Hawkins v. Delgado , 308 Neb. 301 ( 2021 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    01/29/2021 09:08 AM CST
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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    HAWKINS v. DELGADO
    Cite as 
    308 Neb. 301
    Keeley Brianne Hawkins, appellee,
    v. Erick Delgado, appellant.
    ___ N.W.2d ___
    Filed January 29, 2021.   No. S-20-417.
    1. Protection Orders: Appeal and Error. The grant or denial of a harass-
    ment protection order is reviewed de novo on the record.
    2. Appeal and Error. The grant or denial of a stay of proceedings is
    reviewed for an abuse of discretion.
    3. Protection Orders. A show cause hearing in protection order proceed-
    ings is a contested factual hearing, in which the issues before the court
    are whether the facts stated in the sworn application are true.
    4. Protection Orders: Injunction: Proof. A protection order is analogous
    to an injunction. A party seeking an injunction must establish by a pre-
    ponderance of the evidence every controverted fact necessary to entitle
    the claimant to relief.
    Appeal from the District Court for Douglas County: Thomas
    K. Harmon, County Judge. Affirmed.
    David V. Chipman and Carlos A. Monzòn, of Monzòn,
    Guerra & Associates, for appellant.
    Kristina B. Murphree and Steven J. Riekes, of Marks, Clare
    & Richards, L.L.C., for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
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    308 Nebraska Reports
    HAWKINS v. DELGADO
    Cite as 
    308 Neb. 301
    Heavican, C.J.
    INTRODUCTION
    An ex parte harassment protection order was entered by
    the trial court against Erick Delgado. Following a hearing, the
    order was continued. Delgado appeals. We affirm.
    FACTUAL BACKGROUND
    Delgado and Keeley Brianne Hawkins are both first lieuten-
    ants in the U.S. Air Force. At the relevant time, Hawkins was
    stationed at Offutt Air Force Base in Bellevue, Nebraska, and
    Delgado was stationed at a base in Tucson, Arizona. The two
    dated off and on beginning in September 2017 and through the
    end of December 2019. At various points Hawkins tried to end
    their relationship, but whenever she did so, Delgado would
    threaten to commit suicide or to ruin Hawkins’ career.
    Hawkins ultimately ended the relationship on December
    28, 2019. Hawkins informed Delgado, via text message, that
    he should not contact her and that she would “block him” on
    social media if he did so. In response, Delgado again threat-
    ened suicide, saying that he had “talked to God” and that he
    would leave her his life insurance. The next day, Delgado
    apologized and said he would not contact Hawkins.
    A few days later, on January 3, 2020, Hawkins alleges that
    Delgado placed a video call to her while she was on deploy-
    ment abroad. Delgado was in his closet with a noose around
    his neck. He told Hawkins that either she could get back
    together with him or he would commit suicide. Hawkins was
    able to contact a mutual friend who stopped Delgado from sui-
    cide. At that time, Hawkins attempted to “block” Delgado on
    social media.
    A few days later, Hawkins received an email message at
    an old email account that she had not blocked. In it, Delgado
    expressed concern that others not find out about his most
    recent suicide threat. Hawkins did not reply.
    Approximately 1 week later, Delgado texted Hawkins,
    this time using a “burner” cell phone. In his text message,
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    308 Nebraska Reports
    HAWKINS v. DELGADO
    Cite as 
    308 Neb. 301
    Delgado told Hawkins that he loved her, said he was trying
    to get assigned to Offutt Air Force Base, and asked if she had
    received the flowers he had sent. Delgado also told Hawkins
    that if she blocked the number he was using, he would just
    “‘get another burner. Lol.’” Again, Hawkins asked Delgado to
    stop contacting her.
    Hawkins alleges that Delgado did not stop. A few days later,
    on January 18, 2020, he sent her two email messages. One
    message read, “‘Time has come. Karma.’” The other message
    said, “‘It won’t stop till it all burns. That I promise.’” A day
    later, on January 19, Delgado emailed, “‘There is a storm com-
    ing. Afterwards there shall be the calm. Keeley you will be free
    from yourself and your past.’”
    On January 23, 2020, Hawkins sought a no-contact order
    through her commanding officer in the Air Force. Reciprocal
    no-contact orders were issued on January 31. Within 2 days,
    Delgado contacted Hawkins again, telling her that the order
    was a “‘[n]ice try’” and threatening to come to Omaha,
    Nebraska.
    On February 3, 2020, Hawkins sought a harassment protec-
    tion order from the Douglas County District Court. In support
    of her request, Hawkins related the above instances and further
    noted that she had
    tried everything to get [Delgado] to leave me alone and
    he won’t stop. At this point my entire well-being has dete-
    riorated rapidly. My sense of safety is completely gone.
    I am living in fear each day, scared of what [Delgado]
    might do next. He knows where I live and could possibly
    have access to a key to my home. It had become clear to
    me that he had no intention of respecting my decisions,
    boundaries, or safety. The fear and stress of the situation
    has affected my ability to fall and stay asleep, my appetite
    is gone, and long periods of concentration is [sic] now
    nearly impossible.
    I am scheduled to deploy in two weeks. I have to
    remain hypervigilant because I do not know what he
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    HAWKINS v. DELGADO
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    308 Neb. 301
    is capable of. I have had my locks re-keyed, I have noti-
    fied my neighbors to call the police if he shows up at
    my house, and I am getting a security system installed
    this Thursday.
    An ex parte order was issued that day.
    On February 20, 2020, Delgado, in his own behalf, sought a
    hearing on whether the ex parte order should be continued. A
    hearing was set for March 19. Delgado also retained counsel,
    who entered an appearance on March 4.
    Meanwhile, on February 28, 2020, Hawkins filed a motion to
    continue the hearing under a provision of the Servicemembers
    Civil Relief Act (SCRA). 1 That motion was granted, and the
    hearing was delayed to April 30, then to May 7.
    The hearing took place on May 7, 2020. Hawkins and her
    counsel appeared in person. Delgado did not appear, but was
    represented by counsel. During the hearing, Hawkins asked
    that Delgado’s request for a hearing be dismissed because
    Delgado did not appear in person. Delgado’s counsel indicated
    that Delgado was on base in Arizona, could not appear in per-
    son, and but for Hawkins’ objection, could have appeared tele-
    phonically or by video conference. Counsel for Delgado also
    verbally requested a stay under the SCRA. Finally, Delgado’s
    counsel argued that the ex parte harassment protection order
    was unnecessary because of the military’s no-contact order.
    Following the hearing, the trial court entered an order gen-
    erally finding that the ex parte order should continue in effect.
    Specifically, the court found that because Delgado appeared
    via counsel, he did not fail to appear, and that therefore,
    Hawkins’ motion to dismiss should be denied. The court also
    found that (1) Delgado’s oral motion was not a proper request
    for a stay under the SCRA and accordingly denied the motion
    for a stay; (2) the military no-contact order had expired on
    March 31, 2020, and thus the court need not determine issues
    relating to whether it and a harassment protection order could
    1
    
