Kirkelie v. Henry, A-16-972

On Aug. 29, 2016, Tiffany Kirkelie filed an ex parte Petition and Affidavit for a Domestic Abuse Protection Order against Jonathan Henry, alleging a violent assault on Aug. 25, 2016, witnessed by their child Jayden; an ex parte one-year order issued that day.
Henry was served Aug. 29 and requested a hearing; a contested hearing occurred Sept. 6 but Henry did not appear; the court affirmed the protection order that day.
Henry filed a Verified Motion to Vacate/Set Aside/Request New Hearing, claiming lack of notice of the Sept. 6 hearing; the court set a new hearing for Sept. 23.
At the Sept. 23 hearing Henry (with counsel) presented testimony and exhibits disputing Kirkelie’s account; Kirkelie declined to testify or present further evidence.
The court removed Jayden from the order but otherwise modified and continued the protection order as to Kirkelie through Aug. 29, 2017; Henry appealed claiming Kirkelie failed to present prima facie evidence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the protection order could remain in effect absent evidence from petitioner at the Sept. 23 hearing	Kirkelie: the court had already received evidence at the Sept. 6 show-cause hearing supporting the ex parte order	Henry: because Kirkelie did not present evidence at Sept. 23, no prima facie case was established and the order should be vacated	Court: affirmed — appellant failed to provide a complete record of the Sept. 6 hearing; trial court could consider both hearings and implicitly denied the motion to vacate
Standard of review for protection orders	N/A	N/A	De novo review for protection orders (analogous to injunctions); give weight to trial judge’s credibility findings when evidence conflicts
Burden to include record on appeal when challenging sufficiency of evidence	N/A	Henry: must show insufficiency; contends petition failed to establish facts by preponderance	Court: appellant must include bill of exceptions for all relevant evidence; absence of Sept. 6 record defeats challenge
Whether trial court abused discretion by implicitly denying motion to vacate	N/A	Henry: denial amounted to error given petitioner’s lack of evidence at Sept. 23	Court: no abuse — evidentiary reopening and weighing of both hearings supported modified order excluding child but preserving protection for Kirkelie

Torres v. Morales, 287 Neb. 587 (2014) (protection orders are analogous to injunctions; reviewed de novo)
Mahmood v. Mahmud, 279 Neb. 390 (2010) (contested protection hearings are show-cause; petitioner must prove allegations by preponderance; petition/affidavit not evidence unless offered at trial)
Whitesides v. Whitesides, 290 Neb. 116 (2015) (motion to vacate/modify judgment reviewed for abuse of discretion)
Centurion Stone of Neb. v. Whelan, 286 Neb. 150 (2013) (appellant must present record supporting assigned errors)
In re Interest of Rondell B., 249 Neb. 928 (1996) (appellant’s duty to include material matters in bill of exceptions)
Sanwich v. Jenson, 244 Neb. 607 (1993) (appellate review impossible without sufficient bill of exceptions)
Ward v. Ward, 220 Neb. 799 (1985) (affirming where appellant failed to request complete record)
Sherman v. Sherman, 18 Neb. App. 342 (2010) (petition/affidavit not in evidence may not be considered at hearing)