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MARIA A. ON BEHALF OF LESLIE G. v. OSCAR G.

Cite as 301 Neb. 673

Maria A. on behalf of Leslie G., appell

v. Oscar G., Appell

___ N.W.2d ___

Filed November 30, 2018. No. S-17-1133.

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

pursuant to Neb. Rev. Stat. § 42-924 (Reissue 2016) 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 (Reissue 

2016), a protection order may not remain in effect.

3. ____. In considering whether to continue an ex parte domestic abuse 

protection order following a finding that domestic abuse has occurred, a 

court is not limited to considering only whether the ex parte order was 

proper, but may also consider a number of factors pertinent to the likelihood of future harm.

4. 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.

5. Protection Orders: Proof. The petitioner at a show cause hearing following an ex parte order has the burden to prove by a preponderance of 

the evidence the truth of the facts supporting a protection order. Once 

that burden is met, the burden shifts to the respondent to show cause as 

to why the protection order should not remain in effect.

Appeal from the District Court for Saline County: Vicky 

Johnson, Judge. Affirme

Nebraska Supreme Court Online Library

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

01/11/2019 08:08 AM CST
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Sara K. Houston, of Nebraska Coalition, for appellant.

Carlos A. Monzón and David V. Chipman, of Monzón, 

Guerra & Associates, for appellee.

Heavican, C.J., Miller‐Lerman, Cassel, Stacy, 

Papik, JJ., and Hall, District Judg

Hall, District Judge

On behalf of her minor daughter, Leslie G., Maria A. 

appeals the order of the district court for Saline County that 

rescinded an ex parte domestic abuse protection order against 

Leslie’s father, Oscar G. Upon our de novo review of the specific facts of this case, we cannot say that the district court, 

which heard and observed the witnesses as the trier of fact, 

erred in finding that the evidence as a whole was sufficient 

to show cause why the protection order should not remain in 

effect. We affirm.

BACKGROUND

Maria and Oscar are the biological parents of two minor 

children involved in this case, Emily G. and Leslie. Maria and 

Oscar are not married and do not reside in the same household. 

Maria has “[f]ull [c]ustody” of Emily and Leslie, with Oscar 

exercising regular parenting time every other weekend. This 

appeal arises from an incident that occurred at Oscar’s residence on June 4, 2017, during his parenting time with Leslie, 

then age 10, and Emily, then age 12. It is undisputed that on 

that date, Oscar hit Leslie several times on the leg with his 

open hand.

On July 3, 2017, Maria filed a petition and affidavit on 

Leslie’s behalf to obtain a domestic abuse protection order 

against Oscar pursuant to Neb. Rev. Stat. § 42-924 (Reissue 

2016). The standardized form alleged that Maria was “in fear 

of domestic abuse” on behalf of Leslie. Maria’s petition and 

affidavit also provided facts to support her request for a protection order. According to Maria, on June 4, Emily called 
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her and informed her that Oscar had hit Leslie because Leslie 

was involved in breaking her stepbrother’s electronic tablet. 

Maria reported that Oscar was angry and that Leslie had run 

into her room and locked the door to avoid being hit by Oscar. 

Maria stated that Oscar then broke the door with his foot and 

hit Leslie with his hand. Emily, who was in the room at the 

time, shared a video of the incident with Maria and asked her 

not to show anyone. Upon viewing the video, Maria said she 

was “shocked” by Oscar’s violent actions toward Leslie. Maria 

reported that she feared Oscar would hit her daughters in the 

future with more violence or become angry that Emily had 

shown her the video. As a result, Maria immediately reported 

the incident to law enforcement. The record shows that Oscar 

was arrested and charged with child abuse pursuant to Neb. 

Rev. Stat. § 28-707 (Reissue 2016), but our record does not 

contain the disposition of that charge.

On the same day that Maria filed her petition and affidavit, 

the district court found that Maria had stated facts showing 

that Oscar had committed abuse as defined in Neb. Rev. Stat. 

§ 42-903 (Reissue 2016) and that there was immediate danger 

of abuse before the matter could be heard on notice. Therefore, 

the district court entered an ex parte domestic abuse protection order, barring Oscar from any contact with Leslie. Oscar 

requested a hearing on the matter pursuant to Neb. Rev. Stat. 

§ 42-925 (Reissue 2016) to show cause why the protection 

order should not remain in effect.

At the show cause hearing, the district court received 

Maria’s petition and affidavit. Oscar’s counsel called Maria 

to testify, and she confirmed the allegations. Maria further 

confirmed that minor children, other than Emily and Leslie, 

remained in Oscar’s home. The district court also received the 

9-second video recorded by Emily and referenced in the petition and affidavit. It shows Oscar breaking through the door, 

lunging at Leslie, and striking her five times with an open 

hand while Leslie is on a bed on her side with her legs drawn 

up. Emily and Leslie can be heard screaming, and Oscar can 
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be heard yelling in a language that is not English and striking Leslie. During the encounter, Leslie’s facial expression is 

not discernible.

When Maria testified that Emily and Leslie were in the 

courthouse, the district court advised the parties that they 

could be called as witnesses. Oscar called Emily to testify. 

