Rosberg v. Rosberg , 25 Neb. Ct. App. 856 ( 2018 )


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    ROSBERG v. ROSBERG
    Cite as 
    25 Neb. Ct. App. 856
    Paul A. Rosberg, appellant, v.
    K elly R. Rosberg, appellee.
    ___ N.W.2d ___
    Filed May 1, 2018.     No. A-17-341.
    1.	 Judgments: Injunction: Appeal and Error. A protection order is anal-
    ogous to an injunction. Accordingly, the grant or denial of a protection
    order is reviewed de novo on the record.
    2.	 Records: Pleadings: Appeal and Error. In the absence of a bill of
    exceptions, an appellate court examines and considers only the plead-
    ings in conjunction with the judgment reviewed. When a transcript,
    containing the pleadings and order in question, is sufficient to present
    the issue for appellate disposition, a bill of exceptions is unneces-
    sary to preserve an alleged error of law regarding the proceedings
    under review.
    3.	 Records: Pleadings: Presumptions: Appeal and Error. Where there
    is no bill of exceptions, an appellate court is limited on review to an
    examination of the pleadings. If they are sufficient to support the judg-
    ment, it will be presumed on appeal that the evidence supports the trial
    court’s orders and judgment.
    4.	 Criminal Law: Statutes. Nebraska’s stalking and harassment statutes
    are given an objective construction, and the victim’s experience result-
    ing from the perpetrator’s conduct should be assessed on an objec-
    tive basis.
    5.	 Criminal Law: Judgments. Under Nebraska’s stalking and harassment
    statutes, the inquiry is whether a reasonable victim would be seriously
    terrified, threatened, or intimidated by the perpetrator’s conduct.
    6.	 Judgments. When a trial court determines an ex parte temporary harass-
    ment protection order is not warranted, an evidentiary hearing is not
    mandated under the harassment protection order statute.
    7.	 Judgments: Pleadings: Affidavits. In harassment protection order pro-
    ceedings, a trial court has the discretion to direct a respondent to show
    cause why an order should not be entered or, alternatively, the court
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    ROSBERG v. ROSBERG
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    can dismiss the petition if insufficient grounds have been stated in the
    petition and affidavit.
    Appeal from the District Court for Knox County: James G.
    Kube, Judge. Affirmed.
    Paul A. Rosberg, pro se.
    No appearance for appellee.
    R iedmann and Bishop, Judges, and Inbody, Judge, Retired.
    Bishop, Judge.
    Paul A. Rosberg (Rosberg) sought a harassment protection
    order against his wife, Kelly R. Rosberg (Kelly), in the dis-
    trict court for Knox County. Rosberg appeals, pro se, from the
    district court’s order dismissing his petition; he claims that the
    district court erred by not affording him an opportunity to be
    heard and that a harassment protection order should have been
    entered. We affirm.
    BACKGROUND
    On November 4, 2016, Rosberg filed a “Petition and
    Affidavit to Obtain Harassment Protection Order” against
    Kelly pursuant to Neb. Rev. Stat. § 28-311.09 (Reissue 2016).
    He sought a protection order for himself and his five chil-
    dren. His allegations of harassment are summarized as fol-
    lows: From August 2012 to November 4, 2016, Kelly “lied
    to [Rosberg’s] probation officer 3 times and [Rosberg] had
    to go to jail for 16 days and pay an attorney $10,000 and all
    the fict[it]ious charges they had were drop[p]ed by the fed-
    eral Judge”; Kelly allows the children to be around a “life
    time” registered sex offender; Kelly leaves the children for
    extended periods of time and lets the children “do most any-
    thing,” and the children are engaging in problematic behavior;
    Kelly committed perjury by making up a lie that Rosberg
    earned $250,000 per year, which lie resulted in a sentence of
    jail time for Rosberg; Kelly lied to a Platte County judge so
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    Rosberg “could not see [the] children for one year”; Kelly
    “harassed all of us by preventing us from having visitation
    since July 12, 2015”; Kelly makes the children believe her
    lies by “continually disparaging” Rosberg; Kelly refused to
    allow the children to attend family weddings; Rosberg is “sure
    [Kelly] is mentally sick”; Rosberg believes it is unsafe for the
    children to be around Kelly or her boyfriend, a sex offender,
    and believes she should only have supervised visitation; and
    Rosberg is “afraid [Kelly] may have someone or herself plant
    guns on [him] like she did before when she tried to get [him]
    railroaded into federal prison for 11 years.”
