Kelly H. v. Luke M. ( 2016 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
KELLY H. V. LUKE M.
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
KELLY H., APPELLEE,
V.
LUKE M., APPELLANT.
KELLY H. ON BEHALF OF DOMINIQUE M., APPELLEE,
V.
LUKE M., APPELLANT.
KELLY H., APPELLEE,
V.
ASHLEY H., APPELLANT.
KELLY H. ON BEHALF OF DOMINIQUE M., APPELLEE,
V.
ASHLEY H., APPELLANT.
Filed June 7, 2016. Nos. A-15-961 through A-15-964.
Appeal from the District Court for Clay County: VICKY L. JOHNSON, Judge. Affirmed in
part, and in part reversed and remanded with directions.
Steven B. Fillman and Lisa M. Meyer for appellants.
Stephanie Flynn, of Stephanie Flynn Law Office, P.C., L.L.O., for appellee.
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MOORE, Chief Judge, and PIRTLE and BISHOP, Judges.
BISHOP, Judge.
I. INTRODUCTION
Luke M. and Ashley H. appeal from the Clay County District Court’s decision to grant
protection orders against them and in favor of Dominique M., Luke’s son, and Kelly H.,
Dominique’s mother. Specifically, in case No. A-15-961, Luke appeals from a domestic abuse
protection order entered in favor of Kelly and, in case No. A-15-962, he appeals from a domestic
abuse protection order entered in favor of Dominique. In case No. A-15-963, Ashley appeals from
a harassment protection order entered in favor of Kelly, and, in case No. A-15-964, she appeals
from a domestic abuse protection order entered in favor of Dominique. The four appeals were
consolidated for briefing in this court, and we consolidate them for opinion as well.
For the reasons set forth herein, we affirm the district court’s decision to grant the domestic
abuse protection orders against Luke and in favor of Kelly and Dominique. In addition, we affirm
the court’s decision to grant the domestic abuse protection order against Ashley and in favor of
Dominique. However, we reverse the court’s decision to grant the harassment protection order
against Ashley and in favor of Kelly, and we remand with directions to vacate that order.
II. BACKGROUND
1. PARTIES
This appeal involves Luke; Luke’s girlfriend, Ashley; Luke’s son, Dominique; and
Dominique’s mother, Kelly. At the time the protection order proceedings were initiated,
Dominique was 9 years old. Luke was Dominique’s custodial parent and had been in that role for
Dominique’s “whole life.” Luke and Ashley had been living together for approximately 6½ years,
or since Dominique was about 3 years old. Also living in Luke and Ashley’s home was Ashley’s
11-year-old daughter and Luke and Ashley’s two sons, aged 7 and 5.
2. PETITIONS AND AFFIDAVITS FOR PROTECTION ORDERS
On the night of August 28, 2015, Kelly picked up Dominique for her scheduled parenting
time. While Kelly was driving Dominique to her home, he disclosed to her that he had witnessed
Ashley hit her 11-year-old daughter. As a result of Dominique’s disclosure, Kelly contacted law
enforcement and Dominique was interviewed about what was occurring in Luke and Ashley’s
home. Based on the information police received during that interview, photographs were taken of
Dominique’s body. These photographs depict some significant bruising on Dominique,
particularly on his lower back.
A juvenile court case was then initiated to investigate the allegations of abuse occurring in
Luke and Ashley’s home. Dominique was placed in the legal custody of the Department of Health
and Human Services (DHHS) and placed in the physical custody of Kelly. As a part of the juvenile
court case, DHHS discussed permitting Luke to have supervised visitation with Dominique. This
visitation never occurred, however, because on September 1, 2015, Kelly filed four separate
petitions and affidavits for domestic abuse protection orders pursuant to Neb. Rev. Stat. § 42-924(Cum. Supp. 2014).
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In case No. A-15-961, Kelly filed a petition and affidavit for a protection order against
Luke and on behalf of herself. In this petition and affidavit, Kelly alleged that Luke “made several
death threats towards [her]” on August 30 and 31, 2015. Kelly next alleged that over the years,
Luke has repeatedly threatened to kill her both in person and via text messages. Kelly indicated
that she has previously contacted the police about these threats, but the threats have not stopped.