Emily testified, questioned only by the district court in chambers and with counsel present, but outside the presence of the 

parents. She stated that after Leslie broke the electronic tablet, 

Leslie ran to the bedroom they shared and locked the door. 

Emily testified that Oscar screamed at Leslie to open the door 

and that Leslie refused. Emily testified that she could not recall 

whether Oscar threatened to hit someone at that point, but in 

an earlier interview at the Child Advocacy Center in Lincoln, 

Nebraska (CAC), summarized by the sheriff’s report offered 

by Oscar and received into evidence along with the probable 

cause affidavit for Oscar’s arrest, both Emily and Leslie stated 

that when Oscar was outside the door, he threatened to hit 

Leslie. According to Leslie, Oscar yelled, “‘Open the door, 

then I am going to hit you.’” Emily reported that Oscar threatened to hit Leslie if she did not open the door.

At the hearing, Emily testified that Oscar next broke the 

door, entered the room, and hit Leslie on the leg. Emily stated 

that after she told Oscar to stop, he left the room and went 

to the kitchen to prepare food for the family. Sometime after 

Oscar left the room, Emily text messaged Maria and asked her 

to pick up her and Leslie because Emily did not want to be 

there anymore.

Emily testified that on the day of the incident, she “wasn’t 

really afraid” of Oscar, but that she was afraid for Leslie 

because she thought that Leslie “would have gotten more in 

trouble.” Emily explained that by “more in trouble” she meant 

that Leslie “could get grounded or get her stuff taken away.” 

She testified that she was not afraid of Oscar on the day of the 

hearing. The district court had the following exchange with 

Emily at the end of her testimony:
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[Court:] . . . I can see you’re kind of upset. Can you 

tell me why you’re upset? Just take a big breath. Okay? 

All right. Can you tell me why you’re upset?

[Emily:] Because I miss my dad and my brothers.

Q. Okay. I understand that. Do you think you would be 

safe with your dad?

A. ([Emily] nodded affirmatively.)

Q. She is nodding her head yes. Was that a yes?

A. Yes.

Leslie did not testify. However, the parties stipulated that 

if she had, she would have testified that “she was afraid [on] 

the day of [the incident], but she has also said that she is 

not afraid of her dad at this time.” Additionally, the parties 

stipulated that Leslie’s testimony as to the facts of the incident 

would have been “substantially similar” to Emily’s testimony. 

In her interview with the CAC, Leslie reported that when 

Oscar asked her who had broken the electronic tablet and 

referred to her calling Oscar “‘[s]tupid’” during a family outing to a lake the night before, she ran to her room because she 

was scared of being in trouble.

The probable cause affidavit stated that Leslie had no “marks 

or bruises of any kind.” However, in her interview at the CAC 

the next day, Leslie reported “a little mark on her leg.” Leslie 

also stated during that interview that Oscar had hit her in the 

past, but that she could not recall the circumstances. Emily 

stated during her CAC interview that Oscar had not previously 

used hitting as a consequence, but, rather, “‘grounds’” them or 

takes items away.

According to the probable cause affidavit, on the day of the 

incident, Oscar admitted to law enforcement that he had hit 

Leslie because, in addition to breaking the electronic tablet, 

she had called him “‘[s]tupid’” the night before. He further 

reported that the door to the bedroom was previously broken 

before he barged through it and that he did not believe he hit 

Leslie “too hard.”
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The district court entered an order rescinding the ex parte 

domestic abuse protection order pertaining to Leslie. See 

§ 42-925. The district court stated:

1. No evidence of bodily injury (no testimony of pain 

or evidence of bruising).

2. Neb. Rev. Stat. §28-1413 (1)(a) and (b) allows a parent to use physical discipline so long as no extreme pain 

or serious bodily harm.

3. The only threat was perceived to be additional discipline, such as grounding.

Maria now appeals.

ASSIGNMENTS OF ERROR

Maria assigns, condensed and restated, (1) that based upon 

the evidence presented at the show cause hearing, the district 

court erred in rescinding the ex parte domestic abuse protection order, and (2) that the district court erred in assigning 

weight to Neb. Rev. Stat. § 28-1413 (Reissue 2016).

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. Torres v. Morales, 

287 Neb. 587, 843 N.W.2d 805 (2014).

ANALYSIS

Issue Is Whether Ex Parte Domestic Abuse Order 

Should Remain in Effect, and Here, District Court 

Did Not Err in Finding That It Should Not.

We begin our analysis by reviewing the statutes pertinent 

to the procedural aspects of this case. The Protection from 
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Domestic Abuse Act, Neb. Rev. Stat. § 42-901 et seq. (Reissue 

2016) (the Act), provides that a victim of domestic abuse 

may file a petition and affidavit for a protection order with 

the clerk of the district court. § 42-924. For the purposes of 

the Act, abuse 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. For purposes of this subdivision, credible 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. It is not necessary to 

prove that the person making the threat had the intent to 

actually carry out the threat. The present incarceration 

of the person making the threat shall not prevent the 

threat from being deemed a credible threat under this 

section; or

(c) Engaging in sexual contact or sexual penetration 

without consent as defined in section 28-318.