    On November 14, 2016, the district court entered an “Order
    Dismissing Petition Without Hearing,” which stated, in rel-
    evant part:
    Upon consideration of the petition and affidavit, the
    Court finds that the requested relief should be denied and
    the petition should be dismissed (specific findings, if any,
    set forth below).
    Insufficient allegations to support the entry of a protec-
    tion order. Also, this [is] a matter which if addressed at
    all, should be addressed in the pending domestic litigation
    between the parties.
    IT IS THEREFORE ORDERED that the petition for
    issuance of a protection order is denied and petition is
    dismissed without prejudice.
    On November 17, 2016, Rosberg filed a “Motion request-
    ing Hearing.” He requested a hearing to “prove his allega­
    tions that [Kelly] ser[i]ously th[r]eatens, endangers, and
    intim[i]dates [Rosberg and the children].” He added that the
    children are in danger when Kelly allows them to be around
    a “registered lifetime sex offender” and that Kelly should not
    be on his premises “where she or her coh[o]rts can plant guns
    in fu[r]ther attemp[t]s to railroad [him] into jail like she had
    done in the past.”
    On December 13, 2016, Rosberg filed a “precape” for sub-
    poenas to compel two of his children to appear and testify in
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    district court on December 20. Also on December 13, Rosberg
    filed a “Notice of Threat and additional facts.” On December
    23, Rosberg filed a “Motion to Reconsider.”
    According to a “Journal Entry” filed January 3, 2017, both
    parties had appeared before the court without counsel on
    December 20, 2016. The journal entry addressed Rosberg’s
    “motion for hearing,” noting arguments were made by the
    parties. The court denied Rosberg’s motion. The court also
    addressed Kelly’s “motion to dismiss” and stated that “there
    are insufficient facts regarding the basis for the motion to dis-
    miss and the Court deemed the motion to dismiss moot.”
    A “Journal Entry” filed January 31, 2017, indicates the case
    was before the court that day for hearing; Rosberg was present
    without counsel, and Kelly was not present (she filed a waiver
    of appearance that same day). The journal entry notes that
    Rosberg offered “Exhibit 1, Motion to Reconsider, specifically
    pages 35 through 173, which has been received by the Court.”
    Rosberg provided argument, and the court took the matter
    under advisement.
    On February 22, 2017, Rosberg filed a “Notice of Additional
    Information Unavailable at Time of Hearing.” Rosberg alleged
    that an order was made in his divorce case denying his
    request for a protection order. Rosberg claimed that since
    the judge handling his divorce would not issue a protec-
    tion order, then “it is most certainly up to [the judge in this
    case] to hear all the evidence and make a decision regarding
    [Rosberg’s] request for an exparte protection order against
    Kelly.” (Emphasis omitted.)
    The district court entered an order on February 28, 2017,
    which stated:
    This matter came on to be heard on January 31, 2017,
    upon [Rosberg’s] “Motion Requesting Hearing” which
    the Court interprets as a motion to reconsider its Order of
    November 14, 2016, denying the plaintiffs their request
    for a protection order and dismissing the same with-
    out prejudice. [Rosberg] appeared personally. No other
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    plaintiffs appeared nor were they represented by coun-
    sel. [Kelly] did not appear, nor was she represented
    by counsel.
    Upon consideration of the arguments presented as well
    as the information contained in Exhibit 1 the Court denies
    said request to reconsider. The Court will stand on its
    Order of November 14, 2016, dismissing this matter with-
    out hearing.
    Rosberg appeals from this order.
    ASSIGNMENTS OF ERROR
    Rosberg’s brief does not properly contain an assignments of
    error section; however, the brief lists six questions under the
    heading “Issues to be Addressed.” He asks, restated: (1) Did
    the district court err by not having a hearing on the requested
    protection order?; (2) Did the district court err by finding there
    were insufficient allegations to support entry of a protection
    order?; (3) Does the Nebraska constitution apply to him?; (4)
    Did the district court evade its responsibilities by not allowing
    Rosberg to present evidence?; (5) Did the district court “vio-
    late 33 C.J. 1135, sec. 84 when [it] made judgment without
    any kind of trial?”; and (6) Did the district court “use proper
    discretion after being made aware that [Rosberg] was not a
    member of the Bar Club Association and understanding case
    law Haines vs. Kerner 1972, 
    404 U.S. 519
    ?”
    The “Argument” section of Rosberg’s brief consists of four
    paragraphs which address only the first two “questions” noted
    above. Accordingly, our review will be limited to address-
    ing those two questions as alleged errors. To be considered
    by an appellate court, an alleged error must be both specifi-
    cally assigned and specifically argued in the brief of the party
    asserting the error. Fetherkile v. Fetherkile, 
    299 Neb. 76
    , 
    907 N.W.2d 275
    (2018).