In case No. A-15-962, Kelly filed a petition and affidavit for a protection order against
Luke and on behalf of Dominique. In this petition and affidavit, Kelly alleged that Luke has
physically abused Dominique as recently as August 27, 2015. The allegations indicated that Luke
beat Dominique with his fists and with a belt. Luke threatened to hurt Kelly if Dominique told
anyone about the abuse. And, after Dominique told Kelly what was occurring, Luke threatened to
come after Dominique.
In case No. A-15-963, Kelly filed a petition and affidavit for a protection order against
Ashley and on behalf of herself. In this petition and affidavit, Kelly alleged that Ashley has
threatened to “come after me and kill me” on several occasions when Kelly went to Luke and
Ashley’s home to pick up Dominique. Kelly also alleged that Luke and Ashley have told
Dominique that if he ever reported his abuse, they would “slice [her] throat.”
In case No. A-15-964, Kelly filed a petition and affidavit for a protection order against
Ashley and on behalf of Dominique. In this petition and affidavit, Kelly alleged that Ashley has
physically abused Dominique, including beating him with a metal belt and with her fists; holding
him down on the floor and choking him; dragging him up a staircase by his ears and hair; and
prohibiting him from eating or showering for days at a time. In addition, Kelly alleged that
Dominique has witnessed Ashley physically abusing Ashley’s 11-year-old daughter.
On September 2, 2015, the district court entered ex parte domestic abuse protection orders
against Luke and in favor of Kelly and Dominique and against Ashley and in favor of Dominique.
In addition, the district court entered an ex parte harassment protection order against Ashley and
in favor of Kelly after finding that “[a]lthough [Kelly] requested a domestic abuse protection order,
the facts support issuance of a harassment order.” Luke and Ashley requested a hearing on the
orders and that hearing was scheduled for September 18, 2015.
3. HEARING
At the September 18, 2015, hearing, Luke and Ashley denied that they have ever abused
Dominique, or harmed him in any way. In addition, they denied ever threatening to harm Kelly.
Luke testified that he believed that the bruising seen on Dominique in late August 2015 was the
result of a “tackle football game” he played with his friends. Ashley testified that any scars
Dominique has on his body are most likely from his interactions with the family dog. Both Luke
and Ashley insinuated through their testimony that they believed that Kelly had coached
Dominique to lie about being abused by Luke and Ashley so that Kelly could obtain custody of
Dominique. In fact, Luke testified that prior to the allegations of abuse, Dominique was acting
manipulative and would threaten to tell Kelly if he was disciplined by Luke or Ashley or if he did
not get his way at their home.
Ashley’s 11-year-old daughter corroborated Luke’s and Ashley’s testimony that there was
no abuse in the home. She indicated that Dominique has been spanked, but that prior to his removal
from their home, Dominque was “happy” and normal.
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Luke and Ashley also presented the testimony of other witnesses who generally indicated
that Dominique appeared well cared for and that they never noticed any signs that he was being
abused in his home. Dominique’s third grade teacher testified that she never observed any bruises
or injuries on Dominique and that he appeared to be a happy, well-behaved child. However, she
also noted that Dominique was only in her class for 10 days before he was removed from Luke’s
home and, as a result, switched schools.
A DHHS caseworker who investigated Dominique’s abuse allegations testified that based
upon her observations of Dominique’s interviews, she believed that he may have been coached in
how to talk about the abuse. She stated that she did not discover any evidence to suggest that the
other children in Luke and Ashley’s home were being abused. However, the DHHS caseworker
indicated that she was not involved with Dominique’s case for very long because of the imposition
of the protection orders. She also stated that Luke and Ashley have been investigated regarding
child abuse on previous occasions.
The mother and grandmother of one of Dominique’s friends also testified about their
observations of Dominique. Both indicated that they saw Dominique on multiple occasions during
the six months preceding his removal from Luke and Ashley’s home and neither observed any
bruises or injuries on him during that time. In addition, they both indicated that Dominique
appeared to be a “normal” kid.
Kelly and Dominique also testified at the September 18 hearing, and presented testimony
which greatly conflicted with the evidence presented by Luke and Ashley. Dominique testified, in
chambers, that he was repeatedly abused by Luke and Ashley. He said that both Luke and Ashley
have repeatedly subjected him to physical abuse which has resulted in injuries. Dominique stated
that when Luke is angry or “drinks too much beer,” he hits Dominique and his siblings “hard” with
his fists or with a belt. In addition, Luke has “choked” Dominique and his siblings. Dominique
said that Ashley hits him and that if he cries, she will hit him harder. Dominique also stated that
Ashley has pulled him up the stairs by his hair and has grabbed him by the arm “really hard.”
