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D.W. v. A.G.

Cite as 303 Neb. 42

D.W., appellee and cross-appellant, 

v. A.G., appellant and

cross-appellee.

___ N.W.2d ___

Filed May 3, 2019. Nos. S-18-657, S-18-658.

1. Judgments: Injunction: Appeal and Error. A protection order is analogous to an injunction. Accordingly, the grant or denial of a protection 

order is reviewed de novo on the record.

2. Evidence: Appeal and Error. 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.

3. Jurisdiction: Appeal and Error. Subject matter jurisdiction is a question of law for the court, which requires an appellate court to reach a 

conclusion independent of the lower court’s decision.

4. Jurisdiction: Words and Phrases. Subject matter jurisdiction is the 

power of a tribunal to hear and determine a case in the general class or 

category to which the proceedings in question belong and to deal with 

the general subject matter involved.

5. Due Process: Words and Phrases. While the concept of due process 

defies precise definition, it embodies and requires fundamental fairness.

6. Constitutional Law: Due Process. Generally, procedural due process 

requires parties whose rights are to be affected by a proceeding to be 

given timely notice, which is reasonably calculated to inform the person 

concerning the subject and issues involved in the proceeding; a reasonable opportunity to refute or defend against a charge or accusation; a 

reasonable opportunity to confront and cross-examine adverse witnesses 

and present evidence on the charge or accusation; representation by 

counsel, when such representation is required by constitution or statute; 

and a hearing before an impartial decisionmaker.

7. Rules of the Supreme Court: Appeal and Error. Where a party’s brief 

fails to comply with Neb. Ct. R. App. P. § 2-109(D)(1) (rev. 2014), an 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/17/2019 09:07 AM CDT
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D.W. v. A.G.

Cite as 303 Neb. 42

appellate court may proceed as though the party failed to file a brief or, 

alternatively, examine the proceedings for plain error.

8. Appeal and Error. Plain error is error plainly evident from the record 

and of such a nature that to leave it uncorrected would result in damage 

to the integrity, reputation, or fairness of the judicial process.

Appeals from the District Court for Douglas County: Darryl

R. Lowe, County Judge. Judgment in No. S-18-657 reversed, 

and cause remanded with directions. Judgment in No. S-18-658 

affirmed in part, and in part reversed.

Benjamin M. Belmont and Wm. Oliver Jenkins, of Brodkey, 

Peebles, Belmont & Line, L.L.P., for appellant.

Joseph P. Naatz, of Kreikemeier Law, L.L.C., for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Papik, J.

Based on an allegation that A.G. sexually assaulted her, 

D.W. sought and obtained an ex parte sexual assault protection 

order against him. A.G. requested a show cause hearing on 

whether the sexual assault protection order should remain in 

effect, at which he denied D.W.’s allegations. After the close 

of evidence at the hearing, the trial court stated that the sexual 

assault protection order would not remain in effect, but that 

it would enter a protection order. The trial court subsequently 

dismissed the sexual assault protection order and, after sua 

sponte filing D.W.’s original petition and affidavit under a 

new case number, entered a harassment protection order in 

that case.

A.G. appeals the entry of the harassment protection order, 

and D.W. cross-appeals the order dismissing the sexual assault 

protection order. We find no basis to reverse the dismissal of 

the sexual assault protection order, but find that the entry of 

the harassment protection order violated A.G.’s right to procedural due process. Accordingly, we affirm in part, and in part 
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reverse and remand with directions to vacate the harassment 

protection order.

BACKGROUND

D.W.’s Initial Petition.

D.W. commenced this action by filing a petition and affidavit 

to obtain a sexual assault protection order against A.G. under 

Neb. Rev. Stat. § 28-311.11 (Cum. Supp. 2018). According to 

D.W.’s affidavit, on the night of October 18, 2017, after she 

spent an evening drinking with friends and acquaintances, 

including A.G., he had sexual intercourse with her when she 

was “incapacitated and not able to give consent.” She alleged 

that A.G. made sexual advances toward her at a bar and that 

after leaving the bar, he went with D.W. to her apartment and 

continued to make advances. She stated that she went to her 

bed, intending to go to sleep, but that her next memory was of 

being sexually penetrated by A.G.

D.W. further alleged that since the incident, A.G. had violated contact restrictions imposed by the university where they 

both attended and that his presence on campus was “interfering 

with [her] educational experience.” D.W. stated that A.G. had 

not shown “consideration for [her] feelings or what he did to 

[her].” She said she was “in fear that he will continue to harass 

[her] by his actions.”

