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303 Nebraska Reports

ROBERT M. ON BEHALF OF BELLA O. v. DANIELLE O.

Cite as 303 Neb. 268

Robert M. on behalf of Bella O., 

a minor child, appellee, v. 

Danielle O., appellant.

___ N.W.2d ___

Filed May 31, 2019. No. S-18-818.

1. Protection Orders: Injunction: Appeal and Error. A protection order 

pursuant to Neb. Rev. Stat. § 42-924 (Cum. Supp. 2018) 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. Protection Orders. Whether domestic abuse occurred is a threshold 

issue in determining whether an ex parte protection order should be 

affirmed; absent abuse as defined by Neb. Rev. Stat. § 42-903 (Cum. 

Supp. 2018), a protection order may not remain in effect.

3. Protection Orders: Words and Phrases. Not only is the recipient or 

target of a credible threat a “victim” of abuse eligible for a domestic 

abuse protection order under Neb. Rev. Stat. § 42-924 (Cum. Supp. 

2018), so too are those family members for whose safety the target reasonably fears because of the threat.

Appeal from the District Court for Sarpy County: PaTricia

A. Freeman, County Judge. Affirmed.

Darren J. Pekny and Annie E. Mathews, of Johnson & 

Pekny, L.L.C., for appellant.

No appearance for appellee.

Nebraska Supreme Court Online Library

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

08/09/2019 01:06 AM CDT
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ROBERT M. ON BEHALF OF BELLA O. v. DANIELLE O.

Cite as 303 Neb. 268

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

Papik, and Freudenberg, JJ.

Papik, J.

Danielle O. appeals a domestic abuse protection order 

obtained by Robert M. on behalf of their daughter, Bella O. 

Danielle physically attacked two other family members while 

Bella was present, but did not attack Bella. The trial court 

determined Danielle’s conduct put Bella in fear of bodily 

injury by means of a credible threat and thus constituted 

domestic abuse as defined by Neb. Rev. Stat. § 42-903(1)(b) 

(Cum. Supp. 2018). Although our reasoning differs somewhat 

from that of the trial court, we nonetheless affirm.

BACKGROUND

Robert and Danielle are the parents of Bella, born in 2007. 

Robert and Danielle never married. In 2013, a North Dakota 

court issued an order setting forth Robert’s and Danielle’s 

rights and responsibilities concerning Bella. The court granted 

the parties joint “decision-making responsibilit[ies]” but gave 

Robert “primary residential responsibility,” subject to Danielle’s 

unsupervised parenting time, with the caveat that such parenting time would be supervised if Danielle “has a relapse with 

regard to alcohol abuse.” At the time of these proceedings, 

Robert lived in Nebraska and Danielle lived in Minnesota. This 

case arises from an incident that occurred in Minnesota on July 

9, 2018, at a duplex Danielle’s mother, Nancy O., shared with 

Danielle’s brother, Neill O.

Petition and Ex Parte Domestic 

Abuse Protection Order.

On July 10, 2018, Robert filed a petition and affidavit to 

obtain a domestic abuse protection order for Bella against 

Danielle under Neb. Rev. Stat. § 42-924 (Cum. Supp. 2018). 

The affidavit alleged that on July 9, Danielle and Bella left the 

duplex to go to a store but were absent from approximately 6 
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p.m. to 12 a.m. Nancy was unable to reach Danielle or Bella 

during that time, even though Bella had a cell phone when 

she left. Nancy told Robert that Danielle took Bella’s cell 

phone away after Nancy attempted to call and text several 

times and that Danielle refused to tell Nancy where they were. 

According to Robert’s affidavit, Danielle had only supervised 

visitation rights and was not permitted to take Bella anywhere 

without supervision due to Danielle’s extensive drug and alcohol abuse and criminal history.

