Sarah K. v. Jonathan K. ( 2015 )

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SARAH K. v. JONATHAN K.
Cite as 23 Neb. App. 471Sarah K., appellee, v.
Jonathan K., appellant.
Sarah K., on behalf of Tegan K.,
a minor child, appellee, v.
Jonathan K., appellant.
___ N.W.2d ___
Filed December 22, 2015. Nos. A-15-150, A-15-152.
1. Injunction: Judgments: Appeal and Error. A protection order pursu-
ant to Neb. Rev. Stat. § 42-924 (Cum. Supp. 2014) 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. Pleadings: Affidavits: Time. Neither Neb. Rev. Stat. § 42-903(1)(a)
(Cum. Supp. 2014) nor Neb. Rev. Stat. § 42-924(1) (Cum. Supp. 2014)
imposes any limitation on the time during which a victim of domestic
abuse resulting in bodily injury can file a petition and affidavit seeking
a protection order. However, this does not mean that the remoteness
of the abuse is irrelevant to the issue of whether a protection order
is warranted.
3. Judgments: Evidence: Time. Remoteness of past abuse is a matter for
a court to consider in weighing the evidence before it while deciding
whether to issue a protection order.
Appeal from the District Court for Lancaster County: Thomas
W. Fox, County Judge. Affirmed.
Matt Catlett, of Law Office of Matt Catlett, for appellant.
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SARAH K. v. JONATHAN K.
Cite as 23 Neb. App. 471Steffanie J. Garner Kotik, of Kotik & McClure Law, for
appellee.
Pirtle, R iedmann, and Bishop, Judges.
Bishop, Judge.
Jonathan K. appeals from orders of the district court for
Lancaster County granting petitions for domestic abuse pro-
tection orders filed by his wife, Sarah K., on behalf of herself
and her minor daughter, Tegan K. Jonathan’s sole contention
is that because the most recent abuse alleged in the petitions
occurred 12 weeks prior to the filing of the petitions, it was
too remote in time to support the entry of protection orders.
We affirm.
BACKGROUND
In January 2015, pursuant to Neb. Rev. Stat. § 42-924(Cum. Supp. 2014), Sarah filed petitions and affidavits for
domestic abuse protection orders against Jonathan on behalf
of herself and Tegan, who was 1 year old. In Sarah’s affidavit
filed in her own behalf, the most recent incident of domes-
tic abuse that she described occurred on November 6, 2014.
During an argument on that date, Jonathan placed Sarah in
a choke hold. Shortly afterward, when Jonathan saw Sarah
taking photographs of the redness on her neck, he “tried to
wrestle her phone away” and again placed her in a choke hold.
In the 12 weeks following the incident, Jonathan had respected
a “‘no contact bond’” issued in the resulting criminal case.
Nevertheless, due to a 51⁄2-year history of incidents, Sarah
feared “likely further violence.”
Sarah described the next most recent incident of abuse as
occurring on November 2, 2014. On that date, she awoke
around midnight to find Jonathan sitting on the side of the
bed, urinating on the floor. He was too intoxicated to clean
up the mess, so Sarah cleaned it while holding Tegan in
her arms. Jonathan pulled Tegan from Sarah’s arms “with
enough force that if [Sarah] hadn’t let her go, it really would
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Cite as 23 Neb. App. 471have torqued her body/torso.” Sarah “backhanded” Jonathan’s
shoulder, and he then “forcefully backhanded” the left side of
Sarah’s face.
The third most recent incident was based on photographs
dated October 12, 2014, which were stored in Sarah’s cell
phone and showed a red mark on the back of her right hand
or wrist. Although Sarah did not remember the incident that
caused the mark, she believed that Jonathan had “dealt some
form of blow” to her hand or wrist.
