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KUDERA V. BELINA

Cite as 32 Neb. App. 133

Brandy M. Kudera and T.S.K., appellees, 

v. Travis Belina, appellant.

___ N.W.2d ___

Filed July 25, 2023. No. A-22-787.

1. Protection Orders: Appeal and Error. 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.

2. Protection Orders. A show cause hearing in protection order proceedings is a contested factual hearing, in which the issues before the court 

are whether the facts stated in the sworn application are true.

3. Injunction: Proof. A party seeking an injunction must establish by 

a preponderance of the evidence every controverted fact necessary to 

entitle the claimant to relief.

4. Criminal Law: Statutes. Nebraska’s stalking and harassment statutes 

are given an objective construction, and the victim’s experience resulting from the perpetrator’s conduct should be assessed on an objective basis.

Appeal from the District Court for Madison County: Donna 

F. Taylor, County Judge. Reversed and remanded with 

directions.

Eric M. Hagen, of Berry Law Firm, for appellant.

Brandy M. Kudera, pro se.

Pirtle, Chief Judge, and Moore and Riedmann, Judges.

Riedmann, Judge.

INTRODUCTION

Travis Belina appeals from a harassment protection order 

entered by the Madison County District Court sought by 

Nebraska Supreme Court Online Library

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

07/25/2023 08:06 AM CDT
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KUDERA V. BELINA

Cite as 32 Neb. App. 133

Brandy M. Kudera on behalf of her minor son, T.S.K. We find 

that there was insufficient evidence to support continuing the 

harassment protection order and, therefore, reverse the order 

of the district court and remand the cause with directions to 

vacate the protection order.

BACKGROUND

On September 28, 2022, Kudera filed a petition and affidavit 

to obtain a harassment protection order against Belina for her 

and her son, T.S.K., who was 15 years old. Kudera described 

the “dates and facts of the most recent series of acts and the 

most severe incident or incident(s) of harassment toward the 

person(s) seeking protection” as follows:

Since [Belina] has been arrested there has been phone and 

in person contact with [T.S.K.] where he has “promised” 

him certain things. Due to the nature of this case and the 

fact my son is a minor, and the ongoing criminal case 

against [Belina], I do not want the in person and phone 

contact to continue as it could affect [T.S.K.] and the 

court case.

The district court granted an ex parte harassment protection 

order in which T.S.K. was identified as the only protected person. In the district court’s order, it provided Belina the opportunity to request a hearing to show cause why the order should 

not remain in effect for a period of 1 year. Belina requested a 

show cause hearing.

At the show cause hearing, Kudera testified that the allegations in the affidavit were true. The petition and affidavit 

were then admitted into evidence. Kudera testified that T.S.K. 

worked for Belina at a feedlot for roughly 1 year and that 

T.S.K. and Belina had regular phone and in-person contact 

for roughly 11⁄2 years. T.S.K. initially stopped working at 

the feedlot in February 2022, but was allowed to work “on 

and off” until June. Since that time, Kudera became aware 

that T.S.K. and Belina maintained contact. Kudera believed 

that after T.S.K. stopped working for Belina, Belina tried to 
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KUDERA V. BELINA

Cite as 32 Neb. App. 133

coerce T.S.K. to return to work for him. However, Kudera 

conceded that since Belina was arrested, T.S.K. and Belina 

had both initiated conversations with the other.

Kudera explained her reasoning for seeking the harassment 

protection order. She testified that she believed T.S.K. had 

worked in unsafe conditions without proper supervision when 

he was working for Belina. When T.S.K. worked for Belina, 

T.S.K. had issues with his grades and conduct at school, and 

there were two incidents when T.S.K. consumed alcohol while 

at the feedlot. Additionally, T.S.K. was a potential witness 

in a criminal case in which Belina was the defendant, which 

Kudera believed could negatively impact T.S.K. at school and 

with other children. She concluded by stating that the “open 

dialogue, being able — for those two being able to talk is putting [T.S.K.] in an unfair situation for the age that he is.”

After Kudera’s testimony, she rested. Belina moved to dismiss the harassment protection order. He argued that Kudera 

had not established a course of conduct that would seriously 

terrify, threaten, or intimidate a person, which is required 

for a harassment protection order. He disputed whether any 

of Kudera’s testimony was relevant because Belina was not 

conversing with her and her testimony only addressed the 

fact that T.S.K. and Belina were communicating, which does 

not amount to harassment alone. The district court overruled 

Belina’s motion to dismiss the harassment protection order 

for T.S.K.

Kudera was then recalled by Belina’s counsel. Belina’s 

counsel showed Kudera some screenshots of text message 

exchanges between T.S.K. and Belina but they were not offered 

into evidence. Kudera stated that the text messages between 

Belina and T.S.K. were “intimidating more than anything.” 

However, after Kudera was asked which text messages were 

intimidating, she discussed only her distaste that Belina, who 

was 25 years old, was befriending her son, who was 15 

years old, instead of maintaining a healthy employee-employer 
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KUDERA V. BELINA

Cite as 32 Neb. App. 133

relationship. She did not convey the content of any message 

she found intimidating.