    STANDARD OF REVIEW
    [1] A protection order is analogous to an injunction.
    Accordingly, the grant or denial of a protection order is
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    reviewed de novo on the record. Mahmood v. Mahmud, 
    279 Neb. 390
    , 
    778 N.W.2d 426
    (2010).
    ANALYSIS
    As set forth above, we address only the two errors alleged
    and argued by Rosberg, which are (1) whether the district
    court erred in not providing a hearing on his protection order
    request and (2) whether there was sufficient evidence to sup-
    port entry of a protection order. Rosberg argues, “Basically,
    [the court] closed the door, preventing [Rosberg] from hav-
    ing the issues addressed in court.” Brief for appellant at 7.
    He claims the court made a decision without allowing him to
    present the facts. At the same time, he also claims “the evi-
    dence presented in the petition and the exhibits presented in
    the courtroom were sufficient allegations to call for a protec-
    tion order hearing and most likely an immediate exparte [sic]
    protection order.” 
    Id. [2,3] We
    first note that no bill of exceptions has been filed
    in this appeal. In the absence of a bill of exceptions, we exam-
    ine and consider only the pleadings in conjunction with the
    judgment reviewed. See Murphy v. Murphy, 
    237 Neb. 406
    , 
    466 N.W.2d 87
    (1991). When a transcript, containing the plead-
    ings and order in question, is sufficient to present the issue
    for appellate disposition, a bill of exceptions is unnecessary
    to preserve an alleged error of law regarding the proceedings
    under review. 
    Id. Where there
    is no bill of exceptions, an
    appellate court is limited on review to an examination of the
    pleadings. 
    Id. If they
    are sufficient to support the judgment,
    it will be presumed on appeal that the evidence supports the
    trial court’s orders and judgment. 
    Id. We conclude
    the tran-
    script is sufficient for this court’s disposition of Rosberg’s
    alleged errors.
    Harassment Protection Orders.
    We begin our analysis with a review of the statutes appli-
    cable to harassment protection orders. Section 28-311.09 pro-
    vides in relevant part:
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    (1) Any victim who has been harassed as defined
    by section 28-311.02 may file a petition and affidavit
    for a harassment protection order . . . . Upon the filing
    of such a petition and affidavit in support thereof, the
    court may issue a harassment protection order without
    bond enjoining the respondent from (a) imposing any
    restraint upon the person or liberty of the petitioner, (b)
    harassing, threatening, assaulting, molesting, attacking,
    or otherwise disturbing the peace of the petitioner, or (c)
    telephoning, contacting, or otherwise communicating with
    the petitioner.
    (Emphasis supplied.)
    The purpose of § 28-311.09, and the definition of certain
    terms, are contained in Neb. Rev. Stat. § 28-311.02 (Reissue
    2016), which provides in relevant part:
    (1) It is the intent of the Legislature to enact laws
    dealing with stalking offenses which will protect vic-
    tims from being willfully harassed, intentionally terrified,
    threatened, or intimidated by individuals who intention-
    ally follow, detain, stalk, or harass them or impose any
    restraint on their personal liberty and which will not pro-
    hibit constitutionally protected activities.
    (2) For purposes of sections 28-311.02 to 28-311.05,
    28-311.09, and 28-311.10:
    (a) Harass means to engage in a knowing and willful
    course of conduct directed at a specific person which
    seriously terrifies, threatens, or intimidates the person and
    which serves no legitimate purpose;
    (b) Course of conduct means a pattern of conduct
    composed of a series of acts over a period of time, how-
    ever short, evidencing a continuity of purpose, including
    a series of acts of following, detaining, restraining the
    personal liberty of, or stalking the person or telephoning,
    contacting, or otherwise communicating with the person.
    [4,5] Application of the law governing harassment protec-
    tion orders has been summarized as follows:
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    “Nebraska’s stalking and harassment statutes are given
    an objective construction and . . . the victim’s experi-
    ence resulting from the perpetrator’s conduct should be
    assessed on an objective basis. In re Interest of Jeffrey K.,
    
    273 Neb. 239
    , 
    728 N.W.2d 606
    (2007). Thus, the inquiry
    is whether a reasonable [victim] would be seriously terri-
    fied, threatened, or intimidated by the perpetrator’s con-
    duct. Id.”