    50 U.S.C. § 3932
     (Supp. V 2018).
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    HAWKINS v. DELGADO
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    both be issued; and (3) there was good cause to extend or con-
    tinue the harassment protection order until 1 year from the date
    of the original order—or February 3, 2021.
    Delgado appeals.
    ASSIGNMENTS OF ERROR
    Delgado assigns that the trial court erred in (1) finding suffi-
    cient support to order the ex parte harassment protection order
    and (2) not staying the show cause hearing.
    STANDARD OF REVIEW
    [1] The grant or denial of a harassment protection order is
    reviewed de novo on the record. 2
    [2] The grant or denial of a stay of proceedings is reviewed
    for an abuse of discretion. 3
    ANALYSIS
    Harassment Protection Order.
    Delgado first assigns that the trial court erred in allowing the
    continuation of the ex parte order, contending that there was
    insufficient evidence to support the grant of the order.
    Harassment protection orders are governed by 
    Neb. Rev. Stat. § 28-311.09
     (Supp. 2019):
    (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 as provided in subsection (3)
    of this section. . . .
    (2) The petition for a harassment protection order shall
    state the events and dates or approximate dates of acts
    constituting the alleged harassment, including the most
    recent and most severe incident or incidents.
    
    Neb. Rev. Stat. § 28-311.02
    (2)(a) (Reissue 2016) defines
    “[h]arass” as engaging in a “knowing and willful course of
    2
    Richards v. McClure, 
    290 Neb. 124
    , 
    858 N.W.2d 841
     (2015).
    3
    See Schuessler v. Benchmark Mktg. & Consulting, 
    243 Neb. 425
    , 
    500 N.W.2d 529
     (1993).
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    HAWKINS v. DELGADO
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    conduct directed at a specific person which seriously terrifies,
    threatens, or intimidates the person and which serves no legiti-
    mate purpose.” Section 28-311.02(2)(b) defines “[c]ourse of
    conduct” as 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, detain-
    ing, restraining the personal liberty of, or stalking the person
    or telephoning, contacting, or otherwise communicating with
    the person.”
    [3,4] A show cause hearing in protection order proceedings
    is a contested factual hearing, in which the issues before the
    court are whether the facts stated in the sworn application are
    true. 4 A protection order is analogous to an injunction. 5 A party
    seeking an injunction must establish by a preponderance of the
    evidence every controverted fact necessary to entitle the claim-
    ant to relief. 6
    Given the language of Nebraska’s stalking and harassment
    statutes and the purpose announced by the Legislature for
    enacting the statutes, an objective construction of the statutes
    is appropriate, and the victim’s experience resulting from
    the perpetrator’s conduct should be assessed on an objec-
    tive basis. 7
    Delgado directs this court to Glantz v. Daniel, 8 Yancer v.
    Kaufman, 9 and Casaday v. Winterstein 10 to support his conten-
    tion that his conduct was insufficient to support the continuation
    4
    Maria A. on behalf of Leslie G. v. Oscar G., 
    301 Neb. 673
    , 
    919 N.W.2d 841
     (2018).
    5
    