Kudera cited an example of when T.S.K. was not allowed 

to work one night because his grades faltered, so T.S.K. texted 

Belina that he was upset with his mother for not allowing him 

to go to work. Kudera found Belina’s response of “‘Just hold 

your head high’” as being too friendly when he should have 

responded by saying “‘Yes, you need to follow the rules.’” 

She conceded that Belina never told T.S.K. not to follow his 

mother’s rules or that she was incorrect; rather, he just said 

“encouraging things.”

Kudera emphasized that Belina had created an inappropriate environment where T.S.K. felt Belina was more of a friend 

than an employer. Furthermore, she testified that Belina often 

reached out to T.S.K. between 8 and 10 p.m. and after Belina 

had been drinking alcohol. Belina subsequently rested.

The court noted that the criminal information filed against 

Belina listed T.S.K. as a potential witness and that it appeared 

Belina was facing serious charges. It stated it was unable to 

locate Belina’s bond conditions that may include a no contact 

order with the witnesses but surmised “that can be taken up in 

the District Court, if necessary.” The court then continued the 

protection order, finding that Belina was “absolutely adamant” 

that he wanted to have contact with T.S.K. “in spite of what his 

mother believes.” It further explained that although Belina may 

not be intending to terrorize T.S.K., it thought Belina “know[s] 

that it has bothered him, it’s causing him problems and so I’m 

going to continue the Protection Order.” Belina appeals.

ASSIGNMENTS OF ERROR

Belina assigns two errors: The district court erred by (1) 

continuing the harassment protection order because the evidence presented was insufficient and (2) continuing the previously issued ex parte harassment protection order after finding 

that one of the material elements was not met and basing the 

continuation on a lower standard than permitted by law.
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KUDERA V. BELINA

Cite as 32 Neb. App. 133

STANDARD OF REVIEW

[1] The grant or denial of a protection order is reviewed de 

novo on the record. Diedra T. v. Justina R., 313 Neb. 417, 984 

N.W.2d 312 (2023). In such de novo review, an appellate court 

reaches conclusions independent of the factual findings of the 

trial court. Id.

ANALYSIS

[2,3] A show cause hearing in protection order proceedings 

is a contested factual hearing, in which the issues before the 

court are whether the facts stated in the sworn application 

are true. Hawkins v. Delgado, 308 Neb. 301, 953 N.W.2d 765 

(2021). A protection order is analogous to an injunction. Id. 

A party seeking an injunction must establish by a preponderance of the evidence every controverted fact necessary to 

entitle the claimant to relief. Id. But the ex parte order does 

not relieve the petitioner of its burden at the show cause hearing. See Prentice v. Steede, 28 Neb. App. 423, 944 N.W.2d 

323 (2020).

Under Neb. Rev. Stat. § 28-311.09(2) (Cum. Supp. 2022), 

a petition for a harassment protection order shall state the 

events and dates or approximate dates of acts constituting the 

alleged harassment, including the most recent and severe incident. Neb. Rev. Stat. § 28-311.02(2)(a) (Reissue 2016) defines 

“[h]arass” as engaging in “knowing and willful course of 

conduct directed at a specific person which seriously terrifies, 

threatens, or intimidates the person and which serves no legitimate purpose.” Section 28-311.02(2)(b) defines “[c]ourse of 

conduct” as a “pattern of conduct composed of a series of acts 

over a period of time, however short, evidencing a continuity 

of purpose, including a series of acts of following, detaining, restraining the personal liberty of, or stalking the person 

or telephoning, contacting, or otherwise communicating with 

the person.”

[4] In analyzing § 28-311.02, the Nebraska Supreme 

Court has concluded that Nebraska’s stalking and harassment 
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KUDERA V. BELINA

Cite as 32 Neb. App. 133

statutes are given an objective construction and that the 

victim’s experience resulting from the perpetrator’s conduct 

should be assessed on an objective basis. See In re Interest 

of Jeffrey K., 273 Neb. 239, 728 N.W.2d 606 (2007). Thus, 

the inquiry is whether a reasonable person would be seriously 

terrified, threatened, or intimidated by the perpetrator’s conduct. See id.

In Prentice v. Steede, supra, this court reversed a district 

court’s order extending a harassment protection order because 

the evidence at the show cause hearing was insufficient to support the harassment protection order. At the show cause hearing, the affidavit and petition were not admitted into evidence, 

so our review was limited to the testimony of the parties. The 

petitioners testified they received text messages that threatened 

to burn down their church and that indicated they were from 

the respondent. The district court relied upon the content of 

the text messages that it had “‘reviewed,’” but those messages 

were not offered into evidence for review by this court. Id. at 

436, 944 N.W.2d at 332. We held that the testimony about the 

text messages was not enough to support a harassment protection order.

