D.W., APPELLEE AND CROSS-APPELLANT.
A.G., APPELLANT AND CROSS-APPELLEE.
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.
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
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.
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.
Due Process: Words and Phrases. While the
concept of due process defies precise definition, it embodies
and requires fundamental fairness.
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.
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.
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.
P. Naatz, of Kreikemeier Law, L.L.C., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
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.
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.
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.
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
matter was assigned to a county court judge, pursuant to
§ 28-311.11(3) and Neb. Rev. Stat. § 25-2740(2)
(Cum. Supp. 2018).
Parte Sexual Assault Protection Order.
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