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25 Nebraska Appellate Reports

ROSBERG v. ROSBERG

Cite as 25 Neb. App. 856

Paul A. Rosberg, appellant, v. 

Kelly R. Rosberg, appellee.

___ N.W.2d ___

Filed May 1, 2018. No. A-17-341.

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. Records: Pleadings: Appeal and Error. In the absence of a bill of 

exceptions, an appellate court examines and considers only the pleadings in conjunction with the judgment reviewed. When a transcript, 

containing the pleadings and order in question, is sufficient to present 

the issue for appellate disposition, a bill of exceptions is unnecessary to preserve an alleged error of law regarding the proceedings 

under review.

3. Records: Pleadings: Presumptions: Appeal and Error. Where there 

is no bill of exceptions, an appellate court is limited on review to an 

examination of the pleadings. If they are sufficient to support the judgment, it will be presumed on appeal that the evidence supports the trial 

court’s orders and judgment.

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.

5. Criminal Law: Judgments. Under Nebraska’s stalking and harassment 

statutes, the inquiry is whether a reasonable victim would be seriously 

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

6. Judgments. When a trial court determines an ex parte temporary harassment protection order is not warranted, an evidentiary hearing is not 

mandated under the harassment protection order statute.

7. Judgments: Pleadings: Affidavits. In harassment protection order proceedings, a trial court has the discretion to direct a respondent to show 

cause why an order should not be entered or, alternatively, the court 

Nebraska Supreme Court Online Library

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

05/15/2018 01:08 AM CDT
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ROSBERG v. ROSBERG

Cite as 25 Neb. App. 856

can dismiss the petition if insufficient grounds have been stated in the 

petition and affidavit.

Appeal from the District Court for Knox County: James G. 

Kube, Judge. Affirmed.

Paul A. Rosberg, pro se.

No appearance for appellee.

Riedmann and Bishop, Judges, and Inbody, Judge, Retired.

Bishop, Judge.

Paul A. Rosberg (Rosberg) sought a harassment protection 

order against his wife, Kelly R. Rosberg (Kelly), in the district court for Knox County. Rosberg appeals, pro se, from the 

district court’s order dismissing his petition; he claims that the 

district court erred by not affording him an opportunity to be 

heard and that a harassment protection order should have been 

entered. We affirm.

BACKGROUND

On November 4, 2016, Rosberg filed a “Petition and 

Affidavit to Obtain Harassment Protection Order” against 

Kelly pursuant to Neb. Rev. Stat. § 28-311.09 (Reissue 2016). 

He sought a protection order for himself and his five children. His allegations of harassment are summarized as follows: From August 2012 to November 4, 2016, Kelly “lied 

to [Rosberg’s] probation officer 3 times and [Rosberg] had 

to go to jail for 16 days and pay an attorney $10,000 and all 

the fict[it]ious charges they had were drop[p]ed by the federal Judge”; Kelly allows the children to be around a “life 

time” registered sex offender; Kelly leaves the children for 

extended periods of time and lets the children “do most anything,” and the children are engaging in problematic behavior; 

Kelly committed perjury by making up a lie that Rosberg 

earned $250,000 per year, which lie resulted in a sentence of 

jail time for Rosberg; Kelly lied to a Platte County judge so 
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ROSBERG v. ROSBERG

Cite as 25 Neb. App. 856

Rosberg “could not see [the] children for one year”; Kelly 

“harassed all of us by preventing us from having visitation 

since July 12, 2015”; Kelly makes the children believe her 

lies by “continually disparaging” Rosberg; Kelly refused to 

allow the children to attend family weddings; Rosberg is “sure 

[Kelly] is mentally sick”; Rosberg believes it is unsafe for the 

children to be around Kelly or her boyfriend, a sex offender, 

and believes she should only have supervised visitation; and 

Rosberg is “afraid [Kelly] may have someone or herself plant 

guns on [him] like she did before when she tried to get [him] 

railroaded into federal prison for 11 years.”

On November 14, 2016, the district court entered an “Order 

Dismissing Petition Without Hearing,” which stated, in relevant part:

Upon consideration of the petition and affidavit, the 

Court finds that the requested relief should be denied and 

the petition should be dismissed (specific findings, if any, 

set forth below).