Section 42-924(1) states that upon the filing of a petition for 

a protection order by any victim of domestic abuse and affidavit in support thereof, “the court may issue a protection 

order without bond,” enjoining the respondent from varying 

degrees of contact with the petitioner, awarding petitioner temporary custody of any minor children, enjoining the respondent 

from possessing or purchasing a firearm, or “[o]rdering such 

other relief deemed necessary to provide for the safety and 
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welfare of the petitioner and any designated family or household member.”

Section 42-925(1) provides that a domestic abuse protection 

order under § 42-924 may be issued ex parte prior to a hearing if it reasonably appears from the specific facts included in 

the affidavit that the petitioner will be in immediate danger of 

abuse before the matter can be heard on notice. If a court issues 

a domestic abuse protection order ex parte:

[S]uch order is a temporary order and the court shall 

forthwith cause notice of the petition and order to be 

given to the respondent. The court shall also cause a form 

to request a show-cause hearing to be served upon the 

respondent. . . . If the respondent appears at the hearing 

and shows cause why such order should not remain in 

effect, the court shall rescind the temporary order. If the 

respondent does not so appear and show cause, the temporary order shall be affirmed and shall be deemed the 

final protection order.

§ 42-925(1).

If grounds do not exist for issuance of an ex parte domestic 

abuse protection order, the court must schedule an evidentiary 

hearing within 14 days. § 42-925(2). If the respondent does not 

appear and show cause why the protection order should not be 

issued, the court shall issue a final protection order. Id.

Here, Maria appeals from the order of the district court that 

rescinded an ex parte domestic abuse protection order following a show cause hearing requested by Oscar pursuant to 

§ 42-925(1). Maria’s appellate brief focuses mainly on whether 

Oscar committed abuse as defined by § 42-903. She argues that 

if such abuse occurred, the district court erred in rescinding the 

ex parte protection order. However, as we will explain, based 

on the procedural framework of this case and the above-quoted 

statutory language, the inquiry before the district court was 

whether the ex parte order ought to have remained in effect 

once it was in place. See § 42-925(1). In addressing this 

question, the district court was not guided exclusively by the 
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definition of abuse in § 42-903, as Maria’s brief implies, or 

by whether the ex parte order was permissible at its inception. 

Instead, the district court could also consider other factors 

in its determination as to whether the ex parte order should 

remain in effect to prevent future harm.

[2] As noted above, § 42-925(1) provides, “If the respondent 

appears at the hearing and shows cause why such [ex parte] 

order should not remain in effect, the court shall rescind the 

temporary order. If the respondent does not so appear and show 

cause, the temporary order shall be affirmed . . . .” (Emphasis 

supplied.) 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. See §§ 42-903, 42-924, 

and 42-925. See, also, Linda N. on behalf of Rebecca N. v. 

William N., 289 Neb. 607, 856 N.W.2d 436 (2014) (reversing 

order that affirmed ex parte domestic abuse protection order 

where respondent’s conduct did not meet definition of abuse 

under § 42-903). But even when domestic abuse as defined by 

§ 42-903 has occurred, the language of § 42-925(1) suggests 

a wider inquiry in deciding whether to affirm or rescind an 

ex parte protection order. Section 42-925(1) frames the issue 

as whether the protection order should remain in effect and 

thus orients the court’s view toward the future and the goal of 

domestic abuse protection orders, which is to protect victims of 

domestic abuse from further harm. See Introducer’s Statement 

of Intent, L.B. 310, Judiciary Committee, 102d Leg., 1st Sess. 

(Jan. 26, 2011). See, also, 25 Am. Jur. 2d Domestic Abuse and 

Violence § 31 (2014).

[3] Therefore, in considering whether to continue an ex 

parte domestic abuse protection order following a finding 

that domestic abuse has occurred, a court is not limited to 

considering only whether the ex parte order was proper, but 

may also consider a number of factors pertinent to the likelihood of future harm. Those factors might include, but are not 

limited to, the remoteness, severity, nature, and frequency of 
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past abuse; past or pending credible threats of harm; the psychological impact of domestic abuse; the potential impact on 

the parent-child relationship; and the nuances of household 

relationships.

The principles governing injunctions support this prospective, or forward-looking, approach. Our jurisprudence has 

consistently analogized domestic abuse protection orders to 

injunctions. See, e.g., Linda N. on behalf of Rebecca N. v. 

William N., supra; Torres v. Morales, 287 Neb. 587, 843 

N.W.2d 805 (2014); Elstun v. Elstun, 257 Neb. 820, 600 

N.W.2d 835 (1999). An injunction is a tool of equity, to be 

implemented on a case-by-case basis as justice and fairness 

require. See ConAgra Foods v. Zimmerman, 288 Neb. 81, 846 

N.W.2d 223 (2014). This court has described an injunction 

as “‘an extraordinary remedial process which is granted, not 

as a matter of right, but in the exercise of the sound discretion of the court, to be determined on a consideration of all 

the circumstances of each case . . . .’” Daugherty v. Ashton 

Feed and Grain Co., Inc., 208 Neb. 159, 164, 303 N.W.2d 

64, 68 (1981). The purpose of an injunction is not to punish past actions but to prevent future mischief. See, Nesbitt 

v. Frakes, 300 Neb. 1, 911 N.W.2d 598 (2018); Conrad v. 

