Torres v. Morales
287 Neb. 587
| Neb. | 2014Background
- Torres sought a protection order under Neb. Rev. Stat. § 42-924 against Morales after alleged domestic incidents.
- A show-cause hearing was held January 17, 2013; Morales appeared pro se.
- Torres described three incidents: (1) intoxicated Morales yelling on Christmas Eve 2012, a verbal dispute where Torres pushed Morales and Morales grabbed her shirt; (2) Morales allegedly yelled and called her names about a week later; (3) about a year earlier, Torres, then pregnant, blocked Morales from leaving; Morales allegedly elbowed her and she sought ER care.
- Morales testified consistently on the first two incidents and claimed he was not drinking during the second; he admitted ongoing verbal arguments.
- The district court vacated the show-cause order, dismissed the case, and taxed Torres with costs; Torres appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether costs were improperly taxed against Torres without clear-and-convincing evidence of false statements or bad faith | Torres—taxing costs requires clear-and-convincing findings; statements were not shown false and bad faith not proven | Morales—no explicit argument provided in excerpt; focus on procedural aspects | Costs reversed; no clear-and-convincing findings to support taxing costs |
| Whether Torres' counsel was improperly denied participation or cross-examination of Morales | Torres' counsel should have been allowed to question Morales or present evidence | No request to question or present evidence was made; court acted within discretion | No due-process violation; lack of request from counsel means no error; however, court could have allowed participation if requested |
| Whether the judge's actions amounted to advising Morales inappropriately, violating the judge's impartiality | Court effectively advocated for Morales by stating consequences of an order | Judge merely informed Morales of consequences without directing his actions | No impartiality violation; actions did not overcome presumption of impartiality |
| Whether the district court erred in denying a protection order based on the evidence presented under § 42-903 | Torres presented evidence of abuse to warrant protection under § 42-903(1) | Evidence did not show intentional bodily injury, credible threats, or nonconsensual sexual contact | District court did not err in denying protection order |
| Whether the overall conduct denied Torres an impartial decisionmaker even when reviewing de novo | Combined conduct indicates bias | Record shows discretion and no clear bias | No reversible impartiality error; order affirmed in part, costs reversed in part |
Key Cases Cited
- Elstun v. Elstun, 257 Neb. 820 (1999) (necessity of clear rights to cross-examine in protection-order proceedings)
- Mahmood v. Mahmud, 279 Neb. 390 (2010) (due process limits in protection-order hearings; cross-examination issues)
- Hronek v. Brosnan, 20 Neb. App. 200 (2012) (due process limits on counsel's ability to examine witnesses)
- Sherman v. Sherman, 18 Neb. App. 342 (2010) (judge should explain alternative remedies when order may be harassment protection order)
- Jim's, Inc. v. Willman, 247 Neb. 430 (1995) (judge's conduct and implications for due process in protective orders)
- In re Interest of Jamyia M., 281 Neb. 964 (2011) (de novo review may weigh witness credibility; trial judge observations may inform conclusions)
- SourceGas Distrib. v. City of Hastings, 287 Neb. 595 (2011) (statutory interpretation context; reliance on plain meaning of text)