                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                      ANDERSEN V. CLARK


  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).


                                 KERI M. ANDERSEN, APPELLEE,
                                                V.

                                 RICHARD J. CLARK, APPELLANT.


                              Filed April 7, 2020.   No. A-19-768.


      Appeal from the District Court for Burt County: JOHN E. SAMSON, Judge. Reversed and
remanded with directions to vacate.
       Heather L. Horst, of Walz Law Offices, P.C., L.L.O., for appellant.
       David V. Drew, of Drew Law Firm, P.C., L.L.O., for appellee.


       MOORE, Chief Judge, and RIEDMANN and WELCH, Judges.
       MOORE, Chief Judge.
                                       INTRODUCTION
        Richard J. Clark appeals a domestic abuse protection order obtained by his former spouse,
Keri M. Andersen. Upon our de novo review of the record, we reverse and remand with directions
to vacate the protection order.
                                        BACKGROUND
        On June 18, 2019, Keri filed a Petition and Affidavit to Obtain a Domestic Abuse
Protection Order in the District Court of Washington County, Nebraska. The petition included both
Keri, and the parties’ minor daughter, Leah, in the caption and sought protection for both. Keri
alleged that the parties had been involved in a divorce case which was then on appeal. Keri alleged
that she currently had sole physical custody of Leah, Richard was to have 4 weeks’ visitation with
Leah during the summer, but that she was “too scared to go.” Keri alleged that in July 2018,



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Richard parked his truck behind her car and continued to knock on the door for an hour despite
being asked to leave. She further alleged that over the July 4th 2018 holiday, Leah did not want to
spend a week with her father and despite their agreement that she would only stay with him for
two days, he kept her for the entire week. Keri alleged another parenting time dispute occurred in
June 2019 when Leah did not want to spend an entire week with Richard.
         Keri attached to her affidavit a police statement she gave detailing an incident that had
occurred on June 16, 2019. The report included the following statements by Keri. At approximately
10:00 a.m., Richard entered Keri’s parents’ home. Leah was in the basement and Keri was on the
basement stairs. Richard opened the door to the basement stairs. Keri asked Richard to leave
several times, but he attempted to go down the stairs. Keri began following Richard down the
stairs, when he turned and grabbed both of Keri’s forearms, one of which was broken before this
incident. Richard squeezed and twisted Keri’s arms, resulting in bruising and swelling. Keri visited
her doctor the next day and the doctor noticed increased swelling.
         Keri’s statement further indicated that Leah was in tears and scared that Richard was
hurting Keri when she heard Keri yell “my arm.” Leah walked up the stairs and Richard eventually
grabbed her arm really hard and drug her outside. Once outside, Leah kept rubbing her arm
throughout the conversation. Leah indicated that she didn’t want to visit Richard for a whole week.
Leah’s handwritten statement regarding the above was attached to the affidavit. In addition, a
statement from Keri’s mother was attached which indicated that Keri told Richard to leave, that
he grabbed Keri’s arm and twisted it at which time she yelled “my arm.” This statement also
indicated that Richard put his arm around Leah and stated he wanted to talk to Leah, and that
Richard grabbed Leah’s arm and started to pull her toward the door. Keri asked Leah if she wanted
Keri to come with her and Leah said yes.
         Keri also attached to her affidavit copies of text messages from Richard to her which she
indicated wished her harm. In addition, text messages from Leah were attached stating that she did
not want to stay with Richard for a week.
         Richard requested a hearing, which was held on July 11, 2019. The court received Keri’s
petition and affidavit into evidence. Keri also testified about the events on June 16, which was
Father’s Day. Richard had come to the house to see their daughter. Keri had not allowed Richard
to exercise parenting time since Memorial Day. Keri’s father let Richard enter the house. When
Richard entered the home, he was filming on his cell phone. The parties had been involved in a
lengthy divorce proceeding.
         Richard testified that he took a video of the event that occurred on Father’s Day when he
was trying to pick up his daughter. A flash drive from the video on Richard’s cell phone was
received in evidence. The flash drive consists of two video segments. The first segment is about
40 seconds and the second one is about one minute and 15 seconds. The video was shown during
the trial.
         The first segment of the video shows Richard waiting outside the door to the house, the
door opening, Richard entering the house and greeting Keri’s father. Richard asks where Leah is
and someone answers that she is in the basement. The video then shows Richard approach a door
in the kitchen and Keri opens the door at the top of the stairs. Keri tells Richard to leave the house,
that he is not welcome there, and that he is “going to leave [Leah] alone.” Keri then attempts to
grab or push Richard’s phone away. At this time, Richard backed up the stairs. The video does not