Kaup, 137 Neb. 900, 291 N.W. 687 (1940). And a court has 

the discretion to withhold injunctive relief “when it is likely 

to inflict greater injury than the grievance complained of.” 

City of Omaha v. Rubin, 177 Neb. 314, 318, 128 N.W.2d 814, 

816 (1964).

A prospective approach in deciding whether to rescind 

ex parte domestic abuse protection orders is also consistent 

with other provisions of the Act. The language of § 42-924 

does not limit the court to considering only whether abuse 

has occurred in deciding whether to issue a protection order. 

Section 42-924(1) provides that upon the filing of a petition 

and affidavit for a protection order by a victim of domestic 

abuse, the court “may issue a protection order.” (Emphasis 

supplied.) Giving the word “may” its ordinary, permissive, and 
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discretionary meaning, see Livingston v. Metro. Utilities Dist., 

269 Neb. 301, 692 N.W.2d 475 (2005), the court’s analysis can 

be more expansive than finding that abuse occurred pursuant to 

§ 42-903. The Nebraska Court of Appeals acknowledged this 

wider analysis in Sarah K. v. Jonathan K., 23 Neb. App. 471, 

873 N.W.2d 428 (2015).

In Sarah K. v. Jonathan K., supra, the Court of Appeals 

affirmed an order granting domestic abuse protection orders 

pursuant to § 42-924, even though the instances of alleged 

abuse were remote in time. It noted that neither § 42-903(1)(a) 

nor § 42-924(1) imposes any limitation on the time during 

which a victim of domestic abuse may file a petition and 

affidavit seeking a protection order. However, the Court of 

Appeals acknowledged that the remoteness of past abuse may 

be considered by the court in deciding whether a protection 

order is warranted and that a remote incident of abuse may 

not always support the issuance of a domestic abuse protection order. It further cited authority that “‘[d]ifferent remedies 

are required when there has been an isolated act of abuse that 

is unlikely to recur, as compared to an egregious act of abuse 

preceded by a pattern of abuse.’” Id. at 480, 873 N.W.2d at 

434, quoting Coburn v. Coburn, 342 Md. 244, 674 A.2d 951 

(1996). In concluding that the protection orders in Sarah K. v. 

Jonathan K., supra, were warranted despite the remoteness of 

the abuse, the Court of Appeals reasoned that the petitioner had 

a present fear of future abuse due to the history and pattern of 

past abuse. As Sarah K. v. Jonathan K. illustrates, the approach 

we have described for deciding whether an ex parte domestic 

abuse protection order should remain in effect is in harmony 

with the provisions for non-ex-parte protection orders issued 

under § 42-924.

In addition, in the context of modification, the Act does 

not limit the court to considering only whether there has been 

abuse. Section 42-925(4) provided, “An order issued under 

subsection (1) of section 42-924 shall remain in effect for a 

period of one year from the date of issuance, unless dismissed 
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or modified by the court prior to such date.” The court can 

only decide whether an order should be modified or dismissed 

by evaluating the parties’ situation at the time modification or 

dismissal is sought. This suggests a consideration of the initial 

determination that abuse pursuant to § 42-903 has occurred 

along with facts that emerge later and show that a protection 

order, as originally issued, is no longer necessary. While dismissal or modification under § 42-925(4) occurs at a different 

procedural stage than affirming or rescinding an ex parte order 

pursuant to § 42-925(1), engaging in such an analysis at either 

stage is not meaningfully different.

Having framed the issue as whether the domestic abuse 

protection order should have remained in effect, we now turn 

to the evidence presented at the show cause hearing. It is at 

this point that our dissenting colleague parts ways with us: We 

disagree on whether the record properly before us supports the 

district court’s order rescinding the ex parte protection order. 

As our discussion below explains, the majority cannot say that 

the district court, having heard and observed the witnesses 

as the trier of fact, erred in finding cause why the ex parte 

order should not remain in effect. But as an initial matter, we 

address the burdens of proof.

[4] 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. See 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). As noted above, a protection order 

is analogous to an injunction. See Torres v. Morales, 287 

Neb. 587, 843 N.W.2d 805 (2014). A party seeking an injunction must establish by a preponderance of the evidence every 

controverted fact necessary to entitle the claimant to relief. 

Abboud v. Lakeview, Inc., 237 Neb. 326, 466 N.W.2d 442 

(1991). In Mahmood v. Mahmud, supra, we cited this authority in the context of harassment protection orders pursuant to 

Neb. Rev. Stat. § 28-311.09 (Reissue 2016) and stated that an 
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ex parte order does not relieve the petitioner of the burden to 

establish by a preponderance of the evidence the truth of the 

facts supporting a protection order.

[5] Given that domestic abuse protection orders are a 

species of injunction and given the procedural similarities 

between § 28-311.09 and § 42-925 as they relate to show 

cause hearings following ex parte orders, we now apply the 

burden of proof we articulated in Mahmood v. Mahmud, supra. 

Such application is in line with the analytical framework set 

forth above, in which the occurrence of abuse defined by 

§ 42-903 is a threshold consideration in deciding whether to 

affirm or rescind an ex parte domestic abuse protection order. 

Accordingly, the petitioner at a show cause hearing following 

an ex parte order has the burden to prove by a preponderance of the evidence the truth of the facts supporting a protection order. Once that burden is met, the burden shifts to 

the respondent to show cause as to why the protection order 

should not remain in effect. § 42-925(1).