    Id.
    6
    
    Id.
    7
    See In re Interest of Jeffrey K., 
    273 Neb. 239
    , 
    728 N.W.2d 606
     (2007).
    8
    Glantz v. Daniel, 
    21 Neb. App. 89
    , 
    837 N.W.2d 563
     (2013).
    9
    Yancer v. Kaufman, 
    22 Neb. App. 320
    , 
    854 N.W.2d 640
     (2014).
    10
    Casaday v. Winterstein, No. A-17-1246, 
    2018 WL 4042863
     (Neb. App.
    Aug. 16, 2018) (selected for posting to court website).
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    HAWKINS v. DELGADO
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    308 Neb. 301
    of the ex parte order. More specifically, Delgado argues that
    the interactions he had with Hawkins did not amount to harass-
    ment under § 28-311.02(2)(a) because he did not threaten her
    with physical violence, or indeed threaten her in any way. In
    addition, Delgado essentially suggests that his actions against
    Hawkins were so infrequent as to not qualify as a course of
    conduct under § 28-311.02(2)(b).
    As an initial matter, we disagree with Delgado’s assertion
    that he did not threaten physical violence. In two different
    messages sent on January 18, 2020, Delgado told Hawkins,
    “‘Time has come. Karma,’” and also, “‘It won’t stop till it all
    burns. That I promise.’” The next day, Delgado sent another
    email that said, “‘There is a storm coming. Afterwards there
    shall be the calm. Keeley you will be free from yourself and
    your past.’”
    Viewed objectively, these messages—in particular Delgado’s
    statement that Hawkins will be “‘free from yourself’”—could
    be read as threatening physical harm. Contributing to the
    interpretation is that these messages were preceded by other
    messages in which Delgado threatened suicide on multiple
    occasions, wondered about how it was that he became a manip-
    ulator and abuser, and further indicated that he would come
    to Omaha. It was after these messages on January 18 and 19,
    2020, that Hawkins sought a military no-contact order.
    In any case, the definition of “[h]arass” in § 28-311.02(2)(a)
    is not limited to threats of physical violence—it also includes
    conduct that “seriously terrifies” or “intimidates.” In fact,
    physical violence is only implicitly referenced in the definition
    of the word “harass,” via the term “threatens.”
    We have reviewed the cases relied upon by Delgado and find
    them distinguishable. In two of those cases, due to mootness
    and an insufficient record, the merits of the appeals were not
    fully considered. The third case was both factually distinct as
    well as unpublished.
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    HAWKINS v. DELGADO
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    Nor does it matter that Delgado’s messages were of a lesser
    frequency than in, for example, In re Interest of Jeffrey K., 11
    which included approximately 200 instances of verbal abuse.
    The plain language of the definition of “[c]ourse of conduct”
    in § 28-311.02(2)(b) notes that it includes “a series of acts over
    a period of time, however short.”
    Hawkins’ application indicated that Delgado had threatened
    suicide prior to her ending their relationship on December 28,
    2019. Thereafter, beginning on December 29, Delgado texted,
    emailed, or called Hawkins every few days. After Hawkins
    attempted to block communications from Delgado, he managed
    to contact her via an older email account and a “burner” phone.
    Hawkins then obtained a no-contact order through the military;
    Delgado’s response was to email her to say “‘[n]ice try’” and
    threaten to come to Omaha.
    Though these exchanges lasted just over a month, they
    occurred every few days. Delgado went out of his way to con-
    tact Hawkins even after she blocked him and had a no-contact
    order entered. The contact ceased only after Hawkins obtained
    the ex parte harassment protection order. This constitutes a
    “[c]ourse of conduct”—a “series of acts” performed over the
    course of over 1 month, “evidencing a continuity of purpose,”
    as required by §§ 28-311.02(2)(b) and 28-311.09.
    There was sufficient evidence to support the continuation of
    the ex parte order. Delgado’s first assignment of error is with-
    out merit.
    Stay.
    Delgado next assigns that the trial court erred in not granting
    his request for a stay.
    We turn first to the provisions of the SCRA. The SCRA gen-
    erally provides a stay in “any civil action or proceeding” where
    the plaintiff or defendant “is in military service or is within
    11
    In re Interest of Jeffrey K., supra note 7.
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    90 days after termination of or release from military service”
    and “has received notice of the action or proceeding.” 12
    In order for an application for a stay to be granted, such a
    request “shall include” a “letter or other communication set-
    ting forth facts stating the manner in which current military
    duty requirements materially affect the servicemember’s abil-
    ity to appear and stating a date when the servicemember will
    be available to appear,” and a “letter or other communication
    from the servicemember’s commanding officer stating that the
    servicemember’s current military duty prevents appearance and
    that military leave is not authorized for the servicemember at
    the time of the letter.” 13
    We have limited case law on the SCRA. In Carmicheal
    v. Rollins, 14 this court found no error in the district court’s
    denial of a stay under the SCRA even where all requirements
    of the SCRA were met. There, despite filings that indicated
    the applicant was not available, the record showed that the
    applicant had, in fact, appeared at the hearing in question;
    thus, her ability to appear was not materially affected by her
    military service.
    More recently, the Nebraska Court of Appeals decided
    Rickert v. Rickert. 15 That court found the requirements of the
    SCRA were not met where the letter from the applicant’s
    commanding officer did not state that “current military duty
    prevented [the applicant] from appearing and did not state that
    military leave was not authorized.” 16 The Court of Appeals
    concluded that the district court did not err in denying the
    application for a stay where the applicant failed to comply with
    the requirements set forth in the SCRA.
    12
    
