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D.W. v. A.G.

Supreme Court of Nebraska

May 3, 2019

D.W., APPELLEE AND CROSS-APPELLANT.
v.
A.G., APPELLANT AND CROSS-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. Evidence: Appeal and Error. 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. Jurisdiction: Appeal and Error. Subject matter jurisdiction is a question of law for the court, which requires an appellate court to reach a conclusion independent of the lower court's decision.

         4. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the power of a tribunal to hear and determine a case in the general class or category to which the proceedings in question belong and to deal with the general subject matter involved.

         5. Due Process: Words and Phrases. While the concept of due process defies precise definition, it embodies and requires fundamental fairness.

         6. Constitutional Law: Due Process. Generally, procedural due process requires parties whose rights are to be affected by a proceeding to be given timely notice, which is reasonably calculated to inform the person concerning the subject and issues involved in the proceeding; a reasonable opportunity to refute or defend against a charge or accusation; a reasonable opportunity to confront and cross-examine adverse witnesses and present evidence on the charge or accusation; representation by counsel, when such representation is required by constitution or statute; and a hearing before an impartial decisionmaker.

         7. Rules of the Supreme Court: Appeal and Error. Where a party's brief fails to comply with Neb. Ct. R. App. P. § 2-109(D)(1) (rev. 2014), an [303 Neb. 43] appellate court may proceed as though the party failed to file a brief or, alternatively, examine the proceedings for plain error.

         8. Appeal and Error. Plain error is error plainly evident from the record and of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.

          Appeals from the District Court for Douglas County: Darryl R. Lowe, County Judge. Judgment in No. S-l8-657 reversed, and cause remanded with directions. Judgment in No. S-18-658

          Benjamin M. Belmont and Wm. Oliver Jenkins, of Brodkey, Peebles, Belmont & Line, L.L.P., for appellant.

          Joseph P. Naatz, of Kreikemeier Law, L.L.C., for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          PAPIK, J.

         Based on an allegation that A.G. sexually assaulted her, D.W. sought and obtained an ex parte sexual assault protection order against him. A.G. requested a show cause hearing on whether the sexual assault protection order should remain in effect, at which he denied D.W.'s allegations. After the close of evidence at the hearing, the trial court stated that the sexual assault protection order would not remain in effect, but that it would enter a protection order. The trial court subsequently dismissed the sexual assault protection order and, after sua sponte filing D.W.'s original petition and affidavit under a new case number, entered a harassment protection order in that case.

         A.G. appeals the entry of the harassment protection order, and D.W. cross-appeals the order dismissing the sexual assault protection order. We find no basis to reverse the dismissal of the sexual assault protection order, but find that the entry of the harassment protection order violated A.G.'s right to procedural due process. Accordingly, we affirm in part, and in part [303 Neb. 44] reverse and remand with directions to vacate the harassment protection order.

         BACKGROUND

         D.W.'s Initial Petition.

         D.W. commenced this action by filing a petition and affidavit to obtain a sexual assault protection order against A.G. under Neb. Rev. Stat. § 28-311.11 (Cum. Supp. 2018). According to D.W.'s affidavit, on the night of October 18, 2017, after she spent an evening drinking with friends and acquaintances, including A.G., he had sexual intercourse with her when she was "incapacitated and not able to give consent." She alleged that A.G. made sexual advances toward her at a bar and that after leaving the bar, he went with D.W. to her apartment and continued to make advances. She stated that she went to her bed, intending to go to sleep, but that her next memory was of being sexually penetrated by A.G.

         D.W. further alleged that since the incident, A.G. had violated contact restrictions imposed by the university where they both attended and that his presence on campus was "interfering with [her] educational experience." D.W. stated that A.G. had not shown "consideration for [her] feelings or what he did to [her]." She said she was "in fear that he will continue to harass [her] by his actions."

         The matter was assigned to a county court judge, pursuant to § 28-311.11(3) and Neb. Rev. Stat. § 25-2740(2) (Cum. Supp. 2018).

         Ex Parte Sexual Assault Protection Order.

         After D.W. filed her petition and affidavit, the trial court issued an ex parte sexual assault protection order. It enjoined A.G. from imposing any restraint on D.W.'s person or liberty; harassing, threatening, assaulting, molesting, attacking, or otherwise ...


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