D.W. v. A.G. , 303 Neb. 42 ( 2019 )


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    D.W. v. A.G.
    Cite as 
    303 Neb. 42
    D.W.,   appellee and cross-appellant,
    v.   A.G.,   appellant and
    cross-appellee.
    ___ N.W.2d ___
    Filed May 3, 2019.    Nos. S-18-657, S-18-658.
    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. 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 ques-
    tion 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 reason-
    able 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
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    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-18-657 reversed,
    and cause remanded with directions. Judgment in No. S-18-658
    affirmed in part, and in part reversed.
    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 proce-
    dural due process. Accordingly, we affirm in part, and in part
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    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 vio-
    lated 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, pursu-
    ant 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 oth-
    erwise disturbing the peace of D.W.; and having any contact
    or communication with D.W.
    A.G. requested a show cause hearing on the matter.
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    Show Cause Hearing.
    The trial court conducted a show cause hearing at which
    both D.W. and A.G. presented evidence and argument. The evi-
    dence consisted of testimony and photographs. D.W.’s petition
    and affidavit were not offered into evidence.
    According to the evidence introduced at the show cause
    hearing, the events at issue occurred in the early morning hours
    of October 19, 2017. At that time, D.W. was an undergraduate
    student. D.W. testified that the day before was her 21st birth-
    day and that she engaged in extensive drinking over the course
    of that day. She consumed several bottles of a malt beverage
    that afternoon and continued to drink when several friends
    and acquaintances, including A.G., came over to her apart-
    ment that evening. The group later went to and returned from
    a restaurant. D.W. and others in the group continued to drink
    at both locations.
    Eventually, some members of the group, including both
    D.W. and A.G., went to a bar. D.W. testified that while at the
    bar, she engaged in “mutual flirtation” with A.G. and others,
    but that, after a certain point, she had no further memories of
    the time at the bar. She testified that her next memory after
    being at the bar was of having sexual intercourse with A.G. at
    her apartment. She testified that she did not recall consenting
    to the sexual intercourse.
    A.G. testified that D.W. was aggressively flirting with him
    at the bar. He testified that while riding from the bar, D.W. was
    holding his hand, and that when they arrived at her apartment,
    she invited him to her room. He testified that D.W. appeared
    coherent when she invited him in. A.G. also testified that as
    they were walking to D.W.’s room, she told him that if he
    wanted to “‘hook up,’” which he assumed to mean sex, he had
    to promise not to tell her boyfriend.
    As D.W. and A.G. approached D.W.’s apartment, they
    encountered an acquaintance. Surveillance photographs intro-
    duced into evidence capture D.W. and A.G. talking to this
    acquaintance, who testified that during his brief interaction
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    with D.W. and A.G., D.W. appeared coherent and steady on
    her feet and was not slurring her words. He acknowledged
    that he could tell that D.W. and A.G. had been drinking, but
    that they appeared happy and that he did not suspect anything
    was wrong or out of the ordinary. The acquaintance testified
    that D.W. did not seem tired, exhausted, or almost ready to
    pass out.
    A.G. testified that he and D.W. began kissing and touching
    each other as soon as they entered her apartment. He testified
    that D.W. then invited him into her bedroom and that they
    “had sex.”
    A.G. testified that during the entire evening, D.W. never
    appeared incoherent and she did not stumble or fall down.
    He testified that he never had any reason to believe D.W. was
    unable to give consent.
    Trial Court’s Rulings.
    After the close of evidence at the show cause hearing, the
    trial court stated that it would not leave the sexual assault
    protection order in place. It explained that it could not find
    that there was a lack of consent. The trial court also focused
    on the acquaintance’s testimony and noted that it found him
    to be the most credible of all the witnesses. The trial court
    described his testimony that D.W. did not appear to be inco-
    herent or unsteady prior to entering her apartment with A.G.
    as the “key element.”
    But while the trial court made clear it would not leave the
    sexual assault protection order in place, it said it would enter
    a protection order. The trial court made some references to
    D.W.’s fear of A.G., but did not specify what type of protection
    order it planned to enter.
    Two days after the show cause hearing, D.W.’s initial peti-
    tion and affidavit for a sexual assault protection order were
    refiled under a new case number. Although not reflected in the
    record on appeal, the parties agree that the trial court refiled
    the petition and affidavit under a new case number sua sponte.
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    On the same day, June 8, 2018, the trial court issued a harass-
    ment protection order in the newly filed case. That order stated
    that the parties had been present at a hearing with counsel
    and that the court found a harassment protection order should
    be issued. It imposed the same restrictions as the previous ex
    parte sexual assault protection order.
    Three days later, on June 11, 2018, the trial court entered an
    order in the original case, dismissing the sexual assault protec-
    tion order because it was not supported by sufficient evidence.