At the conclusion of her affidavit, Sarah wrote:
[M]y increasing documentation indicates a history and
pattern of recurring violence, from Fall of 2009 to the
present, including damage to home (walls, doors, and
possessions), harm to self ([Jonathan] will throw his
body into walls, doors, has hit head on table and with
drinking glass), and both violence and sexual assault
towards me.
Sarah stated that she feared further violence in the absence of
continued separation from Jonathan.
In Sarah’s affidavit filed on Tegan’s behalf, the first two
incidents of alleged abuse were the same as those described
in Sarah’s own affidavit. Sarah indicated that Tegan witnessed
Jonathan placing Sarah in a choke hold twice on November 6,
2014, and that Jonathan pulled Tegan from Sarah’s arms during
the incident on November 2. The third incident occurred earlier
that year on March 10, when during an argument, Jonathan
threw a glassful of cold water on Sarah and Tegan as they lay
together in bed.
An evidentiary hearing on the petitions was scheduled for
February 6, 2015. Sarah testified that the allegations in the peti-
tions and affidavits were true and correct. The court admitted
the petitions and affidavits into evidence and asked Jonathan
if he had any questions of Sarah. At that point, Jonathan
requested a continuance to obtain counsel, and the court con-
tinued the hearing to February 20.
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SARAH K. v. JONATHAN K.
Cite as 23 Neb. App. 471At the February 20, 2015, hearing, Jonathan appeared with
counsel. On cross-examination, Sarah testified that she did
not have any contact with Jonathan between the incident on
November 6, 2014, and the filing of the petitions in January
2015. She further testified that she initiated the protection
order proceedings after she learned the criminal charges against
Jonathan arising out of the November 6, 2014, incident would
be dismissed and he would no longer be subject to a no contact
order in the criminal case. She acknowledged that neither she
nor Tegan was “in imminent bodily danger” from Jonathan on
the date she filed the petitions.
Jonathan testified that during the incident on November 6,
2014, Sarah struck him first and Tegan was not in the room.
Regarding the November 2 incident, Jonathan testified that
Sarah might have been drinking as well. Jonathan did not
recall the October 12 incident but testified that because Sarah
had struck him “multiple times in the past,” the red mark
could have resulted from Jonathan protecting himself. Jonathan
further testified that he had no contact with Sarah or Tegan
between the November 6 incident and the date the petitions
were filed. He explained that as a condition of bond in the
criminal case arising out of the November 6 incident, he was
prohibited from having contact with Sarah. Jonathan testified
that the criminal case had been “dismissed fully” upon his
entry into a diversion program.
At the close of the evidence, Jonathan’s counsel argued that
based on Ditmars v. Ditmars, 18 Neb. App. 568, 788 N.W.2d
817 (2010), the allegations of abuse in Sarah’s petitions were
too remote in time to support entry of protection orders.
On February 20, 2015, following the hearing, the court
entered domestic abuse protection orders against Jonathan in
favor of Sarah and Tegan. The form orders enjoined Jonathan
for a period of 1 year from imposing any restraint upon the
person or liberty of Sarah or Tegan or threatening, assault-
ing, molesting, attacking, or otherwise disturbing the peace of
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Cite as 23 Neb. App. 471Sarah or Tegan. Jonathan was also ordered to stay away from
Sarah’s residence and Tegan’s daycare.
Jonathan timely appealed the protection orders to this court.
After briefing was completed, this court on its own motion
consolidated the appeals for disposition.
ASSIGNMENTS OF ERROR
In each appeal, Jonathan assigns that the district court erred
in granting a petition for a domestic abuse protection order,
based on insufficient evidence.