The dissenting opinion would have us overrule or disapprove our previous holdings to the extent that they suggest that 

the truth of the facts supporting a protection order is the only 

issue at a show cause hearing under § 43-925(1). However, 

our holding here does not change our interpretation of that 

section or our existing precedent. More precisely, our majority 

opinion speaks directly to the procedures and considerations at 

the show cause hearing, and our analysis does not abrogate our 

prior cases.

We turn now to the facts of this case, which are contained 

in the record to which our review is confined. See Hulse v. 

Schelkopf, 220 Neb. 617, 371 N.W.2d 673 (1985) (evidence 

which does not appear in record cannot be considered by 

this court on appeal). Assuming without deciding that Maria 

sustained her burden of proof, we cannot say that the district 

court erred in finding that Oscar met his burden of proof and 

showed cause why the ex parte domestic abuse protection 

order should not remain in effect.
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The primary evidence before us for consideration relates to 

the events of June 4, 2017, when Oscar broke through the door 

to Leslie’s room, entered the room, and hit her several times 

on the leg with his open hand. We acknowledge that the video 

footage of this incident is disturbing. We are not insensitive to 

its emotional impact, and we do not condone or intend to minimize Oscar’s conduct. However, the 9-second video depicts 

only a piece of the larger family dynamic at play in this case. 

That family dynamic is fleshed out more thoroughly by the 

documentary and testimonial evidence, which the district court 

heard and observed as the trier of fact. After hearing this evidence, the district court implicitly determined that it was not 

necessary to keep the domestic abuse protection order in place 

to prevent future harm.

There was no documentary or testimonial evidence that 

Emily or Leslie feared for Leslie’s physical safety on June 

4, 2017, or in the future. On the day of the incident, Emily’s 

concern was not for Leslie’s physical well-being but for the 

potential loss of privileges, which was the consequence Oscar 

typically imposed. The parties are bound by their stipulation 

that Leslie was “afraid [on] the day of [the incident].” See 

Shearer v. Shearer, 270 Neb. 178, 700 N.W.2d 580 (2005). But 

the stipulation does not specify that Leslie feared present or 

future physical harm on that day. Further, according to Emily’s 

testimony and the parties’ stipulation, neither child feared 

Oscar at the time of the show cause hearing. To the contrary, 

Emily volunteered that she missed Oscar and testified that she 

thought she would be safe with him.

There was some evidence that Oscar may have threatened 

to hit Leslie before he broke through the door. Both Emily and 

Leslie stated during the CAC interview that Oscar threatened 

to hit Leslie at that point, but Emily testified at the show cause 

hearing that she could not remember whether Oscar made 

such a threat. Either way, moments after breaking through the 

door, Oscar hit Leslie. A protection order at the time of the 

show cause hearing could not have prevented that outcome, 
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and Maria concedes that Leslie suffered no bodily injury as 

a result.

Further, the evidence does not show any pending threat of 

future harm or a pattern of abuse foreshadowing future harm. 

Oscar offered the probable cause affidavit and evidence of the 

CAC interview to demonstrate that the events on June 4, 2017, 

were a single incident and not part of a pattern of using physical force. In her affidavit supporting her request for a protection order, Maria herself affirmed that she was “shocked” 

by Oscar’s actions, suggesting that he had not behaved this 

way in the past. While Leslie reported in the CAC interview 

that Oscar had hit her in the past, she could not recall the 

circumstances, and Emily denied that Oscar had previously 

used hitting as a consequence. Further, at the time of the 

show cause hearing, other minor children remained in Oscar’s 

home, despite pending child abuse charges, the disposition of 

which is not in our record. The foregoing evidence suggests 

that the events of June 4 were an isolated incident not likely 

to recur and that a protection order was not needed to prevent 

future harm.

As Oscar’s counsel emphasized in his closing remarks, the 

district court was faced with deciding whether it should enter a 

final protection order, which had the potential to inflict greater 

“lasting damage” than the conduct that prompted the ex parte 

order. Had the district court affirmed the ex parte protection 

order, Oscar would have been enjoined from contact with 

Leslie for 1 year, absent modification. See §§ 42-924(3)(a) 

and 42-925(4). As noted, while the parties stipulated that 

Leslie was afraid on the day of the incident, the stipulation 

did not specify whether she was afraid of bodily injury on 

that day, which Maria concedes did not occur; for her future 

physical safety; or of the prospect of appropriate disciplinary measures. And the parties stipulated that Leslie did not 

fear Oscar in any way on the day of the show cause hearing. Further, Emily’s testimony indicated that they typically 

received appropriate consequences from Oscar, whom she 
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stated she misses and feels safe with. According to the record, 

Oscar had been a regular fixture in his daughters’ lives, 

exercising parenting time for 4 days every 2 weeks at his 

residence, where Emily and Leslie had their own room and 

where Oscar played a role in their care and leisure activities. 

Considering this evidence, the harm occasioned by separating 

Leslie and Oscar potentially could have been greater than the 

harm caused by the isolated incident that precipitated the ex 

parte protection order. See City of Omaha v. Rubin, 177 Neb. 

