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HAWKINS v. DELGADO

Cite as 308 Neb. 301

Keeley Brianne Hawkins, appellee, 

v. Erick Delgado, appellant.

___ N.W.2d ___

Filed January 29, 2021. No. S-20-417.

1. Protection Orders: Appeal and Error. The grant or denial of a harassment protection order is reviewed de novo on the record.

2. Appeal and Error. The grant or denial of a stay of proceedings is 

reviewed for an abuse of discretion.

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

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

4. Protection Orders: Injunction: Proof. A protection order is analogous 

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

the claimant to relief.

Appeal from the District Court for Douglas County: Thomas 

K. Harmon, County Judge. Affirmed.

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

Guerra & Associates, for appellant.

Kristina B. Murphree and Steven J. Riekes, of Marks, Clare 

& Richards, L.L.C., for appellee.

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

Papik, and Freudenberg, JJ.

Nebraska Supreme Court Online Library

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

03/26/2021 08:08 AM CDT
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HAWKINS v. DELGADO

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Heavican, C.J.

INTRODUCTION

An ex parte harassment protection order was entered by 

the trial court against Erick Delgado. Following a hearing, the 

order was continued. Delgado appeals. We affirm.

FACTUAL BACKGROUND

Delgado and Keeley Brianne Hawkins are both first lieutenants in the U.S. Air Force. At the relevant time, Hawkins was 

stationed at Offutt Air Force Base in Bellevue, Nebraska, and 

Delgado was stationed at a base in Tucson, Arizona. The two 

dated off and on beginning in September 2017 and through the 

end of December 2019. At various points Hawkins tried to end 

their relationship, but whenever she did so, Delgado would 

threaten to commit suicide or to ruin Hawkins’ career.

Hawkins ultimately ended the relationship on December 

28, 2019. Hawkins informed Delgado, via text message, that 

he should not contact her and that she would “block him” on 

social media if he did so. In response, Delgado again threatened suicide, saying that he had “talked to God” and that he 

would leave her his life insurance. The next day, Delgado 

apologized and said he would not contact Hawkins.

A few days later, on January 3, 2020, Hawkins alleges that 

Delgado placed a video call to her while she was on deployment abroad. Delgado was in his closet with a noose around 

his neck. He told Hawkins that either she could get back 

together with him or he would commit suicide. Hawkins was 

able to contact a mutual friend who stopped Delgado from suicide. At that time, Hawkins attempted to “block” Delgado on 

social media.

A few days later, Hawkins received an email message at 

an old email account that she had not blocked. In it, Delgado 

expressed concern that others not find out about his most 

recent suicide threat. Hawkins did not reply.

Approximately 1 week later, Delgado texted Hawkins, 

this time using a “burner” cell phone. In his text message, 
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HAWKINS v. DELGADO

Cite as 308 Neb. 301

Delgado told Hawkins that he loved her, said he was trying 

to get assigned to Offutt Air Force Base, and asked if she had 

received the flowers he had sent. Delgado also told Hawkins 

that if she blocked the number he was using, he would just 

“‘get another burner. Lol.’” Again, Hawkins asked Delgado to 

stop contacting her.

Hawkins alleges that Delgado did not stop. A few days later, 

on January 18, 2020, he sent her two email messages. One 

message read, “‘Time has come. Karma.’” The other message 

said, “‘It won’t stop till it all burns. That I promise.’” A day 

later, on January 19, Delgado emailed, “‘There is a storm coming. Afterwards there shall be the calm. Keeley you will be free 

from yourself and your past.’”

On January 23, 2020, Hawkins sought a no-contact order 

through her commanding officer in the Air Force. Reciprocal 

no-contact orders were issued on January 31. Within 2 days, 

Delgado contacted Hawkins again, telling her that the order 

was a “‘[n]ice try’” and threatening to come to Omaha, 

Nebraska.

On February 3, 2020, Hawkins sought a harassment protection order from the Douglas County District Court. In support 

of her request, Hawkins related the above instances and further 

noted that she had

tried everything to get [Delgado] to leave me alone and 

he won’t stop. At this point my entire well-being has deteriorated rapidly. My sense of safety is completely gone. 