While we understand Kudera’s reasoning for requesting 

the harassment protection order, there is nothing in the record 

that shows Belina’s conduct would seriously terrify, threaten, 

or intimidate a reasonable person. No text messages were 

offered into evidence, and Kudera’s testimony is insufficient 

to support a finding that Belina engaged in conduct that would 

terrify, threaten, or intimidate a reasonable person. Kudera 

testified that working for Belina had negatively impacted 

T.S.K.’s grades and that T.S.K. engaged in drinking alcohol at 

Belina’s feedlot. She also discussed some concerning conduct, 

like Belina’s texting T.S.K. at night and after Belina had been 

drinking alcohol, but this conduct does not amount to harassment without more context. When asked at the show cause 

hearing what sorts of intimidating comments Belina made 

toward T.S.K., Kudera discussed only T.S.K.’s disobedient 
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KUDERA V. BELINA

Cite as 32 Neb. App. 133

conduct and that she did not believe Belina respected the rules 

she put in place for T.S.K.

Although Kudera’s testimony centered on the frequency of 

text messages sent between T.S.K. and Belina, no text messages were admitted into evidence. The only text messages 

discussed at the hearing were when T.S.K. asked Belina about 

a tractor Belina promised him and when T.S.K. told Belina 

that he was upset because his mother would not let him 

work at the feedlot. Belina responded, “‘Just hold your head 

high.’” Kudera testified that most of the text messages sent 

between T.S.K. and Belina had been deleted, so there were 

many conversations that she did not know about. And the 

messages that Belina showed Kudera at the hearing were not 

offered into evidence, and their content is not discernible from 

the record.

This case is analogous to Prentice v. Steede, 28 Neb. App. 

423, 944 N.W.2d 323 (2020), as both cases relied only upon 

testimony that discussed text messages broadly between the 

two parties but failed to establish that the text messages 

amounted to harassment. In Prentice, there was discussion 

about text messages threatening to burn down a church, but 

the testimony alone could not meet the petitioners’ burden. 

Here, there were no text messages in the record, so we are 

left to examine the testimony, which fails to set forth either 

the content or the gist of those messages. There is nothing 

in Kudera’s testimony that reveals conduct on the part of 

Belina that was terrifying, threatening, or intimidating to a 

reasonable person, unlike the content of the text messages 

in Prentice v. Steede, supra, which the parties described to 

include violence. Furthermore, Kudera never testified why 

Belina’s text messages were intimidating to T.S.K., and considering that T.S.K. initiated some of those conversations, we 

question whether he found Belina’s messages to be intimidating. Although there was no affidavit and petition admitted into 

evidence in Prentice, the affidavit and petition in this case 
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KUDERA V. BELINA

Cite as 32 Neb. App. 133

does not provide any conduct that would be considered terrifying, threatening, or intimidating to a reasonable person.

The court continued the protection order, finding that Belina 

was “absolutely adamant” that he wanted to have contact with 

T.S.K. “in spite of what his mother believes.” It determined 

that although Belina may not have intended to terrorize T.S.K., 

it thought Belina “know[s] that it has bothered him, it’s causing him problems.” But being “bothered” and experiencing 

“problems” does not equate to a finding that Belina engaged 

in behavior that was terrifying, threatening, or intimidating. 

Therefore, we find there was insufficient evidence to support 

an order continuing the harassment protection order.

To be clear, text messages can amount to harassment in certain cases, just not in this case with the evidence provided. The 

Supreme Court held in Hawkins v. Delgado, 308 Neb. 301, 953 

N.W.2d 765 (2021), that text and email messages amounted to 

harassment because the respondent’s messages could be read 

as threatening physical harm. The respondent had sent the 

petitioner texts like “Time has come. Karma,” and also, she 

will be “free from [her]self.” Id. at 307, 953 N.W.2d at 769 

(internal quotation marks omitted). Messages that preceded 

these contributed to the interpretation because the respondent 

had threated suicide on multiple occasions and had called and 

emailed the petitioner over the course of a month, despite 

the petitioner’s blocking the respondent’s phone number and 

seeking a no-contact order. Unlike Hawkins, there was no testimony in the instant case to provide context to the text messages that would lead to an interpretation that the messages 

would be terrifying, threatening, or intimidating to a reasonable person. Since the text messages discussed in the testimony 

do not show conduct that would amount to harassment, there 

was not sufficient evidence to continue the harassment protection order.

Belina also assigns that the district court erred in continuing the harassment protection order after finding that his 

conduct was not knowing and intentional, a material element 
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KUDERA V. BELINA

Cite as 32 Neb. App. 133

of a harassment protection order. Having found that the evidence was insufficient to continue the protection order, we 

need not analyze this assigned error. See Nesbitt v. Frakes, 300 

Neb. 1, 911 N.W.2d 598 (2018) (appellate court is not obligated to engage in analysis that is not necessary to adjudicate 

case and controversy before it).

CONCLUSION

Having conducted a de novo review of the evidence presented at the show cause hearing, we find that there was 

insufficient evidence to support an order continuing the harassment protection order. We therefore reverse the judgment and 

remand the cause with directions to vacate the order.

Reversed and remanded with directions.