    The order stated that sufficient evidence was adduced to merit
    a harassment protection order.
    A.G. appealed both the harassment protection order in the
    newly filed case and the order finding that sufficient evidence
    was adduced to merit a harassment protection order in the
    original case. D.W. cross-appealed.
    ASSIGNMENTS OF ERROR
    With regard to the entry of the harassment protection order,
    A.G. assigns the following errors: (1) the trial court lacked
    subject matter jurisdiction to enter it, (2) it was entered in
    violation of his right to procedural due process, (3) it was not
    supported by the evidence, and (4) the trial court improperly
    acted as an advocate in entering it.
    D.W. filed a cross-appeal, but her brief does not include a
    separate section assigning error.
    STANDARD OF REVIEW
    [1,2] A protection order is analogous to an injunction.
    Mahmood v. Mahmud, 
    279 Neb. 390
    , 
    778 N.W.2d 426
    (2010).
    Accordingly, the grant or denial of a protection order is
    reviewed de novo on the record. 
    Id. In such
    a de novo review,
    an appellate court reaches conclusions independent of the fac-
    tual findings of the trial court. However, where the credible
    evidence is in conflict on a material issue of fact, the appel-
    late court considers and may give weight to the circumstances
    that the trial judge heard and observed the witnesses and
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    accepted one version of the facts rather than another. Maria A.
    on behalf of Leslie G. v. Oscar G., 
    301 Neb. 673
    , 
    919 N.W.2d 841
    (2018).
    [3] Subject matter jurisdiction is a question of law for the
    court, which requires an appellate court to reach a conclu-
    sion independent of the lower court’s decision. Mahmood v.
    
    Mahmud, supra
    .
    ANALYSIS
    Subject Matter Jurisdiction.
    We begin, as we must, with A.G.’s argument that the trial
    court did not have subject matter jurisdiction to enter the
    harassment protection order. He argues that the trial court did
    not have jurisdiction to enter a harassment protection order
    because D.W. did not seek one.
    [4] While we find that the trial court’s entry of a harassment
    protection order is problematic for reasons discussed in greater
    detail below, we do not believe the trial court lacked subject
    matter jurisdiction to enter it. 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. Village at
    North Platte v. Lincoln Cty. Bd. of Equal., 
    292 Neb. 533
    , 
    873 N.W.2d 201
    (2016). Because the trial court had the author-
    ity to hear and determine cases regarding harassment protec-
    tion orders, the court did not lack subject matter jurisdiction
    to enter the harassment protection order. See Neb. Rev. Stat.
    § 28-311.09 (Reissue 2016).
    Procedural Due Process.
    In addition to arguing that the trial court lacked jurisdiction,
    A.G. argues that for several reasons, the entry of the harass-
    ment protection order was erroneous. We now turn to those
    arguments, beginning with his claim that the trial court violated
    his right to due process when it entered the harassment protec-
    tion order. Here, we agree with A.G.
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    [5,6] While the concept of due process defies precise defi-
    nition, it embodies and requires fundamental fairness. Zahl
    v. Zahl, 
    273 Neb. 1043
    , 
    736 N.W.2d 365
    (2007). 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 sub-
    ject and issues involved in the proceeding; a reasonable oppor-
    tunity 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. 
    Id. When it
    comes to protection orders, we have recognized
    that because the intrusion on the respondent’s liberty interests
    is relatively limited, “the procedural due process afforded in a
    harassment protection hearing is likewise limited.” Mahmood
    v. Mahmud, 
    279 Neb. 390
    , 397, 
    778 N.W.2d 426
    , 432 (2010).
    But while the procedures required in a harassment protection
    order proceeding may not “reflect the full panoply of proce-
    dures common to civil trials,” we have held that due process
    does impose some basic requirements. 
    Id. at 398,
    778 N.W.2d
    at 433. For example, we have held that testimony at a show
    cause hearing in a protection order proceeding must be under
    oath and documents must be admitted into evidence before
    being considered. See 
    id. We further
    discussed procedural due process requirements
    in protection order proceedings in Linda N. v. William N.,
    
    289 Neb. 607
    , 
    856 N.W.2d 436
    (2014). In that case, we
    reversed the entry of a domestic abuse protection order upon
    the respond­ent’s appeal. The petitioner also filed a cross-appeal
    and argued, for the first time on appeal, that a harassment
    protection order was warranted. We rejected the petitioner’s
    argument for a number of reasons. In doing so, we discussed
    and distinguished Sherman v. Sherman, 
    18 Neb. Ct. App. 342
    , 
    781 N.W.2d 615
    (2010), a Nebraska Court of Appeals decision.