I am living in fear each day, scared of what [Delgado] 

might do next. He knows where I live and could possibly 

have access to a key to my home. It had become clear to 

me that he had no intention of respecting my decisions, 

boundaries, or safety. The fear and stress of the situation 

has affected my ability to fall and stay asleep, my appetite 

is gone, and long periods of concentration is [sic] now 

nearly impossible.

I am scheduled to deploy in two weeks. I have to 

remain hypervigilant because I do not know what he 
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is capable of. I have had my locks re-keyed, I have notified my neighbors to call the police if he shows up at 

my house, and I am getting a security system installed 

this Thursday.

An ex parte order was issued that day.

On February 20, 2020, Delgado, in his own behalf, sought a 

hearing on whether the ex parte order should be continued. A 

hearing was set for March 19. Delgado also retained counsel, 

who entered an appearance on March 4.

Meanwhile, on February 28, 2020, Hawkins filed a motion to 

continue the hearing under a provision of the Servicemembers 

Civil Relief Act (SCRA). 1 That motion was granted, and the 

hearing was delayed to April 30, then to May 7.

The hearing took place on May 7, 2020. Hawkins and her 

counsel appeared in person. Delgado did not appear, but was 

represented by counsel. During the hearing, Hawkins asked 

that Delgado’s request for a hearing be dismissed because 

Delgado did not appear in person. Delgado’s counsel indicated 

that Delgado was on base in Arizona, could not appear in person, and but for Hawkins’ objection, could have appeared telephonically or by video conference. Counsel for Delgado also 

verbally requested a stay under the SCRA. Finally, Delgado’s 

counsel argued that the ex parte harassment protection order 

was unnecessary because of the military’s no-contact order.

Following the hearing, the trial court entered an order generally finding that the ex parte order should continue in effect. 

Specifically, the court found that because Delgado appeared 

via counsel, he did not fail to appear, and that therefore, 

Hawkins’ motion to dismiss should be denied. The court also 

found that (1) Delgado’s oral motion was not a proper request 

for a stay under the SCRA and accordingly denied the motion 

for a stay; (2) the military no-contact order had expired on 

March 31, 2020, and thus the court need not determine issues 

relating to whether it and a harassment protection order could 

1 50 U.S.C. § 3932 (Supp. V 2018).
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both be issued; and (3) there was good cause to extend or continue the harassment protection order until 1 year from the date 

of the original order—or February 3, 2021.

Delgado appeals.

ASSIGNMENTS OF ERROR

Delgado assigns that the trial court erred in (1) finding sufficient support to order the ex parte harassment protection order 

and (2) not staying the show cause hearing.

STANDARD OF REVIEW

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

reviewed de novo on the record. 2

[2] The grant or denial of a stay of proceedings is reviewed 

for an abuse of discretion. 3

ANALYSIS

Harassment Protection Order.

Delgado first assigns that the trial court erred in allowing the 

continuation of the ex parte order, contending that there was 

insufficient evidence to support the grant of the order.

Harassment protection orders are governed by Neb. Rev. 

Stat. § 28-311.09 (Supp. 2019):

(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 as provided in subsection (3) 

of this section. . . .

(2) The petition for a harassment protection order shall 

state the events and dates or approximate dates of acts 

constituting the alleged harassment, including the most 

recent and most severe incident or incidents.

Neb. Rev. Stat. § 28-311.02(2)(a) (Reissue 2016) defines 

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

2 Richards v. McClure, 290 Neb. 124, 858 N.W.2d 841 (2015).

3 See Schuessler v. Benchmark Mktg. & Consulting, 243 Neb. 425, 500 

N.W.2d 529 (1993).
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conduct directed at a specific person which seriously terrifies, 

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

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

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

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

or telephoning, contacting, or otherwise communicating with 

the person.”

[3,4] 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. 4 A protection order is analogous to an injunction. 5 A party 

seeking an injunction must establish by a preponderance of the 

evidence every controverted fact necessary to entitle the claimant to relief. 6

Given the language of Nebraska’s stalking and harassment 

statutes and the purpose announced by the Legislature for 

enacting the statutes, an objective construction of the statutes 

is appropriate, and the victim’s experience resulting from 

the perpetrator’s conduct should be assessed on an objective basis. 7

Delgado directs this court to Glantz v. Daniel,

 8 Yancer v. 

Kaufman,

 9 and Casaday v. Winterstein 10 to support his contention that his conduct was insufficient to support the continuation 

4 Maria A. on behalf of Leslie G. v. Oscar G., 301 Neb. 673, 919 N.W.2d 

841 (2018).