Ashley has also told Dominique and his siblings that she will “kill” them. Dominique indicated
that he has witnessed Ashley abusing his 11-year-old sister.
Dominique testified that he has scars on his stomach and his chest from getting hit with a
belt. Dominique indicated that the bruises which were photographed by police in August 2015
were not the result of a tackle football game, but were the result of Luke hitting him and elbowing
him on a family vacation a couple of weeks prior to the photographs being taken. Dominique said
that he is afraid that if he returns to Luke and Ashley’s home, he will be hurt again. Dominique
indicated that Luke told him if he ever said anything about “the hitting stuff,” that Luke will slice
Kelly’s throat.
Kelly testified that Luke has threatened her on various occasions over the last 7 or 8 years.
The most recent, in-person, threat occurred on August 1, 2015. On that date, Luke became
frustrated when Kelly told him she would not give him additional money to buy Dominique shoes.
Luke told her that her husband could not protect her forever and that he knew how to find her
alone. In addition, Luke threated to slice her throat with a knife. Kelly said that as a result of Luke’s
threats, she is fearful for her safety and the safety of her family. In fact, Kelly indicated that she
has made it a point to never be alone with Luke.
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Kelly also testified that Ashley has threatened her on multiple occasions when Kelly would
go to Luke and Ashley’s home to pick up Dominique for her parenting time.
4. DISTRICT COURT’S ORDERS
After the hearing, the district court entered domestic abuse protection orders against Luke
and in favor of Kelly and Dominique. The court also entered a domestic abuse protection order
against Ashley and in favor of Dominique and a harassment protection order against Ashley and
in favor of Kelly. In each of these orders, the court indicated that it found Kelly and Dominique to
be more credible than Luke and Ashley.
The protection orders prohibit Luke and Ashley from having any contact with Kelly or
Dominique. The orders remain in effect until September 2, 2016.
III. ASSIGNMENTS OF ERROR
Luke and Ashley’s brief on appeal does not comply with the briefing rules established by
the Nebraska Supreme Court. Neb. Ct. R. App. P. § 2-109(D)(1) requires a separate section for
assignments of error, designated as such by a heading, and also requires that the section be located
after a statement of the case and before a list of controlling propositions of law. Luke and Ashley’s
brief does not set forth a separate section containing their assignments of error between the
statement of the case and the propositions of law. Rather, in the brief’s table of contents, Luke and
Ashley include their assertions of error beneath the “Argument” heading. These assertions include
that the district court erred in admitting as substantive evidence the petitions and affidavits to
obtain domestic abuse protection orders filed by Kelly; failing to have Kelly present her evidence
first at the September 18, 2015, hearing; failing to admit into evidence a photograph of one of
Dominique’s friends; and finding sufficient and credible evidence to warrant granting each of the
protection orders.
The Nebraska Supreme Court has addressed briefing inconsistencies similar to the
circumstances of this case and stated that it has long been the policy that to be considered by an
appellate court, an alleged error must be both specifically assigned and specifically argued in the
brief of the party asserting the error. City of Gordon v. Montana Feeders, Corp., 273 Neb. 402,
730 N.W.2d 387 (2007). The Supreme Court has also stated, “Assignments of error consisting of
headings or subparts of argument do not comply with the mandate of § 2-109(D)(1)(e).” In re
Interest of Jamyia M., 281 Neb. 964, 977, 800 N.W.2d 259, 269 (2011).
In situations where an appellant has failed to file a brief which conforms to the court’s
rules, we may consider the case as one in which no brief was filed, or alternatively, we may
examine the proceedings for plain error. See id. Given the nature of these proceedings, we will
consider whether the district court committed plain error.
IV. STANDARD OF REVIEW
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.