Robert’s affidavit stated that Danielle returned to the duplex 

with Bella when Nancy threatened to call the police. Once 

there, Danielle assaulted Neill and Nancy in Bella’s presence, 

inflicting multiple injuries on Neill’s face and body. Danielle 

also kicked in a door, breaking it off the frame. Bella called 

Robert and told him she was scared for her safety and for 

Nancy’s safety and that police were on their way. Danielle was 

arrested for domestic abuse. According to the affidavit, Bella 

reported to Robert that Danielle “was believed to be” under the 

influence of drugs and/or alcohol. Robert expressed fear that 

Danielle would take Bella and not return her.

The matter was assigned to a county court judge, pursuant 

to § 42-924(2) and Neb. Rev. Stat. § 25-2740(2) (Cum. Supp. 

2018). The trial court issued an ex parte domestic abuse protection order on July 10, 2018, generally enjoining Danielle from 

in-person contact with Bella and from threatening, restraining, 

or assaulting her.

Show Cause Hearing.

Danielle requested a hearing to show cause why the protection order should not remain in effect. See Neb. Rev. Stat. 

§ 42-925 (Cum. Supp. 2018). At the show cause hearing, 

Robert appeared without counsel and the trial court received 

his petition and affidavit, summarized above.

Danielle also appeared at the show cause hearing and was 

represented by counsel. She offered a police report concerning the incident. According to the report, when police arrived, 
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Bella was running out of the house with Nancy behind. They 

observed Bella holding onto Nancy, crying, and screaming, 

“‘[S]he is hurting my uncle,’” multiple times. Nancy told 

police that Danielle was inside, damaging things and fighting 

Neill. In the duplex, police observed an overturned coffee table 

and Danielle and Neill engaged in a struggle.

Neill reported to police that Danielle had picked Bella up to 

go shopping at about 6 p.m. Nancy called multiple times, and 

Danielle repeatedly said they were 45 minutes away. When 

Danielle and Bella finally returned several hours later, Bella 

ran inside the duplex to Nancy. Neill confronted Danielle and 

attempted to block her access to the duplex. A physical struggle 

ensued, during which Danielle punched and scratched Neill 

while he tried to get her out of the residence. Neill estimated 

that the struggle lasted 20 minutes.

Neill said that at some point, Danielle broke open a door 

and moved upstairs to where Nancy and Bella were. Neill 

said that Danielle then “swung on” Nancy and was trying to 

talk to Bella, but Bella was telling her to leave. Neill told 

police that Danielle was never abusive toward Bella, but 

also that Bella was “scared” and that Neill instructed Bella 

to go downstairs. Neill said that after Bella went downstairs, 

Danielle followed her and began to throw and damage things. 

Neill again attempted to restrain Danielle, and police arrived 

shortly thereafter. They observed scratch marks on Neill’s 

left elbow, red marks below his left eye, a small swollen 

lump above his right eyebrow, and redness around his neck 

and ear.

Nancy told the police that Neill tried to get Danielle to 

leave because Bella was crying. Nancy stated that when she 

observed Neill struggling with Danielle, who was “swinging, 

and scratching at Neill’s face,” she locked a door leading to 

the upstairs. Danielle then kicked in that door, breaking the 

doorframe, and went to Bella’s room. Nancy reported that 

Bella told Danielle to leave and that Danielle went downstairs, 
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started a fight with Neill again, and threw some things. Nancy 

then called the police, and she and Bella ran outside.

Bella told police that prior to the incident at the duplex, she 

and Danielle went to a store, but then went to other places that 

Bella did not expect to go. Bella said that when they returned 

to the duplex, Danielle “got ‘really weird’” and began hitting Neill and hitting and kicking Nancy. Bella said she asked 

Danielle to leave, because Danielle was “scaring her.”

According to the police report, Danielle refused to give a 

statement to police and was arrested for misdemeanor domestic assault. Police noted that Danielle stated her fingers or 

knuckles were hurt.

Danielle also testified regarding the incident. She stated that 

on July 9, 2018, she was exercising her court-ordered parenting time with Bella. Danielle testified that when Bella asked 

to return to the duplex, Danielle took her there. According 

to Danielle, Bella had access to Danielle’s cell phone when 

she was with Danielle and Danielle gave Bella the cell phone 

whenever she asked for it.