Insufficient allegations to support the entry of a protection order. Also, this [is] a matter which if addressed at 

all, should be addressed in the pending domestic litigation 

between the parties.

IT IS THEREFORE ORDERED that the petition for 

issuance of a protection order is denied and petition is 

dismissed without prejudice.

On November 17, 2016, Rosberg filed a “Motion requesting Hearing.” He requested a hearing to “prove his allegations that [Kelly] ser[i]ously th[r]eatens, endangers, and 

intim[i]dates [Rosberg and the children].” He added that the 

children are in danger when Kelly allows them to be around 

a “registered lifetime sex offender” and that Kelly should not 

be on his premises “where she or her coh[o]rts can plant guns 

in fu[r]ther attemp[t]s to railroad [him] into jail like she had 

done in the past.”

On December 13, 2016, Rosberg filed a “precape” for subpoenas to compel two of his children to appear and testify in 
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ROSBERG v. ROSBERG

Cite as 25 Neb. App. 856

district court on December 20. Also on December 13, Rosberg 

filed a “Notice of Threat and additional facts.” On December 

23, Rosberg filed a “Motion to Reconsider.”

According to a “Journal Entry” filed January 3, 2017, both 

parties had appeared before the court without counsel on 

December 20, 2016. The journal entry addressed Rosberg’s 

“motion for hearing,” noting arguments were made by the 

parties. The court denied Rosberg’s motion. The court also 

addressed Kelly’s “motion to dismiss” and stated that “there 

are insufficient facts regarding the basis for the motion to dismiss and the Court deemed the motion to dismiss moot.”

A “Journal Entry” filed January 31, 2017, indicates the case 

was before the court that day for hearing; Rosberg was present 

without counsel, and Kelly was not present (she filed a waiver 

of appearance that same day). The journal entry notes that 

Rosberg offered “Exhibit 1, Motion to Reconsider, specifically 

pages 35 through 173, which has been received by the Court.” 

Rosberg provided argument, and the court took the matter 

under advisement.

On February 22, 2017, Rosberg filed a “Notice of Additional 

Information Unavailable at Time of Hearing.” Rosberg alleged 

that an order was made in his divorce case denying his 

request for a protection order. Rosberg claimed that since 

the judge handling his divorce would not issue a protection order, then “it is most certainly up to [the judge in this 

case] to hear all the evidence and make a decision regarding 

[Rosberg’s] request for an exparte protection order against 

Kelly.” (Emphasis omitted.)

The district court entered an order on February 28, 2017, 

which stated:

This matter came on to be heard on January 31, 2017, 

upon [Rosberg’s] “Motion Requesting Hearing” which 

the Court interprets as a motion to reconsider its Order of 

November 14, 2016, denying the plaintiffs their request 

for a protection order and dismissing the same without prejudice. [Rosberg] appeared personally. No other 
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Cite as 25 Neb. App. 856

plaintiffs appeared nor were they represented by counsel. [Kelly] did not appear, nor was she represented 

by counsel.

Upon consideration of the arguments presented as well 

as the information contained in Exhibit 1 the Court denies 

said request to reconsider. The Court will stand on its 

Order of November 14, 2016, dismissing this matter without hearing.

Rosberg appeals from this order.

ASSIGNMENTS OF ERROR

Rosberg’s brief does not properly contain an assignments of 

error section; however, the brief lists six questions under the 

heading “Issues to be Addressed.” He asks, restated: (1) Did 

the district court err by not having a hearing on the requested 

protection order?; (2) Did the district court err by finding there 

were insufficient allegations to support entry of a protection 

order?; (3) Does the Nebraska constitution apply to him?; (4) 

Did the district court evade its responsibilities by not allowing 

Rosberg to present evidence?; (5) Did the district court “violate 33 C.J. 1135, sec. 84 when [it] made judgment without 

any kind of trial?”; and (6) Did the district court “use proper 

discretion after being made aware that [Rosberg] was not a 

member of the Bar Club Association and understanding case 

law Haines vs. Kerner 1972, 404 U.S. 519?”