314, 128 N.W.2d 814 (1964) (court has discretion to withhold 

injunctive relief when it is likely to inflict greater injury than 

grievance complained of).

Although the dissenting opinion states that it subscribes to 

the analytical framework articulated by the majority, its reasoning seems to suggest that an ex parte protection order should 

never be rescinded if it was warranted at its inception. This is 

not correct. We recognize that in many, if not most, instances, 

a showing of abuse under § 42-903 is sufficient to merit the 

affirmation of an ex parte protection order; but as we have 

explained, it is not the only consideration in resolving the issue 

presented: whether an ex parte protection order should remain 

in effect to prevent future harm. We agree with the dissenting 

opinion that protecting victims of domestic abuse is of the 

utmost importance, but courts do not have license to assume 

future risk where the record does not support such a finding. 

Our dissenting colleague relies heavily on statements contained in the probable cause affidavit and suggests that these 

averments point to a future risk of harm. However, the dissent 

ignores altogether the testimony at the show cause hearing 

that countered such a conclusion. The district court apparently 

found this testimony to be credible in assessing the risk of 

future harm. And we give weight to the circumstances that the 

trial judge heard and observed the witnesses and accepted one 

version of the facts rather than another. See Torres v. Morales, 

287 Neb. 587, 843 N.W.2d 805 (2014).
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After giving due deference to the fact that the trial judge 

heard and observed the witnesses and relying exclusively on 

the record before us, we cannot say upon our de novo review 

of the specific facts of this case that the district court erred in 

finding that the evidence as a whole was sufficient to show 

cause why the protection order should not remain in effect. 

Consequently, we conclude that the district court did not err in 

rescinding the ex parte domestic abuse protection order. In so 

holding, we express no opinion on Maria’s addressing Oscar’s 

conduct through other avenues.

We Need Not Consider Whether 

District Court Erred in 

Referencing § 28‐1413.

Finally, we conclude by addressing Maria’s contention that 

the district court incorrectly relied on § 28-1413(1)(a) and (b), 

which provides that a parent’s use of physical discipline on 

his or her child under certain circumstances is a justifiable use 

of force under the criminal code. At common law, a parent, 

or one standing in the relation of parent, was not liable either 

civilly or criminally for moderately and reasonably correcting 

a child, but it was otherwise if the correction was immoderate and unreasonable. See Clasen v. Pruhs, 69 Neb. 278, 95 

N.W. 640 (1903). Section 28-1413(1)(a) is the codification of 

the common-law rule. We have held that § 28-1413 does not 

create or confer an affirmative right to use physical or corporal punishment, but, rather, only provides a defense against 

criminal liability. See Cornhusker Christian Ch. Home v. Dept. 

of Soc. Servs., 227 Neb. 94, 416 N.W.2d 551 (1987). Thus, 

§ 28-1413(1)(a) reflects the common-law policy of allowing 

parents some latitude in disciplining their children. However, 

having determined that the district court did not err in rescinding the ex parte protection order, we do not address the applicability of § 28-1413 to this case.
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CONCLUSION

For the foregoing reasons, we conclude that the district court 

did not err in rescinding the ex parte domestic abuse protection 

order against Oscar, and we affirm.

Affirmed

Miller‐Lerman, J., dissenti

I respectfully dissent. For purposes of this dissent, although 

I do not necessarily subscribe to the burden-shifting framework announced by the court today, I will employ it. However, 

contrary to the majority opinion, given this record and our 

de novo review thereof, I would accord greater credence to 

the known observed facts which, I believe, established the 

propriety of the temporary order, and less credence to future 

imagined evidence on which the majority relies to support its 

determination that a protection order is not warranted. Thus, I 

would find that the temporary order was properly entered and, 

because Oscar’s evidence does not show that he cares more 

for the well-being of his young daughter than his electronic 

device, to protect the child, it should not have been rescinded. 

I would reverse the order of the district court.

In the context of the show cause hearing from which this 

appeal is taken, as I see it, courts should focus on the language 

of Neb. Rev. Stat. § 42-925(1) (Reissue 2016), which describes 

the issue at the show cause hearing, i.e., whether the respondent has shown that the temporary order should be rescinded. 

This is not a motion to dismiss or for modification under 

§ 42-925(4); so, contrary to the majority, I resist reliance on 

this inapplicable statute. Of course, Oscar can seek dismissal 

or modification at a future stage.

Before today’s gloss, we have said that the fact issue before 

the court deciding whether to rescind an ex parte domestic 

abuse protection order at a show cause hearing is whether the 

plaintiff proved the truth of the facts of abuse as stated in the 

sworn domestic violence protection order application. Torres v. 

Morales, 287 Neb. 587, 843 N.W.2d 805 (2014); Mahmood v. 
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Mahmud, 279 Neb. 390, 778 N.W.2d 426 (2010). To the extent 

that past cases suggest that the truth of the application is the 

only issue at a show cause hearing under § 42-925(1) where the 

respondent appears, they should be overruled or at least disapproved by the majority. Torres v. Morales, supra; Mahmood v. 

Mahmud, supra. See, also, Rosberg v. Rosberg, 25 Neb. App. 

856, 916 N.W.2d 62 (2018); Hronek v. Brosnan, 20 Neb. App. 