STANDARD OF REVIEW
[1] A protection order pursuant to § 42-924 is analogous to
an injunction. Torres v. Morales, 287 Neb. 587, 843 N.W.2d
805 (2014). Thus, the grant or denial of a protection order is
reviewed de novo on the record. Id. In such de novo review, an
appellate court reaches conclusions independent of the factual
findings of the trial court. Id. 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. Id.ANALYSIS
Section 42-924(1) of the Protection from Domestic Abuse
Act permits “[a]ny victim of domestic abuse” to file a petition
and affidavit for a protection order. The act defines “abuse” in
pertinent part as
the occurrence of one or more of the following acts
between household members:
(a) Attempting to cause or intentionally and know-
ingly causing bodily injury with or without a dangerous
instrument;
(b) Placing, by means of credible threat, another person
in fear of bodily injury. . . ; or
(c) Engaging in sexual contact or sexual penetration
without consent as defined in section 28-318.
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SARAH K. v. JONATHAN K.
Cite as 23 Neb. App. 471Neb. Rev. Stat. § 42-903(1) (Cum. Supp. 2014). Upon the fil-
ing of a petition, if grounds do not exist for the issuance of an
ex parte temporary protection order, a court must schedule an
evidentiary hearing on the petition to be held within 14 days
and cause notice of the hearing to be given to the petitioner and
respondent. Neb. Rev. Stat. § 42-925(2) (Cum. Supp. 2014). A
protection order issued pursuant to § 42-924 remains in effect
for a period of 1 year unless dismissed or modified by the court
prior to that date. § 42-925(4).
For a protection order to be entered under these statutes,
Sarah was required to prove that she and Tegan were the
victims of domestic abuse in that Jonathan had attempted to
cause or had intentionally and knowingly caused bodily injury
with or without a dangerous instrument. §§ 42-903(1)(a) and
42-924(1). Jonathan does not dispute that Sarah made such
a showing in that she proved that he (1) twice placed Sarah
in a choke hold; (2) “forcefully backhanded” Sarah’s face;
(3) pulled Tegan from Sarah’s arms “with enough force that
if [Sarah] hadn’t let her go, it really would have torqued her
body/torso”; and (4) threw a glassful of cold water on Sarah
and Tegan as they lay in bed.
However, Jonathan suggests that “a showing of abuse is
not enough — the petitioner must still be reasonably prompt
in seeking the protection order.” Reply brief for appellant in
case No. A-15-150 at 2. Jonathan acknowledges that “the leg-
islature has imposed no specific time limitation with respect to
the filing of a petition for a domestic abuse protection order.”
Brief for appellant in case No. A-15-150 at 8. But Jonathan
argues “there is unquestionably some limitation.” Id. (empha-
sis in original). Jonathan’s sole argument on appeal is that the
allegations of abuse in Sarah’s petitions and affidavits were
too remote in time to support the entry of protection orders
against him. As he did before the trial court, Jonathan relies
on Ditmars v. Ditmars, 18 Neb. App. 568, 788 N.W.2d 817(2010), to support his position.
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SARAH K. v. JONATHAN K.
Cite as 23 Neb. App. 471In Ditmars, Elena Ditmars filed petitions for domestic abuse
protection orders against her husband, Chalmer Ditmars, in
her own behalf and on behalf of her minor son. The allega-
tions of abuse in Elena’s petitions and affidavits, which were
filed in the district court for Lancaster County in November
2009, were that in September 2009 in rural Kansas, Chalmer
had insisted that Elena have sex with him on a daily basis.
Elena further alleged that in April 2009 in Kansas, Chalmer
became angry, because she would not have sex with him, and
stood outside pretending to fire a gun at the house and laugh-
ing “‘like he was crazy.’” Id. at 570, 788 N.W.2d at 819. At
a hearing on the petition, the evidence showed that Elena had
moved to Nebraska with her son at the end of September 2009
and that Chalmer and Elena had not seen each other since then.
Chalmer had also filed for divorce.
After the district court entered protection orders against
Chalmer, he appealed to this court, and the orders were
reversed. Notably, we began our analysis in Ditmars by noting
that the definitions of abuse contained in subsections (a) and
(c) of § 42-903(1) (Reissue 2008) were not at issue. We stated
that we would limit our consideration to whether Elena proved
abuse under § 42-903(1)(b), which at the time defined abuse as
“[p]lacing, by physical menace, another person in fear of immi-
nent bodily injury . . . .” Thus, the question before this court
at that time was whether Elena had shown that Chalmer, by
physical menace, had placed her or her son in fear of imminent
bodily injury. Ditmars, supra.
