916 N.W.2d 62
Neb. Ct. App.2018Background
- Paul A. Rosberg (pro se) filed a petition and affidavit under Neb. Rev. Stat. § 28-311.09 seeking a harassment protection order against his wife, Kelly R. Rosberg, on behalf of himself and their five children.
- Allegations included repeated lies to authorities, perjury, interference with visitation, exposing children to a registered sex offender, disparagement, and an assertion that Kelly or her associates might "plant guns" on him.
- The district court dismissed the petition on November 14, 2016, as having "insufficient allegations" and as matters better addressed in pending domestic litigation; dismissal was without prejudice.
- Rosberg sought a hearing and reconsideration; the court held a January 31, 2017 proceeding at which Rosberg presented an exhibit and argument; the court later denied reconsideration and stood on its November 14 dismissal.
- No bill of exceptions was filed on appeal; the Court of Appeals reviewed only the pleadings and the trial-court record and presumed the evidence supported the trial court’s decision if pleadings justified it.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rosberg was denied a hearing on his harassment petition | Rosberg: court closed the door and denied opportunity to present evidence | Kelly: (waived appearance); court record shows Rosberg was later heard and presented exhibits | Court: No denial—Rosberg had a January 31 hearing, presented Exhibit 1 and argument; claim fails |
| Whether pleadings/supporting evidence were sufficient to warrant a harassment protection order | Rosberg: petition and exhibits sufficiently alleged conduct calling for a hearing or ex parte order | Court/implicit defense: allegations do not objectively show conduct that would seriously terrify, threaten, or intimidate a reasonable victim; many issues belong in divorce proceedings | Court: Pleadings were insufficient under the harassment statute; dismissal was appropriate |
Key Cases Cited
- Mahmood v. Mahmud, 279 Neb. 390, 778 N.W.2d 426 (discussing protection-order standard and need for some evidence)
- Murphy v. Murphy, 237 Neb. 406, 466 N.W.2d 87 (appellate review without a bill of exceptions is limited to pleadings and transcript)
- Richards v. McClure, 290 Neb. 124, 858 N.W.2d 841 (harassment statutes are given objective construction)
- Glantz v. Daniel, 21 Neb. App. 89, 837 N.W.2d 563 (objective victim-standard under stalking/harassment law)
- In re Interest of Jeffrey K., 273 Neb. 239, 728 N.W.2d 606 (supporting objective assessment of victim's experience)
- Sarah K. v. Jonathan K., 23 Neb. App. 471, 873 N.W.2d 428 (distinguishing domestic-abuse protection-order hearing requirement)
- Van Etten v. Test, 64 Neb. 407, 89 N.W. 1052 (court may summarily dismiss actions not stating a fact entitling relief)
- Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 275 (appellate briefing requirements for assignment of error)