    Richards v. McClure, 
    290 Neb. 124
    , 132, 
    858 N.W.2d 841
    ,
    847 (2015) (quoting Glantz v. Daniel, 
    21 Neb. Ct. App. 89
    , 
    837 N.W.2d 563
    (2013)).
    With this law in mind, we now address the errors claimed
    by Rosberg.
    Right to Hearing.
    Rosberg claims he was denied an opportunity for a hearing
    on his petition for a harassment protection order. However,
    the record does not support that assertion. It is true that on
    November 14, 2016, the district court entered an order dis-
    missing Rosberg’s petition without a hearing. On November
    17, Rosberg filed a “Motion requesting Hearing” to “prove his
    allegations.” The January 31, 2017, journal entry informs us
    that a hearing did take place on January 31. And the February
    28 order explains that the January 31 hearing was “upon
    [Rosberg’s] ‘Motion Requesting Hearing,’” which the court
    interpreted as a motion to reconsider its November 14, 2016,
    order denying Rosberg’s request for a protection order.
    At the January 31, 2017, hearing, Rosberg was present with-
    out counsel and Kelly was not present (she filed a waiver of
    appearance). Importantly, the journal entry states that Rosberg
    offered “Exhibit 1, Motion to Reconsider, specifically pages
    35 through 173, which has been received by the Court.”
    Rosberg also “provided argument” and the court “took the
    matter under advisement.” Therefore, contrary to Rosberg’s
    assertion, he did in fact have an opportunity to offer evidence
    (exhibit 1) in support of his petition, and it was received by
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    the court. Rosberg also had an opportunity to make an argu-
    ment before the court.
    The district court subsequently entered an order on February
    28, 2017, which stated it considered the arguments presented
    on January 31, as well as the information contained in exhibit
    1, and chose to “stand on its Order of November 14, 2016, dis-
    missing this matter without a hearing.” Although the November
    14 order did in fact dismiss Rosberg’s petition “without a
    hearing,” Rosberg has, since that time, succeeded in having a
    hearing on January 31, 2017, at which time his exhibit 1 was
    offered and received, and arguments were made. Accordingly,
    we conclude this alleged error is without merit.
    For the sake of completeness, to the extent Rosberg is argu-
    ing that the mere filing of a petition and affidavit for a harass-
    ment protection order requires a trial court to schedule a hear-
    ing before dismissing the petition, we conclude otherwise.
    There may be some confusion as to the mandatory nature of
    a protection order hearing, because the statutory language
    detailing procedures for domestic abuse protection orders
    and harassment protection orders are not identical, and where
    one statutory scheme requires a hearing before the dismissal
    of a petition, the other does not. Specifically, when a party
    seeks a protection order under the Protection from Domestic
    Abuse Act, if the trial court reviewing a petition determines a
    domestic abuse ex parte temporary protection order need not
    be issued, the court “shall immediately schedule an eviden-
    tiary hearing” on the petition to be held within 14 days, with
    notice given to the petitioner and the respondent. See Neb.
    Rev. Stat. § 42-925(2) (Supp. 2017). See, also, Sarah K. v.
    Jonathan K., 
    23 Neb. Ct. App. 471
    , 
    873 N.W.2d 428
    (2015) (if
    grounds do not exist for issuance of domestic abuse ex parte
    temporary protection order, court must schedule evidentiary
    hearing within 14 days).
    However, for harassment protection orders sought under
    § 28-311.09, as in this case, the statutory scheme does not
    contain the same mandatory hearing language found in the
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    domestic abuse protection order statute set forth above. Rather,
    as noted previously, upon the filing of a petition and affida-
    vit for a harassment protection order, “the court may issue a
    harassment protection order.” § 28-311.09(1) (emphasis sup-
    plied). The statute does not mandate the issuance of such an
    order, nor does the statute require a hearing upon the court
    concluding the petition fails to state sufficient grounds for
    entry of an order. Additionally, the harassment protection order
    statute provides:
    If the specific facts included in the affidavit (a) do not
    show that the petitioner will suffer irreparable harm, loss,
    or damage or (b) show that, for any other compelling
    reason, an ex parte order should not be issued, the court
    may forthwith cause notice of the application to be given
    to the respondent stating that he or she may show cause,
    not more than fourteen days after service, why such order
    should not be entered.
    § 28-311.09(7) (emphasis supplied).