The “Argument” section of Rosberg’s brief consists of four 

paragraphs which address only the first two “questions” noted 

above. Accordingly, our review will be limited to addressing those two questions as alleged errors. To be considered 

by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party 

asserting the error. Fetherkile v. Fetherkile, 299 Neb. 76, 907 

N.W.2d 275 (2018).

STANDARD OF REVIEW

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

Accordingly, the grant or denial of a protection order is 
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ROSBERG v. ROSBERG

Cite as 25 Neb. App. 856

reviewed de novo on the record. Mahmood v. Mahmud, 279 

Neb. 390, 778 N.W.2d 426 (2010).

ANALYSIS

As set forth above, we address only the two errors alleged 

and argued by Rosberg, which are (1) whether the district 

court erred in not providing a hearing on his protection order 

request and (2) whether there was sufficient evidence to support entry of a protection order. Rosberg argues, “Basically, 

[the court] closed the door, preventing [Rosberg] from having the issues addressed in court.” Brief for appellant at 7. 

He claims the court made a decision without allowing him to 

present the facts. At the same time, he also claims “the evidence presented in the petition and the exhibits presented in 

the courtroom were sufficient allegations to call for a protection order hearing and most likely an immediate exparte [sic] 

protection order.” Id.

[2,3] We first note that no bill of exceptions has been filed 

in this appeal. In the absence of a bill of exceptions, we examine and consider only the pleadings in conjunction with the 

judgment reviewed. See Murphy v. Murphy, 237 Neb. 406, 466 

N.W.2d 87 (1991). When a transcript, containing the pleadings and order in question, is sufficient to present the issue 

for appellate disposition, a bill of exceptions is unnecessary 

to preserve an alleged error of law regarding the proceedings 

under review. Id. Where there is no bill of exceptions, an 

appellate court is limited on review to an examination of the 

pleadings. Id. If they are sufficient to support the judgment, 

it will be presumed on appeal that the evidence supports the 

trial court’s orders and judgment. Id. We conclude the transcript is sufficient for this court’s disposition of Rosberg’s 

alleged errors.

Harassment Protection Orders.

We begin our analysis with a review of the statutes applicable to harassment protection orders. Section 28-311.09 provides in relevant part:
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ROSBERG v. ROSBERG

Cite as 25 Neb. App. 856

(1) Any victim who has been harassed as defined 

by section 28-311.02 may file a petition and affidavit 

for a harassment protection order . . . . Upon the filing 

of such a petition and affidavit in support thereof, the 

court may issue a harassment protection order without 

bond enjoining the respondent from (a) imposing any 

restraint upon the person or liberty of the petitioner, (b) 

harassing, threatening, assaulting, molesting, attacking, 

or otherwise disturbing the peace of the petitioner, or (c) 

telephoning, contacting, or otherwise communicating with 

the petitioner.

(Emphasis supplied.)

The purpose of § 28-311.09, and the definition of certain 

terms, are contained in Neb. Rev. Stat. § 28-311.02 (Reissue 

2016), which provides in relevant part:

(1) It is the intent of the Legislature to enact laws 

dealing with stalking offenses which will protect victims from being willfully harassed, intentionally terrified, 

threatened, or intimidated by individuals who intentionally follow, detain, stalk, or harass them or impose any 

restraint on their personal liberty and which will not prohibit constitutionally protected activities.

(2) For purposes of sections 28-311.02 to 28-311.05, 

28-311.09, and 28-311.10:

(a) Harass means to engage in a 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;

(b) Course of conduct means 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.

[4,5] Application of the law governing harassment protection orders has been summarized as follows:
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ROSBERG v. ROSBERG

Cite as 25 Neb. App. 856

“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. In re Interest of Jeffrey K., 

273 Neb. 239, 728 N.W.2d 606 (2007). Thus, the inquiry 

is whether a reasonable [victim] would be seriously terrified, threatened, or intimidated by the perpetrator’s conduct. Id.”

Richards v. McClure, 290 Neb. 124, 132, 858 N.W.2d 841, 

847 (2015) (quoting Glantz v. Daniel, 21 Neb. App. 89, 837 

N.W.2d 563 (2013)).

With this law in mind, we now address the errors claimed 

by Rosberg.

Right to Hearing.