In re Interest of Jamyia M., supra.-5-
V. ANALYSIS
1. ADMISSION OF PETITIONS AND AFFIDAVITS INTO EVIDENCE
At the show cause hearing, the district court admitted into evidence, over Luke’s and
Ashley’s objection, the petitions and affidavits to obtain a protection order which were filed by
Kelly in each of the four cases. Luke and Ashley argued at the hearing, as they do now on appeal,
that the petitions and affidavits should not be considered as substantive evidence because they
contain hearsay statements. Specifically, they point to portions of the petitions and affidavits which
contain statements made by Dominique to Kelly, of which Kelly has no personal knowledge.
At a show cause hearing in protection order proceedings, a prima facie case may be
established by a form petition and affidavit, which has been properly admitted into evidence.
Mahmood v. Mahmud, 279 Neb. 390, 778 N.W.2d 426 (2010). The petition and affidavit is
routinely admitted into evidence when offered. In fact, this court has reminded parties of the
importance of formally offering into evidence the petition and affidavit filed in a protection order
case. See, e.g., Sherman v. Sherman, 18 Neb. App. 342, 781 N.W.2d 615 (2010).
Although the petitions and affidavits for a protection order are routinely admitted as
substantive evidence at protection order hearings, we recognize that this case is somewhat unique.
Here, Kelly filed two of the petitions and affidavits on behalf of Dominique. The allegations in
those petitions and affidavits were based upon information that Kelly received from Dominique,
not from information that Kelly personally witnessed. As such, the petitions and affidavits filed on
behalf of Dominique arguably did contain hearsay. However, even though the petitions and
affidavits filed on behalf of Dominique contained hearsay statements, we conclude that any error
committed by the district court in admitting the statements into evidence was harmless.
A protection order is analogous to an injunction. See Linda N. on behalf of Rebecca N. v.
William N., 289 Neb. 607, 856 N.W.2d 436 (2014). A party seeking an injunction must establish
by a preponderance of the evidence every controverted fact necessary to entitle the claimant to
relief. Abboud v. Lakeview, Inc., 237 Neb. 326, 466 N.W.2d 442 (1991). Accordingly, a party
seeking to continue a protection order, after the entry of an ex parte order, must prove by a
preponderance of the evidence the allegations in his or her petition and affidavit.
Dominique testified at the show cause hearing concerning the physical and emotional abuse
he had suffered at the hands of Luke and Ashley. This testimony constitutes direct evidence of the
allegations of abuse contained in the petitions and affidavits. Accordingly, even if the district court
erred in admitting into evidence any hearsay statements contained in the petitions and affidavits,
such error was cured through the testimony of Dominique. Erroneous admission of evidence is
harmless error and does not require reversal if the evidence is cumulative and other relevant
evidence, properly admitted, supports the finding by the trier of fact. Worth v. Kolbeck, 273 Neb.
163, 728 N.W.2d 282 (2007). We find no plain error in the district court’s decision to admit into
evidence the petitions and affidavits.
2. ORDER OF PRESENTATION OF EVIDENCE AT HEARING
At the start of the show cause hearing, the district court called Kelly to testify. The court
specifically asked her whether “the information on the petition and affidavits in each case [is] still
true and correct?” Kelly responded that the information was still correct and that she desired the
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protection orders to remain in place. The court then called Luke to testify. As the court began to
question Luke, his counsel interrupted and asked, “is there any way we can take some of the other
witnesses first?” The court declined this request and continued to question Luke, asking him
whether any of the allegations contained within the petitions and affidavits were true. Luke
indicated that none of the allegations were true. Next, the court called Ashley to testify and asked
her whether any of the allegations contained within the petitions and affidavits were true. Ashley
testified that no part of the allegations were true.
After the court questioned these three witnesses, it stated, “All right. Now, the issues are
framed.” The court asked Luke’s counsel if he had any questions for his client and informed
counsel that Luke “is the first witness.” Prior to Luke testifying, Kelly’s counsel offered into
evidence the petitions and affidavits filed in each case. Ultimately, the court admitted each of the
petitions and affidavits into evidence. Luke’s counsel then proceeded to question Luke about the
allegations in the petitions and affidavits. After Luke testified, his counsel called multiple
witnesses to testify on Luke’s and Ashley’s behalf. Then, Kelly’s counsel was given the
opportunity to present evidence.
On appeal, Luke and Ashley argue that the district court erred “by forcing [Luke] to present
evidence first.” Brief for appellant at 20. They assert that Kelly should have presented her evidence
first because it was her burden to prove the allegations in the petitions and affidavits.
