Linda N. v. William N.
856 N.W.2d 436
| Neb. | 2014Background
- Linda N. filed a petition and affidavit in district court seeking an ex parte domestic abuse protection order on behalf of her 16-year-old daughter against the father, William N.; an ex parte order issued and William requested a show-cause hearing.
- Evidence at the hearing consisted primarily of repeated vulgar and insulting text messages from William to the daughter (name-calling, profanity, threats to file charges), and testimony that the texts frightened and intimidated the child.
- William admitted to sending offensive texts, denied any physical threats or past physical abuse, and argued the messages were provoked.
- The district court upheld the domestic abuse protection order after the hearing; William appealed, arguing the conduct did not meet the statutory definition of "abuse."
- Linda cross-appealed, arguing the court should have issued a harassment protection order instead of a domestic abuse order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether crude, threatening texts without any physical threat satisfy § 42-903(1) "abuse" requirement | Linda: texts intimidated and frightened the child and therefore constituted abuse under the statute | William: messages contained no threats of physical harm and thus do not meet the statutory definition of abuse | Reversed: domestic abuse order improper — statute requires a threat of intentional physical injury or other physical threat (credible threat must imply physical harm) |
| Whether appellate court may convert a domestic abuse petition into a harassment protection order on appeal | Linda: district court should have issued harassment order; asks court to allow theory shift on appeal | William: trial proceeded only on domestic abuse theory; shifting on appeal is improper and prejudices due process | Denied: cannot change theories on appeal; petitioner (with counsel) pursued domestic abuse theory at trial and did not request change below; appellate court will not consider untried theory |
| Whether trial court should have informed petitioner of harassment alternative and allowed continuance if petitioner wanted to pursue it | Linda: (by implication) harassment was correct remedy and court erred by not treating petition as such | William: trial limited to domestic abuse claim; no request below to change theory | Court: If harassment theory becomes apparent at hearing, court should explain both theories and allow petitioner to elect or request continuance (per Sherman); but that procedure was not invoked here, so cannot be applied on appeal |
| Standard of review for protection order | N/A | N/A | Protection-order decisions reviewed de novo; trial court credibility findings carry weight when evidence conflicts because trial judge observed witnesses |
Key Cases Cited
- Mahmood v. Mahmud, 279 Neb. 390 (treating protection order as injunction; district court petition suffices to seek relief) (authority on form/substance and jurisdiction to issue harassment order)
- Torres v. Morales, 287 Neb. 587 (verbal arguments and name-calling without physical threats do not satisfy abuse requirement)
- Cloeter v. Cloeter, 17 Neb. App. 741 (Court of Appeals narrowly interpreted prior "physical menace/imminent" language; legislative amendment later intended to overturn that narrow reading)
- Sherman v. Sherman, 18 Neb. App. 342 (when harassment theory becomes apparent at hearing, court should explain both theories and allow petitioner to elect or request a continuance)