200, 823 N.W.2d 204 (2012); Zuco v. Tucker, 9 Neb. App. 155, 

609 N.W.2d 59 (2000).

Maria Showed That Oscar Abused Leslie, 

as Defined by Statute, and the Temporary 

Protection Order Was Properly Entered.

For purposes of this dissent, I employ the majority’s 

burden-shifting framework. In so doing, I would find that Maria 

carried her burden on the “threshold question” of whether 

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

(Reissue 2016), thus supporting the temporary protection order. 

According to both Emily and Leslie, the video of the incident, 

and the affidavit of Deputy John Hensel, the evidence showed 

that Oscar threatened to hit his 10-year-old daughter Leslie; 

that Oscar kicked open her bedroom door with a force so great 

as to destroy the door; that Oscar rushed at Leslie and hit her 

multiple times, enraged and screaming at her; and that Leslie 

hid from Oscar in her room, assumed a defensive posture, and 

screamed as he approached and hit her.

Deputy Hensel swore in a probable cause affidavit filed in 

Oscar’s corresponding criminal case that the video filmed by 

Emily shows: “a bedroom with children in it; then the bedroom 

door is broken in half . . . and an adult male [Oscar] is seen 

running in and hitting one of the children with an open hand 

multiple times very aggressively while another child screams 

and cries in the background.” Oscar’s strikes are forceful, and 

they are audible in the video. Leslie reported to Deputy Hensel 

that Oscar had hit her before, but could not remember when or 

how it happened.
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The evidence established that Leslie feared for her physical safety on the day Oscar hit her. There is no evidence that 

Leslie did not fear Oscar; on the contrary, the parties actually 

stipulated that Leslie was afraid of Oscar on the day of this 

incident, and this is fully supported by the record.

Thus, I believe that the preponderance of the evidence at 

the hearing was that Oscar made a “credible threat” which 

placed Leslie “in fear of bodily injury,” meeting the definition 

of abuse under § 42-903(1)(b). The temporary protection order 

was properly entered.

Oscar Did Not Establish by Evidence That 

There Was No Risk of Future Harm and 

Therefore Failed to Show Cause Why 

the Temporary Order Properly 

Entered Should Be Rescinded.

As stated above, for purposes of this dissent, I employ the 

burden-shifting framework announced by the majority today. 

In so doing, I look to the evidence presented by Oscar and 

jurisprudence which inform the assessment of future harm. I do 

not believe that Oscar demonstrated that a protection order was 

not needed to protect Leslie against future harm.

Under § 42-925(1), when the respondent, in this case Oscar, 

requests a show cause hearing, “the court shall immediately 

schedule a show-cause hearing.” The statute continues: “If the 

respondent appears at the hearing and shows cause why such 

order should not remain in effect, the court shall rescind the 

temporary order.” As I read the statute, there is a statutory 

presumption that the temporary order properly entered should 

be continued--and Oscar’s evidence did not overcome the presumption. Of course, even if the ex parte protection order was 

warranted, it can be rescinded based on the evidence presented 

by the respondent at the show cause hearing.

Several factors are relevant in evaluating the likelihood 

of future harm to the subject of a protection order, such as 

Leslie. Those factors might include, but are not limited to, the 
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remoteness, severity, nature, and frequency of past abuse; past 

or pending credible threats of harm; the psychological impact 

of domestic abuse; and the nuances of household relationships. I note that some jurisdictions list the relevant factors 

statutorily. See, e.g., 725 Ill. Comp. Stat. Ann. 5/112A-14(c) 

(LexisNexis Cum. Supp. 2009). In these jurisdictions, the 

courts consider the pattern and consequences of past abuse 

and consider the danger that any minor child will be abused, 

neglected, or improperly removed from the jurisdiction or 

improperly separated from the child’s primary caretaker. Id. 

Applying the many factors listed above, Oscar did not show 

by the preponderance of the evidence that the protection order 

should be rescinded.

The district court received only limited testimony from 

Emily and no testimony from Oscar or his partner and other 

children to “flesh out” the larger family dynamic at play 

in this case. I reviewed the testimony and the other limited 

evidence, and it does not weigh in favor of Oscar. I agree 

with the majority that the “family dynamic” is an important 

consideration. And while I agree with the majority’s subtext 

in support of family reunification, Oscar did not necessarily 

establish the profile of “unity” the majority hopes to create. 

According to this record, Maria, Leslie’s mother, has full 

custody of Leslie, and Oscar has parenting time every other 

weekend. Oscar and Maria are not married, and Oscar did not 

demonstrate, such as by a court order, that his parenting is 

formalized. In any event, the object of the current case is to 

protect the child.

Turning to the evidence, approximately 3 months passed 

between the June 4, 2017, incident captured on video and 

the September 11 show cause hearing; this abuse was not 

remote. Oscar, who carried the burden to show cause at this 

hearing, failed to create a record which would demonstrate 

that his conduct was a one-time lapse of judgment. On the 

contrary, the record indicates that Oscar was angry because his 

investment in an electronic device was lost. His unrestrained 
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reaction suggests a lack of control, not a pattern of thoughtful discipline.

