D.W. v. A.G.
303 Neb. 42
Neb.2019Background
- D.W. filed a petition and affidavit seeking an ex parte sexual assault protection order alleging A.G. sexually penetrated her after heavy drinking; an ex parte sexual-assault order was entered.
- A.G. requested a show-cause hearing; at the hearing both parties testified and photographs and surveillance witness testimony were admitted (D.W.’s affidavit/petition was not offered into evidence).
- The trial court announced after evidence closed that it would not continue the sexual-assault order (finding insufficient proof of nonconsent) but indicated it would enter a protection order of some other kind.
- The court sua sponte refiled D.W.’s petition under a new case number and, two days later, issued a harassment protection order imposing the same restrictions as the ex parte sexual-assault order; the original sexual-assault order was then dismissed.
- 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 order.
Issues
| Issue | Plaintiff's Argument (D.W.) | Defendant's Argument (A.G.) | Held |
|---|---|---|---|
| Whether trial court lacked subject-matter jurisdiction to enter a harassment protection order | D.W. implicitly treated harassment relief as available; trial court had authority to protect victims | A.G.: court lacked jurisdiction because D.W. sought only a sexual-assault order, not harassment relief | Court: No jurisdictional defect; court had power to hear harassment matters, so subject-matter jurisdiction existed |
| Whether entry of harassment order violated procedural due process | D.W.: order was warranted given her petition and evidence of fear/harassment | A.G.: he lacked notice and opportunity to defend against harassment theory because the petition sought only sexual-assault relief and the harassment theory arose after close of evidence | Court: Held due process violated—respondent must have timely notice of theory and opportunity to respond; reversed harassment order and remanded to vacate it |
| Whether evidence supported dismissal of sexual-assault protection order | D.W.: evidence showed nonconsent or incapacity to consent due to intoxication | A.G.: testimony and surveillance witness showed D.W. was coherent and consenting; evidence insufficient for sexual-assault order | Court: Affirmed dismissal—credibility disputes were material and trial court reasonably weighed witness credibility, so no plain error |
| Whether trial judge improperly acted as advocate in converting theory | D.W.: conversion permissible or harmless because protection was warranted | A.G.: judge crossed into advocacy by electing harassment theory sua sponte and refiling petition | Court: Expressed concern about judge initiating new theory and noted Sherman; resolved on due process grounds without fully deciding advocacy claim |
Key Cases Cited
- Mahmood v. Mahmud, 279 Neb. 390 (procedural protections for protection-order hearings; protection order analogous to injunction)
- Maria A. on behalf of Leslie G. v. Oscar G., 301 Neb. 673 (appellate deference to trial court credibility findings in protection-order context)
- Linda N. v. William N., 289 Neb. 607 (trial court cannot adopt new theory after close of evidence; due process requires notice of theory)
- Sherman v. Sherman, 18 Neb. App. 342 (trial judge should explain available theories and allow petitioner to elect; judge should not unilaterally change theory)
- Village at North Platte v. Lincoln Cty. Bd. of Equal., 292 Neb. 533 (definition of subject-matter jurisdiction)
- Cleveland Board of Education v. Loudermill, 470 U.S. 532 (notice and opportunity to respond are essential to due process)
- Fuentes v. Shevin, 407 U.S. 67 (fundamental meaning of procedural due process requires notice and hearing)
- In re Interest of Samantha L. & Jasmine L., 286 Neb. 778 (appellate briefing requirements)
- Estate of Schluntz v. Lower Republican NRD, 300 Neb. 582 (plain error standard)