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    In Sherman, the court held that when a trial court is pre-
    sented with a case in which a petitioner seeks a domestic abuse
    protection order but the evidence would only support a harass-
    ment protection order, the judge should explain the require-
    ments for both types of protection orders, allow the petitioner
    to choose which theory to pursue, and, grant the respondent a
    continuance, if requested. We explained in Linda N. that the
    procedure outlined in Sherman allowed a petitioner to elect
    to change theories, but that “[t]he change must be initiated
    before the trial court makes a final decision.” Linda 
    N., 289 Neb. at 619
    , 856 N.W.2d at 446. We further observed that the
    procedure outlined in Sherman protected the due process rights
    of both parties “by trying the case only on the theory elected
    by the petitioner.” Linda 
    N., 289 Neb. at 618
    , 856 N.W.2d at
    446. Conversely, we said that to allow a petitioner to change
    the theory on which a protection order was sought on appeal
    would violate due process.
    Inherent in both Linda N. and Sherman is a recognition that
    a respondent in a protection order proceeding must be noti-
    fied of the grounds upon which a protection order is sought
    and provided with an opportunity to respond to those grounds
    at the show cause hearing. This should come as no surprise.
    Notice and an opportunity to be heard are, after all, basic
    requirements of procedural due process. See, e.g., Cleveland
    Board of Education v. Loudermill, 
    470 U.S. 532
    , 546, 105 S.
    Ct. 1487, 
    84 L. Ed. 2d 494
    (1985) (“[t]he essential require-
    ments of due process . . . are notice and an opportunity to
    respond”); Fuentes v. Shevin, 
    407 U.S. 67
    , 80, 
    92 S. Ct. 1983
    ,
    
    32 L. Ed. 2d 556
    (1972) (“[f]or more than a century the central
    meaning of procedural due process has been clear: ‘Parties
    whose rights are to be affected are entitled to be heard; and
    in order that they may enjoy that right they must first be noti-
    fied’”) (quoting Baldwin v. Hale, 68 U.S. (1 Wall.) 223, 17 L.
    Ed. 531 (1863)).
    In this case, we conclude that A.G. was not provided with
    sufficient notice and an opportunity to be heard regarding a
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    harassment protection order. D.W.’s initial petition sought a
    sexual assault protection order. She submitted a form petition
    for a sexual assault protection order, which asked her to list
    the date, time, and a description of the alleged sexual assault.
    On a page attached to the petition, D.W. alleged that A.G.
    sexually assaulted her. The trial court thereafter entered an ex
    parte sexual assault protection order. A.G. requested a show
    cause hearing on whether the sexual assault protection order
    should remain in place. At that hearing, both parties focused
    on whether a sexual assault had occurred. At no time did D.W.
    request that a harassment protection order be entered or make
    allegations sufficient to give A.G. fair notice that she sought
    such an order. And at oral argument, D.W.’s counsel could not
    identify any evidence introduced at the show cause hearing that
    tended to show that A.G. harassed D.W.
    Despite all this, the trial court apparently saw some basis
    for a harassment protection order. That the trial court seems
    to have brought up the harassment protection order on its own
    initiative raises questions of its own. See Sherman v. Sherman,
    
    18 Neb. Ct. App. 342
    , 
    781 N.W.2d 615
    (2010) (holding that by
    electing which theory to pursue, rather than allowing petitioner
    to make choice, trial judge crossed line into advocacy). But
    even if the source of the harassment protection order theory is
    set to the side, the late hour at which the theory was raised—
    after the close of evidence—presents a procedural due process
    problem. A.G. requested a show cause hearing as to whether
    a sexual assault protection order should remain in effect. By
    the time that A.G. learned that a harassment protection order
    was under consideration, he no longer had the opportunity
    to present a case to the trial court that such an order was
    not warranted.
    In this respect, the procedure followed in this case is not
    meaningfully different from the procedure we found to be
    inconsistent with procedural due process in Linda N. v. William
    N., 
    289 Neb. 607
    , 
    856 N.W.2d 436
    (2014). Whether a new
    theory for a protection order is asserted for the first time on
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    appeal or after the close of evidence at the show cause hear-
    ing, the respondent does not have an opportunity to defend
    against the entry of the protection order on the new theory and
    is denied procedural due process.
    The trial court appears to have correctly sensed that there
    was something standing in the way of its entering a harassment
    protection order in the case filed by D.W. We can discern no
    other reason why the trial court would take the puzzling step
    of sua sponte refiling D.W.’s initial petition under a new case
    number and then entering the harassment protection order in
    that case. The trial court’s sua sponte refiling of D.W.’s petition
    in a new case was hardly capable, however, of remedying the
    due process problem outlined above.
    Because the entry of the harassment protection order did not
    comply with procedural due process, we reverse it, and remand
    the cause with directions to vacate it. Because we reverse the
    harassment protection order on these grounds, we decline to
    consider A.G.’s remaining assignments of error.
    D.W.’s Cross-Appeal.
