D.W. v. A.G., 926 N.W.2d 651

D.W. filed an ex parte petition and affidavit seeking a sexual assault protection order alleging A.G. sexually penetrated her while she was incapacitated after drinking.
The county court issued an ex parte sexual assault protection order; A.G. requested a show cause hearing and denied the allegations.
At the show cause hearing both parties testified; testimony conflicted about D.W.’s level of intoxication and whether she consented. Photographs and an acquaintance’s testimony were admitted; the original petition and affidavit were not offered into evidence.
After the close of evidence the trial court stated it would not continue the sexual assault protection order but would enter some other protection order; it did not give notice of the new theory to A.G. at the hearing.
The judge sua sponte refiled D.W.’s petition under a new case number and, two days later, entered a harassment protection order with terms like the prior ex parte order; the original case’s sexual assault order was then dismissed.
A.G. appealed the harassment protection order and the sufficiency finding; D.W. cross-appealed the dismissal of the sexual assault protection order.

Issue	D.W.'s Argument	A.G.'s Argument	Held
Subject-matter jurisdiction to enter a harassment protection order	Court had authority to issue protection orders generally	Trial court lacked jurisdiction because D.W. sought a sexual assault order, not harassment	Court: No jurisdictional defect; trial court had power to hear harassment matters
Procedural due process in entering harassment order	Harassment order appropriate based on evidence; no prejudice	Trial court violated due process by imposing a new theory after close of evidence and without notice	Court: Reversed harassment order; entry violated procedural due process and must be vacated
Sufficiency of evidence to support sexual assault protection order	Evidence supported sexual assault or incapacity (D.W.'s memory gap, inability to recall consent)	Evidence was conflicting; testimony showed D.W. appeared coherent and consenting	Court: Affirmed dismissal of sexual assault order (no plain error) because credibility conflicts justified judge’s decision
Trial court advocacy/impartiality (judge acting on own initiative)	N/A (court could identify appropriate relief)	Judge improperly imposed a different theory and acted beyond neutral role	Court criticized sua sponte approach; the due process ruling disposes of the result though impartiality concerns noted

Mahmood v. Mahmud, 279 Neb. 390, 778 N.W.2d 426 (2010) (protection orders are analogous to injunctions; limited due process required in harassment hearings)
Linda N. v. William N., 289 Neb. 607, 856 N.W.2d 436 (2014) (petitioner may change theory before court makes final decision; late changes raise due process concerns)
Maria A. on behalf of Leslie G. v. Oscar G., 301 Neb. 673, 919 N.W.2d 841 (2018) (appellate court gives weight to trial judge credibility findings when evidence conflicts)
Sherman v. Sherman, 18 Neb. App. 342, 781 N.W.2d 615 (Neb. Ct. App. 2010) (trial judge should explain both theories and allow petitioner to elect; judge must avoid choosing theory for petitioner)
Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007) (procedural due process requires fundamental fairness: notice and opportunity to be heard)
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985) (essential due process requirements are notice and an opportunity to respond)
Fuentes v. Shevin, 407 U.S. 67 (1972) (due process requires notice before rights are affected)
Baldwin v. Hale, 68 U.S. (1 Wall.) 223 (1863) (early articulation that parties must be notified to be heard)