    50 U.S.C. § 3932
    .
    13
    
    Id.
    14
    Carmicheal v. Rollins, 
    280 Neb. 59
    , 
    783 N.W.2d 763
     (2010).
    15
    Rickert v. Rickert, 
    27 Neb. App. 533
    , 
    934 N.W.2d 384
     (2019).
    16
    
    Id. at 541-42
    , 934 N.W.2d at 391.
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    In addressing an argument raised by the applicant in Rickert,
    the Court of Appeals acknowledged that “[c]ourts inherently
    possess the power to stay civil proceedings when required by
    the interests of justice.” 17 The Court of Appeals, which had
    already rejected the applicant’s argument on appeal for failure
    to comply with the SCRA, concluded that there was likewise
    no abuse of discretion in not granting an SCRA stay under the
    court’s inherent authority.
    A review of the record shows that Delgado did not com-
    ply with the requirements of the SCRA. Counsel referenced
    the SCRA at the hearing on the continuance of the ex parte
    order, but no written application was filed—only a verbal
    request was made that was limited to a reference to the
    SCRA. Counsel made no specific allegations about Delgado’s
    availability, except to note that he was not present and could
    not travel, apparently due to travel restrictions. These ver-
    bal representations do not comply with the requirements of
    the SCRA.
    For similar reasons, we reject any suggestion that the court
    should have granted a stay under the SCRA in the absence of
    compliance with the statute. The record supports a conclusion
    that such a stay was not sought until the day of the hearing
    and, as noted, that such a request was only made orally and
    was not accompanied by any explanation as to why Delgado
    could not appear, aside from a general assertion that he was
    stationed in Arizona and was unable to travel, apparently due
    to travel restrictions. While the provisions of the SCRA might
    be entitled to a liberal construction, such liberal construction is
    not a license to fail to comply with the primary requirements
    of the SCRA.
    While there is some suggestion that Delgado sought per-
    mission to appear telephonically or by video conference, there
    17
    Id. at 543, 934 N.W.2d at 392, citing Schuessler v. Benchmark Mktg. &
    Consulting, supra note 3.
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    is no request for such an appearance in the record. Moreover,
    at the relevant time, 
    Neb. Rev. Stat. § 24-734
     (Reissue 2016),
    which has since been amended, required the other party to
    give consent to such an appearance; apparently, no consent
    was given. In addition, the record before this court is devoid
    of any information about what Delgado might have testified to
    had he been allowed to appear by telephone or video confer-
    ence. As such, we cannot tell what prejudice, if any, Delgado
    suffered as a result of his inability to appear.
    Finally, we note that Delgado did not seek a continuance
    under any other provision of Nebraska law. 18
    We find no abuse of discretion in the trial court’s denial of
    an SCRA stay. Delgado’s second assignment of error is with-
    out merit.
    CONCLUSION
    The decision of the trial court is affirmed.
    Affirmed.
    18
    See 
    Neb. Rev. Stat. § 25-1148
     (Reissue 2016).