    [7,8] As noted above, D.W.’s brief in support of her cross-
    appeal does not include a separate section assigning error. It
    does include a heading in the argument section of her brief
    stating: “The trial court erred in dismissing the sexual assault
    protection order agai[ns]t the appellant.” Brief for appellee
    on cross-appeal at 20. We have held, however, that headings
    in the argument section of a brief do not satisfy the require-
    ments of Neb. Ct. R. App. P. § 2-109(D)(1) (rev. 2014). See,
    e.g., In re Interest of Samantha L. & Jasmine L., 
    286 Neb. 778
    , 
    839 N.W.2d 265
    (2013). Where a party’s brief fails
    to comply with § 2-109(D)(1), we may proceed as though
    the party failed to file a brief or, alternatively, examine the
    proceedings for plain error. See Estate of Schluntz v. Lower
    Republican NRD, 
    300 Neb. 582
    , 
    915 N.W.2d 427
    (2018).
    Plain error is error plainly evident from the record and of
    such a nature that to leave it uncorrected would result in
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    damage to the integrity, reputation, or fairness of the judicial
    process. 
    Id. Despite D.W.’s
    failure to assign error in the manner con-
    templated by our rules, the basis for her cross-appeal can be
    discerned: She contends that the trial court erred by dismissing
    the sexual assault protection order against A.G. For reasons we
    will explain, we cannot say that the trial court plainly erred
    when it dismissed the sexual assault protection order.
    Courts may grant sexual assault protection orders to victims
    of sexual assault offenses. § 28-311.11(1). The relevant statute
    defines sexual assault offenses by referencing various other
    statutes. Section 28-311.11 provides:
    (12) For purposes of this section, sexual assault offense
    means:
    (a) Conduct amounting to sexual assault under section
    28-319 or 28-320 or sexual assault of a child under sec-
    tion 28-319.01 or 28-320.01 or an attempt to commit any
    of such offenses; or
    (b) Subjecting or attempting to subject another person
    to sexual contact or sexual penetration without his or her
    consent, as such terms are defined in section 28-318.
    Neb. Rev. Stat. § 28-319(1) (Reissue 2016) states that first
    degree sexual assault occurs when any person subjects another
    person to sexual penetration either without consent of the
    victim or when the person knew or should have known that
    “the victim was mentally or physically incapable of resisting
    or appraising the nature of his or her conduct” (or under other
    circumstances not relevant here).
    D.W. contends that the evidence showed either that she was
    subjected to sexual penetration without consent or that she was
    mentally or physically incapable of resisting or appraising the
    nature of her conduct. While A.G. admitted that he engaged in
    sexual activity with D.W., he maintained that all such activity
    was consensual and that D.W. appeared physically and men-
    tally capable of providing consent.
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    The evidence at the show cause hearing on whether con-
    sent was provided and whether D.W. was capable of provid-
    ing consent was, at a minimum, disputed. D.W. admitted to
    mutual flirtation between herself and A.G. at the bar, but tes-
    tified that her next memory was of being sexually penetrated
    by A.G. in her apartment. She testified that she did not recall
    consenting to sexual intercourse with him. A.G. testified that
    D.W. was not incoherent or stumbling when they returned to
    her apartment; that she told him that if they “‘hook[ed] up,’”
    he had to promise not to tell her boyfriend; and that D.W.
    was a willing participant in the sexual activity. In addition,
    the acquaintance testified that just prior to entering her apart-
    ment, D.W. did not seem tired, exhausted, or almost ready to
    pass out.
    After hearing all of this evidence, the trial court explained
    its decision not to enter a sexual assault protection order. It
    stated that it could not find a lack of consent. It also noted
    that it found the acquaintance to be credible and described his
    testimony regarding D.W.’s condition just prior to entering
    her apartment as the “key element.” Because the evidence on
    whether a sexual assault occurred was, at the very least, con-
    flicting and required the trial court to make credibility determi-
    nations of witnesses, we cannot say that the trial judge commit-
    ted plain error by vacating the sexual assault protection order.
    See Maria A. on behalf of Leslie G. v. Oscar G., 
    301 Neb. 673
    , 678, 
    919 N.W.2d 841
    , 846 (2018) (“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”).
    CONCLUSION
    We find that the trial court violated A.G.’s right to proce-
    dural due process by entering a harassment protection order
    without providing sufficient notice and an opportunity to
    be heard. We therefore reverse the June 8, 2018, order that
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    issued the harassment protection order, as well as the June 11
    order to the extent that it found evidence sufficient to merit
    a harassment protection order. We remand the cause with
    directions to vacate the harassment protection order. We find
    no plain error in the trial court’s order dismissing the sexual
    assault protection order, and we therefore affirm that portion
    of the June 11 order.
    Judgment in No. S-18-657 reversed, and
    cause remanded with directions.
    Judgment in No. S-18-658 affirmed in
    part, and in part reversed.