Nebraska Advance Sheets

TORRES v. MORALES 587

Cite as 287 Neb. 587

Orfa I. Torres, appellant, v. 

Benjamin H. Morales, appellee.

___ N.W.2d ___

Filed March 7, 2014. No. S-13-106.

1. Injunction: Judgments: Appeal and Error. A protection order pursuant to Neb. 

Rev. Stat. § 42-924 (Cum. Supp. 2012) 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.

2. Constitutional Law: Judgments. Because the intrusion on a respondent’s liberty 

interests is limited, the procedural due process afforded in a protection order 

hearing is likewise limited.

3. Judges. A judge must be careful not to appear to act in the dual capacity of judge 

and advocate.

4. Judges: Trial. A judge must be impartial, his or her official conduct must be free 

from even the appearance of impropriety, and a judge’s undue interference in a 

trial may tend to prevent the proper presentation of the cause of action.

5. Judges: Recusal: Presumptions. A party alleging that a judge acted with bias 

or prejudice bears a heavy burden of overcoming the presumption of judicial impartiality.

Appeal from the District Court for Lancaster County: Steven

D. Burns, Judge. Affirmed in part, and in part reversed.

Mark T. Bestul, of Legal Aid of Nebraska, for appellant.

No appearance for appellee.

Wright, Connolly, Stephan, McCormack, Miller-Lerman, 

and Cassel, JJ.

Per Curiam.

INTRODUCTION

Orfa I. Torres sought a domestic abuse protection order 

against Benjamin H. Morales. After a show cause hearing, the 

district court dismissed the case and taxed the costs to Torres. 

Torres appeals. We affirm in part, and in part reverse.

BACKGROUND

The Protection from Domestic Abuse Act, Neb. Rev. Stat. 

§ 42-901 et seq. (Reissue 2008 & Cum. Supp. 2012), permits 
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588 287 NEBRASKA REPORTS

a victim of domestic abuse to file a petition and affidavit seeking a protection order pursuant to § 42-924.

On January 7, 2013, Torres applied for a protection order 

against her boyfriend, Morales. Torres described three incidents that she felt warranted the protection order. The district 

court issued an order to show cause. On January 17, the court 

held a show cause hearing. Torres appeared with counsel; 

Morales appeared pro se. The district court judge first called 

Torres to the witness stand and questioned her regarding the 

incidents cited in her affidavit.

The first incident Torres described involved an allegedly 

intoxicated Morales yelling at Torres and her son on Christmas 

Eve of 2012. Torres testified that after their disagreement, she 

tried to retrieve her things from Morales’ grandparents’ home 

where they had been visiting, but that Morales blocked her 

in the hallway. Torres pushed Morales, and Morales grabbed 

Torres’ shirt, causing her to fall on top of him. Torres then spit 

on Morales.

The second incident took place approximately 11⁄2 weeks 

after the first. Torres described the incident generally as 

Morales’ constantly yelling and calling her names while she 

tried to avoid him.

The final incident cited by Torres occurred approximately 

a year prior to the first incident, when Torres was 3 months’ 

pregnant. Torres testified that Morales had been drinking alcohol and that the pair had been arguing. Morales attempted to 

leave, and, concerned about him driving while intoxicated, 

Torres came up behind him and held the door closed with her 

hand. Morales fell backward, on top of Torres. Torres testified 

that Morales elbowed her in her ribs, so she bit him. Concerned 

about her pregnancy, Torres went to the emergency room the 

next morning.

When Torres finished describing the three incidents, the 

judge called Morales to testify and asked him about the same 

incidents. Morales recalled the first two events similarly but 

stated that he was not drinking during the second incident.

At one point during his testimony, Morales admitted, “We 

have a lot of verbal arguments, and, you know, this might 

be a good thing for both of us, this order to go in effect.” 
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TORRES v. MORALES 589

Cite as 287 Neb. 587

The court then asked Morales whether he was opposing the 

order. Morales said that he was not. The court asked Morales 

if he understood the consequences of the court’s issuing 

the order, and Morales asked what the consequences were. 

The court listed potential legal consequences, including a 

prohibition on possessing weapons and a potential effect on 

future child custody issues. Morales expressed concern that 

the protection order could possibly affect his job. The court 

then asked Morales to continue giving his version of the 

alleged incidents.

Morales described the third incident similarly as well, but 

stated that he did not recall elbowing Torres and was only 

pushing her so that he could get out the door to leave.

When Morales finished testifying, the court vacated its 

order to show cause and dismissed the case. In its written 

order, the court required Torres to pay the costs of the action. 

Torres appeals.

ASSIGNMENTS OF ERROR

Torres assigns, reordered, the following errors of the district 

court: (1) taxing the costs of the protection order to her without making findings by clear and convincing evidence that the 

statements in the petition and affidavit were false and that the 

order was sought in bad faith; (2) not allowing her counsel to 

participate in the proceedings, question Torres, or present any 

additional evidence; (3) not allowing her counsel to crossexamine Morales; (4) providing legal advice to Morales; (5) 

failing to inquire whether the actions of Morales caused her 

bodily injury or placed her in fear of bodily injury; (6) denying Torres a hearing before an impartial decisionmaker; and (7) 

failing to issue a domestic abuse protection order.

