Yerania O. v. Juan P.
310 Neb. 749
| Neb. | 2022Background
- Yerania and Juan worked early morning shifts together for ~2 years; both were married to others. Yerania filed for and obtained an ex parte sexual assault protection order against Juan in March 2021.
- Juan requested and received a show-cause hearing; the hearing evidence and testimony focused on alleged sexual assault and whether the ex parte sexual assault order should remain.
- After the hearing closed, the district court sua sponte refiled Yerania’s petition under a new case number and entered a harassment protection order instead of a sexual assault order, without making specific factual findings on the record.
- The protection-order forms and the ex parte order did not clearly notify Juan that the court might convert the sexual-assault theory to a harassment theory after the hearing.
- The Nebraska Supreme Court held the sua sponte conversion (and the procedure used) deprived Juan of adequate notice and a meaningful opportunity to be heard and reversed and remanded with directions to vacate the harassment protection order.
Issues
| Issue | Yerania's Argument | Juan's Argument | Held |
|---|---|---|---|
| Whether court violated due process by converting a sexual-assault PO to a harassment PO without prior notice or opportunity to defend the new theory | Court may consider an alternative protection order under § 28-311.11; the show-cause hearing sufficed | Conversion occurred sua sponte after close of evidence; Juan was not given notice or chance to defend harassment theory | Reversed: procedure violated procedural due process; harassment PO vacated |
| Whether evidence proved harassment sufficient to support harassment PO | Petitioner’s evidence at hearing could support harassment | Juan denied harassment and lacked opportunity to respond to harassment theory | Court did not reach merits because of due process reversal |
| Whether 2019 amendment to § 28-311.11 authorized post-hearing conversion without additional notice | Amendment permits courts to consider alternative orders after hearing | Amendment does not excuse lack of notice; due process still required | Amendment does not cure the due process defect; prior precedents still control |
| Mootness of appeal if protection order expired before decision | Yerania likely argued appeal moot if order expired | Juan urged appeal should not be moot | Court did not decide mootness after finding reversible due process error |
Key Cases Cited
- D.W. v. A.G., 303 Neb. 42, 926 N.W.2d 651 (2019) (entry of harassment PO in place of sexual-assault PO after close of evidence violated due process)
- Linda N. v. William N., 289 Neb. 607, 856 N.W.2d 436 (2014) (trial court may issue harassment order though petitioner sought different theory, but due process constraints apply)
- Sherman v. Sherman, 18 Neb. App. 342, 781 N.W.2d 615 (Neb. App. 2010) (procedure to avoid judicial advocacy: judge should explain theories and let petitioner choose; continuance if respondent requests)
- Mahmood v. Mahmud, 279 Neb. 390, 778 N.W.2d 426 (2010) (procedural due process principles for protection-order proceedings)
- Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007) (discussion of due process/fundamental fairness)
- Castellar Partners v. AMP Limited, 291 Neb. 163, 864 N.W.2d 391 (2015) (specific-findings requirement for orders)
- Cerny v. Todco Barricade Co., 273 Neb. 800, 733 N.W.2d 877 (2007) (specific findings cannot be satisfied by rote statutory language)