The matter was assigned to a county court judge, pursuant to § 28-311.11(3) and Neb. Rev. Stat. § 25-2740(2) (Cum. 

Supp. 2018).

Ex Parte Sexual Assault Protection Order.

After D.W. filed her petition and affidavit, the trial court 

issued an ex parte sexual assault protection order. It enjoined 

A.G. from imposing any restraint on D.W.’s person or liberty; 

harassing, threatening, assaulting, molesting, attacking, or otherwise disturbing the peace of D.W.; and having any contact 

or communication with D.W.

A.G. requested a show cause hearing on the matter.
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Show Cause Hearing.

The trial court conducted a show cause hearing at which 

both D.W. and A.G. presented evidence and argument. The evidence consisted of testimony and photographs. D.W.’s petition 

and affidavit were not offered into evidence.

According to the evidence introduced at the show cause 

hearing, the events at issue occurred in the early morning hours 

of October 19, 2017. At that time, D.W. was an undergraduate 

student. D.W. testified that the day before was her 21st birthday and that she engaged in extensive drinking over the course 

of that day. She consumed several bottles of a malt beverage 

that afternoon and continued to drink when several friends 

and acquaintances, including A.G., came over to her apartment that evening. The group later went to and returned from 

a restaurant. D.W. and others in the group continued to drink 

at both locations.

Eventually, some members of the group, including both 

D.W. and A.G., went to a bar. D.W. testified that while at the 

bar, she engaged in “mutual flirtation” with A.G. and others, 

but that, after a certain point, she had no further memories of 

the time at the bar. She testified that her next memory after 

being at the bar was of having sexual intercourse with A.G. at 

her apartment. She testified that she did not recall consenting 

to the sexual intercourse.

A.G. testified that D.W. was aggressively flirting with him 

at the bar. He testified that while riding from the bar, D.W. was 

holding his hand, and that when they arrived at her apartment, 

she invited him to her room. He testified that D.W. appeared 

coherent when she invited him in. A.G. also testified that as 

they were walking to D.W.’s room, she told him that if he 

wanted to “‘hook up,’” which he assumed to mean sex, he had 

to promise not to tell her boyfriend.

As D.W. and A.G. approached D.W.’s apartment, they 

encountered an acquaintance. Surveillance photographs introduced into evidence capture D.W. and A.G. talking to this 

acquaintance, who testified that during his brief interaction 
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D.W. v. A.G.

Cite as 303 Neb. 42

with D.W. and A.G., D.W. appeared coherent and steady on 

her feet and was not slurring her words. He acknowledged 

that he could tell that D.W. and A.G. had been drinking, but 

that they appeared happy and that he did not suspect anything 

was wrong or out of the ordinary. The acquaintance testified 

that D.W. did not seem tired, exhausted, or almost ready to 

pass out.

A.G. testified that he and D.W. began kissing and touching 

each other as soon as they entered her apartment. He testified 

that D.W. then invited him into her bedroom and that they 

“had sex.”

A.G. testified that during the entire evening, D.W. never 

appeared incoherent and she did not stumble or fall down. 

He testified that he never had any reason to believe D.W. was 

unable to give consent.

Trial Court’s Rulings.

After the close of evidence at the show cause hearing, the 

trial court stated that it would not leave the sexual assault 

protection order in place. It explained that it could not find 

that there was a lack of consent. The trial court also focused 

on the acquaintance’s testimony and noted that it found him 

to be the most credible of all the witnesses. The trial court 

described his testimony that D.W. did not appear to be incoherent or unsteady prior to entering her apartment with A.G. 

as the “key element.”

But while the trial court made clear it would not leave the 

sexual assault protection order in place, it said it would enter 

a protection order. The trial court made some references to 

D.W.’s fear of A.G., but did not specify what type of protection 

order it planned to enter.

Two days after the show cause hearing, D.W.’s initial petition and affidavit for a sexual assault protection order were 

refiled under a new case number. Although not reflected in the 

record on appeal, the parties agree that the trial court refiled 

the petition and affidavit under a new case number sua sponte. 
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On the same day, June 8, 2018, the trial court issued a harassment protection order in the newly filed case. That order stated 

that the parties had been present at a hearing with counsel 

and that the court found a harassment protection order should 

be issued. It imposed the same restrictions as the previous ex 

parte sexual assault protection order.

Three days later, on June 11, 2018, the trial court entered an 

order in the original case, dismissing the sexual assault protection order because it was not supported by sufficient evidence. 

The order stated that sufficient evidence was adduced to merit 

a harassment protection order.