As noted previously, in a protection order proceeding, a prima facie case may be
established by a form petition and affidavit, when it is properly admitted into evidence. See
Mahmood v. Mahmud, 279 Neb. 390, 778 N.W.2d 426 (2010). In this case, before Luke and Ashley
were asked to put on their evidence, the court admitted into evidence the petitions and affidavits
filed in each case. In addition, the court called Kelly to testify, under oath, that the allegations in
the petitions and affidavits were still true. At this point, a prima facie case establishing the need
for the protection orders was established. The burden then shifted to Luke and Ashley to contest
the allegations contained within the petitions and affidavits.
We conclude that the district court did not commit plain error in establishing the procedures
for the show cause hearing. Kelly established a prima facie case with the admission of the petitions
and affidavits. The burden then properly shifted to Luke and Ashley to disprove the allegations in
the petitions and affidavits. Luke and Ashley’s assertion that they were “forced” to present their
evidence first is not an accurate account of how the hearing was conducted.
3. FAILURE TO ADMIT EXHIBIT 5
During the show cause hearing, Luke offered into evidence exhibit 5, which was a
photograph of one of Dominique’s friends. Specifically, the photograph displayed some bruising
on the stomach of Dominique’s friend. The photograph was taken a few days after Dominique
reported to Kelly that he was being abused and consequently, a few days after police took
photographs of the bruising on Dominique’s body. Kelly objected to the admission of exhibit 5,
arguing that it was not relevant. In response to Kelly’s objection, Luke argued that the photograph
was relevant because both Dominique and his friend had played in a “tackle football game” shortly
before the photographs of each of their bruises were taken. Luke asserted that if the tackle football
game was rough enough to cause bruising to Dominique’s friend, then the game could also explain
the bruising on Dominique’s body. The district court sustained Kelly’s objection and did not admit
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exhibit 5 into evidence. On appeal, Luke and Ashley argue that the district court erred in failing to
admit exhibit 5 into evidence.
Evidence is relevant when it has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence.” Neb. Rev. Stat. § 27-401 (Reissue 2008). Evidence that is irrelevant is
inadmissible. Richardson v. Children’s Hosp., 280 Neb. 396, 787 N.W.2d 235 (2010). The
exercise of judicial discretion is implicit in determining the relevance of evidence, and an appellate
court will not reverse a trial court’s decision regarding relevance absent an abuse of discretion.
Arens v. NEBCO, Inc., 291 Neb. 834, 870 N.W.2d 1 (2015).
At the show cause hearing, Luke argued that exhibit 5 was relevant because it tended to
show that Dominique’s bruises were not caused by any abuse he suffered at the hands of Luke and
Ashley, but instead were caused by a tackle football game he played with his friends. Essentially,
Luke argued that if Dominique’s friend suffered bruises from the football game, then Dominique
must have also suffered bruises. Luke’s assertions about the relevancy of exhibit 5 are misplaced.
Although the origin of Dominique’s bruises was a contested issue at trial, a photograph of
bruising on Dominique’s friend does not prove anything about how Dominique acquired his
bruises. This is especially true when we consider the testimony of Dominique’s friend’s mother,
who indicated that exhibit 5 was taken a few days after the tackle football game Dominique and
his friend played in and after Dominique’s friend had participated in a separate football practice.
Accordingly, exhibit 5 does not even definitively demonstrate how Dominique’s friend obtained
his bruises, let alone how Dominique obtained the bruises on his body. The district court did not
commit plain error in excluding exhibit 5 from evidence.
4. GRANTING OF DOMESTIC ABUSE PROTECTION ORDERS
Luke and Ashley next argue that the district court erred in finding sufficient and credible
evidence to warrant granting each of the protection orders. In analyzing the court’s decision to
grant the protection orders, we focus first on the entry of the domestic abuse protections granted
against Luke and Ashley and in favor of Kelly and Dominique.
The Protection from Domestic Abuse Act (the Act), Neb. Rev. Stat. § 42-901 et seq.
(Reissue 2008 and Cum. Supp. 2014), allows any victim of domestic abuse to file a petition and
affidavit for a protection order pursuant to § 42-924. Abuse is defined under the Act as the
occurrence of one or more of the following acts between household members:
(a) Attempting to cause or intentionally and knowingly causing bodily injury with
or without a dangerous instrument;
(b) Placing, by means of credible threat, another person in fear of bodily injury . . . ;
(c) Engaging in sexual contact or sexual penetration without consent as defined in
section 28-318.