5 Id.

6 Id.

7 See In re Interest of Jeffrey K., 273 Neb. 239, 728 N.W.2d 606 (2007).

8 Glantz v. Daniel, 21 Neb. App. 89, 837 N.W.2d 563 (2013).

9 Yancer v. Kaufman, 22 Neb. App. 320, 854 N.W.2d 640 (2014).

10 Casaday v. Winterstein, No. A-17-1246, 2018 WL 4042863 (Neb. App. 

Aug. 16, 2018) (selected for posting to court website).
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of the ex parte order. More specifically, Delgado argues that 

the interactions he had with Hawkins did not amount to harassment under § 28-311.02(2)(a) because he did not threaten her 

with physical violence, or indeed threaten her in any way. In 

addition, Delgado essentially suggests that his actions against 

Hawkins were so infrequent as to not qualify as a course of 

conduct under § 28-311.02(2)(b).

As an initial matter, we disagree with Delgado’s assertion 

that he did not threaten physical violence. In two different 

messages sent on January 18, 2020, Delgado told Hawkins, 

“‘Time has come. Karma,’” and also, “‘It won’t stop till it all 

burns. That I promise.’” The next day, Delgado sent another 

email that said, “‘There is a storm coming. Afterwards there 

shall be the calm. Keeley you will be free from yourself and 

your past.’”

Viewed objectively, these messages—in particular Delgado’s 

statement that Hawkins will be “‘free from yourself’”—could 

be read as threatening physical harm. Contributing to the 

interpretation is that these messages were preceded by other 

messages in which Delgado threatened suicide on multiple 

occasions, wondered about how it was that he became a manipulator and abuser, and further indicated that he would come 

to Omaha. It was after these messages on January 18 and 19, 

2020, that Hawkins sought a military no-contact order.

In any case, the definition of “[h]arass” in § 28-311.02(2)(a) 

is not limited to threats of physical violence—it also includes 

conduct that “seriously terrifies” or “intimidates.” In fact, 

physical violence is only implicitly referenced in the definition 

of the word “harass,” via the term “threatens.”

We have reviewed the cases relied upon by Delgado and find 

them distinguishable. In two of those cases, due to mootness 

and an insufficient record, the merits of the appeals were not 

fully considered. The third case was both factually distinct as 

well as unpublished.
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Nor does it matter that Delgado’s messages were of a lesser 

frequency than in, for example, In re Interest of Jeffrey K.,

 11

which included approximately 200 instances of verbal abuse. 

The plain language of the definition of “[c]ourse of conduct” 

in § 28-311.02(2)(b) notes that it includes “a series of acts over 

a period of time, however short.”

Hawkins’ application indicated that Delgado had threatened 

suicide prior to her ending their relationship on December 28, 

2019. Thereafter, beginning on December 29, Delgado texted, 

emailed, or called Hawkins every few days. After Hawkins 

attempted to block communications from Delgado, he managed 

to contact her via an older email account and a “burner” phone. 

Hawkins then obtained a no-contact order through the military; 

Delgado’s response was to email her to say “‘[n]ice try’” and 

threaten to come to Omaha.

Though these exchanges lasted just over a month, they 

occurred every few days. Delgado went out of his way to contact Hawkins even after she blocked him and had a no-contact 

order entered. The contact ceased only after Hawkins obtained 

the ex parte harassment protection order. This constitutes a 

“[c]ourse of conduct”—a “series of acts” performed over the 

course of over 1 month, “evidencing a continuity of purpose,” 

as required by §§ 28-311.02(2)(b) and 28-311.09.

There was sufficient evidence to support the continuation of 

the ex parte order. Delgado’s first assignment of error is without merit.

Stay.

Delgado next assigns that the trial court erred in not granting 

his request for a stay.