A.G. appealed both the harassment protection order in the 

newly filed case and the order finding that sufficient evidence 

was adduced to merit a harassment protection order in the 

original case. D.W. cross-appealed.

ASSIGNMENTS OF ERROR

With regard to the entry of the harassment protection order, 

A.G. assigns the following errors: (1) the trial court lacked 

subject matter jurisdiction to enter it, (2) it was entered in 

violation of his right to procedural due process, (3) it was not 

supported by the evidence, and (4) the trial court improperly 

acted as an advocate in entering it.

D.W. filed a cross-appeal, but her brief does not include a 

separate section assigning error.

STANDARD OF REVIEW

[1,2] A protection order is analogous to an injunction. 

Mahmood v. Mahmud, 279 Neb. 390, 778 N.W.2d 426 (2010). 

Accordingly, the grant or denial of a protection order is 

reviewed de novo on the record. Id. In such a 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 
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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).

[3] Subject matter jurisdiction is a question of law for the 

court, which requires an appellate court to reach a conclusion independent of the lower court’s decision. Mahmood v. 

Mahmud, supra.

ANALYSIS

Subject Matter Jurisdiction.

We begin, as we must, with A.G.’s argument that the trial 

court did not have subject matter jurisdiction to enter the 

harassment protection order. He argues that the trial court did 

not have jurisdiction to enter a harassment protection order 

because D.W. did not seek one.

[4] While we find that the trial court’s entry of a harassment 

protection order is problematic for reasons discussed in greater 

detail below, we do not believe the trial court lacked subject 

matter jurisdiction to enter it. Subject matter jurisdiction is the 

power of a tribunal to hear and determine a case in the general 

class or category to which the proceedings in question belong 

and to deal with the general subject matter involved. Village at 

North Platte v. Lincoln Cty. Bd. of Equal., 292 Neb. 533, 873 

N.W.2d 201 (2016). Because the trial court had the authority to hear and determine cases regarding harassment protection orders, the court did not lack subject matter jurisdiction 

to enter the harassment protection order. See Neb. Rev. Stat. 

§ 28-311.09 (Reissue 2016).

Procedural Due Process.

In addition to arguing that the trial court lacked jurisdiction, 

A.G. argues that for several reasons, the entry of the harassment protection order was erroneous. We now turn to those 

arguments, beginning with his claim that the trial court violated 

his right to due process when it entered the harassment protection order. Here, we agree with A.G.
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[5,6] While the concept of due process defies precise definition, it embodies and requires fundamental fairness. Zahl 

v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007). Generally, 

procedural due process requires parties whose rights are to be 

affected by a proceeding to be given timely notice, which is 

reasonably calculated to inform the person concerning the subject and issues involved in the proceeding; a reasonable opportunity to refute or defend against a charge or accusation; a 

reasonable opportunity to confront and cross-examine adverse 

witnesses and present evidence on the charge or accusation; 

representation by counsel, when such representation is required 

by constitution or statute; and a hearing before an impartial 

decisionmaker. Id.

When it comes to protection orders, we have recognized 

that because the intrusion on the respondent’s liberty interests 

is relatively limited, “the procedural due process afforded in a 

harassment protection hearing is likewise limited.” Mahmood 

v. Mahmud, 279 Neb. 390, 397, 778 N.W.2d 426, 432 (2010). 

But while the procedures required in a harassment protection 

order proceeding may not “reflect the full panoply of procedures common to civil trials,” we have held that due process 

does impose some basic requirements. Id. at 398, 778 N.W.2d 

at 433. For example, we have held that testimony at a show 

cause hearing in a protection order proceeding must be under 

oath and documents must be admitted into evidence before 

being considered. See id.

We further discussed procedural due process requirements 

in protection order proceedings in Linda N. v. William N., 

289 Neb. 607, 856 N.W.2d 436 (2014). In that case, we 

reversed the entry of a domestic abuse protection order upon 

the respondent’s appeal. The petitioner also filed a cross-appeal 

and argued, for the first time on appeal, that a harassment 

protection order was warranted. We rejected the petitioner’s 

argument for a number of reasons. In doing so, we discussed 

and distinguished Sherman v. Sherman, 18 Neb. App. 342, 781 

N.W.2d 615 (2010), a Nebraska Court of Appeals decision.
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In Sherman, the court held that when a trial court is presented with a case in which a petitioner seeks a domestic abuse 

protection order but the evidence would only support a harassment protection order, the judge should explain the requirements for both types of protection orders, allow the petitioner 

to choose which theory to pursue, and, grant the respondent a 

continuance, if requested. We explained in Linda N. that the 

procedure outlined in Sherman allowed a petitioner to elect 

to change theories, but that “[t]he change must be initiated 

before the trial court makes a final decision.” Linda N., 289 

Neb. at 619, 856 N.W.2d at 446. We further observed that the 

procedure outlined in Sherman protected the due process rights 

of both parties “by trying the case only on the theory elected 

by the petitioner.” Linda N., 289 Neb. at 618, 856 N.W.2d at 

446. Conversely, we said that to allow a petitioner to change 

the theory on which a protection order was sought on appeal 

would violate due process.