§ 42-903(1).
The Act defines “family or household member” to include “persons who have a child in
common” and children. § 42-903(3). As such, any abuse perpetrated by Luke against either Kelly
or Dominique is covered by the Act. In addition, the definition of “family or household member”
also includes “persons who are presently residing together or who have resided together in the
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past.” Id. As such, any abuse perpetrated by Ashley against Dominique is covered by the Act, since
Ashley lived with Dominique in Luke’s home at the time the abuse occurred.
(a) Case No. A-15-961
Luke argues that the district court should not have issued a protection order against him
and in favor of Kelly because there was no credible evidence presented at the show cause hearing
to prove that he ever abused her, as that term is defined in the Act. As a part of his argument, Luke
asserts that Kelly was “completely uncredible [sic] as a witness.” Brief for appellants at 27.
In Kelly’s petition and affidavit, she alleged that Luke has repeatedly threatened to harm
her or kill her. According to Kelly, these threats occurred as recently as August 2015, after
Dominique told Kelly that he was being abused by Luke and Ashley. However, that was not the
first, or the only, time that Luke has threatened her. Kelly indicated that Luke repeatedly threatened
her with physical harm when they “went through [a] custody battle” over Dominique and when
she would pick Dominique up for her visitation time. During Kelly’s testimony at the show cause
hearing, she indicated that Luke has threatened her on various occasions over the last 7 or 8 years.
The most recent, in-person, threat occurred on August 1, 2015. On that date, Luke became
frustrated when Kelly told him she would not give him additional money to buy Dominique shoes.
Luke told her that her husband could not protect her forever and that he knew how to find her
alone. In addition, Kelly stated that Luke threatened to slice her throat with a knife. As a result of
Luke’s threats, Kelly said she is fearful for her safety and the safety of her family. In fact, Kelly
indicated that she has made it a point to never be alone with Luke.
At the show cause hearing, Kelly’s husband, Mike, generally corroborated Kelly’s
testimony that Luke has repeatedly threatened her by telling her he will eventually catch her when
she is by herself. Dominique also corroborated Kelly’s testimony when he testified that Luke has
threatened to slice Kelly’s throat.
Pursuant to § 42-903(1), a threat constitutes abuse under the Act when it is a “credible
threat” which places another person in fear of bodily injury. A credible threat is defined as
A verbal or written threat, including a threat performed through the use of an electronic
communication device, or a threat implied by a pattern of conduct or a combination of
verbal, written, or electronically communicated statements and conduct that is made by a
person with the apparent ability to carry out the threat so as to cause the person who is the
target of the threat to reasonably fear for his or her safety or the safety of his or her family.
It is not necessary to prove that the person making the threat had the intent to actually carry
out the threat.
§ 42-903(1)(b).
Based on Kelly’s testimony at the hearing, we conclude that there was sufficient evidence
to demonstrate that Kelly suffered the type of “abuse” contemplated by § 42-903(1)(b). Luke’s
statements to Kelly that her husband could not protect her forever; that he would be able to find
her alone; and that he would slice her throat with a knife, constitute credible threats which placed
Kelly in fear of bodily injury.
On appeal, Luke asserts that Kelly’s testimony at the hearing is not sufficient to prove that
he threatened her because her testimony was not credible. Specifically, Luke argues that Kelly’s
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allegations in her petition and affidavit are not consistent with her testimony at the hearing. In
particular, Luke points to Kelly’s allegation in her affidavit that he threatened her on August 30
and 31, 2015, after she failed to return Dominique to him due to Dominique’s reports of abuse. In
her testimony at the hearing, Kelly did concede that Luke did not directly threaten her on those
dates. She testified that she did not mean to indicate that Luke made any direct threats on August
30 or 31, but rather, she meant to explain that Luke has repeatedly threatened her for years.
While we do note that there are some inconsistencies between Kelly’s allegations in her
petition and affidavit and in her testimony at the hearing, we also note that the district court
specifically found her to be more credible than Luke. And, where 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. See Sarah K. v. Jonathan K., 23 Neb. App. 471, 873 N.W.2d 428 (2015).
