                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                        KLEIN V. WERGIN


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                  MARIAH A. KLEIN, APPELLEE,
                                                V.

                                 BROCK A. WERGIN, APPELLANT.


                            Filed October 29, 2019.    No. A-19-017.


       Appeal from the District Court for Lancaster County: SUSAN I. STRONG, Judge. Reversed
and remanded with directions to vacate.
       Sean M. Reagan and Megan E. Shupe, of Reagan, Melton & Delaney, L.L.P., for appellant.
       DeAnn C. Stover for appellee.


       MOORE, Chief Judge, and PIRTLE and WELCH, Judges.
       PIRTLE, Judge.
                                        INTRODUCTION
        Brock A. Wergin appeals the district court for Lancaster County’s entry of a domestic
abuse protection order against him. Wergin argues there was no evidence showing that he engaged
in abusive behavior. We agree and thus reverse the judgment and remand the cause with directions
to vacate the domestic abuse protection order.
                                        BACKGROUND
        On November 8, 2018, Mariah A. Klein filed a “Petition and Affidavit to Obtain Domestic
Abuse Protection Order” pursuant to Neb. Rev. Stat. § 42-924 (Cum. Supp. 2018), naming Wergin
as the respondent. Klein identified three incidents of domestic abuse. First, she alleged that as of
October 29, 2018, Wergin was being investigated for child pornography because he was allegedly




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“making fake social media accounts and uploading pictures and videos without minors knowledge
or concent [sic].”
         In regard to the second incident, Klein alleged “continuous harassment by texts, calls, visits
to my home, work, relatives[’] homes and social media. Has not stopped since previous protection
order has expired [in August or September 2017]. [U]sed threats, physical contact, contacts family
member in a threatening manner. Has made false police reports pertaining to our minor child.”
Klein did not state a date or time frame for the second incident.
         The third incident alleged by Klein does not contain a date or timeframe and the description
stated: “Not returning [the parties’] minor child (Sophia) at agreed parenting times, threatening to
keep child and not returning her to custodial parent me (Mariah).”
         An “Ex Parte Domestic Abuse Protection Order” was entered, granting the relief requested
in Klein’s petition. Wergin requested a hearing on the matter pursuant to Neb. Rev. Stat. § 42-925
(Cum. Supp. 2018) to show cause why the protection order should not remain in effect.
         At the show cause hearing, Klein testified that Wergin continually harasses her by showing
up at her house, ringing her doorbell, pounding on her door, and screaming, which makes her feel
unsafe. She testified that Wergin screams, “I’m going to see [their daughter]. You’re going to pay
for this.” She testified that she has safety concerns for herself based upon the mental, physical, and
emotional abuse she has endured the last 6 years. When asked what kind of threats he has made,
she responded, “Just anything that he possibly can.” She was asked if Wergin ever struck her and
she responded, “Yes.” No further questions were asked about her being struck.
         Klein testified that she had not let Wergin see their daughter since mid- to late-October
2018 and the threats he made about seeing his daughter were made after that time. She testified
that Wergin has come to her home for the purpose of trying to exercise his parenting time.
         Klein also testified that on one occasion 4 or 5 months prior to the show cause hearing,
Wergin grabbed her when she was picking up Sophia after Wergin’s parenting time. She stated
that the police were called. She testified that she filed for a protection order months later because
Wergin became more violent and more aggressive. When asked to explain further, Klein testified
that during visitation exchanges Wergin “would be aggressive, his tone, his voice, his manner, the
way he carried himself.” Klein admitted that there had been no physical contact by Wergin after
the one time he grabbed her. She also admitted that any threats Wergin had made were not threats
to physically harm her.
         Klein’s mother also testified. She testified that the police were called during one visitation
exchange because Wergin had pushed Klein and was yelling. She stated that this happened in late
summer 2018.
         Wergin agreed that the police were called once during a visitation exchange. He testified
that before the police were called, Klein had picked up Sophia from his house and the two of them
were in the car to leave. Klein began texting Wergin about some of Sophia’s belongings and a
“heated” exchange of text messages followed. Klein testified that he was standing on his porch at
the time and that he did not have physical contact or face to face contact with Klein during the
exchange. Wergin testified that Klein’s father, who was also in the car with Klein and Sophia,
pulled the car into Wergin’s driveway, got out of the car, and approached Wergin on his porch. At
that point, Wergin told his girlfriend to call the police.