We turn first to the provisions of the SCRA. The SCRA generally provides a stay in “any civil action or proceeding” where 

the plaintiff or defendant “is in military service or is within 

11 In re Interest of Jeffrey K., supra note 7.
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90 days after termination of or release from military service” 

and “has received notice of the action or proceeding.” 12

In order for an application for a stay to be granted, such a 

request “shall include” a “letter or other communication setting forth facts stating the manner in which current military 

duty requirements materially affect the servicemember’s ability to appear and stating a date when the servicemember will 

be available to appear,” and a “letter or other communication 

from the servicemember’s commanding officer stating that the 

servicemember’s current military duty prevents appearance and 

that military leave is not authorized for the servicemember at 

the time of the letter.” 13

We have limited case law on the SCRA. In Carmicheal 

v. Rollins,

 14 this court found no error in the district court’s 

denial of a stay under the SCRA even where all requirements 

of the SCRA were met. There, despite filings that indicated 

the applicant was not available, the record showed that the 

applicant had, in fact, appeared at the hearing in question; 

thus, her ability to appear was not materially affected by her 

military service.

More recently, the Nebraska Court of Appeals decided 

Rickert v. Rickert.

 15 That court found the requirements of the 

SCRA were not met where the letter from the applicant’s 

commanding officer did not state that “current military duty 

prevented [the applicant] from appearing and did not state that 

military leave was not authorized.” 16 The Court of Appeals 

concluded that the district court did not err in denying the 

application for a stay where the applicant failed to comply with 

the requirements set forth in the SCRA.

12 50 U.S.C. § 3932.

13 Id.

14 Carmicheal v. Rollins, 280 Neb. 59, 783 N.W.2d 763 (2010).

15 Rickert v. Rickert, 27 Neb. App. 533, 934 N.W.2d 384 (2019).

16 Id. at 541-42, 934 N.W.2d at 391.
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In addressing an argument raised by the applicant in Rickert, 

the Court of Appeals acknowledged that “[c]ourts inherently 

possess the power to stay civil proceedings when required by 

the interests of justice.” 17 The Court of Appeals, which had 

already rejected the applicant’s argument on appeal for failure 

to comply with the SCRA, concluded that there was likewise 

no abuse of discretion in not granting an SCRA stay under the 

court’s inherent authority.

A review of the record shows that Delgado did not comply with the requirements of the SCRA. Counsel referenced 

the SCRA at the hearing on the continuance of the ex parte 

order, but no written application was filed—only a verbal 

request was made that was limited to a reference to the 

SCRA. Counsel made no specific allegations about Delgado’s 

availability, except to note that he was not present and could 

not travel, apparently due to travel restrictions. These verbal representations do not comply with the requirements of 

the SCRA.

For similar reasons, we reject any suggestion that the court 

should have granted a stay under the SCRA in the absence of 

compliance with the statute. The record supports a conclusion 

that such a stay was not sought until the day of the hearing 

and, as noted, that such a request was only made orally and 

was not accompanied by any explanation as to why Delgado 

could not appear, aside from a general assertion that he was 

stationed in Arizona and was unable to travel, apparently due 

to travel restrictions. While the provisions of the SCRA might 

be entitled to a liberal construction, such liberal construction is 

not a license to fail to comply with the primary requirements 

of the SCRA.

While there is some suggestion that Delgado sought permission to appear telephonically or by video conference, there 

17 Id. at 543, 934 N.W.2d at 392, citing Schuessler v. Benchmark Mktg. & 

Consulting, supra note 3.
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is no request for such an appearance in the record. Moreover, 

at the relevant time, Neb. Rev. Stat. § 24-734 (Reissue 2016), 

which has since been amended, required the other party to 

give consent to such an appearance; apparently, no consent 

was given. In addition, the record before this court is devoid 

of any information about what Delgado might have testified to 

had he been allowed to appear by telephone or video conference. As such, we cannot tell what prejudice, if any, Delgado 

suffered as a result of his inability to appear.

Finally, we note that Delgado did not seek a continuance 

under any other provision of Nebraska law. 18

We find no abuse of discretion in the trial court’s denial of 

an SCRA stay. Delgado’s second assignment of error is without merit.

CONCLUSION

The decision of the trial court is affirmed.

Affirmed.

18 See Neb. Rev. Stat. § 25-1148 (Reissue 2016).