Considering the district court’s determination that Kelly was a credible witness and
considering that she did consistently indicate that Luke has repeatedly threatened her with physical
harm throughout the past 7 or 8 years, we conclude that there was sufficient evidence to warrant
the granting of the domestic abuse protection order against Luke and in favor of Kelly. We find no
plain error in the decision of the district court to enter this protection order.
(b) Case No. A-15-962
Luke argues that the district court should not have issued a protection order against him
and in favor of Dominique because there was no credible evidence presented at the show cause
hearing to prove that he ever caused bodily injury to Dominique. Luke asserts that the evidence
presented at the show cause hearing established that Dominique “was a happy, healthy, well-cared
for, nine-year-old boy that was free of any injuries except those sustained in a rough tackle football
game. . . .” Brief for appellants at 21.
At the show cause hearing, Dominique refuted Luke’s assertions that he was injured while
playing tackle football with his friends. He testified, instead, that Luke has repeatedly subjected
him to physical abuse which has resulted in injuries. Dominique testified that when Luke is angry
or “drinks too much beer,” he hits Dominique and his siblings “hard” with his fists or with a belt.
In addition, Luke has “choked” Dominique and his siblings. Dominique said that he has scars on
his stomach and his chest from getting hit with a belt. Dominique indicated that the bruises which
were photographed by police in August 2015 were a result of Luke hitting him and elbowing him
on a family vacation a couple of weeks prior to the photographs being taken. Dominique stated
that he is afraid that if he returns to Luke’s home, he will be hurt again.
Based on Dominique’s testimony at the hearing, we conclude that there was sufficient
evidence to demonstrate that Dominique suffered the type of “abuse” contemplated by
§ 42-903(1)(a). Dominique’s testimony demonstrates that Luke has repeatedly and intentionally
caused bodily injury to him.
On appeal, Luke asserts that Dominique’s testimony at the hearing is not sufficient to prove
that Luke caused him bodily injury because Dominique’s testimony was not credible. Specifically,
Luke argues that Dominique’s testimony about the abuse is not consistent with the allegations in
the petition and affidavit filed on his behalf by Kelly and that other evidence presented at the
hearing directly contradicts Dominique’s testimony.
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We agree with Luke’s assertion that Dominique’s testimony at the hearing does not mirror
the allegations contained in the petition and affidavit. But, as Luke points out in his brief to this
court, the petition and affidavit was not authored by Dominique. Kelly submitted the petition and
affidavit based upon her understanding of what happened in Luke and Ashley’s home.
Dominique’s testimony at trial provided the district court with an explanation of what occurred in
that home in Dominique’s own words.
Moreover, although Luke directs our attention to the testimony of the other witnesses, like
Dominique’s teacher and the DHHS caseworker, who generally refuted Dominique’s testimony of
abuse, we note that the reliability of this witness testimony is weakened somewhat by the limited
amount of time the witnesses spent with Dominique. In particular, Dominique’s third grade teacher
only had him in class for 10 days prior to his removal from Luke’s home. And, the DHHS
caseworker had somewhat limited involvement in Dominique’s case due to the imposition of the
protection orders shortly after the commencement of the juvenile court proceedings. Additionally,
the photos of Dominique’s injuries in August 2015 when he reported the abuse to Kelly depict
significant bruising and injuries in various stages of healing. This evidence refutes the testimony
of witnesses who indicated that they never saw any injuries on Dominique.
The district court explicitly found the testimony of Dominique to be more credible than the
testimony of Luke and Ashley and, based upon the district court’s decision to continue the
protection order, the court also implicitly found Dominique’s testimony to be more credible than
the other evidence presented by Luke in his effort to prove that he did not physically abuse
Dominique. Because the district court heard and observed all of the witnesses at the show cause
hearing, we give deference to its decisions concerning witness credibility.
Considering the district court’s determination that Dominique was a credible witness and
considering Dominique’s detailed testimony about the physical abuse he suffered at the hands of
Luke, we conclude that there was sufficient evidence to warrant the granting of the domestic abuse
protection order against Luke and in favor of Dominique. We find no plain error in the decision of
the district court to enter this protection order.
