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Robert M. v. Danielle O.

Supreme Court of Nebraska

May 31, 2019

Robert M. on behalf of Bella O.. A MINOR CHILD, APPELLEE,
Danielle O., appellant.

          Appeal from the District Court for Sarpy County: PaTricia A. Freeman, County Judge.

          Darren J. Pekny and Annie E. Mathews, of Johnson & Pekny, L.L.C., for appellant.

          No appearance for appellee.

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

          PAPIK, J.

         1. Protection Orders: Injunction: Appeal and Error. A protection order pursuant to Neb. Rev. Stat. § 42-924 (Cum. Supp. 2018) 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 (Cum. Supp. 2018), a protection order may not remain in effect.

         3. Protection Orders: Words and Phrases. Not only is the recipient or target of a credible threat a "victim" of abuse eligible for a domestic abuse protection order under Neb. Rev. Stat. § 42-924 (Cum. Supp. 2018), so too are those family members for whose safety the target reasonably fears because of the threat.

         [303 Neb. 269] Danielle O. appeals a domestic abuse protection order obtained by Robert M. on behalf of their daughter, Bella O. Danielle physically attacked two other family members while Bella was present, but did not attack Bella. The trial court determined Danielle's conduct put Bella in fear of bodily injury by means of a credible threat and thus constituted domestic abuse as defined by Neb. Rev. Stat. § 42-903(1)(b) (Cum. Supp. 2018). Although our reasoning differs somewhat from that of the trial court, we nonetheless affirm.


         Robert and Danielle are the parents of Bella, born in 2007. Robert and Danielle never married. In 2013, a North Dakota court issued an order setting forth Robert's and Danielle's rights and responsibilities concerning Bella. The court granted the parties joint "decision-making responsibilit[ies]" but gave Robert "primary residential responsibility," subject to Danielle's unsupervised parenting time, with the caveat that such parenting time would be supervised if Danielle "has a relapse with regard to alcohol abuse." At the time of these proceedings, Robert lived in Nebraska and Danielle lived in Minnesota. This case arises from an incident that occurred in Minnesota on July 9, 2018, at a duplex Danielle's mother, Nancy O., shared with Danielle's brother, Neill O.

         Petition and Ex Parte Domestic Abuse Protection Order.

         On July 10, 2018, Robert filed a petition and affidavit to obtain a domestic abuse protection order for Bella against Danielle under Neb. Rev. Stat. § 42-924 (Cum. Supp. 2018). The affidavit alleged that on July 9, Danielle and Bella left the duplex to go to a store but were absent from approximately 6 [303 Neb. 270] p.m. to 12 a.m. Nancy was unable to reach Danielle or Bella during that time, even though Bella had a cell phone when she left. Nancy told Robert that Danielle took Bella's cell phone away after Nancy attempted to call and text several times and that Danielle refused to tell Nancy where they were. According to Robert's affidavit, Danielle had only supervised visitation rights and was not permitted to take Bella anywhere without supervision due to Danielle's extensive drug and alcohol abuse and criminal history.

         Robert's affidavit stated that Danielle returned to the duplex with Bella when Nancy threatened to call the police. Once there, Danielle assaulted Neill and Nancy in Bella's presence, inflicting multiple injuries on Neill's face and body. Danielle also kicked in a door, breaking it off the frame. Bella called Robert and told him she was scared for her safety and for Nancy's safety and that police were on their way. Danielle was arrested for domestic abuse. According to the affidavit, Bella reported to Robert that Danielle "was believed to be" under the influence of drugs and/or alcohol. Robert expressed fear that Danielle would take Bella and not return her.

         The matter was assigned to a county court judge, pursuant to § 42-924(2) and Neb. Rev. Stat. § 25-2740(2) (Cum. Supp. 2018). The trial court issued an ex parte domestic abuse protection order on July 10, 2018, generally enjoining Danielle from in-person contact with Bella and from threatening, restraining, or assaulting her.

         Show Cause Hearing.

         Danielle requested a hearing to show cause why the protection order should not remain in effect. See Neb. Rev. Stat. § 42-925 (Cum. Supp. 2018). At the show cause hearing, Robert appeared without counsel and the trial court received his petition and affidavit, summarized above.

         Danielle also appeared at the show cause hearing and was represented by counsel. She offered a police report concerning the incident. According to the report, when police arrived, [303 Neb. 271] Bella was running out of the house with Nancy behind. They observed Bella holding onto Nancy, crying, and screaming, "'[S]he is hurting my uncle, '" multiple times. Nancy told police that Danielle was inside, damaging things and fighting Neill. In the duplex, police observed an overturned coffee table and Danielle and Neill engaged in a struggle.

         Neill reported to police that Danielle had picked Bella up to go shopping at about 6 p.m. Nancy called multiple times, and Danielle repeatedly said they were 45 minutes away. When Danielle and Bella finally returned several hours later, Bella ran inside the duplex to Nancy. Neill confronted Danielle and attempted to block her access to the duplex. A physical struggle ensued, during which Danielle punched and ...

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