Hart v. Bernhagen, A-21-574

May 10, 2021: district court issued an ex parte domestic abuse protection order for Justice R. Hart against Gabriel Bernhagen (temporary custody initially awarded). Bernhagen requested a show-cause hearing.
Hart’s petition/allegations described three incidents: (1) April 25, 2021 — forced sexual contact attempt, being thrown on couch and bitten (bruise); (2) May 1, 2021 — grabbed firearm, choked/handled dogs violently, shook child, and allegedly forced intercourse after dragging Hart by her hair; (3) May 7–8, 2021 — removal of Hart’s firearms from the home.
At the June 10 show-cause hearing the petition and affidavit were admitted; Hart and multiple witnesses testified for both sides; Bernhagen denied the abusive acts and presented witnesses and documents (including a photo of items on the lawn and military termination paperwork).
The court modified the ex parte order on June 11 to remove temporary custody but otherwise continued the protection order for one year.
Bernhagen appealed, challenging (1) admission of a photograph of Hart’s bruise (exhibit 20), (2) sufficiency/credibility supporting continuation of the protection order, and (3) denial of attorney fees.

Issue	Plaintiff's Argument (Hart)	Defendant's Argument (Bernhagen)	Held
Admissibility of photograph (foundation / best-evidence)	Hart: she took and saved the Snapchat photo, testified to when and that it accurately showed the bruise; foundation satisfied.	Bernhagen: lack of proper foundation and best-evidence concern because paper copy offered instead of original Snapchat file.	Court received the photo after foundation testimony; even if admission erred it was cumulative; no reversible error.
Sufficiency to enter/continue protection order (abuse under §42-903)	Hart: testimony and corroborating witnesses showed bodily injury, nonconsensual sexual contact, and threats/acts placing her in fear — preponderance met.	Bernhagen: Hart was not credible, had revenge motive (texts about consequences), inconsistent conduct, and insufficient corroboration.	Court credited Hart; de novo review upheld district court's factual credibility choice and affirmed continuation of order.
Attorney fees (bad faith / frivolous suit)	Hart: petition was brought to protect herself and child; not frivolous or in bad faith.	Bernhagen: petition contained false statements and was brought in bad faith, so fees/costs should be assessed under Neb. statutes.	Bernhagen was not prevailing; no finding of false statements or bad faith; fees denied.

Robert M. on behalf of Bella O. v. Danielle O., 303 Neb. 268, 928 N.W.2d 407 (2019) (protection-order proceedings analogous to injunction; de novo appellate review but deference to trial-court credibility findings)
Hawkins v. Delgado, 308 Neb. 301, 953 N.W.2d 765 (2021) (show-cause hearing is a contested factual hearing; plaintiff must prove facts in sworn application)
Flodman v. Robinson, 22 Neb. App. 943, 864 N.W.2d 716 (2015) (foundation and best-evidence principles for documentary/photographic evidence)
AVG Partners I v. Genesis Health Clubs, 307 Neb. 47, 948 N.W.2d 212 (2020) (erroneous admission of cumulative evidence is nonprejudicial)
Abbott v. City of Bellevue, 310 Neb. 496, 967 N.W.2d 95 (2021) (general rule on recovery of attorney fees in civil actions)
Twin Towers Condo. Assn. v. Bel Fury Invest. Group, 290 Neb. 329, 860 N.W.2d 147 (2015) (attorney-fee awards usually go to prevailing parties or where suit is frivolous)
City of Omaha v. Professional Firefighters Assn., 309 Neb. 918, 963 N.W.2d 1 (2021) (definition and standard for frivolous legal positions)
Torres v. Morales, 287 Neb. 587, 843 N.W.2d 805 (2014) (bad faith under § 42-924.01 means dishonesty of belief or purpose)