STANDARD OF REVIEW

[1] 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 
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590 287 NEBRASKA REPORTS

the trial judge heard and observed the witnesses and accepted 

one version of the facts rather than another.1

ANALYSIS

Costs of Action.

In Torres’ first assignment of error, she asserts that the district court erred in taxing costs of the action to her without 

making findings by clear and convincing evidence that the 

statements contained in her petition and affidavit were false 

and that the protection order was sought in bad faith.

Section 42-924.01 states in part:

Fees to cover costs associated with the filing of a petition for a protection order or the issuance or service of a 

protection order seeking only the relief provided by the 

Protection from Domestic Abuse Act shall not be charged, 

except that a court may assess such fees and costs if the 

court finds, by clear and convincing evidence, that the 

statements contained in the petition were false and that 

the protection order was sought in bad faith.

In its order dismissing the case, the district court did not state 

that it found the facts stated in Torres’ affidavit to be untrue by 

clear and convincing evidence. Furthermore, because Morales 

described the incidents similarly, our review of the record does 

not support a finding that the facts stated were untrue.

Black’s Law Dictionary defines bad faith as “[d]ishonesty of 

belief or purpose.”2 No evidence was presented suggesting that 

Torres sought the order for any purpose other than protection 

for herself or her children. Morales agreed that the parties often 

did not get along. Even though the district court found the incidents described did not warrant a protection order, it does not 

appear that the order was sought in bad faith.

Without findings that the facts in the affidavit were not true 

or that the order was sought in bad faith, the district court erred 

in taxing the costs of the action to Torres.

1 Elstun v. Elstun, 257 Neb. 820, 600 N.W.2d 835 (1999).

2 Black’s Law Dictionary 159 (9th ed. 2009).
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TORRES v. MORALES 591

Cite as 287 Neb. 587

Participation of Counsel.

In Torres’ second and third assignments of error, she asserts 

that the court erred in not allowing her counsel to participate 

in the proceedings, ask questions of either party, or present any 

additional evidence.

[2] We have said that because the intrusion on a respondent’s 

liberty interests is limited, the procedural due process afforded 

in a protection order hearing is likewise limited.3

In Elstun v. Elstun,

4

 the trial court explicitly denied requests 

from counsel for the opposing party to question his client and 

cross-examine the appellant during a show cause hearing for 

a protection order. In that case, we quoted Neb. Rev. Stat. 

§ 27-614(1) (Reissue 2008), which states that “[t]he judge 

may, on his own motion or at the suggestion of a party, 

call witnesses, and all parties are entitled to cross-examine 

witnesses thus called.” We therefore found the appellant’s 

statutory right to cross-examine the witnesses had been violated. Similarly, in Hronek v. Brosnan,

5

 the Nebraska Court 

of Appeals found the appellant’s due process rights were 

violated when the court made a blanket statement that it 

was not going to allow counsel to examine or cross-examine 

witnesses.

In this case, there was no request by either party to question 

either witness or present additional evidence. Without such a 

request, or any indication from the court that such a request 

would be denied, we cannot find that Torres’ right to crossexamine Morales was violated.

The district court did not err by questioning Torres and 

Morales at the hearing, and absent a request from counsel 

to participate in the hearing, the court did err in not permitting Torres’ counsel to question Morales or present additional evidence.

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

Hronek v. Brosnan, 20 Neb. App. 200, 823 N.W.2d 204 (2012).

4 Elstun, supra note 1.

5 Hronek, supra note 3.
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Advising Pro Se Litigant.

In Torres’ fourth assignment of error, she asserts that the 

district court erred in providing legal advice to Morales.

[3] We have held that “[a] judge must be careful not to 

appear to act in the dual capacity of judge and advocate.”6

Torres argues that when Morales stated the protection order 

might be a good idea and that the court advised Morales of the 

consequences of having a protection order issued, “[t]he court 

seemed to advocate that [Morales] change his mind . . . .”7

In Sherman v. Sherman,

8

 the Court of Appeals addressed 

the trial judge’s actions regarding a pro se petitioner. In that 

case, the petitioner applied for a domestic abuse protection 

order, but at the hearing, the court, sua sponte, asked the bailiff 

to retrieve a harassment protection order and stated that the 

petitioner wanted to amend her petition. The Court of Appeals 

held that

when presented with a situation in which an ex parte 

domestic abuse protection order has been entered, but 

at the hearing, it becomes apparent that the matter may 

more properly be considered as a harassment protection 

order, the judge should explain the requirements for both 

domestic abuse and harassment protection orders and 

allow the petitioner to choose which theory to pursue.9

Similarly, there are times when trial judges must inform a party 

of the legal consequences of an order without directing the 

party’s decision.

In this case, the court did not tell Morales whether to contest the protection order, it simply advised him of the consequences of the order. Torres’ fourth assignment of error is 

without merit.

6 Jim’s, Inc. v. Willman, 247 Neb. 430, 434, 527 N.W.2d 626, 630 (1995), 

disapproved on other grounds, Gibilisco v. Gibilisco, 263 Neb. 27, 637 

N.W.2d 898 (2002).