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depict Richard grabbing Keri’s arms or making any threats of physical harm, nor does it include
any exclamation from Keri regarding her arm. This segment concludes by showing Keri calmly
walking into the kitchen area without any physical difficulty or reference to her arm. Richard states
that Keri cannot keep Leah from him and that it is against the court order.
        The second segment of the video shows Richard asking his daughter to come outside to
talk with him, but does not show him grabbing her arm or pulling her. Keri accompanied Richard
and Leah out to the porch at which time a conversation took place among the three of them
regarding Richard’s parenting time. At no time is there any physical contact or threats made by
Richard. The conversation concludes in a calm manner.
        Richard testified that he never grabbed Keri’s or Leah’s arms and that he believed the
purpose of the protection order was to prevent him from exercising his parenting time.
        Keri’s mother testified that Richard walked into her house on the day in question, with a
camera going, he started yelling and screaming, and then he grabbed Keri, who had a broken arm.
She testified that Leah was scared and upset.
        At the conclusion of the hearing, the court found that Keri met her burden of proof because
“[Richard] entered [Keri’s] residence without permission. Protection order stands.”
                                  ASSIGNMENTS OF ERROR
       Richard assigns that the trial court abused its discretion in finding that his alleged actions
met the criteria to constitute “abuse” as defined in Neb. Rev. Stat. § 42-903 (Cum. Supp. 2018)
and therefore improperly issued a domestic abuse protection order.
                                    STANDARD OF REVIEW
         A protection order pursuant to Neb. Rev. Stat. § 42-924 (Cum. Supp. 2018) is analogous
to an injunction. Robert M. on behalf of Bella O. v. Danielle O., 303 Neb. 268, 928 N.W.2d 407
(2019). Thus, the grant or denial of a protection order is reviewed de novo on the record. Id. In
such de novo review, an appellate court reaches conclusions independent of the factual findings of
the trial court. Id. 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. Id.
                                            ANALYSIS
        Richard argues that the district court erred in affirming the domestic abuse protection order
because the evidence presented at trial failed to establish that his actions constituted abuse within
the meaning of § 42-903. We agree.
        Any victim of domestic abuse may seek a domestic abuse protection order. § 42-924. The
Nebraska Supreme Court has explained that when an ex parte domestic abuse protection order is
issued and the respondent requests a show cause hearing, the inquiry before the district court at
the hearing is whether the ex parte order ought to remain in effect after it was in place. Maria A.
on behalf of Leslie G. v. Oscar G., 301 Neb. 673, 919 N.W.2d 841 (2018). See, also, Neb. Rev.
Stat. § 42-925(1) (Cum. Supp. 2018). Whether domestic abuse occurred is a threshold issue in
determining whether an ex parte protection order should be affirmed; absent abuse as defined by




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§ 42-903, a protection order may not remain in effect. § 42-924; Robert M. on behalf of Bella O.
v. Danielle O., supra.
       “Abuse” as used in § 42-903(1) means
       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
       . . . or
                “(c) Engaging in sexual contact or sexual penetration without consent as defined in
       section 28-318.”

Robert M. on behalf of Belle O. v. Danielle O., 303 Neb. at 274, 928 N.W.2d at 412. Family or
household members include persons who have resided together in the past. § 42-903(3). In the
present case, Keri and Richard had previously been married and were parties to a dissolution action
at the time of the events that led to this protection order.
         The district court, in its form order, affirmed the ex parte domestic abuse order and ordered
it to remain in effect for a period of one year from June 19, 2019. The district court did not state
which subsection of § 42-903(1) was met.
         For an order to be issued, a party needs to provide at least some evidence of abuse defined
under § 42-903(1). Torres v. Morales, 287 Neb. 587, 843 N.W.2d 805 (2014). The definition of
abuse under § 42-903(1)(a) includes the attempt to cause or to intentionally and knowingly cause
bodily injury. While Keri’s affidavit and testimony included an accusation that Richard grabbed
and twisted her already broken arm, the video introduced into evidence clearly refutes that
accusation. Although Keri’s attorney suggested at oral argument that the arm grabbing and twisting
occurred in between the two video segments, there was no evidence to this effect offered at trial.
Thus, § 42-903(1)(a) does not support the entry of a domestic abuse protection order in this case.
         Nor does the evidence support entry of a domestic abuse protection under § 42-903(1)(b).
The “credible threat” language in § 42-903(1)(b) defining “abuse” for purposes of entitlement to
a protection order means that the evidence at trial must include some threat of intentional physical
injury or any other physical threat. Linda N. on behalf of Rebecca N. v. William N., 289 Neb. 607,
856 N.W.2d 436 (2014). Name-calling and vulgar language do not rise to the level of abuse. Id.
         Keri alleged in her affidavit that certain text messages from Richard showed that “he
wished her harm.” Our review of the text messages from Richard shows they are primarily related
to Keri’s withholding of parenting time from him and his resulting frustration. While there is some
inappropriate language used by Richard, and reference to his hope that “karma” visits Keri, there
is nothing in these text messages that include any physical threat by Richard. In fact, at certain
points, Richard apologizes for things said in frustration and attempts to invite conversation
between the parties about their parenting time difficulties. Richard’s text messages do not support
a finding of domestic abuse under § 42-903(1)(b) and there is nothing else in the record regarding
any other threats of physical harm.
         For the sake of completeness, we note that there is nothing in the record to suggest or
support entry of a domestic abuse protection order under § 42-903(1)(c).


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        The only specific finding by the district court was that Richard entered the home without
permission. This finding does not lend itself to a finding of physical injury or the threat of physical
harm. Further, the record indicates that the June 2019 incident occurred at Keri’s parents’ home,
and it appears from the video exhibit that Richard was allowed to enter the home by Keri’s father.
After Keri asked Richard to leave, Richard, Keri, and Leah all went outside to the front porch to
discuss parenting time.
        We recognize that there is affidavit evidence in the record to support Keri’s version of the
events and to suggest that she was physically injured but the video evidence does not support it.
Our standard of review allows us to give weight to the trial judge when credible evidence is in
conflict. However, the trial judge did not make any findings with regard to the credibility of the
evidence or findings that abuse occurred in this case. In our de novo review, we find that the district
court erred in extending the domestic abuse protection order as there was insufficient evidence to
support the order.
                                          CONCLUSION
       The district court erred in extending the domestic abuse protection order. We therefore
reverse the judgment and remand the cause with directions to vacate the order.
                                                               REVERSED AND REMANDED WITH
                                                               DIRECTIONS TO VACATE.




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