Danielle provided relatively little testimony about the physical confrontation at the duplex. She did not take issue with 

the description of the incident in the police report she offered 

into evidence, and she specifically agreed with the statement 

in the report attributed to Neill that Danielle was never abusive toward Bella. She also testified that she did not make 

any threats toward Bella and presented evidence that she was 

not under the influence of drugs or alcohol at the time of 

the incident.

Trial Court’s Ruling.

At the conclusion of the evidence, the trial court ruled that 

the protection order would remain in place. In explaining its 

ruling on the record, the trial court referenced the evidence 

that Danielle attacked Neill and Nancy and threw objects in 

Bella’s presence and that Bella was scared. It concluded that 

because Danielle’s behavior showed a “pattern of conduct to 
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ROBERT M. ON BEHALF OF BELLA O. v. DANIELLE O.

Cite as 303 Neb. 268

suggest a credible threat,” the protection order should remain 

in place. The trial court subsequently entered a written order 

affirming the ex parte domestic abuse protection order.

Danielle appeals.

ASSIGNMENT OF ERROR

Danielle assigns that the trial court erred in finding that her 

actions constituted abuse within the meaning of § 42-903.

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 

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

Statutory Background.

[2] Before proceeding to Danielle’s arguments, we briefly 

review the law governing domestic abuse protection orders. 

Under the Protection from Domestic Abuse Act (the Act), Neb. 

Rev. Stat. § 42-901 et seq. (Reissue 2016 & Cum. Supp. 2018), 

“[a]ny victim of domestic abuse” may seek a domestic abuse 

protection order. § 42-924. 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. § 42-924. See 

Maria A. on behalf of Leslie G., supra. See, also, Linda N. on 

behalf of Rebecca N. v. William N., 289 Neb. 607, 856 N.W.2d 

436 (2014).
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For purposes of the Act, “[a]buse” 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. . . . or

(c) Engaging in sexual contact or sexual penetration 

without consent as defined in section 28-318.

Family or household members include persons related by consanguinity, that is, by blood. See, § 42-903(3); Zimmerer v. 

Prudential Ins. Co., 150 Neb. 351, 34 N.W.2d 750 (1948).

As noted above, the trial court found that Bella was a victim of abuse by determining that Danielle placed Bella in fear 

of bodily injury by means of a credible threat. The Act defines 

“credible threat” as follows:

[C]redible 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.

§ 42-903(1)(b).

Danielle contends that Robert did not demonstrate that Bella 

was a victim of a credible threat under § 42-903(1)(b). She 

contends that the evidence did not show that her conduct was 

“aimed” at Bella, that Danielle’s actions constituted a threat, 

or that Danielle made “an implied threat through a ‘pattern of 

conduct.’” Brief for appellant at 9.

“Target” of Threat.

We begin with Danielle’s position that Bella was not entitled 

to a protection order because Danielle’s conduct was not aimed 
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at her. On this point, Danielle concedes that she engaged in 

violent and aggressive behavior toward Neill and Nancy, but 

contends that none of those actions were directed toward Bella. 

Danielle asserts that Robert cannot obtain a protection order 

on Bella’s behalf under § 42-903(1)(b) for conduct directed 

at others.

We agree with Danielle that § 42-903(1)(b) requires a court 

to determine to whom a threat is directed. In defining “credible 

threat,” the statute provides that the threat must be “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.” 

§ 42-903(1)(b) (emphasis supplied). As the emphasized language makes clear, credible threats must have a target.

The trial court appeared to conclude that a protection 

order was justified because Bella was the target of a threat. 

Danielle disputes that determination, and we acknowledge 

that evidence that Danielle’s actions were directed at Bella 

is minimal. Neill told police that Danielle was never abusive toward Bella. And while Bella was in the vicinity when 

Danielle committed acts of violence upon Neill, Nancy, and 

their property, this record does not show words or actions of 

Danielle directed at Bella.