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        Wergin testified that he last saw Sophia in early October and continued to try to see her
during his parenting times until he was served with the protection order. He testified that he had
gone to Klein’s house during his court-ordered parenting times but has never demanded anything.
He testified that he had never pounded or banged on her door and had never yelled anything outside
her home. He further testified that the only threats he has made to Klein are threats to take her to
court for not letting him see or speak to Sophia.
        Following the hearing, the court entered an “Order Affirming Domestic Abuse Protection
Order.” It did not make specific factual findings. The order affirmed the ex parte domestic abuse
protection order issued on November 8, 2018, and ordered it to remain in full force and effect for
1 year from that date, unless modified by order of the court.
                                   ASSIGNMENT OF ERROR
       Wergin assigns that the trial court erred in affirming the ex parte domestic abuse protection
order against him.
                                    STANDARD OF REVIEW
        A protection order pursuant to § 42-924 is analogous to an injunction. Thus, the grant or
denial of a protection order is reviewed de novo on the record. In such de novo review, an appellate
court reaches conclusions independent of the factual findings of the trial court. However, where
the credible evidence is in conflict on a material issue of fact, the appellate court considers and
may give weight to the circumstances that the trial judge heard and observed the witnesses and
accepted one version of the facts rather than another. Maria A. on behalf of Leslie G. v. Oscar G.,
301 Neb. 673, 919 N.W.2d 841 (2018).
                                            ANALYSIS
        Wergin argues that the trial court erred in affirming the ex parte domestic protection order
and continuing it for a period of one year because the evidence did not show that he engaged in
any conduct constituting domestic abuse under Neb. Rev. Stat. § 42-903 (Cum. Supp. 2018).
        The Protection from Domestic Abuse Act, Neb. Rev. Stat. § 42-901 et seq. (Reissue 2016
& Cum. Supp. 2018) (the Act), provides that a victim of domestic abuse may file a petition and
affidavit for a protection order with the clerk of the district court. § 42-924. For the purposes of
the Act, abuse is defined by § 42-903(1) as the occurrence of one or more of the following acts
between family or household members:
                (a) Attempting to cause or intentionally and knowingly causing bodily injury with
        or without a dangerous instrument;
                (b) Placing, by means of credible threat, another person in fear of bodily injury. For
        purposes of this subdivision, credible threat means a verbal or written threat, including a
        threat performed through the use of an electronic communication device, or a threat implied
        by a pattern of conduct or a combination of verbal, written, or electronically communicated
        statements and conduct that is made by a person with the apparent ability to carry out the
        threat so as to cause the person who is the target of the threat to reasonably fear for his or
        her safety or the safety of his or her family . . . or




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               (c) Engaging in sexual contact or sexual penetration without consent as defined in
       section 28-318.

        For purposes of the Act, “family or household members” includes persons who have a child
in common whether or not they have been married or have lived together at any time. § 42-903(3).
        Whether domestic abuse occurred is a threshold issue in determining whether an ex parte
protection order should be affirmed; absent abuse as defined by § 42-903, a protection order may
not remain in effect. See Maria A. on behalf of Leslie G. v. Oscar G., supra.
        The trial court found that domestic abuse occurred as defined by § 42-903(1). We do not
agree. Although the trial court did not state which subsection of § 42-903(1) was met, we determine
that the evidence was insufficient to prove any of the subsections.
        Starting with § 42-903(1)(c), Klein was required to prove that she was the victim of sexual
contact or sexual penetration without consent. There was no evidence to support this subsection
and neither party contends that there was such evidence.
        Under § 42-903(1)(b), Klein was required to prove that Wergin had placed her in fear of
bodily injury by means of credible threat. The only evidence of a threat was Klein’s testimony that
Wergin told her “I’m going to see her [Sophia]. You’re going to pay for this.” Klein testified that
this “threat” was made during a time when she was not allowing Wergin to see Sophia. Klein
further testified that any threats by Wergin were not threats to physically harm her. The “credible
threat” language in § 42-903 has been interpreted to mean that the evidence at trial must include
some threat of intentional physical injury or any other physical threat. Linda N. v. William N., 289
Neb. 607, 856 N.W.2d 436 (2014). Therefore, there was no evidence that Klein was placed in fear
of bodily harm based on threats by Wergin.
        Finally, under § 42-903(1)(a), Klein was required to prove that Wergin had attempted to
cause or had intentionally and knowingly caused bodily injury with or without a dangerous
instrument. Klein testified that Wergin had struck her at some point in the past. However, there
was no indication of when, how, or where this occurred, and no evidence that any bodily injury
occurred. Klein also testified that Wergin had grabbed her in July or August 2018 at a parenting
exchange. Klein testified that after the incident where Wergin grabbed her, his tone, voice, manner,
and the way he carried himself became more aggressive. Klein’s mother testified that she saw
Wergin push Klein at a parenting exchange in late summer 2018. Again, there was no evidence of
bodily injury in regard to the grabbing or pushing incident. Thus, we conclude that Klein failed to
present evidence that Wergin attempted to cause or had intentionally and knowingly caused bodily
injury with or without a dangerous instrument.
        Because there was no evidence offered at the protection order hearing to prove abuse, as
defined by § 42-903(1), the trial court erred in entering a domestic abuse protection order against
Wergin.
        We note that a trial court has discretion, authority, and jurisdiction to issue a harassment
protection order, even though the petitioner had filed a petition for a domestic abuse protection
order. Linda N. v. William N., supra. In the present case however, Klein did not ask the trial court
to consider entering a harassment protection order and this court will not consider whether the trial
court should have instead issued a harassment protection order. See id.



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                                         CONCLUSION
       We conclude that the trial court erred in granting a domestic abuse protection order because
there was no evidence of “abuse” by Wergin as defined by § 42-903(1). We reverse the judgment
and remand the cause with directions to vacate the order.
                                                                  REVERSED AND REMANDED WITH
                                                                  DIRECTIONS TO VACATE.




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