    Section 28-311.09(7) grants the trial court the discretion to
    take further action when it determines an ex parte temporary
    protection order should not be issued; it does not mandate fur-
    ther action. The trial court may direct the respondent to show
    cause why an order should not be entered, but the court is not
    required to do so. If the face of the petition and affidavit fail to
    set forth a sufficient basis to warrant the issuance of a harass-
    ment protection order, the trial court may, in its discretion,
    dismiss the petition without burdening the court with holding
    an evidentiary hearing where the sole purpose is to prove up
    on the petition. Notably, a contested factual hearing in a pro-
    tection order proceeding is a show cause hearing, in which the
    fact issues before the court are whether the facts stated in the
    sworn application are true. Mahmood v. Mahmud, 
    279 Neb. 390
    , 
    778 N.W.2d 426
    (2010). Such proceedings are summary
    in nature, and a court is justified in excluding evidence if its
    probative value is substantially outweighed by considerations
    of undue delay, waste of time, or needless presentation of
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    cumulative evidence; however, for a court to issue a protection
    order, some evidence must be presented. See 
    id. The Legislature
    has providently granted the trial courts the
    discretion to filter between those petitions and affidavits which
    properly allege facts qualifying for harassment protection
    under the statute from those alleging facts, even if presumed
    true, which fail to qualify for protection under the statute. This
    is certainly consistent with the notion that a trial court can
    summarily dismiss a petition on its own motion when “not a
    fact stated” entitles the party to the relief sought. Van Etten v.
    Test, 
    64 Neb. 407
    , 408, 
    89 N.W. 1052
    , 1053 (1902) (litigant’s
    attempt to circumvent prior judgment against her by filing
    new action should have been summarily dismissed by trial
    court because such attempts “should not be permitted to bur-
    den courts or clog the wheels of justice”).
    [6,7] Accordingly, when a trial court determines an ex parte
    temporary harassment protection order is not warranted, an
    evidentiary hearing is not mandated under the harassment pro-
    tection order statute like it is under the domestic abuse protec-
    tion order statute. In harassment protection order proceedings,
    a trial court has the discretion to direct a respondent to show
    cause why an order should not be entered or, alternatively,
    the court can dismiss the petition if insufficient grounds have
    been stated in the petition and affidavit. Although the district
    court in this instance decided to grant Rosberg a hearing so
    he could offer evidence and make arguments to the court after
    the court’s initial dismissal of Rosberg’s petition, the harass-
    ment protection order statute did not require the court to hold
    such a hearing.
    Sufficiency of Allegations.
    Rosberg argues that “the evidence presented in the petition
    and the exhibits presented in the courtroom were sufficient
    allegations to call for a protection order hearing and most
    likely an immediate exparte [sic] protection order.” Brief for
    appellant at 7.
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    As explained earlier, where there is no bill of exceptions,
    an appellate court is limited on review to an examination of
    the pleadings. See Murphy v. Murphy, 
    237 Neb. 406
    , 
    466 N.W.2d 87
    (1991). If they are sufficient to support the judg-
    ment, it will be presumed on appeal that the evidence sup-
    ports the trial court’s orders and judgment. 
    Id. We conclude
    that the pleadings are sufficient to support the district court’s
    order, and therefore, we presume the evidence (exhibit 1)
    considered by the district court supported its decision to dis-
    miss Rosberg’s petition seeking a harassment protection order
    against Kelly.
    We agree with the district court that the issues complained
    about by Rosberg do not rise to the type of conduct contem-
    plated by the harassment protection order statute. As set forth
    previously, the inquiry is whether a reasonable victim would
    be seriously terrified, threatened, or intimidated by the per-
    petrator’s conduct. Richards v. McClure, 
    290 Neb. 124
    , 
    858 N.W.2d 841
    (2015). Rosberg’s allegations about Kelly consist
    of her lying, allowing the children to be around a registered
    sex offender, letting the children do anything they want, pre-
    venting certain parenting time from taking place, denying the
    children’s attendance at family weddings, disparaging Rosberg,
    and possibly “plant[ing] guns” on Rosberg to get him in
    trouble. Additionally, Rosberg claims that Kelly is “mentally
    sick” and should only have supervised parenting time. While
    Rosberg may very well have valid reasons to be concerned,
    upset, angry, or frustrated by the circumstances evolving in
    the course of his marriage dissolution, as noted by the district
    court, these are matters to be addressed in that separate action
    and not through a harassment protection order.
    CONCLUSION
    The district court’s February 28, 2017, order is affirmed.
    A ffirmed.
    

Document Info

Docket Number: A-17-341

Citation Numbers: 25 Neb. Ct. App. 856

Filed Date: 5/1/2018

Precedential Status: Precedential

Modified Date: 4/17/2021