[3] That said, we do not believe that § 42-903(1)(b) allows 

only the target of a credible threat to obtain a protection order. 

Section 42-903(1)(b) provides that a credible threat includes 

threats that cause the target to “reasonably fear for his or 

her safety or the safety of his or her family.” (Emphasis supplied.) This language contemplates the possibility that a threat 

will cause the target to fear for the safety of family members. 

Given this language, we conclude that not only is the recipient 

or target of a credible threat a “victim” of abuse eligible for 

a domestic abuse protection order under § 42-924, so too are 

those family members for whose safety the target reasonably 

fears because of the threat. Indeed, it would make little sense if 

a credible threat caused the target to fear for the safety of his or 
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her family members, but only the target was a victim of abuse 

eligible to file for a protection order.

Under this view of the statute, Bella did not have to be the 

target or recipient of a threat in order to be a victim thereof. 

Bella would also be a victim of a credible threat if Neill or 

Nancy were the targets of a credible threat that caused them to 

reasonably fear for Bella’s safety and the other elements of a 

credible threat were present. As we will explain in the sections 

below, we find that to be the case.

Threat Implied by Pattern 

of Conduct.

Before explaining our reasoning for finding that Neill and 

Nancy were the targets of a credible threat that caused them to 

reasonably fear for Bella’s safety, we will address Danielle’s 

argument that she did not make an implied threat via a pattern 

of conduct. Section 42-903(1)(b) allows for credible threats 

to take various forms—verbal, written, electronic, implied, 

or some combination thereof. Here, there is no evidence that 

Danielle made an explicit threat in this case, be it verbal, written, or electronic, so any threat for purposes of the Act had to 

have been one that was “implied by a pattern of conduct.” See 

§ 42-903(1)(b).

We disagree with Danielle that her conduct did not amount 

to an implied threat. While “credible threat” is defined in the 

Act, that definition uses the word “threat.” See § 42-903(1)(b). 

“Threat” is not further defined, so our basic principles of 

statutory interpretation require us to give the word its plain and 

ordinary meaning. See State ex rel. Peterson v. Creative Comm. 

Promotions, 302 Neb. 606, 924 N.W.2d 664 (2019). The plain 

and ordinary meaning of “threat” is a “communication, declaration, or expression of an intention to inflict harm or damage.” 

Clement v. State, 309 Ga. App. 376, 379, 710 S.E.2d 590, 592 

(2011) (collecting dictionary definitions).

We believe that Danielle’s conduct communicated an 

implied threat under this definition. The evidence in the record, 
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particularly the police report, shows that after Danielle arrived 

at the duplex, she struck or attempted to strike both Neill 

and Nancy, broke open a door, and damaged other property. 

Notably, Danielle introduced the police report into evidence 

and did not take issue with accounts of the incident contained 

therein. This evidence showed that Danielle actually inflicted 

harm and damage and acted in a manner that suggested she 

would continue to do so. We believe these actions communicated an intention to inflict harm or damage and thus amounted 

to a threat.

We also reject Danielle’s argument that the threat was not 

implied by a “pattern of conduct.” Brief for appellant at 12. 

It is Danielle’s position that the term “pattern” requires that 

an implied threat be communicated by multiple acts, but, she 

argues, the evidence here is of a single incident. Id.

The term “pattern” is not defined in the statute, so, again, 

we must give the word its plain and ordinary meaning. See 

State ex rel. Peterson, supra. We agree with Danielle that 

the plain language meaning of pattern requires multiple acts. 

See, Colorado Ethics Watch v. Gessler, 363 P.3d 727, 731 

(Colo. App. 2013) (quoting Webster’s College Dictionary 991 

(1991), defining “‘[p]attern’” as “‘a combination of . . . acts 

. . . forming a consistent or characteristic arrangement’”); 

La Crosse County v. Mark P., Nos. 95-3582, 95-3583, 1996 

WL 74401 at *3 (Wis. Feb. 22, 1996) (unpublished opinion 

listed in table at 200 Wis. 2d 245, 546 N.W.2d 888 (1996)) 

(“[t]he plain meaning of the word ‘pattern’ refers to an 

action which occurs more than once”). See, also, Black’s 

Law Dictionary 1308 (10th ed. 2014) (defining “pattern” as 

“[a] mode of behavior or series of acts that are recognizably 

consistent”).