(c) Case No. A-15-964
Ashley argues that the district court should not have issued a protection order against her
and in favor of Dominique. Ashley’s argument on appeal mirrors Luke’s assertion that Dominique
was simply not a credible witness and that his testimony, alone, did not warrant the entry of a
protection order.
At the hearing, Dominique testified that Ashley hits him and that if he cries, she will hit
him harder. He indicated that he has scars on his stomach and his chest from being hit. Dominique
also testified that Ashley has pulled him up the stairs by his hair and has grabbed him by the arm
“really hard.” Ashley has also told Dominique and his siblings that she will “kill” them. Dominique
indicated that he has witnessed Ashley abusing his 11-year-old sister. Dominique indicated he is
afraid to return to Luke and Ashley’s home.
Based on Dominique’s testimony at the hearing, we conclude that there was sufficient
evidence to demonstrate that Dominique suffered the type of “abuse” contemplated by
§ 42-903(1)(a). Dominique’s testimony demonstrates that Ashley has repeatedly and intentionally
caused bodily injury to him. And, contrary to Ashley’s assertions on appeal concerning
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Dominique’s credibility, the district court specifically found him to be a credible witness. As such,
we conclude that there was sufficient evidence to warrant the granting of the domestic abuse
protection order against Ashley and in favor of Dominique. We find no plain error in the decision
of the district court to enter this protection order.
5. GRANTING OF HARASSMENT PROTECTION ORDER IN CASE NO. A-15-963
We now address the district court’s decision to grant a harassment protection order against
Ashley and in favor of Kelly. Upon our review, we conclude that there was not sufficient evidence
to warrant the granting of this protection order. We find that the district court committed plain
error in entering this protection order.
A harassment protection order is proper when a person has “engage[d] 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.” Neb. Rev. Stat. § 28-311.02(2)(a)
(Reissue 2008); Linda N. on behalf of Rebecca N. v. William N., 289 Neb. 607, 856 N.W.2d 436(2014). A course of conduct is “a pattern of conduct composed of a series of acts over a period of
time, however 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.” § 28-311.02(2)(b). The Legislature has stated that the
purpose for a harassment protection order is to “protect victims from being willfully harassed,
intentionally terrified, threatened, or intimidated by individuals who intentionally follow, detain,
stalk, or harass them or impose any restraint on their personal liberty and which will not prohibit
constitutionally protected activities.” § 28-311.02(1).
In Kelly’s petition and affidavit, she alleged that Ashley threatened to “come after me and
kill me” when Kelly would go to Luke and Ashley’s home to pick up Dominique for her parenting
time. At the show cause hearing, Kelly reiterated this allegation, testifying that she has been
threatened by Ashley when she has gone to pick up Dominique. Kelly testified that Luke and
Ashley followed her and watched her, but she did not provide any specifics. In addition, in her
petition and affidavit, Kelly alleged that both Ashley and Luke told Dominique that if Dominique
reported the abuse he suffered, they would “slice [Kelly’s] throat.” Kelly admitted at the hearing
that she had no personal knowledge about this threat.
Even if we were to assume that the allegations contained in Kelly’s petition and affidavit
were true and that her testimony was completely credible, we cannot conclude that Ashley’s
behavior toward Kelly reached a level that would amount to harassment under the statute. Kelly
never testified that she was seriously terrified, threatened, or intimidated by Ashley’s behavior. In
addition, Kelly’s generalized testimony about Ashley’s behavior, without more specific
information, does not establish a “course of conduct” of harassing behavior as that term is defined
in the statute.
Given the insufficient evidence presented about Ashley’s actions towards Kelly, we
conclude that the district court’s decision to grant the harassment protection order in favor of Kelly
constituted plain error. We reverse the court’s order and remand with directions that the district
court vacate the harassment protection order and enter an order dismissing Kelly’s petition against
Ashley.
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VI. CONCLUSION
We find no plain error in the entry of the three domestic abuse protection orders appealed
at case Nos. A-15-961, A-15-962, and A-15-964, and affirm the same. However, we do find plain
error in the entry of the harassment protection order against Ashley and in favor of Kelly appealed
at case No. A-15-963, and therefore reverse and remand with directions that the district court
vacate the harassment protection order and enter an order dismissing Kelly’s petition against
Ashley.
AFFIRMED IN PART, AND IN PART REVERSED
AND REMANDED WITH DIRECTIONS.
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