlos A. Monzon and David V. Chipman, of Monz6n, Guerra & Associates, for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and Hall, District Judge.

          Hall, District Judge.

         On behalf of her minor daughter, Leslie G., Maria A. appeals the order of the district court for Saline County that rescinded an ex parte domestic abuse protection order against Leslie's father, Oscar G. Upon our de novo review of the specific facts of this case, we cannot say that the district court, which heard and observed the witnesses as the trier of fact, erred in finding that the evidence as a whole was sufficient to show cause why the protection order should not remain in effect. We affirm.

         BACKGROUND

         Maria and Oscar are the biological parents of two minor children involved in this case, Emily G. and Leslie. Maria and Oscar are not married and do not reside in the same household. Maria has "[f]ull [c]ustody" of Emily and Leslie, with Oscar exercising regular parenting time every other weekend. This appeal arises from an incident that occurred at Oscar's residence on June 4, 2017, during his parenting time with Leslie, then age 10, and Emily, then age 12. It is undisputed that on that date, Oscar hit Leslie several times on the leg with his open hand.

         On July 3, 2017, Maria filed a petition and affidavit on Leslie's behalf to obtain a domestic abuse protection order against Oscar pursuant to Neb. Rev. Stat. § 42-924 (Reissue 2016). The standardized form alleged that Maria was "in fear of domestic abuse" on behalf of Leslie. Maria's petition and affidavit also provided facts to support her request for a protection order. According to Maria, on June 4, Emily called [301 Neb. 675] her and informed her that Oscar had hit Leslie because Leslie was involved in breaking her stepbrother's electronic tablet. Maria reported that Oscar was angry and that Leslie had run into her room and locked the door to avoid being hit by Oscar. Maria stated that Oscar then broke the door with his foot and hit Leslie with his hand. Emily, who was in the room at the time, shared a video of the incident with Maria and asked her not to show anyone. Upon viewing the video, Maria said she was "shocked" by Oscar's violent actions toward Leslie. Maria reported that she feared Oscar would hit her daughters in the future with more violence or become angry that Emily had shown her the video. As a result, Maria immediately reported the incident to law enforcement. The record shows that Oscar was arrested and charged with child abuse pursuant to Neb. Rev. Stat. § 28-707 (Reissue 2016), but our record does not contain the disposition of that charge.

         On the same day that Maria filed her petition and affidavit, the district court found that Maria had stated facts showing that Oscar had committed abuse as defined in Neb. Rev. Stat. § 42-903 (Reissue 2016) and that there was immediate danger of abuse before the matter could be heard on notice. Therefore, the district court entered an ex parte domestic abuse protection order, barring Oscar from any contact with Leslie. Oscar requested a hearing on the matter pursuant to Neb. Rev. Stat. § 42-925 (Reissue 2016) to show cause why the protection order should not remain in effect.

         At the show cause hearing, the district court received Maria's petition and affidavit. Oscar's counsel called Maria to testify, and she confirmed the allegations. Maria further confirmed that minor children, other than Emily and Leslie, remained in Oscar's home. The district court also received the 9-second video recorded by Emily and referenced in the petition and affidavit. It shows Oscar breaking through the door, lunging at Leslie, and striking her five times with an open hand while Leslie is on a bed on her side with her legs drawn up. Emily and Leslie can be heard screaming, and Oscar can [301 Neb. 676] be heard yelling in a language that is not English and striking Leslie. During the encounter, Leslie's facial expression is not discernible.

         When Maria testified that Emily and Leslie were in the courthouse, the district court advised the parties that they could be called as witnesses. Oscar called Emily to testify. Emily testified, questioned only by the district court in chambers and with counsel present, but outside the presence of the parents. She stated that after Leslie broke the electronic tablet, Leslie ran to the bedroom they shared and locked the door. Emily testified that Oscar screamed at Leslie to open the door and that Leslie refused. Emily testified that she could not recall whether Oscar threatened to hit someone at that point, but in an earlier interview at the Child Advocacy Center in Lincoln, Nebraska (CAC), summarized by the sheriff's report offered by Oscar and received into evidence along with the probable cause affidavit for Oscar's arrest, both Emily and Leslie stated that when Oscar was outside the door, he threatened to hit Leslie. According to Leslie, Oscar yelled, '"Open the door, then I am going to hit you.'" Emily reported that Oscar threatened to hit Leslie if she did not open the door.

         At the hearing, Emily testified that Oscar next broke the door, entered the room, and hit Leslie on the leg. Emily stated that after she told Oscar to stop, he left the room and went to the kitchen to prepare food for the family. Sometime after Oscar left the room, Emily text messaged Maria and asked her to pick up her and Leslie because Emily did not want to be there anymore.

         Emily testified that on the day of the incident, she "wasn't really afraid" of Oscar, but that she was afraid for Leslie because she thought that Leslie "would have gotten more in trouble." Emily explained that by "more in trouble" she meant that Leslie "could get grounded or get her stuff taken away." She testified that she was not afraid of Oscar on the day of the hearing. The district court had the following exchange with Emily at the end of her testimony:

[301 Neb. 677] [Court:] ... I can see you're kind of upset. Can you tell me why you're upset? Just take a big breath. Okay? All right. Can you tell me why you're upset?
[Emily:] Because I miss my dad and my brothers.
Q. Okay. I understand that. Do you think you would be safe with your dad?
A. ([Emily] nodded affirmatively)
Q. She is nodding her head yes. Was that a yes?
A. Yes.

         Leslie did not testify. However, the parties stipulated that if she had, she would have testified that "she was afraid [on] the day of [the incident], but she has also said that she is not afraid of her dad at this time." Additionally, the parties stipulated that Leslie's testimony as to the facts of the incident would have been "substantially similar" to Emily's testimony. In her interview with the CAC, Leslie reported that when Oscar asked her who had broken the electronic tablet and referred to her calling Oscar '"[s]tupid'" during a family outing to a lake the night before, she ran to her room because she was scared of being in trouble.

         The probable cause affidavit stated that Leslie had no "marks or bruises of any kind." However, in her interview at the CAC the next day, Leslie reported "a little mark on her leg." Leslie also stated during that interview that Oscar had hit her in the past, but that she could not recall the circumstances. Emily stated during her CAC interview that Oscar had not previously used hitting as a consequence, but, rather, '"grounds'" them or takes items away.

         According to the probable cause affidavit, on the day of the incident, Oscar admitted to law enforcement that he had hit Leslie because, in addition to breaking the electronic tablet, she had called him '"[s]tupid'" the night before. He further reported that the door to the bedroom was previously broken before ...


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