Robert M. on behalf of Bella O.. A MINOR CHILD, APPELLEE,
Danielle O., appellant.
from the District Court for Sarpy County: PaTricia A.
Freeman, County Judge.
J. Pekny and Annie E. Mathews, of Johnson & Pekny,
L.L.C., for appellant.
appearance for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
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
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.
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.
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
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.
and Ex Parte Domestic Abuse Protection Order.
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
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.
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.
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.
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.
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