In an interview with law enforcement directly following the 

June 4, 2017, incident, Leslie reported that Oscar had hit her 

in the past. In a contemporaneous interview, Leslie’s sister, 

Emily, denied being hit by Oscar. I disagree with the majority that this limited evidence compels the conclusion that the 

“events . . . were an isolated incident not likely to recur.” The 

burden was on Oscar at this stage, not on Leslie.

As noted, Leslie reported that Oscar had hit her in the past, 

Leslie chose to lock herself in her bedroom away from Oscar, 

and Emily felt she should videotape Oscar’s display of rage 

and send it to Maria by text message. The majority minimizes 

the risk of harm of escalating domestic violence and ignores 

the possibility that its decision may subject Leslie to future 

abuse or a cycle of abuse despite Maria’s attempt to protect 

her daughter. In this regard, I note that some states, by statute, 

recognize that domestic violence between family members 

may include a mother’s justified fear of harm to her child by 

that child’s father. E.g., Wash. Rev. Code Ann. § 26.50.010(3) 

(West 2016); Rodriguez v. Zavala, 188 Wash. 2d 586, 398 P.3d 

1071 (2017). Oscar could have shown this was an isolated 

incident unlikely to recur, but he did not do so; the preponderance of the evidence is that he has placed Leslie in fear of 

bodily injury, and there is no evidence that he would not do 

so again.

This case raises serious concern about the psychological 

impact of domestic abuse and the future possible abuse of 

Leslie given the nuances of household relationships demonstrably in place here. Leslie is a 10-year-old child and did not 

testify at the show cause hearing. The parties stipulated that 

“she was afraid [on] the day of [the June 4 incident], but she 

has also said that she is not afraid of her dad at this time.” 

This change in her reporting should be taken at face value and 

stretched no further. It is not uncommon for battered children, 

as well as abused partners, to recant their claims or express 
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reluctance with proceeding against an abuser. A child’s willingness to return to his or her parent does not discredit the 

child’s original report of domestic abuse. The lack of fear at 

the time of the show cause hearing may even be evidence the 

ex parte protection order has been serving its purpose to protect the victim.

As one court noted in a case where a mother obtained a 

protection order against a father who disciplined a 4-year-old 

child with a belt and left bruises:

“[The children] were asked if they wanted to see their 

father. Of course they do. Children who suffer way more 

serious abuse still want to see their abuser. That is not 

uncommon. It is not their decision. The Court must decide 

for them. In this case, there was no testimony to allow the 

Court to believe the father won’t do this again. He has not 

participated in any services. He doesn’t even think he did 

anything wrong.”

Smith v. Murphy, 2017 Ark. App. 188, at 10, 517 S.W.3d 453, 

459 (Mar. 29, 2017).

When a child expresses reluctance to continue with legal 

proceedings, as with an adult petitioner, it has been observed 

that it is prudent for a court to question the child outside the 

presence of the abuser to ascertain fully whether the respondent 

is coercing the child victim. See Catherine F. Klein & Leslye 

E. Orloff, Providing Legal Protection for Battered Women: An 

Analysis of State Statutes and Case Law, 21 Hofstra L. Rev. 

801 (1993). We should not automatically exclude a child from 

a protection order because she fails to show fear of a potential 

harm which she may not fully understand.

I would not discredit the child’s report of abuse which initiated this ex parte protection order. See Bacchus v. Bacchus, 

108 So. 3d 712 (Fla. App. 2013) (noting that courts should 

consider both circumstances giving rise to protection order 

and events occurring after protection order was issued). Nor 

should Leslie’s report that Oscar had hit her in the past be 

discredited. A person’s past conduct is important evidence in 
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predicting his or her future conduct. Likewise, I find it significant that Oscar faced legal culpability for his conduct in the 

Saline County District Court based on this incident.

I also consider events occurring after the ex parte protection order was put in place. Despite facing criminal consequences, Oscar did not admit wrongdoing in his approach to 

“discipline” toward Leslie. The record is also silent on whether 

Oscar acknowledged the psychological effect of his behavior 

or whether he had changed his behavior around his children 

to assuage their reasonable fears. Oscar reported that he hit 

Leslie three times, but Deputy Hensel stated in his report that 

the video shows him hitting Leslie five times. Oscar submitted no evidence that he participated in any services, such as 

therapy sessions, parenting classes, anger management classes, 

or any other remedial measures. See Smith v. Murphy, supra. 

He offered no evidence demonstrating a prospect for insight or 

change. Without evidence that the event was isolated, or evidence of Oscar’s recent conduct, I cannot find that he showed 

that Leslie did not need protection from future harm. “‘[T]here 

was no testimony to allow the Court to believe the father won’t 

do this again.’” Id. at 10, 517 S.W.3d at 459.

The district court’s decision to rescind the ex parte protection order did not rest on correct legal principles, and it is not 

apparent that the court took into consideration the entirety of 

the facts in the record. “‘[A] court need not await certain disaster to come into fruition before taking protective steps in the 

interest of a minor child.’” In re Interest of Lilly S. & Vincent 

S., 298 Neb. 306, 316, 903 N.W.2d 651, 660 (2017). I conclude 

that the district court erred when it found that Oscar had carried 

his burden of proof to show that the ex parte domestic abuse 

protection order should be rescinded. I would reverse the order 

of the district court.