But while a pattern of conduct cannot be demonstrated by a 

single act, we do not view Danielle’s actions at the duplex as 

a single act. As we have noted, Danielle directed violent and 

aggressive behavior at multiple victims in multiple locations 

in the duplex and she also broke a doorframe and damaged 
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other property. We believe Danielle’s series of actions at the 

duplex are sufficient to amount to a pattern of conduct.

In reaching this conclusion, we find distinguishable Knopik 

v. Hahn, 25 Neb. App. 157, 902 N.W.2d 716 (2017), a Nebraska 

Court of Appeals opinion upon which Danielle relies. At issue 

in Knopik was whether the plaintiffs were entitled to a harassment protection order based on a confrontation in which their 

neighbor used profane and aggressive language and punched 

one of the plaintiffs over a 10- to 20-minute time period. The 

Court of Appeals reversed the entry of a harassment protection 

order. Danielle contends that her actions did not amount to a 

pattern of conduct under Knopik.

Danielle’s argument regarding Knopik overlooks, however, 

that the harassment statutes and the credible threat prong of 

the domestic abuse statute are not identical. In the harassment 

statutes, “[h]arass” is defined to be a “knowing and willful course of conduct,” and “[c]ourse of conduct” is further 

defined to be a “pattern of conduct composed of a series of 

acts over a period of time, however short, evidencing a continuity of purpose.” Neb. Rev. Stat. § 28-311.02(2)(a) and (b) 

(Reissue 2016). Furthermore, the harassment statutes explicitly 

state that they were enacted to deal with “stalking offenses.” 

§ 28-311.02(1). In Knopik, the Court of Appeals found that the 

neighbor had not engaged in the “type of stalking offense necessary to support issuance of a harassment protection order.” 

25 Neb. App. at 164, 902 N.W.2d at 721-22. We do not read 

Knopik to have turned on whether the neighbor engaged in 

a single or multiple acts and thus do not believe it supports 

Danielle’s argument that she did not engage in a pattern of 

conduct here.

Reasonable Fear for 

Safety of Bella.

In addition to finding that Danielle made an implied threat 

via a pattern of conduct, we find that this threat caused 

the targets or recipients of the threat—Neill and Nancy—to 
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reasonably fear for the safety of Bella. Of course, neither Neill 

nor Nancy testified at the show cause hearing, so we do not 

have direct evidence on this question. Having reviewed the 

record, however, we find circumstantial evidence that leads 

us to find that it is more likely than not that they reasonably 

feared for Bella’s safety. See Maria A. on behalf of Leslie G. 

v. Oscar G., 301 Neb. 673, 919 N.W.2d 841 (2018) (domestic 

abuse protection order petitioner must establish abuse by preponderance of evidence).

The police report suggests that after Danielle returned to 

the duplex with Bella, Neill and Nancy were doing their best 

to keep Bella away from Danielle. This included Nancy’s 

locking the door to the upstairs area of the duplex only to 

have Danielle kick the door in and go to speak to Bella. The 

police report indicates that Bella was scared at this point and 

that Neill told her to go downstairs. Again, Danielle followed 

her and began to throw and damage items downstairs. Nancy 

then ran outside with Bella. In addition to their own apparent 

attempts to shield Bella from Danielle, Danielle’s multiple 

attempts to approach Bella while engaging in reckless and 

destructive behavior lead us to find it more likely than not 

that Neill and Nancy feared for Bella’s safety. For the same 

reasons, we find that it was reasonable for Neill and Nancy 

to do so.

CONCLUSION

Although we base our analysis on different reasoning, we 

conclude that the trial court did not err in determining that 

Bella was a victim of abuse within the meaning of § 42-903. 

Accordingly, we affirm.

Affirmed.