Rosberg claims he was denied an opportunity for a hearing 

on his petition for a harassment protection order. However, 

the record does not support that assertion. It is true that on 

November 14, 2016, the district court entered an order dismissing Rosberg’s petition without a hearing. On November 

17, Rosberg filed a “Motion requesting Hearing” to “prove his 

allegations.” The January 31, 2017, journal entry informs us 

that a hearing did take place on January 31. And the February 

28 order explains that the January 31 hearing was “upon 

[Rosberg’s] ‘Motion Requesting Hearing,’” which the court 

interpreted as a motion to reconsider its November 14, 2016, 

order denying Rosberg’s request for a protection order.

At the January 31, 2017, hearing, Rosberg was present without counsel and Kelly was not present (she filed a waiver of 

appearance). Importantly, the journal entry states that Rosberg 

offered “Exhibit 1, Motion to Reconsider, specifically pages 

35 through 173, which has been received by the Court.” 

Rosberg also “provided argument” and the court “took the 

matter under advisement.” Therefore, contrary to Rosberg’s 

assertion, he did in fact have an opportunity to offer evidence 

(exhibit 1) in support of his petition, and it was received by 
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ROSBERG v. ROSBERG

Cite as 25 Neb. App. 856

the court. Rosberg also had an opportunity to make an argument before the court.

The district court subsequently entered an order on February 

28, 2017, which stated it considered the arguments presented 

on January 31, as well as the information contained in exhibit 

1, and chose to “stand on its Order of November 14, 2016, dismissing this matter without a hearing.” Although the November 

14 order did in fact dismiss Rosberg’s petition “without a 

hearing,” Rosberg has, since that time, succeeded in having a 

hearing on January 31, 2017, at which time his exhibit 1 was 

offered and received, and arguments were made. Accordingly, 

we conclude this alleged error is without merit.

For the sake of completeness, to the extent Rosberg is arguing that the mere filing of a petition and affidavit for a harassment protection order requires a trial court to schedule a hearing before dismissing the petition, we conclude otherwise. 

There may be some confusion as to the mandatory nature of 

a protection order hearing, because the statutory language 

detailing procedures for domestic abuse protection orders 

and harassment protection orders are not identical, and where 

one statutory scheme requires a hearing before the dismissal 

of a petition, the other does not. Specifically, when a party 

seeks a protection order under the Protection from Domestic 

Abuse Act, if the trial court reviewing a petition determines a 

domestic abuse ex parte temporary protection order need not 

be issued, the court “shall immediately schedule an evidentiary hearing” on the petition to be held within 14 days, with 

notice given to the petitioner and the respondent. See Neb. 

Rev. Stat. § 42-925(2) (Supp. 2017). See, also, Sarah K. v. 

Jonathan K., 23 Neb. App. 471, 873 N.W.2d 428 (2015) (if 

grounds do not exist for issuance of domestic abuse ex parte 

temporary protection order, court must schedule evidentiary 

hearing within 14 days).

However, for harassment protection orders sought under 

§ 28-311.09, as in this case, the statutory scheme does not 

contain the same mandatory hearing language found in the 
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Cite as 25 Neb. App. 856

domestic abuse protection order statute set forth above. Rather, 

as noted previously, upon the filing of a petition and affidavit for a harassment protection order, “the court may issue a 

harassment protection order.” § 28-311.09(1) (emphasis supplied). The statute does not mandate the issuance of such an 

order, nor does the statute require a hearing upon the court 

concluding the petition fails to state sufficient grounds for 

entry of an order. Additionally, the harassment protection order 

statute provides:

If the specific facts included in the affidavit (a) do not 

show that the petitioner will suffer irreparable harm, loss, 

or damage or (b) show that, for any other compelling 

reason, an ex parte order should not be issued, the court 

may forthwith cause notice of the application to be given 

to the respondent stating that he or she may show cause, 

not more than fourteen days after service, why such order 

should not be entered.

§ 28-311.09(7) (emphasis supplied).

