Garrison v. Otto
311 Neb. 94
| Neb. | 2022Background
- March 18, 2020: an ex parte domestic abuse protection order was entered against Logan M. Otto II based on a February 26, 2020 parking-lot incident (alleged vehicular swerve toward petitioner Margaret Garrison) and a history of prior incidents and orders; the order was later affirmed on appeal.
- March 17, 2021: Garrison filed a petition and affidavit to renew the protection order within 45 days before expiration; an ex parte renewal was issued pending a contested hearing.
- At the renewal hearing, Garrison testified she still feared for her and her household’s safety; Otto denied intent to harm, pointed to distracted driving and to lack of any new abuse or violations since the original order.
- May 10, 2021: the district court affirmed the ex parte renewal, finding no material change in circumstances, crediting Garrison’s fear, and concluding renewal was necessary to prevent future harm.
- Procedurally, Otto filed a premature notice of appeal (dismissed) and a timely second notice; the Supreme Court reviewed the timely appeal de novo and affirmed the 1-year renewal.
Issues
| Issue | Plaintiff's Argument (Garrison) | Defendant's Argument (Otto) | Held |
|---|---|---|---|
| Whether renewal requires a new act or violation since the original order | Renewal does not require a new act; petitioner need only show no material change and risk of future harm | Renewal should require intervening abuse or violation to justify continued restriction | Held: Renewal does not require new abuse or a violation; statute and purpose permit renewal based on prior finding and current likelihood of future harm |
| Standard for renewal when respondent contests | Court should assess likelihood of future harm over the next year, weighing surrounding circumstances | Otto urged that lack of subsequent abuse/violations makes future harm unlikely | Held: On contested renewal, court holds evidentiary hearing and reweighs likelihood of future harm using equitable factors (de novo review) |
| Whether prior finding of abuse may be relitigated at renewal | Prior finding should stand; petitioner need not reprove initial abuse at renewal | Otto argued the initial finding could be revisited at renewal | Held: Initial finding is law of the case and need not be relitigated; renewal focuses on changed circumstances and future risk |
| Sufficiency of evidence to renew for 1 year in this case | Garrison showed continuing fear, history/severity of prior incident, ongoing conflict between parties | Otto relied on his denial, lack of subsequent violations, and character of the prior incident as distracted driving | Held: Evidence—seriousness and recency of the prior incident, continuing conflict, and petitioner’s credible fear—was sufficient to justify a 1-year renewal |
Key Cases Cited
- Robert M. on behalf of Bella O. v. Danielle O., 928 N.W.2d 407 (Neb. 2019) (establishes abuse as a threshold requirement for protection orders)
- Maria A. on behalf of Leslie G. v. Oscar G., 919 N.W.2d 841 (Neb. 2018) (protection orders are forward-looking; courts weigh likelihood of future harm and equitable burdens/benefits)
- Tierney v. Tierney, 959 N.W.2d 556 (Neb. 2021) (law-of-the-case doctrine limits relitigation of previously decided issues)
- Sarah K. v. Jonathan K., 873 N.W.2d 428 (Neb. App. 2015) (statutory scheme does not impose a time limit on when a victim may file for a protection order)
- Vance v. Iowa Dist. Court for Floyd County, 907 N.W.2d 473 (Iowa 2018) (reversal of long noncontact order where no violence, threats, or safety risk supported extension)
- S.H. v. D.W., 139 N.E.3d 214 (Ind. 2020) (reversal of protective-order extension where original was a single uncontested incident and parties had separated)