Inherent in both Linda N. and Sherman is a recognition that 

a respondent in a protection order proceeding must be notified of the grounds upon which a protection order is sought 

and provided with an opportunity to respond to those grounds 

at the show cause hearing. This should come as no surprise. 

Notice and an opportunity to be heard are, after all, basic 

requirements of procedural due process. See, e.g., Cleveland 

Board of Education v. Loudermill, 470 U.S. 532, 546, 105 S. 

Ct. 1487, 84 L. Ed. 2d 494 (1985) (“[t]he essential requirements of due process . . . are notice and an opportunity to 

respond”); Fuentes v. Shevin, 407 U.S. 67, 80, 92 S. Ct. 1983, 

32 L. Ed. 2d 556 (1972) (“[f]or more than a century the central 

meaning of procedural due process has been clear: ‘Parties 

whose rights are to be affected are entitled to be heard; and 

in order that they may enjoy that right they must first be notified’”) (quoting Baldwin v. Hale, 68 U.S. (1 Wall.) 223, 17 L. 

Ed. 531 (1863)).

In this case, we conclude that A.G. was not provided with 

sufficient notice and an opportunity to be heard regarding a 
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harassment protection order. D.W.’s initial petition sought a 

sexual assault protection order. She submitted a form petition 

for a sexual assault protection order, which asked her to list 

the date, time, and a description of the alleged sexual assault. 

On a page attached to the petition, D.W. alleged that A.G. 

sexually assaulted her. The trial court thereafter entered an ex 

parte sexual assault protection order. A.G. requested a show 

cause hearing on whether the sexual assault protection order 

should remain in place. At that hearing, both parties focused 

on whether a sexual assault had occurred. At no time did D.W. 

request that a harassment protection order be entered or make 

allegations sufficient to give A.G. fair notice that she sought 

such an order. And at oral argument, D.W.’s counsel could not 

identify any evidence introduced at the show cause hearing that 

tended to show that A.G. harassed D.W.

Despite all this, the trial court apparently saw some basis 

for a harassment protection order. That the trial court seems 

to have brought up the harassment protection order on its own 

initiative raises questions of its own. See Sherman v. Sherman, 

18 Neb. App. 342, 781 N.W.2d 615 (2010) (holding that by 

electing which theory to pursue, rather than allowing petitioner 

to make choice, trial judge crossed line into advocacy). But 

even if the source of the harassment protection order theory is 

set to the side, the late hour at which the theory was raised—

after the close of evidence—presents a procedural due process 

problem. A.G. requested a show cause hearing as to whether 

a sexual assault protection order should remain in effect. By 

the time that A.G. learned that a harassment protection order 

was under consideration, he no longer had the opportunity 

to present a case to the trial court that such an order was 

not warranted.

In this respect, the procedure followed in this case is not 

meaningfully different from the procedure we found to be 

inconsistent with procedural due process in Linda N. v. William 

N., 289 Neb. 607, 856 N.W.2d 436 (2014). Whether a new 

theory for a protection order is asserted for the first time on 
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appeal or after the close of evidence at the show cause hearing, the respondent does not have an opportunity to defend 

against the entry of the protection order on the new theory and 

is denied procedural due process.

The trial court appears to have correctly sensed that there 

was something standing in the way of its entering a harassment 

protection order in the case filed by D.W. We can discern no 

other reason why the trial court would take the puzzling step 

of sua sponte refiling D.W.’s initial petition under a new case 

number and then entering the harassment protection order in 

that case. The trial court’s sua sponte refiling of D.W.’s petition 

in a new case was hardly capable, however, of remedying the 

due process problem outlined above.

Because the entry of the harassment protection order did not 

comply with procedural due process, we reverse it, and remand 

the cause with directions to vacate it. Because we reverse the 

harassment protection order on these grounds, we decline to 

consider A.G.’s remaining assignments of error.

D.W.’s Cross-Appeal.