In Ditmars, we explained that in Cloeter v. Cloeter, 17
Neb. App. 741, 770 N.W.2d 660 (2009), we had recently
concluded that imminent bodily injury in the context of the
Protection from Domestic Abuse Act meant an immediate,
real threat to one’s safety that places one in immediate danger
of bodily injury, that is, bodily injury that is likely to occur
at any moment. We then stated, “Assuming without deciding
that Elena’s allegations rise to the level of abuse contemplated
by the [a]ct, we determine that the incidents alleged by Elena
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Cite as 23 Neb. App. 471are too remote in time to support entry of a protection order.”
Ditmars, 18 Neb. App. at 572, 788 N.W.2d at 821. We noted
that the alleged abuse included incidents that occurred months
prior to Elena’s filing of the petitions and that Elena and her
son had moved from Chalmer’s home at the end of September
2009, ceasing contact with Chalmer at that point. We held
that “the record does not support a conclusion that Elena was
placed in fear of imminent bodily injury.” Id. at 573, 788
N.W.2d at 821. Summarizing our holding, we stated that “the
facts upon which the protective orders rest are stale, and as a
result, the proof of fear of an imminent bodily injury [was]
insufficient.” Id.
Jonathan contends that Ditmars v. Ditmars, 18 Neb. App.
568, 788 N.W.2d 817 (2010), requires reversal of the pro-
tection orders against him because in Ditmars, this court
“assumed” there was abuse and decided the case based on the
remoteness in time between the abuse and the filing of the
petition seeking a protection order. Reply brief for appellant
in case No. A-15-150 at 2 (emphasis omitted). Jonathan argues
that Sarah waited “twice” as long as Elena to seek protection
orders, brief for appellant in case No. A-15-150 at 8, and that
Ditmars “stands for the non-controversial proposition that a
person seeking a domestic abuse protection order must be rea-
sonably prompt in doing so,” reply brief for appellant in case
No. A-15-150 at 3. Jonathan argues that, similar to the facts
of Ditmars, Sarah and Tegan had no contact with Jonathan
between the most recent alleged abuse and the filing of Sarah’s
petitions. Jonathan also urges that the protection orders should
be reversed because Sarah admitted that she and Tegan were
not “in imminent bodily danger” on the date the petitions
were filed, just as Elena was not in imminent danger once she
moved to Nebraska.
Ditmars does not compel us to reverse the protection
orders in this case, for two reasons. First, in Ditmars, we
limited our discussion to the definition of abuse contained in
§ 42-903(1)(b), which at the time defined abuse as “[p]lacing,
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Cite as 23 Neb. App. 471by physical menace, another person in fear of imminent
bodily injury . . . .” In the instant case, the evidence revealed
past instances of actual physical abuse, which implicated the
definition of abuse contained in § 42-903(1)(a) (Cum. Supp.
2014), which defines abuse as “[a]ttempting to cause or inten-
tionally and knowingly causing bodily injury with or with-
out a dangerous instrument.” While Elena, the petitioner in
Ditmars, was required to establish a fear of “imminent bodily
injury” based on the law at that time, § 42-903(1)(b) (Reissue
2008), in the instant case, Sarah was not required to make any
such showing. We reject Jonathan’s contention that Ditmars’
discussion of imminent bodily injury and the remoteness of
abuse under § 42-903(1)(b) applies to all domestic abuse pro-
tection order cases, regardless of which definition of abuse
is involved.
