D.W. v. A.G.
303 Neb. 42
| Neb. | 2019Background
- D.W. filed a petition and affidavit seeking a sexual assault protection order against A.G., alleging he had sex with her while she was incapacitated after drinking. The court issued an ex parte sexual assault protection order.
- A.G. requested a show cause hearing to determine whether the sexual assault protection order should remain in effect; at that hearing both parties testified and presented photographs. D.W.’s original petition was not admitted into evidence.
- Evidence was disputed: D.W. testified she had no memory of consenting; A.G. testified the encounter was consensual and described mutual flirting; a neutral acquaintance’s surveillance-based testimony suggested D.W. appeared coherent before entering her apartment.
- After closing arguments the trial court announced it would not continue the sexual assault protection order (finding insufficient proof of lack of consent) but stated it would enter a protection order of some kind.
- The court sua sponte refiled D.W.’s petition under a new case number and on that docket entered a harassment protection order imposing the same restrictions as the ex parte sexual assault order. The court then formally dismissed the sexual assault protection order in the original case, but found sufficient evidence to merit a harassment protection order.
- A.G. appealed the harassment order (arguing lack of jurisdiction, due process violations, insufficient evidence, and judicial advocacy). D.W. cross‑appealed the dismissal of the sexual assault protection order.
Issues
| Issue | Plaintiff's Argument (D.W.) | Defendant's Argument (A.G.) | Held |
|---|---|---|---|
| Whether trial court had subject‑matter jurisdiction to enter a harassment protection order | D.W. implicitly proceeded on harassment theory by seeking protection | A.G.: court lacked jurisdiction because petition sought only a sexual assault protection order | Held: court had jurisdiction to enter harassment orders generally; no lack of subject‑matter jurisdiction |
| Whether entry of harassment order violated procedural due process | D.W.: order proper given court’s view of evidence and petitioner’s fear | A.G.: no notice he would have to defend against harassment theory; deprived opportunity to respond | Held: reversed—due process violated because harassment theory arose after close of evidence and without notice or chance to defend |
| Whether evidence supported dismissing the sexual assault protection order | D.W.: evidence showed lack of consent or incapacity (memory loss; intoxication) | A.G.: evidence showed consent; witnesses observed coherence; credibility disputes | Held: affirmed—no plain error in vacating sexual assault order given conflicting evidence and judge’s credibility findings |
| Whether trial judge improperly acted as advocate in switching theories sua sponte | D.W.: not raised coherently on cross‑appeal | A.G.: judge crossed line by raising and pursuing harassment theory instead of letting petitioner elect | Held: court criticized the judge’s sua sponte action as procedurally problematic; reversal based on due process rather than resolving this as separate error |
Key Cases Cited
- Mahmood v. Mahmud, 279 Neb. 390 (protection orders analogous to injunctions; de novo review)
- Maria A. on behalf of Leslie G. v. Oscar G., 301 Neb. 673 (appellate deference to trial judge credibility findings when evidence conflicts)
- Linda N. v. William N., 289 Neb. 607 (respondent must have notice of theory; petitioner may elect theory before final decision; switching theory after hearing or on appeal violates due process)
- Sherman v. Sherman, 18 Neb. App. 342 (trial judge should explain both theories and allow petitioner to elect; continuance if requested)
- Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532 (due process requires notice and opportunity to respond)