Section 28-311.09(7) grants the trial court the discretion to 

take further action when it determines an ex parte temporary 

protection order should not be issued; it does not mandate further action. The trial court may direct the respondent to show 

cause why an order should not be entered, but the court is not 

required to do so. If the face of the petition and affidavit fail to 

set forth a sufficient basis to warrant the issuance of a harassment protection order, the trial court may, in its discretion, 

dismiss the petition without burdening the court with holding 

an evidentiary hearing where the sole purpose is to prove up 

on the petition. Notably, a contested factual hearing in a protection order proceeding is a show cause hearing, in which the 

fact issues before the court are whether the facts stated in the 

sworn application are true. Mahmood v. Mahmud, 279 Neb. 

390, 778 N.W.2d 426 (2010). Such proceedings are summary 

in nature, and a court is justified in excluding evidence if its 

probative value is substantially outweighed by considerations 

of undue delay, waste of time, or needless presentation of 
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Cite as 25 Neb. App. 856

cumulative evidence; however, for a court to issue a protection 

order, some evidence must be presented. See id.

The Legislature has providently granted the trial courts the 

discretion to filter between those petitions and affidavits which 

properly allege facts qualifying for harassment protection 

under the statute from those alleging facts, even if presumed 

true, which fail to qualify for protection under the statute. This 

is certainly consistent with the notion that a trial court can 

summarily dismiss a petition on its own motion when “not a 

fact stated” entitles the party to the relief sought. Van Etten v. 

Test, 64 Neb. 407, 408, 89 N.W. 1052, 1053 (1902) (litigant’s 

attempt to circumvent prior judgment against her by filing 

new action should have been summarily dismissed by trial 

court because such attempts “should not be permitted to burden courts or clog the wheels of justice”).

[6,7] Accordingly, when a trial court determines an ex parte 

temporary harassment protection order is not warranted, an 

evidentiary hearing is not mandated under the harassment protection order statute like it is under the domestic abuse protection order statute. In harassment protection order proceedings, 

a trial court has the discretion to direct a respondent to show 

cause why an order should not be entered or, alternatively, 

the court can dismiss the petition if insufficient grounds have 

been stated in the petition and affidavit. Although the district 

court in this instance decided to grant Rosberg a hearing so 

he could offer evidence and make arguments to the court after 

the court’s initial dismissal of Rosberg’s petition, the harassment protection order statute did not require the court to hold 

such a hearing.

Sufficiency of Allegations.

Rosberg argues that “the evidence presented in the petition 

and the exhibits presented in the courtroom were sufficient 

allegations to call for a protection order hearing and most 

likely an immediate exparte [sic] protection order.” Brief for 

appellant at 7.
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ROSBERG v. ROSBERG

Cite as 25 Neb. App. 856

As explained earlier, where there is no bill of exceptions, 

an appellate court is limited on review to an examination of 

the pleadings. See Murphy v. Murphy, 237 Neb. 406, 466 

N.W.2d 87 (1991). If they are sufficient to support the judgment, it will be presumed on appeal that the evidence supports the trial court’s orders and judgment. Id. We conclude 

that the pleadings are sufficient to support the district court’s 

order, and therefore, we presume the evidence (exhibit 1) 

considered by the district court supported its decision to dismiss Rosberg’s petition seeking a harassment protection order 

against Kelly.

We agree with the district court that the issues complained 

about by Rosberg do not rise to the type of conduct contemplated by the harassment protection order statute. As set forth 

previously, the inquiry is whether a reasonable victim would 

be seriously terrified, threatened, or intimidated by the perpetrator’s conduct. Richards v. McClure, 290 Neb. 124, 858 

N.W.2d 841 (2015). Rosberg’s allegations about Kelly consist 

of her lying, allowing the children to be around a registered 

sex offender, letting the children do anything they want, preventing certain parenting time from taking place, denying the 

children’s attendance at family weddings, disparaging Rosberg, 

and possibly “plant[ing] guns” on Rosberg to get him in 

trouble. Additionally, Rosberg claims that Kelly is “mentally 

sick” and should only have supervised parenting time. While 

Rosberg may very well have valid reasons to be concerned, 

upset, angry, or frustrated by the circumstances evolving in 

the course of his marriage dissolution, as noted by the district 

court, these are matters to be addressed in that separate action 

and not through a harassment protection order.

CONCLUSION

The district court’s February 28, 2017, order is affirmed.

Affirmed.