The second reason that Ditmars does not compel reversal
of the protection orders is that 2 years after Ditmars was
decided, the Nebraska Legislature amended the definition of
abuse contained in § 42-903(1)(b). As noted above, at the
time of Ditmars, § 42-903(1)(b) defined abuse as “[p]lac-
ing, by physical menace, another person in fear of imminent
bodily injury . . . .” In 2012, the statute was amended, in
relevant part, to say that abuse means “[p]lacing, by means
of credible threat, another person in fear of bodily injury.”
See § 42-903(1)(b) (Cum. Supp. 2014). The Legislature had
removed from the definition the requirement that the alleged
abuse victim fear “imminent” bodily injury, which require-
ment weighed heavily in this court’s analysis in Ditmars. The
2012 legislative amendments render the continuing preceden-
tial value of Ditmars questionable, particularly with regard
to any discussion therein about “imminent” bodily injury.
See Linda N. v. William N., 289 Neb. 607, 856 N.W.2d 436(2014) (explaining statutory amendment and legislative intent
behind it).
[2,3] Other than Ditmars v. Ditmars, 18 Neb. App. 568, 788
N.W.2d 817 (2010), Jonathan cites no Nebraska case reversing
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Cite as 23 Neb. App. 471a domestic abuse protection order based solely on the remote-
ness of the alleged abuse, and our research has uncovered
none. We note that neither § 42-903(1)(a) nor § 42-924(1)
imposes any limitation on the time during which a victim of
domestic abuse resulting in bodily injury can file a petition
and affidavit seeking a protection order. However, this does
not mean that the remoteness of the abuse is irrelevant to the
issue of whether a protection order is warranted. See Steckler
v. Steckler, 492 N.W.2d 76, 81 (N.D. 1992) (“[t]he remoteness
of the [past abuse] incident is a matter for the court to consider
in weighing the evidence before it”).
We agree that remoteness of past abuse may be considered
by the court, and we appreciate Jonathan’s concern that a
remote incident of abuse may not always support the issuance
of a domestic abuse protection order. However, based on the
evidence produced in this case, we cannot conclude that the
abuse alleged was too remote in time to support entry of the
protection orders. See Coburn v. Coburn, 342 Md. 244, 258,
674 A.2d 951, 958 (1996) (“[d]ifferent remedies are required
when there has been an isolated act of abuse that is unlikely
to recur, as compared to an egregious act of abuse preceded
by a pattern of abuse”). Significantly, Sarah testified that she
filed the petitions because the no contact order in Jonathan’s
criminal case resulting from the November 6, 2014, inci-
dent was expiring. During the 12-week period between the
November 6 incident and the filing of the petitions, Sarah
had the protection of the no contact order, which successfully
kept Jonathan separated from Sarah and Tegan for that period.
Although nothing prevented Sarah from seeking protection
orders sooner, her delay in seeking the orders was not arbi-
trary or unreasonable under the circumstances, and it did not
render the incidents of abuse too remote to justify entry of
the orders.
Furthermore, while Sarah testified that she did not feel
that she and Tegan were in “imminent bodily danger” from
Jonathan on the date she filed the petitions, as previously
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Cite as 23 Neb. App. 471discussed, neither § 42-903(1)(a) nor § 42-903(1)(b) in its cur-
rent form required Sarah to make such a showing. Additionally,
the most recent incidents of abuse also must be viewed in light
of Sarah’s uncontested allegation that they were part of a his-
tory and pattern of abuse dating back 51⁄2 years to the fall of
2009. Sarah stated in her affidavit that given the history of
abuse, she feared further violence in the absence of continued
separation from Jonathan. Thus, while Sarah testified that
she and Tegan were not in “imminent bodily danger” from
Jonathan, Sarah nevertheless had a present fear of future
abuse by Jonathan if he were allowed to have contact with her
and Tegan.
Based on our de novo review of the record, we conclude
that the district court did not err in entering protection orders
against Jonathan.
CONCLUSION
For the foregoing reasons, we affirm the protection orders
issued by the district court for Lancaster County.
A ffirmed.