[7,8] As noted above, D.W.’s brief in support of her crossappeal does not include a separate section assigning error. It 

does include a heading in the argument section of her brief 

stating: “The trial court erred in dismissing the sexual assault 

protection order agai[ns]t the appellant.” Brief for appellee 

on cross-appeal at 20. We have held, however, that headings 

in the argument section of a brief do not satisfy the requirements of Neb. Ct. R. App. P. § 2-109(D)(1) (rev. 2014). See, 

e.g., In re Interest of Samantha L. & Jasmine L., 286 Neb. 

778, 839 N.W.2d 265 (2013). Where a party’s brief fails 

to comply with § 2-109(D)(1), we may proceed as though 

the party failed to file a brief or, alternatively, examine the 

proceedings for plain error. See Estate of Schluntz v. Lower 

Republican NRD, 300 Neb. 582, 915 N.W.2d 427 (2018). 

Plain error is error plainly evident from the record and of 

such a nature that to leave it uncorrected would result in 
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damage to the integrity, reputation, or fairness of the judicial 

process. Id.

Despite D.W.’s failure to assign error in the manner contemplated by our rules, the basis for her cross-appeal can be 

discerned: She contends that the trial court erred by dismissing 

the sexual assault protection order against A.G. For reasons we 

will explain, we cannot say that the trial court plainly erred 

when it dismissed the sexual assault protection order.

Courts may grant sexual assault protection orders to victims 

of sexual assault offenses. § 28-311.11(1). The relevant statute 

defines sexual assault offenses by referencing various other 

statutes. Section 28-311.11 provides:

(12) For purposes of this section, sexual assault offense 

means:

(a) Conduct amounting to sexual assault under section 

28-319 or 28-320 or sexual assault of a child under section 28-319.01 or 28-320.01 or an attempt to commit any 

of such offenses; or

(b) Subjecting or attempting to subject another person 

to sexual contact or sexual penetration without his or her 

consent, as such terms are defined in section 28-318.

Neb. Rev. Stat. § 28-319(1) (Reissue 2016) states that first 

degree sexual assault occurs when any person subjects another 

person to sexual penetration either without consent of the 

victim or when the person knew or should have known that 

“the victim was mentally or physically incapable of resisting 

or appraising the nature of his or her conduct” (or under other 

circumstances not relevant here).

D.W. contends that the evidence showed either that she was 

subjected to sexual penetration without consent or that she was 

mentally or physically incapable of resisting or appraising the 

nature of her conduct. While A.G. admitted that he engaged in 

sexual activity with D.W., he maintained that all such activity 

was consensual and that D.W. appeared physically and mentally capable of providing consent.
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The evidence at the show cause hearing on whether consent was provided and whether D.W. was capable of providing consent was, at a minimum, disputed. D.W. admitted to 

mutual flirtation between herself and A.G. at the bar, but testified that her next memory was of being sexually penetrated 

by A.G. in her apartment. She testified that she did not recall 

consenting to sexual intercourse with him. A.G. testified that 

D.W. was not incoherent or stumbling when they returned to 

her apartment; that she told him that if they “‘hook[ed] up,’” 

he had to promise not to tell her boyfriend; and that D.W. 

was a willing participant in the sexual activity. In addition, 

the acquaintance testified that just prior to entering her apartment, D.W. did not seem tired, exhausted, or almost ready to 

pass out.

After hearing all of this evidence, the trial court explained 

its decision not to enter a sexual assault protection order. It 

stated that it could not find a lack of consent. It also noted 

that it found the acquaintance to be credible and described his 

testimony regarding D.W.’s condition just prior to entering 

her apartment as the “key element.” Because the evidence on 

whether a sexual assault occurred was, at the very least, conflicting and required the trial court to make credibility determinations of witnesses, we cannot say that the trial judge committed plain error by vacating the sexual assault protection order. 

See Maria A. on behalf of Leslie G. v. Oscar G., 301 Neb. 

673, 678, 919 N.W.2d 841, 846 (2018) (“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”).

CONCLUSION

We find that the trial court violated A.G.’s right to procedural due process by entering a harassment protection order 

without providing sufficient notice and an opportunity to 

be heard. We therefore reverse the June 8, 2018, order that 
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issued the harassment protection order, as well as the June 11 

order to the extent that it found evidence sufficient to merit 

a harassment protection order. We remand the cause with 

directions to vacate the harassment protection order. We find 

no plain error in the trial court’s order dismissing the sexual 

assault protection order, and we therefore affirm that portion 

of the June 11 order.

Judgment in No. S-18-657 reversed, and

cause remanded with directions.

Judgment in No. S-18-658 affirmed in

part, and in part reversed.