7 Brief for appellant at 17.

8 Sherman v. Sherman, 18 Neb. App. 342, 781 N.W.2d 615 (2010).

9 Id. at 347, 781 N.W.2d at 620.
Nebraska Advance Sheets

TORRES v. MORALES 593

Cite as 287 Neb. 587

Questions From Court.

In Torres’ fifth assignment of error, she asserts that the 

district court erred in failing to inquire whether the actions 

of Morales caused her bodily injury or placed her in fear of 

bodily injury.

Under § 42-903(1), for the order to be issued, Torres needed 

to prove that Morales had subjected her to domestic abuse, 

defined as one or more of the following between 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[.]”

The judge told Torres he was going to allow both witnesses 

an opportunity to give their side of the story for each of the 

incidents provided in the petition and affidavit. Aside from a 

few clarification questions, the judge allowed Torres to provide 

a narrative of each of the events. The judge similarly allowed 

Morales to provide a narrative of the events.

At one point, the judge asked Morales, “So on January 5th, 

I take it — I haven’t heard from either one of you that there 

was any physical contact or threats of any nature made by 

anybody?” Even upon hearing this statement, Torres’ counsel did not ask the court if he could question either Torres 

or Morales.

Torres does not cite any legal authority for the proposition that the judge was required to ask any certain question, rather than to allow her to provide, in narrative form, 

details for the events she felt warranted the order. Torres’ 

counsel did not ask the court if he could ask additional 

questions of Torres. Furthermore, the questions suggested in 

Torres’ brief—whether Torres was injured or placed in fear of 

injury—would not have been sufficient to warrant a protection 

order under § 42-903, because that section requires intentional 

injury or credible threats. Torres’ fifth assignment of error is 

without merit.
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Impartial Decisionmaker.

In Torres’ sixth assignment of error, she argues that the totality of this case—questioning by the judge, advising Morales, 

failing to ask whether Torres was injured or put in fear of 

bodily injury, and taxing costs to Torres—indicates that Torres 

was denied an impartial decisionmaker.

[4,5] We have held, “[a] judge must be impartial, his or 

her official conduct must be free from even the appearance 

of impropriety, and a judge’s undue interference in a trial 

may tend to prevent the proper presentation of the cause of 

action.”10 “[A] party alleging that a judge acted with bias or 

prejudice bears a heavy burden of overcoming th[e] presumption [of judicial impartiality].”11

Our analyses of the other assignments of error in this case 

do not support a finding of partiality. The judge had statutorily 

granted discretion to elect to question witnesses, and counsel 

did not request leave to ask any additional questions. The 

judge informed Morales of the legal consequences of the order 

without telling him how he should proceed in the case. The 

judge asked Torres to describe the events she felt warranted 

a protection order and was not required to ask whether she 

was injured or put in fear of bodily injury. Although the judge 

improperly taxed costs to Torres, this alone is not enough to 

overcome a presumption of impartiality. Torres’ sixth assignment of error is without merit.

Protection Order.

In Torres’ seventh assignment of error, she asserts that the 

district court erred in failing to issue a domestic abuse protection order based on the evidence presented in the case.

We have stated that even on de novo review, where 

the credible evidence is in conflict on a material issue of 

fact, the appellate court considers and may give weight to 

10 Jim’s, Inc. v. Willman, supra note 6, 247 Neb. at 434, 527 N.W.2d at 630.

11 In re Interest of Jamyia M., 281 Neb. 964, 976, 800 N.W.2d 259, 268-69 

(2011).
Nebraska Advance Sheets

SOURCEGAS DISTRIB. v. CITY OF HASTINGS 595

Cite as 287 Neb. 595

the circumstances that the trial judge heard and observed 

the witnesses and accepted one version of the facts rather 

than another.12

For the order to be issued, Torres would have needed to 

provide at least some evidence of abuse as defined under 

§ 42-903(1). Based on her own testimony, the only bodily harm 

inflicted on Torres was what appears to have been an accidental elbowing—this certainly falls short of the “intentionally and 

knowingly” requirement of subsection (1)(a). Torres did not 

present any evidence that Morales threatened her as required 

by subsection (1)(b). And, finally, Torres did not present any 

evidence of any nonconsensual sexual contact as required by 

subsection (1)(c).

The district court did not err in failing to issue the protection order.

CONCLUSION

For the foregoing reasons, the order dismissing the cause is 

affirmed, but the portion of the order requiring Torres to pay 

the costs of the action is reversed.

Affirmed in part, and in part reversed.

Heavican, C.J., participating on briefs.

12 Elstun, supra note 1.

SourceGas Distribution LLC, a Delaware limited

liability company, appellant, v. City of Hastings, 

Nebraska, a municipal corporation, for and

on behalf of the board of public works

of the City of Hastings, appellee.

___ N.W.2d ___

Filed March 7, 2014. No. S-13-239.

1. Statutes: Appeal and Error. Statutory interpretation presents a question of law 

that an appellate court independently reviews.

2. ____: ____. Absent anything to the contrary, an appellate court will give statutory 

language its plain and ordinary meaning.